Appeal from the Circuit Court of Lake County; the Hon. John L.
Hughes, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 1, 1985.
Defendant, Leon Young, was convicted at a bench trial of rape, aggravated kidnaping, and unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, pars. 11-1, 10-2(a)(3), 10-3) and was sentenced to 10 years' imprisonment. He appealed, and this court affirmed the conviction of rape, reversed the conviction of aggravated kidnaping, vacated the conviction of unlawful restraint, and remanded the cause for resentencing. People v. Young (1983), 115 Ill. App.3d 455, 450 N.E.2d 947.
After our mandate was received by the circuit court, but prior to resentencing, defendant filed a petition for a new trial under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1981, ch. 38, par. 122-1 et seq.) The matter was assigned to Judge John L. Hughes who had presided over the original trial. Neither party objected to that assignment. The State subsequently moved to dismiss the petition without an evidentiary hearing on the ground that the issues raised therein had been considered and rejected on the direct appeal. The court granted the State's motion to dismiss and resentenced defendant to a 10-year term of imprisonment. Defendant filed a timely amended notice of appeal from the dismissal of his post-conviction petition and the sentence.
While that appeal was pending, defendant filed in the circuit court a motion to vacate the order dismissing his post-conviction petition. The motion was based on section 122-8 of the Code of Criminal Procedure of 1963, which became effective five days after the post-conviction petition was filed, and about one week before the hearing on the petition. Section 122-8 provides that "[a]ll proceedings under this Article [the Post-Conviction Hearing Act] shall be conducted and all petitions shall be considered by a judge who was not involved in the original proceeding which resulted in conviction." (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122-8.) Defendant's motion to vacate the order of dismissal was granted, and the matter was ultimately assigned to Judge Fred A. Geiger. The State again moved to dismiss the petition on the ground previously asserted. Judge Geiger granted the State's motion, and defendant filed a timely notice of appeal from that decision. The two appeals have been consolidated for review by this court.
• 1 Before we address the merits of the dismissal of defendant's post-conviction petition, we must decide which order of dismissal is properly before us, the order of Judge Hughes, or that of Judge Geiger. After Judge Hughes granted the State's motion to dismiss the post-conviction petition, defendant filed a timely amended notice of appeal. The proper filing of a notice of appeal causes the jurisdiction of the reviewing court to attach instanter and deprives the trial court of jurisdiction to reconsider the merits of the issues on appeal. (People v. Turner (1982), 111 Ill. App.3d 358, 368, 443 N.E.2d 1167. See also People v. Kleba (1971), 1 Ill. App.3d 563, 275 N.E.2d 174.) Accordingly, while the defendant's first appeal was pending, the trial court did not have jurisdiction to hear his motion to vacate the order dismissing his post-conviction petition. The proceedings which followed were null and void (Bank of Viola v. Nestrick (1981), 94 Ill. App.3d 511, 514, 418 N.E.2d 515), and this case must be viewed as if the motion to vacate had not been filed. See People v. Turner (1982), 111 Ill. App.3d 358, 368, 443 N.E.2d 1167.
Although the parties have not addressed this question here, there was some discussion in the trial court of that court's jurisdiction to hear defendant's motion to vacate the order of dismissal. This concerned the fact that more than 30 days had elapsed from entry of the order to filing of the motion to vacate (see generally People v. Kaeding (1983), 98 Ill.2d 237, 456 N.E.2d 11), rather than the fact that a notice of appeal had been filed during that time. Defendant argued, and the trial court apparently agreed, that the court had jurisdiction to hear the motion to vacate notwithstanding the passage of more than 30 days because under section 122-8 Judge Hughes lacked jurisdiction to consider the post-conviction petition, and because an order void for want of jurisdiction may be attacked at any time.
• 2 One of the problems with this argument is its premise that Judge Hughes did not have jurisdiction to consider defendant's post-conviction petition. Initially, we note that section 122-8 was, indeed, applicable to the proceedings before Judge Hughes even though the post-conviction petition was filed before the effective date of the statute because the hearing on the petition was held thereafter, and the statute relates to procedural matters, rather than substantive law. (People v. Ruiz (1985), 107 Ill.2d 19.) It is also true that under section 122-8 defendant had a right to have his petition considered by another judge. Defendant, however, did not file a motion for substitution of judge. He proceeded without objection to a hearing before Judge Hughes. It has been held in similar contexts that a party can waive the issue of disqualification of a particular judge by proceeding without objection to a hearing before him. (See People v. Bach (1979), 74 Ill. App.3d 893, 393 N.E.2d 563; Sproul v. Springman (1925), 316 Ill. 271, 147 N.E. 131.) We hold that defendant waived his rights under section 122-8, and that, therefore, the order of Judge Hughes dismissing defendant's post-conviction petition was not void for want of jurisdiction. When defendant filed his amended notice of appeal from that order, the trial court was divested of jurisdiction to reconsider it. *fn1 Accordingly, we shall consider the merits of defendant's appeal from the order of dismissal entered by Judge Hughes, but not the order of dismissal subsequently entered by Judge Geiger after the trial court had lost jurisdiction of the matter. See People v. Turner (1982), 111 Ill. App.3d 358, 443 N.E.2d 1167.
The evidence presented at the original trial of this case was set forth in detail in our prior opinion (People v. Young (1983), 115 Ill. App.3d 455, 450 N.E.2d 947), and it will not be reiterated here except as it relates to the disposition of the remaining issues.
In his post-conviction petition defendant raised numerous issues. On appeal he has pursued only one, i.e., that he did not receive effective assistance of counsel at trial as a result of his attorney's failure to consult with him and others regarding an alibi defense, and to present such defense at trial. This issue was raised by defendant on direct appeal, and we considered it to be without merit. Generally, when a person convicted of a crime has taken a direct appeal on a complete record, the judgment of the reviewing court is res judicata as to all issues actually decided by the court, and all issues which could have been presented to the reviewing court, if not presented, are waived. People v. Beckham (1970), 46 Ill.2d 569, 264 N.E.2d 149.
Defendant seeks to avoid this general rule first by arguing that he has new facts to support his claim that were outside the record on his direct appeal. It has been recognized that when a post-conviction claim is based on facts outside the record on direct appeal, res judicata does not bar consideration of the issue. (People v. Mengedoht (1980), 91 Ill. App.3d 239, 414 N.E.2d 893.) As noted in our earlier opinion, defendant's trial attorney withdrew from this case after trial, and new counsel was substituted. The new attorney filed a post-trial motion raising the issue of the trial attorney's failure to develop and present an alibi defense. In support of that contention, an affidavit of an investigator retained by the defense was submitted. According to the affidavit, the investigator spoke with defendant's first-period gym teacher at school and was informed by him that defendant had been in class on the day in question, and that he (the teacher) had spoken with defendant at approximately 8:30 a.m. The affidavit also indicated that the investigator spoke with defendant's second-period teacher and was informed that defendant had reported to his second-period class at approximately 9:30 a.m. Both teachers told the investigator that neither defendant's trial attorney nor anyone on her behalf had discussed the case with them. The State submitted an affidavit of the second-period teacher to the effect that he did not see defendant prior to 9:35 a.m. In rejecting defendant's claim of ineffective assistance, we noted, among other things, that these facts did not establish an alibi for defendant. They established only that he had been seen in school at 8:30 a.m. and again at 9:35 a.m., but did not establish his whereabouts during the intervening time period, which is when the rape took place. We concluded that defendant, therefore, failed to show that his attorney's alleged incompetence prejudiced his defense.
• 3 Defendant maintains that at the hearing on his post-conviction petition, he was prepared to present testimony from the teachers, not included in the direct appeal, which would have established his whereabouts in the critical time period. The record of the hearing, however, does not support this claim. Defendant had subpoenaed various witnesses, including the school teachers, to testify at the hearing. Defense counsel made an offer of proof regarding what these witnesses would testify. With respect to the school teachers, defense counsel stated:
"Mr. Jerdee and Mr. Mack [the teachers] being called to testify that they were never contacted by Alyce Browne [defendant's trial attorney] or any investigator from her office, pretrial, and to testify as to his [defendant's] ...