APPEAL from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding.
MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
In a jury trial in 1968, defendant was found guilty of burglary. He was sentenced to a term of not less than 5 years nor more than 15 years in the penitentiary. Defendant was originally brought to trial in 1967, but on defendant's motion a mistrial was declared, because in the People's opening argument the jury was informed of defendant's three previous convictions. The same appointed counsel represented defendant at each proceeding. Upon direct appeal from defendant's conviction, this court affirmed. (109 Ill. App.2d 220, 248 N.E.2d 298.) The only issue raised on appeal was the prejudicial argument of the prosecutor.
In November 1970, and again in January 1971, defendant filed pro se a post-conviction petition. Upon the filing of the petition, the trial court appointed counsel other than the one representing defendant at trial. Counsel filed an amended petition asserting the following as grounds for relief:
1) that he had been subjected to double jeopardy because of a former mistrial on the same charge on which he was ultimately convicted;
2) that his prior conviction for burglary should not have been introduced to impeach his credibility at the second trial;
3) that he had been denied his right to the effective assistance of counsel at the trial since:
(a) counsel failed to raise the double jeopardy objection;
(b) counsel brought up a 1960 conviction over defendant's objection;
(c) there was a conflict of interest since counsel represented an alleged accomplice, Joseph Brown, and
(d) counsel failed to attempt to establish an alibi in spite of defendant's request that he do so;
4) that he was denied the effective assistance of counsel on appeal because of counsel's failure to raise the constitutional questions alleged in the post-conviction petition.
The court dismissed the amended petition on the People's motion and found that an evidentiary hearing was not required. This appeal is from that order.
The trial court found that the issues presented in the petition were waived and that the record did not support the claim of incompetency of counsel. Essentially, defendant contends that the trial court erred in finding waiver since the post-conviction petition alleged matters dehors the record which could not have been raised on direct appeal. The issues raised on appeal are the same as those set out in defendant's post-conviction petition.
• 1, 2 When a direct appeal is taken from a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and issues that could have been presented but were not are deemed waived. (People v. French, 46 Ill.2d 104, 262 N.E.2d 901, cert. denied, 400 U.S. 1024, 91 S.Ct. 590, 27 L.Ed.2d 636; People v. Gonzales, 9 Ill. App.3d 661, 292 N.E.2d 765.) However, this standard based upon waiver should be and has been relaxed in those cases where fundamental fairness requires such action. (People v. Hamby, 32 Ill.2d 291, 205 N.E.2d 456; People v. Sims, 4 Ill. App.3d 878, 282 N.E.2d 16.) The first three issues raised by defendant did not involve matters dehors the record ...