APPEAL from the Circuit Court of Sangamon County; the Hon.
HOWARD LEE WHITE, Judge, presiding.
MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT: Defendant Louis Partin pleaded guilty to the offense of attempt (armed robbery) and was sentenced in 1971 to a term of 2 to 14 years' imprisonment. A murder indictment was dismissed. His appeal from that conviction was affirmed pursuant to Anders v. California (1967), 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396, after the appellate defender moved to withdraw as counsel on appeal. Defendant was given 60 days to file further suggestions but alleged errors raised in letters written by him and co-defendant Rickie Seymour were not supported by the record. We affirmed defendant's conviction (8 Ill. App.3d 745, 291 N.E.2d 256) after finding substantial compliance with Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402) and that the guilty plea was knowingly, voluntarily and freely made.
Defendant then filed a post-conviction petition which was dismissed on the State's motion on July 27, 1973. Defendant was granted leave to amend his petition and thereafter filed amended (August 14, 1973) and second amended (January 17, 1974) petitions for post-conviction relief. The State stood on its motion to dismiss and defendant did not file any supporting affidavits or supporting evidence. The State urged that defendant's petition be dismissed for three reasons: that the guilty plea waived all issues save jurisdiction; that affirmance on direct appeal was res judicata; and that defendant's allegations were unsupported by the evidence or other affidavits. The State's motion to dismiss the post-conviction petition was granted but the court gave no reasons for its decision. Thus, we must decide if its decision was correct on any grounds.
• 1 First, the State's argument that a guilty plea waives all constitutional issues for purposes of post-conviction relief is erroneous. If it were true, there could never be a successful post-conviction attack on a guilty plea. As we know, they occasionally are successful. People v. Williams (1970), 47 Ill.2d 1, 264 N.E.2d 697; People v. Wilson (1968), 39 Ill.2d 275, 235 N.E.2d 561.
Second, with respect to the res judicata problem, it is the general principle that direct appeal of a conviction is res judicata as to all issues which were or could have been raised therein. The appeal is res judicata as to all issues actually litigated while all other issues which could have been raised are deemed waived. (People v. Johnson (1976), 37 Ill. App.3d 328, 345 N.E.2d 531; People v. Adams (1972), 52 Ill.2d 224, 287 N.E.2d 695.) Nevertheless, this strict rule of waiver is relaxed in certain instances where fundamental fairness so requires. People v. Hamby (1965), 32 Ill.2d 291, 205 N.E.2d 456.
Hence, we must decide if the constitutional issues defendant now asserts in his post-conviction petition were ones which were or could have been raised on direct appeal or if, in any case, fundamental fairness requires that he be allowed to raise them in his post-conviction petition. While defendant makes numerous allegations in his petition, the only ground of constitutional error urged on appeal relates to defendant's claim that his attorney at trial, Donald Frey, advised him to plead "technically guilty," and even though defendant was innocent, such would be an incompetent plea. Defendant argues that his plea was rendered involuntary because he was denied effective assistance of counsel based on Mr. Frey's advice which was a gross misstatement of the law. Defendant's sworn post-conviction petition was corroborated by the record which shows that Mr. Frey did say the following:
"MR. FREY: I am prepared, your Honor, to state for the record that after a consultation with the State's Attorney my clients are prepared to plea [sic] technically guilty."
If, in fact, Mr. Frey did influence defendant to plead "technically guilty" based on some misconception of the consequences or legal effect of such a plea, then defendant's guilty plea would be rendered involuntary.
• 2 The purpose of a post-conviction proceeding is to inquire into the constitutional phases of the original conviction which have not already been reviewed (People v. Ashley (1966), 34 Ill.2d 402, 216 N.E.2d 126), and the pleadings serve to determine whether the petitioner is entitled to a hearing. (People v. Airmers (1966), 34 Ill.2d 222, 215 N.E.2d 225.) While the act contemplates the dismissal of non-meritorious petitions (People v. Morris (1969), 43 Ill.2d 124, 251 N.E.2d 202), it is also true that where an allegation of substantial constitutional denial is based on facts beyond the record, it is contemplated that evidence should be taken. (People v. Sigafus (1968), 39 Ill.2d 68, 233 N.E.2d 386.) The Illinois Supreme Court has held that a post-conviction petitioner is entitled to an evidentiary hearing in the case where he alleges that his attorney promised him he would receive a lighter sentence than that imposed. Williams.
• 3 Certainly defendant's sworn allegation that his attorney advised him to plead "technically guilty" depends on facts not in the record. For that reason, this particular issue could not have been adjudicated on direct appeal and could only have been resolved in a post-conviction proceeding. This being the case, we do not feel that the doctrines of waiver or res judicata should prevent defendant from raising this issue in his post-conviction petition.
Next, we must determine whether defendant's post-conviction petition, as amended, was sufficient to withstand the State's motion to dismiss. The trial court ruled it was not and dismissed the petition without stating its reasons. Having determined that neither the guilty plea itself, nor the consequence of direct appeal waives this issue for post-conviction purposes, we must consider the defendant's failure to attach affidavits.
The Post-Conviction Hearing Act requires that the petition "shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." Ill. Rev. Stat. 1973, ch. 38, par. 122-2.
The State contends that without supporting affidavits or an explanation for their absence, defendant's sworn petition is insufficient to require an evidentiary hearing. They further contend that defendant has failed to make a "substantial showing" of in what respect his constitutional rights were violated. Defendant, of course, disagrees, citing Williams for the proposition that where a defendant alleges incompetence of counsel based on statements made which are not in the record, without supporting affidavits, he is entitled to an evidentiary hearing. In Williams, defendant pleaded guilty to two armed robbery indictments and was sentenced to 3 to 7 years on each to be served concurrently. Later, defendant filed a pro se post-conviction petition which was dismissed without a hearing. The petition had alleged that defendant's constitutional rights were violated because he was induced to plead guilty by misrepresentations of his attorney. Allegedly, this attorney told defendant that the State would agree to a 6-month to 1-year sentence instead of 40 to 80 years in the penitentiary if the case went to trial, and, even if defendant received a 3- to 7-year sentence, the court would call him back and give him 1 year in the county jail. These sworn allegations by defendant were unsupported by other affidavits. The supreme court rejected the State's argument for dismissal due to the lack of supporting affidavits saying that:
"[T]he only affidavit that petitioner could possibly have furnished, other than his own * * *, would have been that of his attorney who allegedly made the misrepresentation to him. The difficulty or impossibility of obtaining such an affidavit is self-apparent." (47 Ill.2d 1, 4, 264 N.E.2d 797, 698.)
Moreover, the court explained that defendant's sworn statements warrant an inference that his constitutional rights were violated and were "not negated by the State nor by the record, * * * an evidentiary hearing is required to determine the truth or falsity ...