delivered the opinion of the court:
Dеfendant was convicted of armed robbery after a jury trial and sentenced to a period of 10 to 20 years. His conviction was affirmed by this court оn appeal (People v. Slifer,
The post-conviction petition raised the point that during the hearing on aggravation and mitigation, the trial court was told of an “unresolved” robbery charge. It was alleged that this was a violation of the defendant’s constitutional rights in that he had not been convicted of this charge and, in fact, the trial had resulted in a hung jury and a mistrial. This appeal is based upon alleged error in the failure of the trial court to appoint counsel other than the public defender and in the failure of appointed counsel to file a certification or otherwise show that he complied with Supreme Court Rule 651. No attack has been made upon the dismissal of the pеtition without a hearing on the merits.
Defendant’s argument on the first point is that there was a conflict of interest with the public defender as he was alleging thе incompetency of the public defender in the appeal in a federal habeas corpus action. In support of his propоsition, defendant cites People o. Smith,
This case can be distinguished from Smith. At the time of the hearing on the petition herein, the appointed attorney did bring this motion for appointment of counsel other than the public defender to the trial court’s attention. He represented to the court that he wrote to the defendant saying that since there was a different public defender (a different attorney had assumed that role), there probably would not be any reason to appoint other counsel and defendant reрlied by letter saying that he had no other reason for wanting other counsel. This was the representation that was made to the court and there hаs been no denial that that representation was accurate or a correct representation of what the defendant told his aрpointed counsel. It is also noted that the incompetency alleged here is that in the handling of the appeal and not that in the trial cоurt; it is the latter proceeding to which the post-conviction petition is directed. As was further pointed out in Smith, “# # * under the Post Conviction Hearing Act therе is no absolute right to appointment of non-public defender counsel, and such appointment is within the discretion of the trial court”, (p. 623.) Under the above circumstances, where there was actuaUy a different counsel representing the defendant and where the defendant had acquiesced in such representation, it cannot be said that the court abused its discretionary powers in not appointing counsel other than the рublic defender.
The second point raised by this appeal is the failure of the public defender to comply with Supreme Court Rule 651(c), (Ill. Rev. Stat. 1971, сh. 110A, par. 651(c)), which provides as follows:
“* * * The record filed in that court shall contain a showing, which may be made by the certificate of petitionеr’s attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional right, has examined the record of the proceedings at the trial, and has made any amendments to the petition filed pro se that are necessary for an adequate presentation of petitioner’s contentions.”
It is pointed out that there has been no certificate filed with this record.
The plaintiff answers by saying that a certificate is not necessary in light of the showing in the record that there was correspondenсe between the attorney and the defendant. The record discloses, however, only a brief reference to this correspondence and the reference is in regard to the issue of the appointment of counsel; there is no showing that any correspondence was directed to the defendant to ascertain his contentions as to constitutional deprivation. It is also urged that the argument of counsel shows familiarity with the record and the hearing on aggravation and mitigation. However, the points raised in the argument were points raised on the petition itself and the attachments to the petition. There was no showing that beyond the examination of the petition the trial record was examined.
There is no shоwing that the attorney consulted with the defendant to ascertain his contentions of deprivation of constitutional rights or that he examined the reсord of the proceedings at the trial or made any amendments to the petition that may be necessary for adequate representation. (People v. Harris,
Judgment affirmed upon compliance with order; otherwise rеversed and remanded.
TRAPP and SIMKINS, JJ., concur.
ORDER OF NOVEMRER 6, 1973
The court having examined the Certificate obtained and filed in compliance with the opinion delivered in this court in this cause finds that the statement of counsel now on file shows compliance with Supreme Court Rule 651(c).
It is therefore ordered that pursuant to said original opinion, the judgment is affirmed.
Judgment affirmed.