People v. McGhee

Decision Date19 March 2003
Docket NumberNo. 1-01-0766.,1-01-0766.
Citation337 Ill. App.3d 992,272 Ill.Dec. 509,787 N.E.2d 324
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas McGHEE, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Michael Pelletier, Office of the State Appellate Defender, of Chicago. Law Office of Gregory T. Mitchell, of Homewood and of counsel, for Appellant.

Richard A. Devine, State's Atty., of Chicago. Renee Goldfarb, John E. Nowak, Asst. State's Atty., of counsel, for Appellee.

Justice HOFFMAN delivered the opinion of the court:

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 People v. McGhee, No. 1-98-0232, 308 Ill.App.3d 1090, 261 Ill.Dec. 897, 764 N.E.2d 188 (1999) (unpublished order under Supreme Court Rule 23).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 ineffective 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, 273 Ill.Dec. 560, 789 N.E.2d 734 (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, 258 Ill.Dec. 557, 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, 215 Ill.Dec. 164, 662 N.E.2d 1304 (1996), overruled in part on other grounds, People v. Coleman, 183 Ill.2d 366, 233 Ill.Dec. 789, 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, 214 Ill.Dec. 244, 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, 245 Ill.Dec. 130, 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, 221 Ill.Dec. 195, 675 N.E.2d 102 (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, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998).
To survive dismissal at this stage, the petition must only present `the gist of a constitutional claim.' Gaultney, 174 Ill.2d at 418, 221 Ill.Dec. 195, 675 N.E.2d 102. 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, 261 Ill.Dec. 399, 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 post-conviction proceeding to examine the record in order to determine whether a defense such as waiver or res judicata exists to bar the claim asserted by the defendant and, if such a defense is apparent, to resolve the issue summarily.

Although we have determined that the circuit court's summary dismissal of the defendant's post-conviction petition cannot be affirmed on the grounds that the petition was untimely or that the claims asserted therein have been waived or are barred by the doctrine of res judicata, we must still resolve the question of whether the petition was properly dismissed as frivolous or patently without merit.

The ultimate question of the sufficiency of the allegations in a post-conviction petition to demonstrate the gist of a claim of constitutional deprivation is a legal inquiry subject to plenary appellate review....

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23 cases
  • People v. Etherly
    • United States
    • United States Appellate Court of Illinois
    • November 21, 2003
    ... ... 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 ... ...
  • People v. Blair
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    • Illinois Supreme Court
    • June 3, 2005
    ... ... 936, 788 N.E.2d 240, quoting People v. McGhee, 337 Ill.App.3d 992, 995, 272 Ill.Dec. 509, 787 N.E.2d 324 (2003). The appellate court remanded the matter to the trial court for further proceedings. 338 Ill.App.3d at 432, 272 Ill.Dec. 936, 788 N.E.2d 240. We granted the State's petition for leave to appeal. See 177 Ill.2d R. 315(a) ... ...
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    • United States Appellate Court of Illinois
    • October 23, 2003
    ... ... McGhee, 337 Ill.App.3d 992, 995, 272 Ill.Dec. 509, 787 N.E.2d 324 (2003) ... Unlike the supreme court in Boclair or the appellate court in McCain, the McGhee court considered section 122-2.1(c) of the Post-Conviction Hearing Act. 725 ILCS 5 /122-2.1(c) (West 2000). Section 122-2.1(c) provides that, ... ...
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    • United States Appellate Court of Illinois
    • March 31, 2005
    ... ...         The third division has held that, in general, a trial court may not summarily dismiss a postconviction petition on solely procedural bases, such as untimeliness, waiver, or res judicata. People v. McGhee, 337 Ill.App.3d 992, 272 Ill.Dec. 509, 787 N.E.2d 324 (2003) ; People v. Blair, 338 Ill.App.3d 429, 272 Ill.Dec. 936, 788 N.E.2d 240 (2003), appeal allowed, 205 Ill.2d 594, 281 Ill.Dec. 82, 803 N.E.2d 486 (2003). In McGhee, the panel extended the ruling in Boclair to hold that procedural ... ...
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