Appeal from the Circuit Court of St. Clair County, the Hon.
Patrick J. Fleming, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 2, 1985.
This appeal is taken from an order entered by the circuit court of St. Clair County dismissing defendant's post-conviction petition. This appeal is the second review of defendant's conviction by this court. After withdrawing pleas of not guilty, the defendant, Andre Jones, pleaded guilty to three counts of murder. Following a sentencing hearing before a jury, the defendant was sentenced to death.
On direct appeal to this court, the defendant's convictions on two of the murder counts were affirmed along with the death sentences. The conviction on the third count was affirmed, but the sentence was vacated and the cause remanded for a sentence other than death. (People v. Jones (1982), 94 Ill.2d 275, 299-300.) The United States Supreme Court thereafter denied defendant's petition for a writ of certiorari. Jones v. Illinois (1983), 464 U.S. 920, 78 L.Ed.2d 264, 104 S.Ct. 287.
On March 5, 1984, the defendant filed a petition for post-conviction relief (Ill. Rev. Stat. 1983, ch. 38, par. 122-1 et seq.). In that petition, the defendant alleged that he failed to receive effective assistance of counsel when he entered his pleas of guilty and during his original sentencing hearing. The State, in its motion to dismiss, argued that consideration of the grounds presented for relief was foreclosed by res judicata and that any other issues not controlled by the original appeal to this court had been waived. The trial court granted the State's motion, and the defendant appealed that decision directly to this court as required by our Rule 651, as amended effective December 1, 1984 (103 Ill.2d R. 651).
Defendant's trial counsel did not represent him in his initial appeal; he was represented in that appeal by his present counsel. The defendant now contends that his trial counsel's ineffectiveness at the sentencing hearing was not and could not have been argued in the original appeal because the record did not disclose the information that his trial attorney failed to present. The defendant further maintains that arguing ineffectiveness of trial counsel in his original appeal would have been inconsistent with the theory of that appeal. In addition, the defendant argues that any improper inducement for the entry of his guilty pleas could not have been raised in the original appeal because of the failure of his trial counsel to raise the issue within the time period prescribed (87 Ill.2d R. 605(b)(2)).
The defendant asks that he be given a hearing on his post-conviction petition so that his present counsel may, for the purpose of establishing that he received ineffective assistance, make a record of facts (i) in mitigation, and (ii) evidencing improprieties in the guilty plea based on trial counsel's recommendation that the defendant's only hope of avoiding the death penalty was to plead guilty, which was not part of the record in his original appeal.
The defendant argues that a number of factors should have been presented as mitigating factors at his sentencing hearing. These include "borderline retardation, poor conceptual ability, inability to subtract 7 from 100, auditory hallucination during the murders, reports of trauma following the witnessing of a murder at age eight, a heroin habit, a steadily dropping IQ over a five-year period, a good disciplinary record while incarcerated, and a change of attitude toward himself and others as witnessed by the jail psychological consultant." Counsel for the defendant argues that this evidence, which was taken from reports contained in the original trial court file, together with possible testimony by the defendant's mother and his girlfriend, none of which was presented at the sentencing hearing, may have justified a sentence other than death. We have no knowledge, however, of what the testimony of the mother and girlfriend might have been because defendant's present counsel neither alleged in the post-conviction petition what their testimony would have been nor submitted affidavits or made an offer of proof revealing the substance of what they could testify about.
Moreover, in oral argument before this court, present counsel charged that his predecessor informed the defendant that the only way he could escape a death sentence was by pleading guilty and that the futility of that advice was underscored by his incompetence at the death sentence hearing. However, the record does not reveal that this was presented to the trial court in the post-conviction petition or even to this court except by way of counsel's statement in his oral argument.
The State contends that, regardless of the alleged ineffectiveness of trial counsel, this court's decision in the previous appeal is res judicata as to all issues presented in the post-conviction petition. Citing People v. Kamsler (1968), 39 Ill.2d 73, 74, the State points out that "[i]t is well settled that where a person convicted of a crime has taken an appeal from the judgment of conviction 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." The State concludes that the defendant had sufficient opportunity to raise the ineffective-assistance claim in the original appeal and that his failure to do so is res judicata as to that claim.
Defendant contends that factors which would reveal trial counsel's incompetence at the sentencing hearing were not in the record and, therefore, the "complete record" requirement of Kamsler has not been met. We disagree. Unlike People v. Thomas (1967), 38 Ill.2d 321, the issues raised in defendant's petition could have been addressed in the original appeal because every ground for ineffectiveness that defendant has properly raised was apparent from the original appellate record or could have been supplemented to that record under our Rule 329 (87 Ill.2d R. 329).
The evidence he now wishes to present with respect to oversights of trial counsel in the sentencing hearing was available to present counsel in the original appeal to this court. The psychological data referred to by defendant's present counsel was on file with the circuit court at the time of the direct appeal. Because all of the evidence that was needed to show the adequacy or inadequacy of trial counsel's representation was available to counsel at that time, we find no substance in the present argument that to have raised the issue of ineffective assistance of trial counsel in the first appeal would have either been premature or resulted in a piecemeal approach.
In the original appeal, the defendant argued that the Illinois death penalty provisions (Ill. Rev. Stat. 1979, ch. 38, par. 9-1) were unconstitutionally vague and failed to provide sufficient guidance to the trial judge, the prosecutor and his defense attorney. His counsel explained both in oral argument in this court on the original appeal and in the circuit court in the post-conviction proceeding that in the prior appeal he did not pursue the question of his predecessor's effectiveness because the statute lacked standards sufficiently definite to tell trial counsel what he was supposed to do. In rejecting the constitutional argument, this court never addressed the issue of ineffective assistance of trial counsel because it was never presented. Present counsel explains in this appeal his failure to raise this issue in the first appeal by stating that it would have been "premature," "piecemeal" and "in conflict with his position in the Supreme Court."
The defendant's counsel's claim that such an argument would have been contradictory or inconsistent with the position he took in that appeal is without merit. Any appellant may argue in the alternative. Counsel could have argued that the death statute lacked adequate standards but that if the standards were held to be adequate, trial counsel failed to provide effective assistance. Therefore, the State is correct in its position that res judicata applies to the defendant's claim or, stated in another way, that he waived the ...