APPEAL from the Circuit Court of Cook County; the Hon. L.
SHELDON BROWN, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Arron Farley a/k/a Aaron Farley, hereinafter called petitioner, appeals from the dismissal without an evidentiary hearing of his amended post-conviction petition filed pursuant to the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat. 1973, ch. 38, par. 122-1 et seq.). The sole issue on appeal is whether the trial court properly dismissed the amended post-conviction petition without an evidentiary hearing.
On May 22, 1969, petitioner was found guilty by a jury of the crimes of aggravated kidnaping, rape and robbery, and sentenced to terms of from 20 to 45 years for aggravated kidnaping and rape, and from 15 to 20 years for robbery. The sentences were to be served concurrently with each other, but consecutively with a 3- to 5-year sentence in the Michigan State Penitentiary. On direct appeal the convictions were affirmed but the sentences were amended to run concurrently with the sentence imposed in Michigan. People v. Farley (1st Dist. 1971), 132 Ill. App.2d 663, 270 N.E.2d 174.
Petitioner filed a pro se post-conviction petition. Appointed private counsel filed an amended post-conviction petition in which it was alleged:
"(1) That the trial judge violated petitioner's constitutional rights when, in response to the jury's request for a transcript of petitioner's testimony, the court, without exercising its discretion, refused to provide the jury with the transcript;
(2) That petitioner's constitutional rights were violated when neither trial or appellate counsel objected or raised the transcript question issue at trial on appeal."
Petitioner also filed a motion for substitution of judges alleging that the judge in the post-conviction proceedings was the judge at petitioner's original trial and was the judge who refused to allow the jury's request to have the petitioner's testimony reread to the jury; that said judge may be a witness in the post-conviction proceedings; that said judge had knowledge of matters outside the record of the original trial which would be material and essential to the issues raised in the amended post-conviction petition; and that said judge should recuse himself from the post-conviction proceedings in which he may be a potential witness or in which he had knowledge dehors the record.
The record discloses that after the jury began deliberations at petitioner's trial, the jury returned to the courtroom and the foreman asked the trial judge if the jury could "get a copy" of petitioner's testimony. The court said, "We don't have a copy of it." After an off-the-record conference with counsel, the court told the jury that "we have taken your question under advisement and find there isn't any provision of law that enables us to give you a transcript" which is not available; that the jury heard the testimony; and that it was up to the "jurors to straighten out any discrepancies in the evidence". The foreman then stated, "Thank you, your Honor. I think that clarifies it." *fn1
On November 6, 1974, a hearing was held on the amended post-conviction petition and the motion to dismiss filed thereto. The trial judge sustained the motion to dismiss and denied the motion for a substitution of judges.
The petitioner argues that he was deprived of effective assistance of counsel at his trial and on his direct appeal because his counsel failed to argue that the trial court's refusal to allow the jury to review petitioner's trial testimony deprived the petitioner of a fair trial.
1 The State argues that the foregoing issue should be deemed waived because it was not raised in petitioner's direct appeal. (People v. Smith (1st Dist. 1974), 22 Ill. App.3d 661, 663, 318 N.E.2d 350.) However, the waiver rule may be relaxed when fundamental fairness so indicates. (People v. Walker (1st Dist. 1972), 6 Ill. App.3d 909, 286 N.E.2d 812.) In People v. Ikerd (1970), 47 Ill.2d 211, 265 N.E.2d 120, the Illinois Supreme Court, in a post-conviction proceeding, held that the strict application of res judicata would not apply "where the right relied on has been recognized for the first time after the direct appeal." However, the court did sustain the trial court's action in dismissing the post-conviction petition without a hearing on the ground it was not error for trial counsel to fail to tender an instruction that an oral confession of a co-defendant may be considered by the jury only as to that co-defendant when the co-defendant denied ever having made such a confession. In People v. Strader (1967), 38 Ill.2d 93, 230 N.E.2d 569, the Illinois Supreme Court, in a post-conviction proceeding, held that it was improper for the trial court to dismiss the post-conviction petition on the ground of res judicata where the United States Supreme Court in Jackson v. Denno (1963), 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774, determined it was error not to hold a hearing on the alleged confession. The court, relying on Boles v. Stevenson (1964), 379 U.S. 43, 13 L.Ed.2d 109, 85 S.Ct. 174, also held that the Denno decision applied retroactively and, therefore, its previous decision in People v. Strader (1961), 23 Ill.2d 13, 177 N.E.2d 126, was not binding. It remanded the cause to the trial court for a hearing on the post-conviction petition. As hereinafter discussed, the basis of petitioner's claim is predicated upon case law which developed after affirmance of his conviction on direct appeal. Under the circumstances of this case, the doctrine of waiver should be relaxed. See People v. Smith (1st Dist. 1974), 22 Ill. App.3d 661, 318 N.E.2d 350.