APPEAL from the Circuit Court of Du Page County; the Hon.
ALFRED E. WOODWARD, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 7, 1974.
The defendant, George H. Healey, Jr., entered a plea of guilty to the offense of murder on January 12, 1970. He was sentenced for a term of 40 to 75 years. He appealed the conviction to this court on the sole issue of the excessiveness of sentence and the sentence was affirmed. (People v. Healey (1971), 132 Ill. App.2d 190, 267 N.E.2d 753.) During the appeal the defendant filed a pro se petition for post-conviction relief which was later amended by court-appointed counsel. Following an evidentiary hearing, the trial court held that the amended petition for post-conviction relief should be denied. It is from this order that petitioner now appeals.
On this appeal the defendant contends that the trial court in the post-conviction hearing erred in finding that (1) defendant waived his rights with respect to all matters presented in his post-conviction petition which should have been raised on appeal; (2) trial counsel was competent; (3) defendant was competent to stand trial, and (4) the guilty plea was not coerced. In addition, defendant asserts that if this court finds a waiver of rights by operation of the direct appeal, then appeal counsel was incompetent for failing to raise all issues on appeal.
In our opinion, however, we need only consider two issues on this appeal. First, did the trial court err in its finding that the defendant waived his rights with respect to all matters presented in his post-conviction petition which should have been raised on direct appeal? Second, was appellate counsel incompetent?
• 1,2 Relief under the Post Conviction Hearing Act (Ill. Rev. Stat. 1971, ch. 38, pars. 122-1 through 122-7) is clearly limited to a consideration of errors made at trial which result in conviction and are a substantial denial of petitioner's constitutional rights. (People v. Shaw (1971), 49 Ill.2d 309, 273 N.E.2d 816.) It is not designed as a means by which to retry the question of defendant's guilt or innocence. In addition, when review is obtained by a direct appeal, the judgment of the reviewing court is res judicata not only as to those issues actually raised on appeal but also as to those issues which could have been raised but were not. (People v. Weaver (1970), 45 Ill.2d 136, 256 N.E.2d 816.) Where fundamental fairness requires, strict application of the doctrine of res judicata in the context of a post-conviction hearing will be relaxed when there is a showing that the failure to raise certain issues was due to incompetency of counsel, or other causes beyond the defendant's control. See People v. McCracken (1969), 43 Ill.2d 153, 251 N.E.2d 212.
• 3 Applying these principles to the instant case, as indicated above the defendant appealed his conviction to this court on the sole issue of the excessiveness of sentence. On appeal, the defendant could have raised those issues which were not waived by operation of his guilty plea. By limiting his appeal to a single issue the defendant thereby waived his right to later assert deprivations of constitutional rights which might have been presented on appeal. Since the defendant was represented on direct appeal by different appointed counsel than had represented him at trial, the appeal also waived the right to later assert incompetency of trial counsel. Thus, in the absence of a showing of causes beyond defendant's control which prevented the assertion of these issues on direct appeal, they were waived by operation of the appeal.
• 4, 5 Defendant also asserts that if this court finds a waiver of rights by operation of his direct appeal, then his first appellate counsel was incompetent for failing to raise all issues on direct appeal. The issue of the incompetency of appellate counsel was not raised in the amended post-conviction petition. In this case the same member of the District Defender Project from the Second District who handled the direct appeal also filed the amended post-conviction petition. Following the filing of the amended post-conviction petition, appointed counsel withdrew and a member of the District Defender Project from the Third District was appointed. This counsel apparently felt that he could not assert the incompetency of a member of his office (but from another district) on a post-conviction hearing. Following the ruling on his amended petition for post-conviction relief defendant moved for a substitution of his second appointed post-conviction counsel. This motion was granted and the attorney representing the defendant on this appeal was appointed. In such circumstances it would be unjust for us to refuse to consider the issue of incompetency of appeal counsel. In this connection, the Supreme Court of Illinois has stated that:
"In view of the need to protect the right to appeal with the aid of competent counsel, and upon appraisal of the spirit and ultimate purpose of the Post-Conviction Hearing Act, we conclude that the Act provides a proper vehicle for review of those issues as to which review by direct appeal has been unconstitutionally denied by deprivation of the right to appeal, the right to competent counsel on appeal, or the concept of fundamental fairness." People v. Frank (1971), 48 Ill.2d 500, 504, 272 N.E.2d 25, 27.
With regard to the standard to be applied to determine the competency of appellate counsel for purposes of post-conviction relief, the court went on to state:
"We recognize no obligation of appointed counsel to brief every conceivable issue on appeal. It is not incompetence for counsel to refrain from raising those issues which in his judgment are without merit, unless his appraisal of the merits is patently wrong." (Citations omitted.) (48 Ill.2d at 505, 272 N.E.2d at 28.)
Whether or not appellate counsel was incompetent is a question properly cognizable in a post-conviction proceeding. See, e.g., People v. Savage (1972), 8 Ill. App.3d 162, 289 N.E.2d 460.
Defendant has failed to allege facts or authority upon which this court may determine whether appellate counsel was incompetent, aside from the general allegation that if we find that defendant, through his counsel, by raising only the one issue of excessive sentence in his direct appeal, thereby waived other possible issues, then we should find his first appellate counsel incompetent. This, in turn, defendant contends, would thereby deprive him of his constitutional rights. Clearly, the mere fact that some rights have been waived by failure to appeal certain issues does not in itself establish incompetency of appellate counsel. We must judge the acts of appellate counsel to determine whether any issue not raised on appeal was so patently meritorious that the failure to raise it constitutes incompetency.
Appellate counsel was faced with a client who had pled guilty to a particularly violent and brutal murder of his wife. Dr. Hans E. Dolz, who performed the autopsy on the body of the victim, testified that the victim had died of multiple skull fractures, contusions of the brain, brain hemorrhage and internal bleeding caused by a gunshot wound through the upper abdomen and liver. It was the doctor's opinion that the victim was struck by the killer with a minimum of ten blows in order to inflict the injuries received. The killing was accomplished in full view of a neighbor of the Healey's, Lynette Dussault, who testified to that effect. The defendant's guilty plea was entered after the court indicated that it would refuse a voluntary manslaughter instruction and after the court sustained an objection to a hypothetical question which would ...