Appeal from Circuit Court of Champaign County No. 97CF820 Honorable Arnold F. Blockman, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
In November 1999, the trial court dismissed defendant's second post-conviction petition, finding it frivolous and patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 1998). Defendant appeals, arguing that section 122-2.1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2.1 (West 1998)) violates the single subject rule of the Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)). We affirm.
In October 1997, a Champaign County jury convicted defendant, Calvin L. Dorris, of first degree murder (720 ILCS 5/9-1(a)(1) (West 1996)), and in November 1997, the trial court sentenced defendant to 50 years in prison. Defendant appealed to this court and, in June 1999, although remanding the cause for correction of errors related to defendant's sentence, we otherwise affirmed defendant's conviction. People v. Dorris, No. 4-97-1102, slip order at 3-4 (June 8, 1999) (unpublished order under Supreme Court Rule 23).
In March 1999, during pendency of his direct appeal, defendant filed a pro se petition for post-conviction relief. 725 ILCS 5/122-1 (West 1998). In May 1999, the trial court dismissed defendant's petition as frivolous and patently without merit. 725 ILCS 5/122- 2.1(a)(2) (West 1998). Defendant appealed and his counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). In July 2000, this court granted defense counsel's motion to withdraw and affirmed the trial court's judgment. People v. Dorris, No. 4-99-0444, slip order at 4 (July 27, 2000) (unpublished order under Supreme Court Rule 23).
In October 1999, while the appeal of his first post-conviction petition was pending, defendant filed a second petition for post-conviction relief alleging violations of his fifth, sixth, and fourteenth amendment rights (U.S. Const., amends. V, VI, XIV) based on the trial court's denial of a motion to suppress, its refusal to give a second-degree murder jury instruction, references to the victim's race during trial, and ineffective assistance of appellate counsel for failing to raise the issues on direct appeal. In November 1999, the trial court dismissed defendant's second petition as frivolous and patently without merit, noting the proceedings surrounding defendant's first post-conviction petition were "not deficient in some fundamental way," and further, defendant "failed to demonstrate any basis to warrant the [c]court's consideration of his second post-conviction petition." This appeal followed.
Defendant argues section 122-2.1 of the Act (725 ILCS 5/122- 2.1 (West 1998)), which empowers trial courts, prior to appointing counsel, to dismiss those post-conviction petitions that are "frivolous" or "patently without merit," is void ab initio because the public act creating the first-stage dismissal, Public Act 83-942 (Pub. Act 83-942, eff. November 23, 1983 (1983 Ill. Laws 6200)), violates the single subject rule of the Illinois Constitution of 1970. Specifically, defendant argues Public Act 83-942 violates the Illinois Constitution's single subject rule because the act, on its face, clearly embraces more than the single subject of the "criminal justice system." Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 351, 718 N.E.2d 191, 197 (1999). This court reviews challenges to the constitutionality of a statute under the de novo standard. Arangold, 187 Ill. 2d at 351, 718 N.E.2d at 197.
Preliminarily, although failing to argue the unconstitutionality of Pubic Act 83-942 in his second post-conviction petition, defendant asserts he may nonetheless challenge the statute's constitutionality at any time under People v. Wooters, 188 Ill. 2d 500, 510, 722 N.E.2d 1102, 1108 (1999). We disagree. Wooters dealt with a direct appeal, not a subsequent post-conviction petition. Wooters, 188 Ill. 2d at 504, 722 N.E.2d at 1105. The law is well settled with respect to subsequent post-conviction petitions:
"The [Act] contemplates the filing of only one postconviction petition, although successive petitions may be allowed where the proceedings on the initial petition were deficient in some fundamental way. [Citation.] The Act provides *** any claim of a substantial denial of constitutional rights not raised in the original or [in] an amended petition is [forfeited]. 725 ILCS 5/122-3 (West 1996); [citation]." (Emphasis added.) People v. Erickson, 183 Ill. 2d 213, 222-23, 700 N.E.2d 1027, 1032 (1998).
Despite these procedural bars, a defendant may properly argue in a subsequent post-conviction petition ineffective assistance of appellate counsel, where appellate counsel also represented defendant during his initial post-conviction petition. Erickson, 183 Ill. 2d at 223, 700 N.E.2d at 1032. However, such is not the case here. Further, defendant does not argue his prior post-conviction proceedings were otherwise fundamentally deficient, and our review of the record in this case reveals no deficiency.
Additionally, defendant's claim is barred by res judicata. Because the trial court dismissed defendant's first post-conviction petition without an evidentiary hearing, finding it was frivolous and patently without merit, defendant could have alleged Public Act 83-942 violated the single subject rule during his appeal. He did not do so. A ruling on a post-conviction petition is res judicata with respect to all claims actually raised or those that could have been raised in the initial post-conviction proceedings. Erickson, 183 Ill. 2d at 223, 700 N.E.2d at 1032. While a court may, in certain instances, relax the doctrines of forfeiture and res judicata to comport ...