*1 while the facts are accessible.” Geneva Construction Co. v. Martin & Co. Ill. 2d Storage Transfer 289-90. we that the
Finally, reject plaintiff’s argument appel late court’s order is in conflict decisions of other appellate districts which have allowed amendments to correct pleadings similar errors. Plaintiff places reliance on Anderson v. primary Behr 299 Ill. 90, and Hatcher v. App. Kentner 120 Ill. App. 571. We find both cases stated, unpersuasive. Simply these two cases permitted amendments which did not al lege different occurrence from that set forth original complaint.
For the stated, reasons we affirm the judgment court.
Judgment affirmed. (No. 61227.
THE ILLINOIS, PEOPLE OF THE STATE OF Appel-
lee, JAMES, v. THOMAS RAY Appellant.
Opinion February filed *2 SIMON, JJ., dissenting. GOLDENHERSH and *3 Defender, of Assistant Public Bergschneider, Gaye Danville, for appellant. General,
Neil F. of Hartigan, Attorney Springfield Stewart, General, J. Solicitor and Mark L. Rotert (Roma General, E. and James Assistant Fitzgerald, Attorneys of of for the Chicago, counsel), People. MILLER of the
JUSTICE delivered opinion court: trials, defendant Thomas James was separate jury The ap
found of murder and murder. guilty attempted Ill. (82 App. court affirmed the murder conviction pellate Ill. 2d R. filed (87 23) 3d and a Rule 23 order 551), affirmed the conviction for attempted the same day, (81 murder Ill. 3d Defendant App. 1202). petitioned for a of as United States Court writ certiorari Supreme conviction, alleging inquiries the murder that police his had violated his statements leading inculpatory v. Arizona under Miranda 436, 384 U.S. rights Ed. 2d Ct. 1602. The 694, 16 L. 86 S. and judgment, defendant’s vacated the
accepted
petition,
of Ed
light
remanded
case for reconsideration
wards v. Arizona 477,
451 U.S.
remand,
court re
appellate
versed 3d for a new trial. 100 Ill. App. case statements used Contending inculpatory him at for murder were simi attempted his trial against of his un rights obtained violation constitutional larly Miranda, in the of der defendant filed circuit court Ver milion for under County relief petition Act ch. (Ill. Post-Conviction Rev. Stat. Hearing 7). alleged 122 —1 James also through pars. 122 — incompetent counsel was for appellate petition conviction for review James’ to seek further failing the defend murder. The circuit court denied attempted an evi relief without petition post-conviction ant’s Ill. 2d R. In a Rule order hearing. (87 23), dentiary Edwards to the at court found inapplicable no assistance case, found ineffective tempted-murder Ill. counsel, (127 and affirmed the denial relief. App. for leave to We defendant’s accepted Ill. 2d and affirm. R. 315(a)) arrested Defendant May of David and the at- the murder Holler charged being murder of Samuel While Cartwright. tempted station, read his to the defendant was police transported Arizona under Miranda v. *4 that he would 2d S. Ct. and said 16 L. Ed. 86 station, At the police to talk to an the attorney. like his Miranda rights. Although read defendant again met, an had not been earlier for attorney James’ request the him. The halted police the police began question occasions; following many on a of number interrogation of his breaks, of readvised defendant these police After making before resuming questioning. initial for counsel while taken to being police request however, further mention of a station, James made no an Subsequently, desire to speak attorney. to the police defendant made statements incriminating and to others about his in both the murder participation and the murder. attempted
In a on defendant’s in- hearing motion suppress statements, criminating trial court found that defendant had not a desire for an at- clearly expressed but had counsel. torney, only inquired Finding about James’ statements had been made freely voluntarily, the court ruled that defendant’s state- post-detention ments would be admissible as evidence at trial. a trial at which James’ state
Following inculpatory evidence, ments were introduced into a found jury defendant of the guilty murder Samuel attempted The court im Cartwright. sentenced James to 30 years’ In a trial at prisonment. which James’ state separate admitted, ments were also found James jury guilty Holler, murder of David for which he was sentenced to a term. Both 40-year prison convictions were affirmed 82 Ill. appeal. App. (murder); 81 Ill. 3d App. (Rule order) murder). (attempted
Defendant’s counsel elected to challenge defendant’s murder conviction the United by petitioning States Supreme Court for a writ of certiorari. Counsel maintained James’ statements im- inculpatory were admitted at defendant’s murder trial. properly 26, 1981, In a memorandum filed the Su opinion May d defendant’s preme grante writ certiorari and vacated the in the murder case. judgment *5 to the Illi Appellate
court remanded the case in nois, District, light Fourth for reconsideration the earlier Court’s decision announced Supreme eight days Edwards v. Arizona 477, 68 L. 451 U.S. Ed. in remand, 378, 101 S. Ct. On court appellate 2d introduc Edwards precluded that the State from ruled evidence, into the defendant’s statements ing post-arrest conviction, remanded the reversed James’ murder in Nothing for a new Ill. 3d App. case trial. con record, however, indicates counsel why appellate in defend statements used only inculpatory tested trial; de ant’s murder that defendant had been finding his case rights constitutional that would prived have rendered James’ statements inculpatory similarly inadmissible in his for murder. attempted trial conviction, reversal of his murder
Following filed a for relief his post-conviction petition defendant Hear under the Post-Conviction case attempted-murder 38, ch. 122—1 (Ill. Act Rev. Stat. ing pars. that In James his through 7). petition, alleged his 122— under Edwards were violated State’s use rights by attempted at his of his statements trial inculpatory violated murder, in the his had been rights by same way in the trial. James also the use of his statements murder his to seek discre counsel’s failure argued appellate review of conviction tionary attempted-murder James or the United States Court denied Supreme court counsel. the effective assistance of for an evi- The trial court denied defendant’s request claims. The court af- hearing on his appellate dentiary that Edwards denial, not applica- finding firmed attack on a conviction in a collateral retroactively ble Solem v. recent decision under the Court’s Supreme 79 L. 2d 104 S. Stumes Ed. defend- also that the court found Ct. 1338. of counsel. not the effective assistance ant was denied allowed defendant's for leave to un We der Rule Ill. R. 315(a) (94 315(a)). Edwards v. Arizona 68 L.
Ed. 2d Court held confession, the use of a criminal defendant’s ob- tained custodial the defend- interrogation, violates ant’s fifth and fourteenth amendment if the ac- cused’s for counsel was not previous observed. request The court after stated that an accused invokes his right *6 counsel, to the accused not be further may interrogated until him, counsel has been made to unless the available accused himself initiates further communication police. Edwards, its decision in
Following
Supreme
Court
cases,
remanded several
including
present
conviction,
defendant’s murder
for reconsideration
of Edwards.
Shea v. Louisiana
light
(See
(1985),
470
51,
n.3,
U.S.
55
38,
n.3,
84 L. Ed. 2d
44
1065, 1068
n.3.)
not, however,
court did
expressly
determine whether Edwards was applicable retroactively
v.
Solem Stumes
until its decision in
465 U.S.
638,
Solem,
79 L. Ed. 2d
ruling apply the time Ed on direct in a State court at ing appeal wards was decided. The court cases on di distinguished rect from cases under collateral attack noting review the considerations in the finality implicit judicial pro The court that while a defendant seek recognized cess. through review has taken his case already collateral ing a defendant on direct the primary judicial proceedings, For has not completed process. persons review not “the curtain has been finality direct appeal, 38, 47, S. 51, 60, drawn.” 1065, 1070. Ct. case, more than 14 months be elapsed
In the present court affirmed tween March when and the an convictions on direct appeal, defendant’s of Edwards 1981. The defendant’s May nouncement his con this court for leave option murder had before expired long viction for attempted in Edwards was handed down. Ill. 2d R. the decision the State ap Because defendant had 315(b).) completed States and had not the United petitioned pellate process *7 for a writ of certiorari on his attempted- Court Supreme final conviction, conviction had become be murder proceeding. fore he instituted the present post-conviction Louisiana, of Edwards Shea v. does holding Under not to the instant case. apply on a for petition action brings present
Defendant under the Post-Con relief. A proceeding post-conviction v. Vail (People Act is not an Hearing viction attack on a judg is a collateral 589) 46 Ill. 2d but (1970), v. People Jennings 411 Ill. (1952), ment. (See Stumes, therefore, we hold that defend v. of Solem light of a violation consti allege failed to sufficiently ant has Edwards which would him entitle tutional under
291 to relief. post-conviction that he his
Defendant also contends was denied con- counsel. stitutional to effective assistance of He right his for incompetent submits that counsel was appellate to either this court or the United States failing of Court for his conviction for at- Supreme review tempted murder.
In Wainwright
Torna
586,
455
71 L.
U.S.
1300,
Ed.
102
475,
S. Ct.
Court
Supreme
held
that counsel’s failure to
file for
timely
re-
discretionary
view
a State’s
court did
highest
deprive
not
defendant
effective assistance of
of
counsel.
court
Ross v.
600,
noted
decision
its
Moffitt
41 L.
94
where it had held that
Ed. 2d
S. Ct.
to the
right
criminal defendant had no constitutional
assistance of counsel
State
either discretionary
ap-
or
peals
to the
for
applications
Supreme Court
review.
Because the defendant
right
counsel,
had no
to
the court
reasoned Wainwright,
the defendant could not be de-
prived of the effective
of
assistance
counsel
his attor-
to
failure
file an
ney’s
re-
application
discretionary
586, 587-88,
view.
71 L.
477-78,
U.S.
Ed. 2d
102 S. Ct.
1301.) As
recently
in Evitts v.
Lucey 469
explained
n.7,
n.7,
A is not entitled to an post-conviction petitioner evi- v. Gaines as a (People hearing right. matter dentiary *8 292 Hear 79.) Rather, 105 Ill. 2d the Post-Conviction
(1984), Act ing dismissal of nonmeritorious permits summary v. (People Dere without an petitions evidentiary hearing. ngowski 44 Ill. 2d Because the defendant has failed to claim of a violation present any legitimate constitutional that rights, his we hold his relief was dismissed. post-conviction properly of the court is af- Accordingly, judgment appellate firmed.
Judgment affirmed. GOLDENHERSH, JUSTICE dissenting: v. under Edwards I The that agree dissent. parties Arizona 68 L. Ed. 2d 101 S. the statement which defendant’s convic- upon Ct. tion rests was in violation of his constitutional obtained rests its affirmance of the judgment rights. majority v. Solem Stumes of the court S. Ct. which that Edwards did not to a apply held habeas corpus proceeding a State collaterally attacking judgment.
The sine non of a qua enunciated principle judi- cial limit which would retroactive opinion application is that it be new and a from an departure established Stumes, Solem dissent Justice Stevens rule. in Edwards is not a new holding demonstrated arguendo, that Edwards constitutional rule. Assuming, the rule a rule new to the Federal judiciary, announced Edwards is not new in Illinois. ap- taken into at custody In this case defendant was thereafter and an hour p.m. approximately proximately of his He was several rights. questioned was advised in a cell times during evening finally placed before Sometime midnight. during period shortly he asked to use the and to interrogation telephone speak *9 to an attorney. officers talked with him at 11 again a.m. the following and asked him if he day wanted to talk. He was interrogated several times the during course of and the statement day, in question taken at approximately p.m. evening. occasions,
On at least two this court has applied rule of allegedly “new” Edwards. In v. People Henen berg (1973), Ill. 2d this court held that a statement obtained in the of course interrogation subsequent to defendant’s see a request should have lawyer been suppressed. People Washington (1977), Ill. 2d it 186, was held that a statement made during interroga
tion which continued after request defendant’s for coun sel must I be submit that suppressed. Edwards adopted the of interpretation Miranda found in Henenberg and Washington which has prevailed in this jurisdiction since 1973.
Assuming, arguendo, new, that the rule is fundamen- tal justice proscribes the same holding statement, taken under admittedly circumstances which this court to be 1973 held in violation of defendant’s constitu- tional serves rights, to sustain the conviction in the one case, but not in the other. The defendant’s constitutional just were as effectively violated in the conviction which was in the involved as post-conviction proceeding in the one on direct The fortuitous appeal. circumstance that his direct has de- been concluded should not him prive of his constitutional rights.
In his dissent Solem v. Stumes Justice Stevens stated far more I than can the reason eloquently why is judgment wrong should be reversed. Justice Stevens said:
“The Court is about the understandably concerned conduct of private not, law breakers. That concern should however, overriding divert its attention from the impor- by those of- requiring
tance of strict obedience to law in- ficials are with its enforcement —and who entrusted deed, its For of this kind interpretation. decisions have effect in a dedicated to rule society a corrosive is, all, profound There after wisdom Justice law. Brandéis’ observation:
‘Decency, security and alike demand that liberty subjected shall be to the same government officials to the citizen. In that are commands rules conduct laws, government existence of the government scrupu- if the law imperilled will be it fails observe omnipres- is the lously. potent, Our Government ill, good For it teaches whole ent teacher. or If the example. contagious. its Crime is people lawbreaker, it becomes a breeds con- Government *10 law; a every invites man to law tempt it become himself; anarchy. it To that in the unto invites declare justifies of the criminal law end administration may that the com- the means —to declare Government of a pri- in order to secure the conviction mit crimes bring terrible retribution. vate criminal —would doctrine Court should Against pernicious States resolutely set its face.’ Olmstead United 944, 959-60, 48 [(1928), 72 L. Ed. J., dissenting)]. (Brandéis, S. Ct. 638, 667, 79 L.
I dissent.” 465 U.S. Ed. respectfully 1338,1354. JUSTICE SIMON in this dissent. joins SIMON, also JUSTICE dissenting: add and I in Justice Goldenhersh’s dissent join following observations. circumstances, agree I cannot unique these are the distinction be- justified
different outcomes Although finality direct and collateral review. tween virtue, it not is an should important the criminal process common fairness or at the cost sacrificing be achieved why not reveal the reasons cer- sense. The record does tiorari the defendant sought by one ease and not defects, however, in the other. The which rendered the statements inadmissible in both applied equally cases. To hold that a set single of facts issue can single legal result in a criminal conviction in one case standing reversed in another makes being the law appear overly technical and may thus contribute to the mistrust and confusion with which many regard legal process.
JUSTICE joins GOLDENHERSH this dissent.
(No. 61302. THE PEOPLE THE STATE ILLINOIS, OF OF Appel-
lant, MARTIN-TRIGONA, v. ANTHONY Appellee.
Opinion February filed