Appeal from the Circuit Court of Moultrie County; the Hon. Art
Powers, Jr., Judge, presiding.
JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:
Defendant Carl William Montgomery appeals the denial, after a full hearing, of his post-conviction petition for a new trial pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1983, ch. 28, par. 122-1 et seq.). We affirm.
Defendant was arrested and charged with the commission of two separate burglaries occurring the same day, one in Moultrie County and one in Macon County. Following a jury trial in Moultrie County, defendant was found guilty of residential burglary in violation of section 19-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 19-3), and was sentenced to a seven-year term of imprisonment. He appealed that conviction to this court, and we affirmed. (People v. Montgomery (1984), 125 Ill. App.3d 1175 (Rule 23 order).) Following the Moultrie County conviction, but before our disposition of that matter on direct appeal, defendant was tried in Macon County for the second offense. Testimony of a disinterested witness who placed defendant in Springfield the day of the burglary was introduced there; no such testimony had been presented during the Moultrie County trial. The Macon County jury returned a verdict of not guilty.
Defendant then filed a petition for post-conviction relief after exhaustion of his direct appeal on the Moultrie County matter. In his petition, defendant alleged he had been incompetently represented at trial because counsel failed to investigate, identify and procure the testimony of a witness who would rebut the testimony of the State's principal witness, the defendant's alleged coconspirator. This ineffective assistance of trial counsel, defendant averred, resulted in substantial prejudice to him and denial of a fair trial, without which the outcome would have been different. In support thereof, defendant claimed that the Macon and Moultrie County trials were substantially similar, except for the addition of the witness' testimony in Macon County and, of course, the ultimate results of the respective proceedings.
A hearing on the defendant's petition was held before the circuit court of Moultrie County on April 8, 1985. G. Ronald Kesinger, defendant's counsel for both trials as well as for the original appeal, testified as to what he believed to be his own incompetent assistance. The Macon County trial testimony of the witness in question was introduced by transcript. Upon hearing all testimony, the trial court denied the defendant's petition. Defendant subsequently filed a motion for reconsideration, which was also denied. This appeal followed.
• 1 We digress momentarily to comment on the waiver issue raised by the State. The general rule in Illinois is that affirmance of a conviction on appeal acts as res judicata for purposes of a subsequent post-conviction proceeding concerning all issues that were raised or that could have been raised in that appeal. (People v. Barnard (1984), 104 Ill.2d 218, 228, 470 N.E.2d 1005, 1008; People v. Roberts (1979), 75 Ill.2d 1, 11, 387 N.E.2d 331, 336.) In essence, such failure to raise an issue on direct appeal constitutes waiver of the issue where the relevant facts appeared in the record and thus could have been available on appeal. (People v. Jones (1985), 109 Ill.2d 19, 23, 485 N.E.2d 363, 364; People v. Stepheny (1970), 46 Ill.2d 153, 155, 263 N.E.2d 83, 85.) The State therefore contends that, because defendant failed to raise issues of ineffective assistance and denial of a constitutional right on direct appeal from his conviction, he is barred from doing so in his petition for post-conviction relief.
• 2 However, the waiver rule does not necessarily bar review of the issue presented if the interests of justice require it, and the rule will be modified where necessary to ensure fundamental fairness at trial. (People v. Roberts (1979), 75 Ill.2d 1, 387 N.E.2d 331; People v. Davis (1985), 130 Ill. App.3d 864, 866-67, 474 N.E.2d 878, 879.) Certain allegations of incompetent assistance of counsel, including failure to introduce testimony which would have refuted that of a State witness, are not necessarily waived or barred by res judicata (see People v. Hanrahan (1985), 132 Ill. App.3d 640, 478 N.E.2d 31), particularly when these matters did not appear in the record and thus could not have been raised on direct appeal. People v. Stepheny (1970), 46 Ill.2d 153, 263 N.E.2d 83; People v. Edmonds (1979), 79 Ill. App.3d 33, 398 N.E.2d 230.
• 3 Because the substance of the defendant's allegations concerning trial counsel incompetence do not appear in the original trial record, fundamental fairness obligated the trial court to hold a hearing on the post-conviction petition. A hearing was so held; the petition for relief was denied. To the contrary, in those cases relying on the waiver rule after affirmance of a conviction on direct appeal, the issue involved whether the trial court erred in dismissing the subsequent post-conviction petitions without any evidentiary hearing. (People v. Roberts (1979), 75 Ill.2d 1, 387 N.E.2d 331; People v. Stepheny (1970), 46 Ill.2d 153, 263 N.E.2d 83; People v. Edmonds (1979), 79 Ill. App.3d 33, 398 N.E.2d 230; People v. Summers (1977), 50 Ill. App.3d 33, 365 N.E.2d 241.) One further comment is necessary: we note that "[w]hen a defendant attacks competency of counsel for failing to call or contact certain witnesses, he must attach affidavits of these witnesses to his post-conviction petition and explain the significance of their testimony." (People v. Carmickle (1981), 97 Ill. App.3d 917, 920, 424 N.E.2d 78, 80; see also People v. Stepheny (1970), 46 Ill.2d 153, 263 N.E.2d 83; People v. Hanrahan (1985), 132 Ill. App.3d 640, 478 N.E.2d 31.) Should a defendant fail to meet this requirement, he is normally not entitled to a hearing on his claim of incompetency. (People v. Carmickle (1981), 97 Ill. App.3d 917, 424 N.E.2d 78.) Defendant herein attached no such affidavit of the witness in question to his petition. However, the fact remains that a hearing was held. Thus, our focus on appeal necessarily centers, as it would in other matters, on whether the trial court's findings after the hearing were manifestly against the weight of the evidence. (People v. Bracey (1972), 51 Ill.2d 514, 517, 283 N.E.2d 685, 688.) Only then may the trial court's denial of the relief requested in the petition be reversed.
We now offer a brief synopsis of the facts surrounding this matter before entering our discussion of the merits. Testimony at the Moultrie County trial held in March of 1984 was elicited as follows: The State's first and primary witness, defendant's half-brother Wayne (Butch) Montgomery, testified that the defendant drove down from Springfield and met him at his father's cabin in Beardstown at about 8:30 or 9 the morning of September 9, 1983. The two men discussed a possible burglary in Arcola. Wayne's wife, Mary Lou, was present during part of that discussion. She later testified that she overheard their burglary plans, and that she observed the two men drive away in defendant's car. Wayne stated that he and the defendant later drove around, but abandoned their Arcola burglary plans because too many people were present in the area. Instead, they eventually burglarized a home in Moultrie County and a home in Macon County. They then drove back to defendant's residence in Springfield, arriving there about 8:30 or 9 that evening. At this point, defendant made several telephone calls to two people, John Mardis and Orville Bartells, whom he and his half-brother thought might be able to "move" the merchandise. According to Wayne Montgomery, he and defendant drove to the home of Orville Bartells in Chandlerville, leaving around 10 p.m.
Wayne also testified that he pleaded guilty to this burglary as well as others, but he did not expect to gain any favoritism based on his testimony in the present case. On cross-examination, Wayne admitted that he had prior convictions for burglary and battery.
Defendant's brother, Dale Montgomery, and his girlfriend, Betty Simmons, both testified that they were at defendant's Springfield residence the evening of September 9, 1983, when they observed defendant and Wayne arrive at the house together. Dale and Betty stated they left defendant's home at about 9 p.m.
An exhibit was admitted into evidence containing a record of telephone calls made from the defendant's home the night of September 9. The itemized phone bill listed long-distance calls made to Mardis' home at 9:33 and 9:50 p.m., and a phone call to Bartells' residence at 9:43 p.m. The phone bill also showed numerous other calls made to these two people over a period of time; defendant stated they were his friends.
Defendant's wife, Carol Montgomery, testified for the defense. She stated that the events of September 9, 1983, stuck out in her mind because it was their son's birthday. She stated that she and defendant went to the Sears store in Springfield that afternoon to purchase a bicycle as a present for their son. She also testified that defendant was around the house most of the day working on a car. She further stated that a group of family and friends came to the house that evening for a birthday party. She denied that Dale Montgomery and Betty Simmons had stopped by the evening of September 9, recalling that they came over the next night instead.
In all, some 12 witnesses testified on behalf of the defendant that they had observed him in and around Springfield September 9. Many also testified that they were present for the birthday party in the evening, but that Wayne Montgomery, Betty Simons, and Dale Montgomery were never at the defendant's home. Significantly, all ...