People v. Nitz ( 1996 )

JUSTICE MILLER,

dissenting:

I do not agree with the majority’s conclusion that the defendant is entitled to relief under the Post-Conviction Hearing Act (725 ILCS 5/122 — 1 through 122 — 7 (West 1992)). A post-conviction remedy is available only if the defendant demonstrates a substantial deprivation of constitutional rights. 725 ILCS 5/122 — 1, 122 — 2 (West 1992); People v. Ruiz, 132 Ill. 2d 1, 9 (1989). Because the present claim lacks a constitutional foundation, it should be dismissed.

For the reasons stated in my previous dissents, I continue to believe that the right provided by section 104^21(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104 — 21(a) (West 1992)) cannot be equated with a bona fide doubt of fitness and is statutory rather than constitutional in force and effect. People v. Birdsall, 172 Ill. 2d 464 (1996) (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.); People v. Kinkead, 168 Ill. 2d 394, 417 (1995) (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.); People v. Gevas, 166 Ill. 2d 461, 472 (1995) (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.); People v. Brandon, 162 Ill. 2d 450, 461 (1994) (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). While the defendant correctly observes that the arbitrary denial of a statutory right may give rise to a due process violation (Hicks v. Oklahoma, 447 U.S. 343, 65 L. Ed. 2d 175, 100 S. Ct. 2227 (1980)), that principle is of no assistance to him here. The defendant never sought a hearing under section 104 — 21(a), and the trial judge in this case did nothing that was contrary to the terms of the statute. It should be noted that the defendant does not contend that counsel was ineffective for failing to raise this issue during the trial proceedings.

The right now being asserted by the defendant is wholly statutory and therefore cannot form the basis for post-conviction relief. By finding a constitutional deprivation where none exists, today’s decision grants a windfall to post-conviction litigants, who now can raise for the first time in a post-conviction petition matters that should have been raised instead in the original trial proceedings.

CHIEF JUSTICE BILANDIC and JUSTICE HEIPLE join in this dissent.