APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DENNIS J. PORTER, JUDGE PRESIDING.
The opinion of the court was delivered by: Presiding Justice Campbell
Following a bench trial in the circuit court of Cook County, petitioner Jaime De Avila was found guilty of first degree murder. On direct appeal, this court affirmed. People v. De Avila, No. 1-96-4302 (1998) (unpublished order issued pursuant to Supreme Court Rule 23). De Avila, represented by retained counsel, timely filed a petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)). As amended, De Avila's petition alleged that he received ineffective assistance of trial counsel, who failed to cross-examine eyewitness William Peyton regarding a police report stating that Peyton had asked that De Avila and another person step forward during a lineup. De Avila attached a copy of the police report from his trial counsel's file to his petition, as well as a signed statement from Peyton, dated June 25, 1999, that he was not 100% sure that De Avila shot the victim. De Avila also alleged that his trial counsel was ineffective for failing to disclose that he was under investigation by the Attorney Registration and Disciplinary Commission (ARDC) during petitioner's trial. On February 24, 2000, the trial court issued a nine-page order summarily dismissing De Avila's petition as frivolous or patently without merit. De Avila then filed his notice of appeal to this court.
The Post-Conviction Hearing Act provides a remedy for defendants who have suffered a substantial violation of their constitutional rights at trial. Under the Act, a post-conviction proceeding not involving the death penalty contains three stages. People v. Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442, 445 (2001). At the first stage, the circuit court must independently review the post-conviction petition within 90 days of its filing and determine whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 1998). At this first stage, the trial court's determination is subject to de novo review. People v. Coleman, 183 Ill. 2d 366, 388-89, 701 N.E.2d 1063, 1075 (1998). A dismissal may be affirmed on any argument that supports the trial court's judgment, so long as the argument had a sufficient factual basis before the trial court. See People v. Wright, 189 Ill. 2d 1, 11, 723 N.E.2d 230, 237 (1999).
The Act also requires that a post-conviction petition must be both verified by affidavit (725 ILCS 5/122-1(b) (West 1998)) and supported by "affidavits, records, or other evidence" (725 ILCS 5/122-2 (West 1998)). If such affidavits, records, or other evidence is unavailable, the petition must explain why. 725 ILCS 5/122-2 (West 1998). The failure to either attach the necessary supporting materials or explain their absence is fatal to a post-conviction petition and by itself justifies a summary dismissal. People v. Collins, No. 90679, slip op. at 5 (March 15, 2002).
De Avila claims he received ineffective assistance of counsel at trial. The trial court dismissed this claim in part on the ground of res judicata. "It is well established that the scope of post-conviction review is limited to constitutional matters which have not been, and could not have been, previously adjudicated." (Emphasis added.) People v. Winsett, 153 Ill. 2d 335, 346, 606 N.E.2d 1186, 1193 (1992). This procedural bar may be relaxed only when: (1) a petitioner offers information dehors the record; (2) that information supports a previously unmade claim; and (3) the information also explains why the claim it supports could not have been raised previously. See People v. Erickson, 161 Ill. 2d 82, 87-88, 641 N.E.2d 455, 458 (1994).
De Avila argues that res judicata does not apply because this particular claim was not decided by this court in the direct appeal. This argument fails, as the procedural bar applies not only to claims previously adjudicated, but also to claims that could have been previously adjudicated.
De Avila also argues that this claim is not barred because it depends on matters outside the trial record, i.e., the police report of the lineup. As our supreme court stated in Erickson:
"The argument glosses over the reason why the procedural bar properly may be relaxed given matters outside the trial record. The bar normally reaches to all matters that could have been--not merely were not--earlier raised. Thus, the mere fact that support for a claim is contained in papers not in the trial record is largely immaterial. Reason to relax the bar occurs only when what is offered in the papers also explains why the claim it supports could not have been raised on direct appeal." Erickson, 161 Ill. 2d at 87-88, 641 N.E.2d at 458.
In this case, De Avila retained new counsel for his post-trial motion and appeal, and De Avila has not argued that the police report could not have been included as part of his posttrial motion. However, as De Avila discharged only one of his trial attorneys, with the other remaining to assist in the posttrial proceedings, this case may fall within the scope of People v. Lawson, 163 Ill. 2d 187, 208, 644 N.E.2d 1172, 1182 (1994), in which the failure of posttrial counsel to raise a particular issue did not result in waiver. However, this court need not finally resolve the question of res judicata, as the trial court did not err in dismissing this claim for other reasons.
In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), the United States Supreme Court set forth the following two-prong test to determine whether a defendant has been denied effective assistance of counsel: (1) the defendant must show that counsel's representation fell below an objective standard of reasonableness; and (2) the defendant must show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. The defendant must overcome a "strong presumption" that his counsel's conduct falls within the wide range of reasonable professional assistance and that the challenged conduct constitutes sound trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. In reviewing the trial court's first-stage dismissal of a post-conviction petition, we address De Avila's allegations of ineffectiveness of counsel from the standpoint of whether they are not frivolous, not patently without merit, and not positively rebutted by the record. Where the record shows that a trial strategy, while unsuccessful, was nonetheless reasonable, the trial court may find a claim of ineffective assistance of counsel frivolous and patently without merit. E.g., People v. Smith, 326 Ill. App. 3d 831, 761 N.E.2d 306 (2001).
In this case, De Avila alleged that he received ineffective assistance because trial counsel failed to cross-examine eyewitness William Peyton regarding a police report stating that Peyton had asked that De Avila and another person step forward during a lineup. De Avila relies largely on People v. Garza, 180 Ill. App. 3d 263, 535 N.E.2d 968 (1989), for the proposition that "[t]rial counsel's failure to utilize evidence that undermines a witness' identification is ineffective assistance of counsel." *fn1 Initially, we note that this broad proposition is nowhere to be found in Garza. To the contrary, the Garza court emphasized that the Strickland analysis is fact-sensitive and case-specific. Garza, 180 Ill. App. 3d at 268, 269, 535 N.E.2d at 971.
Given the fact-sensitive nature of the Strickland analysis, it is instructive to compare and contrast Garza with the case on appeal. In Garza:
"The jury found defendant guilty of murder. Defendant had retained new counsel when he presented his motion for a new trial. At the hearing on this motion, Officer Raymond Schalk testified that after a conversation with [sole eyewitness] Donna [Mikolajewski] on the day of the murder he made notes containing the words 'possible scar on arm above a tattoo.' He stated that this was written after Donna told him that defendant had told Nuckols he was a Pope and that he had scars and tattoos to prove it, but that she had not seen them. It was stipulated that if Officer Noon were called to testify, he would state that Donna chose two pictures out of a mug book, one of Sean Ronan and one of Daniel Ulbert, and said they 'looked similar' to Nuckols' attacker. She later viewed a more recent photo of Ronan and decided that he was not the ...