The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Daniel Kelley, Judge Presiding.
The testimony presented at trial was recounted by this court in People v. Montgomery, 302 Ill. App. 3d 1 (1998). We will detail here only those facts relevant to our resolution of this appeal. On May 14, 1993, Debbie Vinson was found dead in an alley behind 1716 West 79th Street. The police investigation led to defendant's arrest. After a bench trial defendant was found guilty of first degree murder, aggravated criminal sexual assault, criminal sexual assault and unlawful restraint. Defendant was sentence to an extended term of 70 years for first degree murder and a consecutive sentence of 30 years for aggravated criminal sexual assault. Defendant appealed from those judgments in case No. 1-97-2531. On December 7, 1998, we affirmed the judgment of the circuit court.
Defendant filed a pro se petition for post-conviction relief alleging multiple violations of his constitutional rights, including ineffective assistance of trial counsel and appellate counsel. Defendant's request for appointment of legal counsel for his petition was denied.
Defendant in his pro se post-conviction petition alleged that his sixth amendment right to effective assistance of counsel was denied because trial counsel did not investigate or adequately prepare for or present evidence at trial. Based on the evidence at trial including the fact that Vinson suffered from grand mal seizures and had ingested cocaine shortly before her death, defendant alleged that it was ineffective assistance for his trial counsel not to have had an independent medical expert evaluate the medical records and forensic evidence related to Vinson's death. Defendant alleged that such an expert would have refuted the conclusion reached by the prosecution witness, Dr. Kalelkar, that Vinson died of strangulation.
Defendant also alleged ineffective assistance in that trial counsel failed to move for an independent medical evaluation as to defendant's fitness to stand trial as a result of his uncontrolled diabetes mellitus at the time of his trial. Defendant further alleged ineffective assistance of appellate counsel for failure to raise these alleged meritorious issues during the direct appeal. Attached to the petition were defendant's affidavit and letters from Dr. Seltzberg, the doctor who found defendant fit to stand trial.
On December 22, 1999, the same judge who presided over defendant's trial dismissed the petition as being without merit. The trial judge indicated that defendant had not made a substantial showing that his constitutional rights were violated, as none of his submissions supported his contentions. The court concluded that defendant had failed to demonstrate prejudice on his ineffective assistance claims and that he had not put forth any evidence that he was not fit to stand trial. Defendant appeals the dismissal of his post-conviction petition.
The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)) provides that a defendant may challenge his conviction for violations of federal or state constitutional rights. People v. Tenner, 175 Ill. 2d 372, 377 (1997). Post-conviction relief is a collateral proceeding, not an appeal from the underlying judgment. People v. Evans, 186 Ill. 2d 83, 89 (1999). All issues decided on direct appeal are res judicata, and all issues that could have been raised in the original proceeding but were not are waived. People v. Whitehead, 169 Ill. 2d 355, 371 (1996). There are circumstances under which the waiver rule may be relaxed. For example, res judicata and waiver will be relaxed when appropriate under principles of fundamental fairness. People v. Holman, 191 Ill. 2d 204, 210 (2000). The waiver rule is relaxed where the alleged waiver stems from the incompetence of appellate counsel. Whitehead, 169 Ill. 2d at 371. If a claim of ineffective assistance of counsel is based on matters outside the record, then it could not have been raised on appeal and, consequently, is not waived in a post-conviction petition. People v. Owens, 129 Ill. 2d 303 (1989).
Where the death penalty is not involved, the Act establishes a three-stage process for adjudicating a petition for post-conviction relief. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). This case was before the trial court at the first stage of the post-conviction process. We rely on the language of the Act for purposes of defining the first-stage pleading standard. A defendant may proceed under the Act by alleging "that in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both." 725 ILCS 5/122-1 (West 1998). A petition filed under the Act must "clearly set forth the respects in which petitioner's constitutional rights were violated." 725 ILCS 5/122-2 (West 1998). The petition shall have attached "affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 1998). At the first stage, the Act does not permit any further pleadings from the defendant or any motions or responsive pleadings from the State. Gaultney, 174 Ill. 2d at 418.
The trial court at this stage of the proceeding is not to consider the petition on the merits; rather, it is to consider the petition independently. Gaultney, 174 Ill. 2d at 418. At the first stage of a post-conviction proceeding, the circuit court determines whether the petition alleges a constitutional infirmity which if proven would necessitate relief under the Act. People v. Coleman, 183 Ill. 2d 366, 380 (1998). We are mindful that the first stage presents a pleading question. Unless positively rebutted by the record, all well-pled facts are taken as true at this stage and the trial court's determination is subject to de novo review. Coleman, 183 Ill. 2d at 385, 388-89.
Whether the petition and any accompanying documents make a substantial showing of a constitutional violation is a second-stage inquiry. People v. Edwards, 197 Ill. 2d 239, 245 (2001). If at the second stage a substantial showing of a constitutional violation is set forth, the petition is advanced to the third stage for an evidentiary hearing. 725 ILCS 5/122-6 (West 1998); Gaultney, 174 Ill. 2d at 418. Based on the procedural posture of this case, the relevant question is whether, pursuant to section 122-2.1(a)(2) of the Act, defendant's petition was properly dismissed at the first stage of the post-conviction proceeding. That question is resolved by determining whether defendant's "petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 1998); Edwards, 197 Ill. 2d at 245.
The Act provides: "If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision." 725 ILCS 5/122-2.1(a)(2) (West 1998). Section 122-2.1 of the Act directs the trial court to conduct a threshold evaluation of the allegations pled in the post-conviction petition and to dismiss the petition if "frivolous" or "patently without merit." 725 ILCS 5/122-2.1 (West 1998). "In considering a petition pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding." 725 ILCS 5/122-2.1(c) (West 1998). Those records should be examined to determine whether the well-pleaded facts are positively rebutted ...