Appeal from the Circuit Court of Cook County Honorable James D. Egan, Judge Presiding.
The opinion of the court was delivered by: Justice Hoffman
The defendant, Thomas McGhee, appeals from an order of the circuit court summarily dismissing his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)). For the reasons which follow, we affirm.
On October 7, 1997, following a bench trial, the defendant was convicted of first degree murder, attempted first degree murder, aggravated battery with a firearm, and aggravated battery based upon accountability principles. The trial court sentenced the defendant to consecutive prison terms of 22 years and 6 years, respectively, for first degree murder and attempted first degree murder. On November 10, 1999, this court resolved the defendant's direct appeal and affirmed his convictions and sentences. People v. McGhee, No. 1-98-0232 (1999) (unpublished order under Supreme Court Rule 23). The defendant did not seek leave to appeal to the Illinois Supreme Court.
On October 4, 2000, the defendant filed a pro se petition pursuant to the Act, alleging ineffective assistance of counsel both at trial and on direct appeal. Specifically, the defendant alleged that his constitutional right to effective assistance of counsel was violated when his trial attorney failed to object to the admission of testimony relating to certain statements that his co-defendant, Charles Ward, made to the police. The defendant also alleged that his appellate counsel was ineffective when, on direct appeal, he failed to raise either the inadmissibility of testimony relating to Ward's statements or the inef-fective assistance of trial counsel.
On January 3, 2001, the trial court summarily dismissed the defendant's post-conviction petition. In its written order, the court found: 1) that the defendant's petition was "time-barred;" 2) "that a number of the defendant's claims involve issues which were raised or could have been raised on direct appeal;" and 3) that the matters raised by the defendant in his petition are "frivolous and patently without merit." This appeal followed.
For his first assignment of error, the defendant argues that the trial court erred when it held that his post-conviction petition was untimely. In its brief, the State concedes that our supreme court, in its recent decision in People v. Boclair, 202 Ill. 2d 89, ___ N.E.2d ___ (2002), held that a post-conviction petition may not be dismissed as untimely during a first stage review. We find, therefore, that the trial court improperly relied on the ground of timeliness in summarily dismissing the defendant's petition in this case.
Next, the defendant asserts that the trial court erred in finding that the grounds asserted in his post-conviction petition had been waived or were barred under the doctrine of res judicata. In its written order summarily dismissing the defendant's petition, the trial court stated that "a number of the defendant's claims involve issues which were raised or could have been raised on direct appeal". From this language, it is unclear which of the defendant's claims the trial court found to be waived or to be barred by the doctrine of res judicata. As we will explain, however, we find that it was improper for the trial court to have dismissed any of the claims stated in the defendant's petition on these grounds.
The defendant acknowledges that, in post-conviction proceedings, the determinations of the reviewing court on the prior direct appeal are res judicata as to issues actually decided and that issues which could have been presented on direct appeal, but were not, are waived. People v. Rogers, 197 Ill. 2d 216, 221, 756 N.E.2d 831 (2001). Nevertheless, he argues that this general proposition is inapplicable when, as in this case, the alleged waiver stems from ineffective assistance of appointed counsel on appeal. People v. Whitehead, 169 Ill. 2d 355, 371, 662 N.E.2d 1304 (1996), overruled in part on other grounds, People v. Coleman, 183 Ill. 2d 366, 701 N.E.2d 1063 (1998). For its part, the State acknowledges that the defendant could not have raised the issue of ineffective assistance of appellate counsel on direct appeal. See People v. Foster, 168 Ill. 2d 465, 474, 660 N.E.2d 951 (1995). However, neither party has addressed the more basic issue of whether a trial court can rely upon waiver or res judicata as the basis for summarily dismissing a post-conviction petition at the first-stage of the proceedings.
One of the three consolidated cases which the Illinois Supreme Court reviewed in Boclair was People v. McCain, 312 Ill. App. 3d 529, 727 N.E.2d 383 (2000), in which the Fifth District of the Appellate Court held that petitions should not be dismissed as untimely or on waiver or res judicata grounds at the first stage of a post-conviction proceeding. Although the decision in Boclair does not specifically address the propriety of summarily dismissing a post-conviction petition on grounds of waiver or res judicata at the first stage of the proceeding, the supreme court, nonetheless, affirmed the appellate court's decision in McCain. Boclair, 202 Ill. 2d at 94. Additionally, we believe that the analysis the supreme court employed in Boclair to address the propriety of summarily dismissing a post-conviction petition as untimely during a first stage examination is equally applicable to first stage dismissals based on grounds of waiver or res judicata.
In Boclair, our supreme court held that:
"The Act provides a three-stage process for the adjudication of post-conviction petitions. In the first stage, the circuit court determines whether the post-conviction petition is "frivolous or is patently without merit.' 725 ILCS 5/122-2.1(a)(2) (West 2000). The State does not have an opportunity to raise any arguments against the petition during this summary review stage. People v. Gaultney, 174 Ill. 2d 410 (1996). The circuit court is required to make an independent assessment in the summary review stage as to whether the allegations in the petition, liberally construed and taken as true, set forth a constitutional claim for relief. The court is further foreclosed from engaging in any fact finding or any review of matters beyond the allegations of the petition. People v. Coleman, 183 Ill. 2d 366 (1998).
To survive dismissal at this stage, the petition must only present 'the gist of a constitutional claim.' Gaultney, 174 Ill. 2d at 418. If the petition is found to be 'frivolous' or 'patently without merit,' the court '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 2000)." Boclair, 202 Ill. 2d at 99-100.
Based upon its construction of section 122-2.1(a)(2) of the Act (725 ILCS 5/122-2.1(a)(2) (West 2000)), the Boclair court concluded that the circuit court may dismiss a post-conviction petition at the initial stage "only if the petition is deemed to be 'frivolous or *** patently without merit,' not if it is untimely filed." (Emphasis added.) Boclair, 202 Ill. 2d at 100. It reasoned, in part, that the fact that a petition is untimely does not necessarily mean that it is without merit. Boclair, 202 Ill. 2d at 101. Like timeliness, the doctrines of waiver and res judicata do not address the question of whether a claim is frivolous or without merit; rather, they constitute procedural bars to a defendant's right to prevail on a claim, regardless of its substantive merit.
We are not unmindful that section 122-2.1(c) of the Act provides that, in considering a post-conviction petition during the first stage of the proceeding, the trial court "may examine the court file of the proceeding in which the petitioner was convicted, any action taken by the appellate court in such a proceeding and any transcripts of such proceedings." 725 ILCS 5/122-2.1(c) (West 2000). We believe, however, that the purpose of the examination authorized by this section is to enable the court to determine if the facts pled in the petition are positively rebutted by the record. Such a determination assists the court in resolving the issue of whether the petition is frivolous or patently without merit. People v. Montgomery, 327 Ill. App. 3d 180, 184, 763 N.E.2d 369 (2001). We do not read this section of the statute as authorizing the court in the first stage of a ...