People v. Rial

573 N.E.2d 842, 214 Ill. App. 3d 420, 158 Ill. Dec. 29, 1991 Ill. App. LEXIS 941
CourtAppellate Court of Illinois
DecidedJune 5, 1991
Docket3-90-0082
StatusPublished
Cited by12 cases

This text of 573 N.E.2d 842 (People v. Rial) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Rial, 573 N.E.2d 842, 214 Ill. App. 3d 420, 158 Ill. Dec. 29, 1991 Ill. App. LEXIS 941 (Ill. Ct. App. 1991).

Opinion

JUSTICE McCUSKEY

delivered the opinion of the court;

A jury convicted the defendant, Larry Rial, of attempted murder, armed robbery, aggravated kidnapping, and armed violence. The trial court vacated the armed violence conviction and sentenced the defendant to concurrent terms of 30, 30, and 15 years’ imprisonment, respectively. This court affirmed his conviction on appeal. (People v. Rial (3d Dist. 1983), No. 3— 83—0276 (unpublished order under Supreme Court Rule 23).) Thereafter, the defendant filed a post-conviction petition, which the trial court dismissed without a hearing. The defendant appeals that dismissal. We affirm.

The record shows that the defendant filed a pro se post-conviction petition and thereafter counsel was appointed to represent him. The defendant continued to file pro se supplemental and amended petitions. Thereafter, defendant’s counsel filed a motion to withdraw as counsel, stating that no amendments to the defendant’s pro se petitions could be made and that no constitutional issues existed which could be presented to the court.

The trial court granted defense counsel’s motion, and the defendant proceeded on his pro se petitions. The State filed a motion to dismiss the petitions, and the trial court granted the motion.

On appeal, the defendant first argues that he was denied effective assistance of counsel due to the trial court’s error in allowing his post-conviction counsel to withdraw.

In a post-conviction case, compliance with Supreme Court Rule 651(c) (87 Ill. 2d 651(c)), which requires certification that the attorney consulted with the petitioner, examined the record, and made any necessary changes in the petition, is sufficient representation. People v. Robinson (1987), 160 Ill. App. 3d 366, 513 N.E.2d 603.

Here, the record shows that the defendant’s counsel complied with Supreme Court Rule 651(c). In his motion to withdraw, counsel certified the following: (1) he had consulted with the defendant on two occasions; (2) he had examined the entire record of the trial proceedings and the common law record; and (3) it was his opinion no amendments to the defendant’s pro se petition were necessary based on counsel’s conclusion that no constitutional issues existed which could properly be presented to the court in a post-conviction proceeding. The record also shows the trial court conducted a hearing on counsel’s motion before granting it.

Based on the record, we find that defense counsel adequately consulted with the defendant and would have been aware of any necessary amendments to the petition. As such, we conclude defendant’s counsel complied with Rule 651(c) and rendered effective assistance.

The defendant next argues the trial court erred in dismissing his petition without a hearing. He alleges he was entitled to a hearing due to the fact his petition raised eight errors that occurred below.

The defendant’s first two alleged errors concern ineffective assistance of counsel.

A defendant is not entitled as a matter of right to an evidentiary hearing on a post-conviction petition alleging incompetency of counsel. (People v. Hanrahan (1985), 132 Ill. App. 3d 640, 478 N.E.2d 31.) Conclusional allegations concerning the competency of counsel are not sufficient to require a post-conviction hearing. (People v. Howard (1981), 94 Ill. App. 3d 797, 419 N.E.2d 702.) Furthermore, a defendant who alleges incompetency must show that counsel’s shortcomings affected the outcome of the proceedings. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Denial of an evidentiary hearing on a post-conviction petition is discretionary with the trial court, and its decision will not be reversed absent an abuse of that discretion. People v. Hanrahan (1985), 132 Ill. App. 3d 640, 478 N.E.2d 31.

In the case at hand, the defendant first contends that his counsel was ineffective because counsel was running for public office and as such was not able to devote adequate time to the defendant’s case. He alleges that due to this, counsel failed to adequately interview witnesses and investigate.

When the defendant attacks the competency of his counsel for failing to call or contact witnesses, he must attach affidavits from those witnesses to his post-conviction petition and explain the significance of their testimony. (People v. Carmickle (1981), 97 Ill. App. 3d 917, 424 N.E.2d 78.) Here, the defendant has failed to support his allegations with affidavits from witnesses pointing out testimony that would have been favorable to him or would have affected the outcome of the proceedings. As such, we cannot say his counsel was ineffective.

The defendant next alleges his counsel was ineffective for failing to file a motion to suppress evidence. Specifically, he states that evidence found in his home was improperly admitted because he never gave the police consent to search his home.

The record shows that Deputy Sheriff Raymond Compton testified the defendant gave him permission to search his home. The defendant does not cite, nor were we able to find, any evidence in the record contradicting Compton’s testimony. Accordingly, we find the defendant’s contention to be without merit.

The defendant raises a number of different issues wherein he contends he is entitled to an evidentiary hearing due to errors of constitutional dimension.

A defendant is not entitled to an evidentiary hearing as a matter of right, but has the burden of showing a substantial denial of his constitutional rights. (People v. Hanrahan (1985), 132 Ill. App. 3d 640, 478 N.E.2d 31.) The denial of an evidentiary hearing on a post-conviction petition is discretionary with the trial court, and its decision will not be reversed absent a manifest abuse of discretion. People v. Reed (1980), 84 Ill. App. 3d 1030, 405 N.E.2d 1065.

The defendant first argues the trial court erred in dismissing his petition because the State withheld evidence favorable to him. He contends that four witnesses conspired against him and the State failed to turn over a diary which contained evidence of the conspiracy. In addition, the State withheld information regarding the victim’s criminal history.

The suppression by the State of material evidence favorable to an accused which was requested by the defense is a violation of due process. (People v. Morgan (1979), 76 Ill. App. 3d 302, 395 N.E.2d 103.) In the case at hand, the defendant has failed to support his claim the State withheld evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
573 N.E.2d 842, 214 Ill. App. 3d 420, 158 Ill. Dec. 29, 1991 Ill. App. LEXIS 941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-rial-illappct-1991.