People v. Anderson ( 1997 )


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  •                                          SIXTH DIVISION
    May 23, 1997
    No. 1-95-0847
    THE PEOPLE OF THE STATE OF ILLINOIS,  )  Appeal from the
    )  Circuit Court of
    Plaintiff-Appellee,         )  Cook County
    )
    v.                          )
    )
    ROBERT ANDERSON,                      )
    a/k/a Martinez Moore,                 )  Honorable
    )  Themis N. Karnezis,
    Defendant-Appellant.        )  Judge Presiding.
    MODIFIED ON DENIAL OF REHEARING
    PRESIDING JUSTICE GREIMAN delivered the opinion of the
    court:
    Defendant Robert Anderson, a/k/a Martinez Moore, appeals the
    trial court's dismissal of his pro se petition for post-
    conviction relief as frivolous and patently without merit.
    Defendant previously had pled guilty to one count of home
    invasion and received an eight-year sentence to be served
    consecutively with the sentence from another, unrelated
    conviction.
    Two issues are raised on appeal: (1) whether the statements
    made by the prosecutor during the dismissal proceeding constitute
    reversible error; and (2) whether defendant's pro se petition for
    post-conviction relief sufficiently established a claim of
    ineffective assistance of counsel for failure to withdraw
    defendant's guilty plea.
    We affirm.
    On June 11, 1993, defendant was charged by a six-count
    indictment that included the offense of home invasion from an
    incident that occurred on May 30, 1993.  The charges stated that
    defendant, armed with a baseball bat, entered the residence of
    Leanya Letcher, threatened the imminent use of force against her,
    and struck her in the head with a baseball bat.
    On November 18, 1994, defendant pled guilty to the home
    invasion charge.  At the guilty plea hearing, defendant was
    represented by private counsel.  Defendant's attorney stated to
    the court that "[w]e have conveyed to [defendant] the result of
    the continuation of the [Rule] 402 conference" and defendant
    decided to enter a plea of guilty.  The trial court advised
    defendant of the charges against him, the applicable sentencing
    range (6 to 30 years), other possible penalties (such as a fine
    up to $10,000), his right to a trial by jury, and other attendant
    legal rights, such as the right to remain silent and confront the
    witnesses against him.  After defendant stated that he understood
    these rights, defendant presented his jury waiver and continued
    in his plea of guilty.
    Defendant further agreed that he was entering his plea of
    guilty freely and voluntarily, that no one had threatened or
    forced him to plead guilty, and the recommended sentence would be
    eight years in prison.  The State then submitted the factual
    basis for the charged offense and defendant stipulated to the
    factual basis of the charge.
    The trial court accepted defendant's plea of guilty and the
    recommended eight-year sentence.  The trial court advised
    defendant of his appeal rights as follows:
    "I want to advise you, Mr. Moore, that you have a
    right to appeal the decision of this court.  In order
    to perfect that right you must file within 30 days a
    notice of appeal.  That must be in writing and signed
    by you.
    If you are indigent a free copy of the transcript
    will be provided, also an attorney.
    Any point not set out in your motion to vacate
    your plea of guilty will be deemed waive."
    Defendant stated that he understood the trial court's
    instructions.
    On January 26, 1995, defendant filed a pro se petition for
    post-conviction relief and a motion for appointment of counsel.
    In his petition, defendant averred that he was denied effective
    assistance of counsel because his counsel (1) failed to withdraw
    his guilty plea upon defendant's request and (2) failed to file a
    motion to suppress defendant's confession on the grounds that it
    was involuntary and coerced.  Regarding his desire to withdraw
    his guilty plea, defendant stated that he "did inform counsel he
    wanted to withdraw his guilty plea and was informed counsel
    didn't think it was prudent."  Defendant also alleged that about
    three weeks after pleading guilty, he had sent his attorney a
    letter stating that he wanted to withdraw his guilty plea and he
    "did not receive any reply from counsel."  No affidavits or
    supporting documents were attached to the petition.
    On February 1, 1995, the trial court denied defendant's
    post-conviction petition.  At the proceeding, the trial court
    recounted defendant's guilty plea and sentence, acknowledged
    receipt of the documents filed by defendant, and noted the
    specific allegations in the petition.  The trial court observed
    that neither a motion to withdraw his plea of guilty nor an
    appeal had been filed and ruled that defendant "has waived any
    matters which could have properly been brought by way of filing a
    motion to vacate or in the alternative a notice of appeal."  The
    trial court further stated that the points raised by defendant
    "are in fact supported by an affidavit, that it is his affidavit"
    and there are no additional affidavits to support his
    contentions.  The following exchange then occurred between the
    assistant State's Attorney and the court:
    "MR. BYRNE [Assistant State's Attorney]: Judge,
    just also I recall the case as well as I don't know
    what the defendant's affidavit specifically states but
    I remember him being represented by very able,
    competent counsel.
    THE COURT: Yes, he was, by several private
    attorneys.
    MR. BYRNE: Mr. Wolff and Mr. Hickey.
    THE COURT: Not only Mr. Wolff and Mr. Hickey and
    Mr. Nemzin, that firm represented him.
    Let me see.  Well, the affidavit is just the
    affidavit, he was read the foregoing by him,
    subscribing the same is true and correct.
    So most respectfully his post-conviction petition
    will be denied.  That will be the order."
    On appeal, defendant first asserts that the statements made
    by the assistant State's Attorney's at the post-conviction
    proceeding were patently improper and, therefore, the summary
    dismissal order should be reversed and the cause should be
    remanded for further post-conviction proceedings.  Defendant
    maintains that (1) the prosecutor's remark "I don't know what the
    defendant's affidavit states" was an impermissible observation
    directed at the sufficiency of the claim; and (2) the
    prosecutor's remark "I remember him being represented by very
    able, competent counsel" was an impermissible opinion meant as a
    candid contradiction to defendant's assertion of ineffective
    assistance of counsel.
    The State contends that the comments made by the assistant
    State's Attorney were incidental and had no effect on the
    decision of the trial court.  The State maintains that the first
    challenged statement ("I don't know what the defendant's
    affidavit states") indicates that the prosecutor had not even
    seen the petition, let alone argued its merits.   The State
    submits that in the second challenged statement ("I remember him
    being represented by very able, competent counsel. *** Mr. Wolff
    and Mr. Hickey"), the prosecutor was merely reminding the judge
    of the identity of defendant's trial counsel, that such
    information was a matter of record and not a comment on the
    merits of the petition.  The State further argues that the trial
    court's statements demonstrate that it dismissed the petition
    based upon the trial court's independent review of the petition
    and opinion of its merits.
    The Post-Conviction Hearing Act (the Act) establishes a
    three-step process for adjudication of a petition for post-
    conviction relief.  725 ILCS 5/122-1 et seq. (West 1994).  The
    court must first determine whether the petition is frivolous or
    is patently without merit.  725 ILCS 5/122-2.1(a)(2) (West 1994).
    If the petition is found to be frivolous or patently without
    merit, the court may summarily dismiss the petition.  725 ILCS
    5/122-2.1(a)(2) (West 1994).  Second, if the petition is not
    summarily dismissed, then the court may appoint counsel to
    represent an indigent defendant.  725 ILCS 5/122-4 (West 1994).
    Counsel may amend the post-conviction petition and the State may
    then move to dismiss the petition.  725 ILCS 5/122-5 (West 1994).
    The third stage provides for an evidentiary hearing at the
    discretion of the trial court.  725 ILCS 5/122-6 (West 1994).  On
    review of matters decided under the Act, the trial court's
    determinations will not be disturbed unless manifestly erroneous.
    People v. Whitehead, 
    169 Ill. 2d 355
    , 365 (1996).
    The present case was summarily dismissed and, therefore, did
    not advance beyond the first stage.  At the first stage, "the
    circuit court considers the petition independently, without any
    input from either side."  People v. Gaultney, No. 80172, slip op.
    at 6-7 (December 19, 1996).  Where the trial court dismisses a
    post-conviction petition in the first stage, reversal on appeal
    "is required where the record shows that the circuit court sought
    or relied on input from the State when determining the petition
    is frivolous."  Gaultney, slip op. at 8.  Where the record shows
    no such indication, we must presume that the trial judge acted
    properly.  Gaultney, slip op. at 8-9.
    In Gaultney, the supreme court affirmed the dismissal of the
    defendant's post-conviction petition as frivolous and patently
    without merit.  The State in Gaultney filed a motion to dismiss
    even though such filing is premature and improper at the first
    stage.  The supreme court held that "[t]he mere early filing of a
    motion or responsive pleading by the State, however, does not per
    se contaminate the circuit court's determination pursuant to
    section 122-2.1" because the premature filing of such motion
    "does not prevent the circuit court from independently evaluating
    whether a post-conviction petition is frivolous or patently
    without merit."  Gaultney, slip op. at 7-8, citing People v.
    Mitchell, 
    218 Ill. App. 3d 401
    (1991).  The supreme court
    rejected the defendant's argument that the circuit court's order
    demonstrated reliance on the State's motion to dismiss.
    Gaultney, slip op. at 9.
    The supreme court in Gaultney expressly agreed with the
    approach of prior appellate decisions in determining whether or
    not the trial judge's independent evaluation was tainted at the
    first stage of a post-conviction petition proceeding.  Gaultney,
    slip op. at 8.  With Gaultney in mind, defendant relies on six
    cases which held that the trial court improperly considered
    matters or arguments outside the post-conviction petition in
    determining whether the petition would be summarily dismissed as
    frivolous or patently without merit:  People v. Oury, 259 Ill.
    App. 3d 663 (1994); People v. Barker, 
    258 Ill. App. 3d 323
    (1994); People v. Rutkowski, 
    225 Ill. App. 3d 1065
    (1992); People
    v. Merritte, 
    225 Ill. App. 3d 986
    (1992); People v. Novak, 
    200 Ill. App. 3d 189
    (1990); and People v. Brothers, 
    179 Ill. App. 3d 788
    (1989).
    After the defendant in Oury filed a pro se post-conviction
    petition, the trial court granted the defendant leave to sue as a
    poor person and appointed the public defender to represent her.
    The State filed a motion to strike the defendant's petition,
    asserting that it was lacking form and substance.  The record
    revealed that the trial "court expressed its preference to decide
    with the benefit of counsel's argument whether the petition was
    frivolous or patently without merit.  ***  [A]fter hearing the
    arguments of the State and of appointed defense counsel, the
    court granted the State's motion to strike and dismissed the
    petition as frivolous and patently without merit under section
    122-2.1(a) of the Act."  
    Oury, 259 Ill. App. 3d at 666
    .
    In Barker, the trial court committed reversible error in
    summarily dismissing the defendant's post-conviction petition
    where it "invited premature legal argument from attorneys for
    both sides before summarily dismissing defendant's petition" and
    asked "the parties to advocate their positions in anticipation of
    the court's independent preliminary determination of the
    petition's merit."  
    Barker, 258 Ill. App. 3d at 326
    .
    The defendant in Rutkowski filed a second amended post-
    conviction petition pro se.  At the first hearing, the "State
    argued that defendant had not presented an affidavit to prove
    that a psychiatrist, who testified at defendant's trial, was not
    properly licensed."  
    Rutkowski, 225 Ill. App. 3d at 1067
    .  Two
    days later the trial court dismissed the defendant's post-
    conviction petition as being frivolous and without merit.  The
    appellate court held that "[t]he record reflects that the trial
    court considered the State's arguments" from two days prior to
    its rendering its decision.  
    Rutkowski, 225 Ill. App. 3d at 1067
    .
    In Merritte, the summary dismissal of the defendant's pro se
    post-conviction petition was reversed where the State orally
    moved to dismiss the petition and presented arguments in support
    of its position, and the trial court specifically found the
    petition to be frivolous and patently without merit "based on the
    reasons stated by Counsel in his argument and based on the
    further statement by the Court."  
    Merritte, 225 Ill. App. 3d at 986
    .  The appellate court reversed the dismissal, finding that
    "the State argued its motion to dismiss at length before the
    court" and "the court specifically stated that the dismissal of
    the post-conviction petition was based, at least in part, on the
    reasons presented by the State in its oral argument."  
    Merritte, 225 Ill. App. 3d at 987
    .
    In Novak, the State conceded that the summary dismissal of
    the defendant's pro se post-conviction petition was error where
    the State filed a motion to dismiss and the court proceeded to
    dismiss the petition pursuant to the State's motion.  
    Novak, 200 Ill. App. 3d at 190-91
    .
    During the hearing on the defendant's petition in Brothers,
    the trial court asked the State to address the issue of whether
    defendant was entitled to be represented by counsel during these
    proceedings.  After its response, the State was "allowed to argue
    that the alleged constitutional violation raised in defendant's
    petition was meritless and the petition should be dismissed."
    
    Brothers, 179 Ill. App. 3d at 789
    .  Defendant made no response.
    The trial court continued the matter and appointed the public
    defender's office to represent defendant.  After the public
    defender stated that her appointment was tantamount to finding
    that the defendant's petition was not frivolous, the trial court
    ruled "for the reasons that the State's Attorney has indicated,
    the petition on its face does not set forth substantive reasons
    to justify the granting of the post-conviction relief ***.  *** I
    am going to go ahead and grant the State's motion to dismiss
    [defendant's] petition for post-conviction relief."  
    Brothers, 179 Ill. App. 3d at 790
    .
    Unlike the above cases, which found improper participation
    by one or both of the parties, the trial court, in the present
    case, did not request or invite or seek to entertain, in any way,
    input or argument from either party.  Moreover, the trial court
    did not state or even imply that its ruling was based, in any
    way, on the State's comments.  Furthermore, the State made no
    motions, either written or oral.
    In Gaultney, the supreme court held that "reversal is
    required where the record shows that the circuit court sought or
    relied on input from the State when determining whether the
    petition is frivolous."  Gaultney, slip op. at 8.  In the present
    case, the transcript establishes that the trial court had clearly
    read and considered defendant's petition, determined that certain
    issues were waived, and decided to summarily dismiss the petition
    independent of any input by the State.  The State expressly
    acknowledged that it did not know the contents of defendant's
    petition but recalled the identity of the defense counsel.  The
    trial court restated the names of defense counsel and, in fact,
    included one more name.  While we believe that the State's
    characterization of the attorneys' reputations as "very able" and
    "competent" should have been left unspoken, we find that those
    comments did not contaminate the trial court's independent
    decision-making ability.  To hold that the trial judge's decision
    was less than independent based on the record here insults the
    ability of the trial court to distinguish between uninvited,
    incidental remarks of the State and the substantive legal matters
    raised in the petition.  Moreover, counsel's competency, as
    acknowledged by the State, related to in-court conduct while the
    petition complained of counsel's conduct outside the record and
    subsequent to the trial.
    Next, defendant addresses the merits of his petition and
    asserts that his pro se post-conviction petition sufficiently
    raised the claims that (1) he received ineffective assistance of
    counsel because his counsel failed to act on his desire to
    withdraw his guilty plea and, thereby, failed to perfect an
    appeal; and (2) the guilty plea proceedings were defective.
    Defendant urges this court to overlook the absence of any
    affidavit attached to the petition, to look beyond the language
    of the petition, and to infer an unstated claim for failure to
    perfect an appeal from the stated claim of failure to withdraw
    his guilty plea.
    To determine the sufficiency of the claims now advanced by
    defendant, we are instructed by the Act and case law regarding
    waiver, the need to attach an affidavit or supporting documents
    to a post-conviction petition, and the standard to apply to the
    summary dismissal stage of post-conviction proceedings.
    Section 122-3 of the Act provides that "[a]ny claim of
    substantial denial of constitutional rights not raised in the
    original or an amended petition is waived."  725 ILCS 5/122-3
    (West 1994).  Relying on this statutory provision, the Illinois
    Supreme Court held that an argument not raised in a post-
    conviction will not be considered on review and is deemed waived.
    Gaultney, slip op. at 10-11; see also People v. Guest, 
    166 Ill. 2d
    381, 405 (1995).
    The Act also dictates that a post-conviction proceeding will
    be commenced by the filing of "a petition *** verified by
    affidavit."  725 ILCS 5/122-1 (West 1994).  "[O]ur courts have
    specifically held that the absence of affidavits, records or
    other evidence in support of the post-conviction petition renders
    the petition insufficient to require an evidentiary hearing."
    People v. Johnson, 
    154 Ill. 2d 227
    , 240 (1993) (and cases cited
    therein); People v. Seaberg, 
    262 Ill. App. 3d 79
    , 82 (1994) ("the
    allegations of a post-conviction petition must be supported by
    the record in the case or accompanying affidavits").
    To withstand dismissal of a post-conviction petition at the
    first stage, "a petition need only present the gist of a
    constitutional claim."  Gaultney, slip op. at 7 (summary
    dismissal affirmed); People v. Brown, 
    169 Ill. 2d 94
    , 101 (1995)
    (summary dismissal affirmed).  While our courts recognize that a
    pro se defendant cannot be expected to draft a petition as
    artfully as would counsel and need not construct legal arguments
    or cite legal authority, such petitioner is required to present
    the gist of his claim in a sufficient manner for the trial court
    to make an initial determination as to whether the claim is
    frivolous or patently without merit.  People v. Porter, 
    122 Ill. 2d
    64, 74 (1988); People v. Lemons, 
    242 Ill. App. 3d 941
    , 946
    (1993).  Notwithstanding the relaxed standard applicable to a
    post-conviction petition at the first stage, a pro se defendant
    must still plead sufficient facts from which a valid
    constitutional claim could be found.  
    Lemons, 242 Ill. App. 3d at 946
    ; see also People v. Hernandez, 
    283 Ill. App. 3d 312
    , 316
    (1996) ("courts closely scrutinize post-conviction petitions to
    determine whether they contain sufficient facts from which the
    trial court could find a valid claim of deprivation of a
    constitutional right") (emphasis in original).
    First, defendant asserts, as specifically stated in his
    appellate brief, "the trial court's dismissal of [defendant's]
    pro se post-conviction petition must be reversed because the
    petition raised the non-frivolous constitutional claim that he
    received the ineffective assistance of counsel at trial where
    counsel failed to perfect [his] appeal, that is, after [he]
    informed counsel that he desired to withdraw his plea of guilty,
    counsel did nothing."
    To establish a claim for ineffective assistance of counsel,
    a two-pronged test applies: (1) that counsel's performance fell
    below an objective standard of reasonableness; and (2) that there
    is a reasonable probability that defendant was prejudiced by
    counsel's deficient performance.  Strickland v. Washington, 
    466 U.S. 668
    , 
    80 L. Ed. 2d 674
    , 
    104 S. Ct. 2052
    (1984).  In a post-
    conviction matter, no showing of prejudice is required where
    counsel failed to perfect the defendant's appeal.  People v.
    Moore, 
    133 Ill. 2d 331
    , 339 (1990); People v. Cole, No. 1-95-
    1710, slip op. at 3 (March 20, 1997); 
    Hernandez, 283 Ill. App. 3d at 317
    .  Notwithstanding the presumption of prejudice in such a
    case,
    "the mere allegation that counsel failed to perfect an
    appeal is not enough.  Defendant must still satisfy the
    first prong of Strickland, i.e., that counsel's
    performance in failing to perfect an appeal was
    deficient.  In order to establish deficient
    performance, defendant must allege that he communicated
    to counsel a desire to appeal (citations), or at least
    satisfactorily explain why he did not request an appeal
    earlier."  
    Hernandez, 283 Ill. App. 3d at 318
    .
    The instant defendant's post-conviction petition does not
    allege that counsel failed to perfect an appeal, does not allege
    that he communicated to counsel a desire to appeal, and does not
    offer any explanation why he did not request an appeal earlier.
    Instead, defendant alleged that he "did not want to accept the
    guilty plea and asked his attorney to withdraw his plea and
    prepare the case for trial."  All we have is defendant's bare and
    unsubstantiated allegation that he informed counsel that he
    wanted to withdraw his guilty plea.  Defendant first stated that
    he "did inform counsel he wanted to withdraw his guilty plea and
    was informed counsel didn't think it was prudent."  Defendant
    also claimed to have written counsel a letter to inform him of
    his desire to withdraw his guilty plea but received no reply.
    Not only are these allegations inconsistent, they also lack any
    supporting documents, such as the alleged letter written by
    defendant.
    The cases on which defendant relies (Cole, Hernandez, and
    Swanson) are distinguishable because the post-conviction
    petitions at issue included the allegation that the defendant
    wanted to appeal and attached affidavits.  In Cole, the defendant
    attached two affidavits to his pro se post-conviction petition
    and "stated in his petition that after being misled by counsel,
    he was not satisfied and wanted to appeal."  (Emphasis added.)
    Cole, slip op. at 3.  In Hernandez, the defendant attached
    affidavits to his pro se petition for post-conviction relief,
    alleged that counsel had a duty to perfect an appeal, and offered
    an explanation regarding the reasons for not requesting an appeal
    earlier.  
    Hernandez, 283 Ill. App. 3d at 315
    , 318.  In Swanson,
    the defendant attached affidavits to his pro se post-conviction
    petition and alleged "that he was denied the effective assistance
    of counsel because his appointed counsel failed to file a notice
    of appeal."  
    Swanson, 276 Ill. App. 3d at 131
    .  In contrast to
    Cole, Hernandez, and Swanson, the instant defendant did not
    attach any affidavits or any supporting documents to his
    petition, and did not mention an appeal in his post-conviction
    petition.
    Under the Act defendant has waived this issue for failure to
    include it in his petition.  In addition, defendant failed to
    attach any affidavit or supporting documents to support such a
    claim as required under the Act.  Moreover, even under the most
    relaxed standard, an unstated claim should not and cannot suffice
    to withstand summary dismissal.  To hold that the petition at
    issue in the present case triggers an evidentiary hearing would
    effectively mean that any petition can.  Such principle defies
    the Act.
    Second, defendant asserts that the guilty plea proceeding
    was defective because the trial court did not sufficiently
    apprise him of the sentencing alternatives and his appellate
    rights.  Under the Act, this issue is waived because defendant
    made no mention of it in his petition.  Moreover, the Illinois
    Supreme Court has held that where a defendant fails to allege in
    his post-conviction petition that the guilty plea proceeding was
    defective in some way, the issue is waived when first raised on
    appeal.  People v. Williams, 
    52 Ill. 2d 466
    , 468 (1972) (where he
    failed to present the allegation in his post-conviction petition,
    the defendant could not advance, on appeal, the claim that the
    admonition given him by the trial judge before accepting his
    guilty plea was inadequate); People v. Barber, 
    51 Ill. 2d 268
    (1972) (the defendant waived review of his contention that his
    plea of guilty was not knowingly and voluntarily entered because
    he failed to raise it in his original petition) (and cases cited
    therein).  The failure to attach an affidavit or supporting
    documents to the petition would not necessarily be fatal to this
    issue because we have the record of the guilty plea proceeding
    before us.  Even assuming that we ignore the waiver rule, apply
    the exception to the affidavit requirement, and reach the merits,
    we find that the transcript of the guilty plea proceeding reveals
    that all requisite admonishments were given by the trial court.
    For all the foregoing reasons, the trial court's dismissal
    of defendant's post-conviction petition as frivolous or patently
    without merit was not manifestly erroneous.
    Affirmed.
    THEIS, J., concurs.
    ZWICK, J., dissents.
    JUSTICE ZWICK, dissenting:
    I disagree with the majority's conclusion that the trial
    court considered defendant's petition and dismissed it
    independent of any input by the State.
    The decision People v. Gaultney, 
    174 Ill. 2d 410
    , 418
    (1996), unequivocally mandates that, prior to summarily
    dismissing a pro se post-conviction petition, the trial court is
    obligated to consider "the petition independently, without any
    input from either side." (Emphasis added.) Reversible error is
    established if the circuit court sought or relied upon input from
    the prosecution in determining whether the petition was
    frivolous. See People v. Gaultney, 
    174 Ill. 2d 410
    , 418 (1996).
    In the case sub judice, the thrust of the defendant's
    petition was the allegation that he was deprived of effective
    assistance of counsel. The prosecutor stated to the court in
    opposition to the petition that defendant was represented at
    trial by "very able, competent counsel." This statement directly
    contradicted defendant's claim of ineffective assistance of
    counsel. The majority holds that because this comment was
    "uninvited" and "incidental," it did not contaminate the
    proceedings. I cannot agree. Whether uninvited and incidental or
    deliberate and calculated, the effect of the prosecutor's
    statement is the same. It serves to destroy the independence of
    the judicial evaluation. The court was duty bound to examine the
    petition free from any input by either side. The prosecution is
    expressly precluded from any participation at this stage of the
    proceedings. Accordingly, a comment by the prosecutor that
    challenges the very core of defendant's argument is patently
    improper and cannot be excused merely by characterizing it as
    inadvertent or incidental. Whether deliberate or unintended, the
    prosecutor's comment was a dagger thrust to the heart of
    defendant's claim. The fact that the court did not solicit the
    comment or expressly indicate its reliance thereon does not
    justify the inappropriate conduct. In my view, this comment was
    not an incremental intrusion of little significance, but a
    strategic attack by the prosecution.
    The trial court, upon hearing the gratuitous comments by the
    prosecutor, should have declared the post-conviction equivalent
    of a mistrial and transferred the cause to different judge. At
    the very most, this result would necessitate the expenditure of a
    few additional hours of judicial resources. To me, it is a small
    price to pay to protect the defendant's constitutional rights and
    the integrity of the process.
    For the above reasons, I would reverse and remand with
    directions that the pro se petition be examined by a different
    judge.