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June 8, 1995


Appeal form the Circuit Court of Effingham County. No. 88-CF-77. Honorable Richard H. Brummer, Judge, presiding.

The Honorable Justice Welch delivered the opinion of the court: Maag, P.j., and Chapman, J., concur.

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

On June 11, 1992, petitioner, Daniel J. Piper, filed in the circuit court of Effingham County a pro se petition for relief under the Post-Conviction Hearing Act (Act). (725 ILCS 5/122-1 et seq. (West 1992).) That petition was summarily dismissed by the circuit court pursuantto section 122-2.1 of the Act (725 ILCS 5/122-2.1 (West 1992)), as barred by principles of waiver and res judicata. Petitioner appeals. For reasons which follow, we reverse the dismissal of the postconviction petition and remand this cause for further proceedings under the Act.

Following a jury trial, petitioner was convicted of aggravated criminal assault and aggravated criminal sexual abuse and sentenced to 24 years' imprisonment on the aggravated criminal sexual assault conviction. No sentence was entered on the conviction for aggravated criminal sexual abuse. On direct appeal, petitioner's conviction and sentence for aggravated criminal sexual assault were affirmed by this court, and his conviction for aggravated criminal sexual abuse was vacated. People v. Piper (1991), 207 Ill. App. 3d 1124, 604 N.E.2d 589, 178 Ill. Dec. 333 (unpublished order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23)).

Petitioner's pro se postconviction petition alleged, in pertinent part:

"Petitioner was prohibited by trial counsel from testifying on his own behalf. He asked his trial lawyer to allow him to testify. Counsel told the defendant that he could not testify. Defendant did not know that he could bring this matter to the attention of the trial judge."

The petition was accompanied by an affidavit of petitioner verifying the petition as true to the best of his information and belief. In a docket entry order, the circuit court dismissed the petition, finding that the issue raised could have been raised on direct appeal and was therefore waived or barred by res judicata. Accordingly, the petition was dismissed pursuant to section 122-2.1 of the Act as frivolous and patently without merit.

An action brought under the Post-Conviction Hearing Act is not an appeal, but a collateral attack on a judgment of conviction. The purpose of the proceeding is to resolve allegations that constitutional violations occurred at trial when those allegations were not, or could not have been, adjudicated previously. ( People v. Sanders (1991), 209 Ill. App. 3d 366, 568 N.E.2d 200, 204, 154 Ill. Dec. 200.) Thus, where a person convicted of a crime has appealed 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, but were not, are deemed waived. ( People v. Tompkins (1988), 176 Ill. App. 3d 245, 530 N.E.2d 677, 679, 125 Ill. Dec. 519.) However, a defendant is not precluded from raising, by way of a petition under the Act, constitutional questions which, by their nature, depend upon facts not found in the record. ( People v. Thomas (1967), 38 Ill. 2d 321, 231 N.E.2d 436, 437.) The waiver doctrine does not apply to issues raised in a postconviction petition which stem from matters outside the record and which therefore could not have been brought on direct appeal. People v. Lee (1989), 185 Ill. App. 3d 420, 541 N.E.2d 747, 751, 133 Ill. Dec. 536.

In the instant case, petitioner did not raise in his direct appeal the issue of whether his attorney deprived him of his constitutional right to testify in his own behalf. However, that issue is one which can be proven only by facts (if they exist) outside the record, and therefore, the issue could not have been raised on direct review. The allegations contained in petitioner's petition require an inquiry into certain matters outside the record. Accordingly, the issue of whether petitioner's trial counsel deprived him of his constitutional right to testify in his own behalf is not barred by waiver or res judicata, and the trial court erred in so finding.

Nor can there be any question that the issue raised by petitioner's petition, whether he was deprived of his right to testify in his own behalf, is of constitutional magnitude. The right of a criminal defendant to testify in his own behalf at his trial is a fundamental constitutional right. ( People v. Johnson (1987), 151 Ill. App. 3d 1049, 504 N.E.2d 178, 181, 105 Ill. Dec. 309.) The denial of a defendant's right to testify can be a constitutional violation in and of itself, since a criminal defendant's prerogative to testify is a fundamental right which only the defendant may waive, and the question of the exercise of that right is not a matter of a strategic or tactical decision best left to trial counsel. ( People v. Powers (1994), 260 Ill. App. 3d 163, 631 N.E.2d 862, 867, 197 Ill. Dec. 640.) Thus, the petitioner has raised an issue subject to review under the Post-Conviction Hearing Act. See 725 ILCS 5/122-1 (West 1992).

The State asks us to affirm the dismissal of the petition on a different basis, that the petition itself is insufficient to state the "gist of a meritorious claim" under the Act. As the State correctly points out, this court can affirm the judgment of the trial court on any ground warranted by the record, regardless of the reasons relied on by the trial judge. ( People v. McNair (1985), 138 Ill. App. 3d 920, 486 N.E.2d 941, 943, 93 Ill. Dec. 408.) The State argues that the postconviction petition here contains mere conclusory allegations and insufficient detail and factual support to present a meritorious claim and was therefore properly dismissed. We do not agree.

In People v. Dredge (1986), 148 Ill. App. 3d 911, 500 N.E.2d 445, 102 Ill. Dec. 552, this court concluded that, in order to withstand dismissal at the first stage of postconviction proceedings, a petition for postconviction relief need only contain a simple statement which presents the gistof a claim for relief which is meritorious when considered in view of the record of the trial court proceedings. The court pointed out that pro se postconviction petitioners are often persons of limited education and that requiring them to state their claims in any greater detail than this would have the practical effect of depriving many such persons of their right of meaningful access to the courts.

In Dredge, a defendant's postconviction petition alleging that her trial counsel was ineffective because he "did not allow her to testify on her own behalf" was summarily dismissed as frivolous and wholly without merit pursuant to section 122-2.1 of the Act. This court reversed the dismissal, holding that petitioner's postconviction petition adequately stated a claim of a deprivation of her constitutional right to testify at her trial where the petition was verified and was uncontradicted by anything appearing in the trial record. The petition was at least sufficient to require the circuit court to appoint counsel to represent defendant and to docket the cause for further consideration under the Act. We note that the postconviction petition filed in the instant case contains more factual allegations than did the one in Dredge, and it is verified and is uncontradicted by anything in the record of the trial court proceedings. Furthermore, failure to allege ...

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