People v. Etherly

• Court: Appellate Court of Illinois
• Citation: People v. Etherly, 344 Ill. App. 3d 599, 279 Ill.Dec. 807, 801 N.E.2d 99 (Ill. App. 2003)
• Decision Date: 21 November 2003
• Docket Number: No. 1-01-4166.,1-01-4166.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Aris ETHERLY, Defendant-Appellant.

801 N.E.2d 99

344 Ill. App.3d 599

279 Ill.Dec. 807

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Aris ETHERLY, Defendant-Appellant.

No. 1-01-4166.

Appellate Court of Illinois, First District, Sixth Division.

November 21, 2003.

Rehearing Denied December 16, 2003.

Michael J. Pelletier, Office of the State Appellate Defender, Chicago (Lisa E. Rousso, of counsel), for Appellant.

Richard A. Devine, Cook County State's Attorney, Chicago (Renee Goldfarb, James E. Fitzgerald and Mari R. Hatzenbuehler, of counsel), for Appellee.

Presiding Justice FROSSARD delivered the opinion of the court:

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, 252 Ill.Dec. 65, 742 N.E.2d 315 (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, 273 Ill.Dec. 560, 789 N.E.2d 734 (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 firststage petition may not be dismissed based on res judicata or waiver. People v. McGhee, 337 Ill.App.3d 992, 995, 272 Ill. Dec. 509, 787 N.E.2d 324 (2003); People v. Blair, 338 Ill.App.3d 429, 431-32, 272 Ill. Dec. 936, 788 N.E.2d 240 (2003),appeal allowed, No. 96198, 205 Ill.2d 594, 281 Ill.Dec. 82, 803 N.E.2d 486. 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, 273 Ill.Dec. 560, 789 N.E.2d 734 (2002); People v. Coleman, 183 Ill.2d 366, 380-81, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998). However, unlike McGhee and Blair, we recognize there are circumstances that, under the terms of the Act, allow for firststage 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, 273 Ill.Dec. 560, 789 N.E.2d 734 (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, 273 Ill.Dec. 560, 789 N.E.2d 734. 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, 233 Ill.Dec. 789, 701 N.E.2d 1063.

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, 273 Ill.Dec. 560, 789 N.E.2d 734 (2002); see also People v. Coleman, 183 Ill.2d 366, 380-81, 233 Ill.Dec. 789, 701 N.E.2d 1063 (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, 272 Ill.Dec. 509, 787 N.E.2d 324; Blair, 338 Ill.App.3d at 431-32, 272 Ill.Dec. 936, 788 N.E.2d 240. 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 firststage 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, 252 Ill.Dec. 1, 742 N.E.2d 251 (2000). In a noncapital case, the Act provides a threestage procedure for post-conviction relief. People v. Boclair, 202 Ill.2d 89, 99, 273 Ill.Dec. 560, 789 N.E.2d 734 (2002). 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, 273 Ill.Dec. 560, 789 N.E.2d 734. 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, 233 Ill.Dec. 789, 701 N.E.2d 1063 (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 385,233 Ill.Dec. 789,701 N.E.2d 1063. 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 380-81,233 Ill.Dec. 789,701 N.E.2d 1063.

If the petition is not dismissed at stage two, it proceeds to stage three for an evidentiary hearing. Section 122-6 provides guidelines for...