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People v. Etherly

November 21, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ARIS ETHERLY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County Honorable Dennis J. Porter, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice O'mara Frossard

UNPUBLISHED

The issue in the instant case is whether the first-stage post-conviction petition can be dismissed based on res judicata, waiver, or procedural default under the terms of the Post- Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)). Defendant alleges in his pro se petition that he was deprived of a fair trial because prospective jurors were not questioned as to their potential bias toward gang members. People v. Strain, 194 Ill. 2d 467 (2000). The circuit court found the petition frivolous and patently without merit and dismissed defendant's first-stage post-conviction petition based on waiver and res judicata.

In People v. Boclair, 202 Ill. 2d 89 (2002), the Illinois Supreme Court held that the circuit court may not dismiss a first-stage petition as untimely, but it did not address whether waiver or res judicata can provide the basis for first-stage dismissal. People v. McGhee and People v. Blair applied the reasoning in Boclair regarding timeliness to res judicata and waiver and held a first- stage petition may not be dismissed based on res judicata or waiver. People v. McGhee, 337 Ill. App. 3d 992, 995 (2003); People v. Blair, 338 Ill. App. 3d 429, 431-32 (2003), appeal allowed, No. 96198. We follow McGhee and Blair's application of Boclair with modification. We agree that waiver or procedural default cannot provide the basis for first-stage dismissal; however, under certain circumstances res judicata may provide the basis for first-stage dismissal.

We hold when the circuit court engages in fact finding, resolution of disputed facts or consideration of matters outside the record in applying res judicata, first-stage dismissal is precluded by the terms of the Act. 725 ILCS 5/122-2.1(a)(2), (c) (West 2000); People v. Boclair, 202 Ill. 2d 89 (2002); People v. Coleman, 183 Ill. 2d 366, 380-81 (1998). However, unlike McGhee and Blair, we recognize there are circumstances that, under the terms of the Act, allow for first-stage dismissal based on res judicata. We hold that when no fact finding, resolution of disputed facts or consideration of matters outside the record is necessary, the circuit court may dismiss the petition as frivolous or patently without merit at the first stage by application of res judicata if the petition alleges issues previously decided and thereby substantively rebutted by the record, as reflected by the circuit court's consideration of the trial and appellate records in accordance with section 122-2.1(a)(2) and section 122-2.1(c) of the Act.

Res judicata, unlike waiver or procedural default, addresses the substantive merits of the petition, rather than procedural compliance of the petition at the initial pleading stage. "The process at the summary review stage measures a petition's substantive virtue rather than its procedural compliance." People v. Boclair, 202 Ill. 2d 89, 102 (2002). Determining substantive merit, not procedural compliance, is the purpose of first-stage review. 725 ILCS 5/122-2.1(a)(2), (b) (West 2000); Boclair, 202 Ill. 2d at 102. Section 122-5 of the Act provides for matters of procedural compliance to be raised by the State at the second stage; section 122-6 provides for resolution of disputed facts to be resolved by an evidentiary hearing at the third stage. 725 ILCS 5/ 122-5, 122-6 (West 2000); Coleman, 183 Ill. 2d at 380-81.

Regarding waiver or procedural default, section 122-5 of the Act provides the mechanism by which procedural compliance regarding affirmative matters such as waiver and procedural default can properly be raised by the State at the second stage of the post-conviction process in a motion to dismiss. 725 ILCS 5/122-5 (West 2000). No such mechanism is provided under the terms of the Act at the first stage. 725 ILCS 5/122-2.1(West 2000). We hold when the application of waiver or procedural default raises questions of procedural compliance or requires fact finding, resolution of disputed facts or consideration of matters outside the record, first-stage dismissal based on waiver or procedural default is precluded by the terms of the Act. 725 ILCS 5/122-5, 122-6 (West 2000); see People v. Boclair, 202 Ill. 2d 89, 99 (2002); see also People v. Coleman, 183 Ill. 2d 366, 380-81 (1998).

We agree with McGhee and Blair that the doctrine of waiver does not address the question of whether a claim is frivolous or without merit, but constitutes a procedural bar to a defendant's right to prevail on a claim, regardless of its substantive merit. McGhee, 337 Ill. App. 3d at 995; Blair, 338 Ill. App. 3d at 431-32. Similarly, procedural default constitutes a procedural bar to a defendant's right to prevail on a claim regardless of its substantive merit.

In the instant case, the gang bias voir dire issue alleged by the pro se defendant states a constitutional deprivation. The circuit court properly considered res judicata because in applying this principle it was not necessary for the circuit court to engage in fact finding, resolution of disputed facts, or consideration of matters outside the record. As noted, res judicata raises questions regarding the substantive merits, not the procedural compliance of the petition. However, the circuit court erred in dismissing the petition based on res judicata because the gang bias voir dire issue was not in fact previously decided; therefore, under the terms of the Act, the record substantively rebuts res judicata as the basis for first-stage dismissal. First-stage dismissal based upon the res judicata principle that an issue that has in fact been raised and ruled upon is frivolous or patently without merit is directly rebutted by the record in the instant case. It is undisputed that the gang bias voir dire issue was not pursued by defense counsel at trial and not raised by defense counsel on appeal, thereby rendering the issue neither frivolous nor patently without merit.

Application of waiver or procedural default to the gang bias voir dire issue raised questions of procedural compliance or required fact finding, resolution of disputed facts or consideration of matters outside the record and, therefore, under the terms of the Act, cannot provide the basis for first-stage dismissal. We reverse and remand for further proceedings consistent with the terms of sections 122-4 through 122-6 of the Act because, in the instant case, res judicata, waiver or procedural default cannot provide the basis for first-stage dismissal under the terms of the Act.

I. POST-CONVICTION HEARING ACT

The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)) provides the mechanism by which criminal defendants can assert their convictions were the result of a substantial denial of rights under the United States Constitution and the Illinois Constitution. People v. Mahaffey, 194 Ill. 2d 154, 170 (2000). In a non-capital case, the Act provides a three-stage procedure for post-conviction relief. People v. Boclair, 202 Ill. 2d 89, 99 (2000). Various sections of the Act provide guidance for each stage. At stage one, the trial court, without input from the State, examines the petition only to determine if the petition pleads a constitutional deprivation unrebutted by the record, rendering the petition neither frivolous nor patently without merit. 725 ILCS 5/122-2.1(a)(2), (b) (West 2000); Boclair, 202 Ill. 2d at 99. Section 122-2.1 provides guidelines for resolution of a petition at the first stage. 725 ILCS 5/122-2.1 (West 2000).

If the petition is not dismissed at stage one, it proceeds to stage two, where section 122-4 of the Act provides for the appointment of counsel for an indigent defendant who wishes counsel to be appointed. 725 ILCS 5/122-4 (West 2000). At stage two, pursuant to section 122-5, the State has the opportunity to answer or move to dismiss the petition (725 ILCS 5/122-5 (West 2000)) and the circuit court determines whether the petition alleges a substantial showing of a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 381 (1998). Sections 122-4 and 122-5 provide guidelines for resolving a second stage post-conviction petition. At stage one and stage two, the circuit court resolves pleading questions. Coleman, 183 Ill. 2d at 385. Under first-stage procedure as provided by section 122-2.1 or under second-stage procedure as provided by section 122-5, the circuit court is foreclosed from engaging in any fact finding because all well-pleaded facts not rebutted by the record are to be taken as true at stage one and stage two of the post-conviction process. Coleman, 183 Ill. 2d at 380-81.

If the petition is not dismissed at stage two, it proceeds to stage three for an evidentiary hearing. Section 122-6 provides guidelines for resolution of a petition at the third stage. 725 ILCS 5/122-6 (West 2000). At stage three, the circuit court resolves questions of disputed fact. An evidentiary hearing on the petition is required when the allegations of the petition, supported by the trial record and the accompanying affidavits, demonstrate a substantial violation of a constitutional right unrebutted by the record. People v. Mitchell, 189 Ill. 2d 312, 322 (2000).

II. BACKGROUND

Defendant was convicted of first degree murder. His conviction and sentence of 40 years' imprisonment were affirmed on direct appeal. The instant case presents a petition dismissed at the first stage of the post-conviction process. At the first stage the trial court must determine whether the petition is frivolous or patently without merit for failure to plead a substantial constitutional deprivation unrebutted by the record. 725 ILCS 5/122-1(a), 5/122-2.1 (West 2000).

On the last page of his pro se petition, defendant alleged the "failure to ask prospective jurors question[s] that would reveal prejudice against gang members is reversible error." See People v. Strain, 194 Ill. 2d 467 (2000). In dismissing defendant's first-stage petition, the court recognized various reasons alleged by petitioner for relief, but did not specifically address the gang bias voir dire issue. Rather, in a general statement the court concluded as follows: "From an analysis of the petition, it is clear that the issues raised by petitioner are matters of record which could have been raised on direct appeal. Accordingly, these claims are barred by the doctrine of res judicata and waiver. Thus, the claims raised by petitioner are dismissed. Based upon the foregoing discussion, this Court finds petitioner's claims to be frivolous and patently without merit. As such, the petition is dismissed. Petitioner's request for appointment of counsel and leave to proceed in forma pauperis are denied."

The circuit court concluded the claims were frivolous and patently without merit and found that the issues raised by the post-conviction petition were barred by res judicata and waiver because the issues "could have been raised on direct appeal." We review the circuit court's dismissal de novo. Coleman, 183 Ill. 2d 366. The circuit court's order and resolution of the petition predated the Illinois Supreme Court decision in People v. Boclair, 202 Ill. 2d 89 (2002). It also predated the Illinois Appellate Court decisions in People v. McGhee, 337 Ill. App. 3d 992, 995-96 (2003), and People v. Blair, 338 Ill. App. 3d 429 (2003), appeal allowed, No. 96198, which held that a first-stage post-conviction petition could not be dismissed based on waiver or res judicata.

At the first stage there are essentially two circumstances that render a petition frivolous or patently without merit: (1) if the petition fails to plead a constitutional deprivation; or (2) if constitutional deprivations are pled, but the record positively rebuts the deprivations alleged. We will address each in turn.

III. PETITION ALLEGES A CONSTITUTIONAL DEPRIVATION

Consistent with the terms of the Act and the purpose of the first stage, we first address whether the petition alleges a constitutional deprivation. 725 ILCS 5/122-2.1 (West 2000); Boclair, 202 Ill. 2d at 99. If no constitutional deprivation is alleged, further analysis is unnecessary. In his petition, the defendant alleged that he did not receive a fair trial because the prospective jurors were not questioned about their potential bias against gang members. The State informed the trial judge that it planned to question a witness about gang activity, including asking the witness to describe photographs depicting gang graffiti in the area of the shooting to demonstrate that gang rivalry was prevalent. Defense counsel's objections to the testimony and photographs were overruled. Before jury selection, the following exchange occurred between defense counsel and the trial judge:

"THE COURT: Do you want me to ask the question about gangs then?

DEFENSE COUNSEL: Which would be?

THE COURT: There may be some evidence that gang or gang activity may be involved in this case. Would that prevent you from giving either side a fair trial.

DEFENSE COUNSEL: Sure."

Neither that question nor any other question regarding possible gang bias was asked of the jurors by the judge or defense counsel. The judge offered to ask prospective jurors about gang bias because of the gang evidence that would be presented at trial, but failed to do so. The record further reflects that defense counsel failed to remind the judge to ask the potential jurors about gang bias and failed to directly question them about gang bias when ...


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