Lead Opinion
delivered the opinion of the court:
As defendant Leon Blair and two friends were walking toward an intersection on the south side of Chicago, they encountered a car driven by Darryl Mims. After harsh words were exchanged, defendant pulled a .357 Magnum from his waistband, said “ball game,” and killed Mims. A jury convicted defendant of first degree murder and the trial court imposed a sentence of 55 years’ imprisonment. Following an unsuccessful direct appeal, defendant filed the instant postconviction petition, blaming his lawyers for his first degree murder conviction. The trial court summarily dismissed the petition based on res judicata or waiver. The appellate court reversed, holding that both res judicata and waiver are not permitted bases for summary dismissal under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 — 1 et seq. (West 2000)).
BACKGROUND
At trial, the following evidence was adduced. On June 25,1995,18-year-old defendant, Leon “Little Tray” Blair, acted as a security “lookout” at a Black Disciples gang picnic on the south side of Chicago. After leaving the picnic at either 12 p.m. or in the afternoon, he began “journeying” around the neighborhood with fellow Blаck Disciples John McKenzie and Marcus Wright. According to Wright’s testimony on cross-examination by defendant’s counsel, the trio had been drinking beer and gin, and defendant had been smoking marijuana. As daylight waned at 8:45 p.m., defendant, McKenzie, and Wright approached a three-way intersection at 73rd Street, Ellis Avenue, and South Chicago Avenue. They encountered Darryl Mims as his red Oldsmobile pulled up to a stop at the intersection. They asked Mims the price of his vehicle and Mims replied, “$3,500.” Defendant was angered at the high price and said, “That’s a robbery without a gun.” Mims then “disrespected” defendant, so defendant told Mims, “I am a Black Disciple. My name is Little Tray, and you better show some respect for me.” Mims then called the 5-foot-5-inch, 150-pound defendant a “little motherfucker,” further angering defendant.
Assistant State’s Attorney Anne Lorenz testified that in an interview she conducted with defendant, defendant told her that he saw Mims reach his right hand over the front passenger seat toward the glove compartment. Defendant did not see a gun on Mim’s person or in the car. Lorenz testified that defendant orally told her that he “extended his arm into the car,” and that “before he pulled the trigger, he said, ‘ball game’ to the driver, which means ‘it’s over.’ ” Defendant, however, crossed this statement off the written statement that Lorenz prepared. At trial, defendant admitted that he shot Mims. Defendant further testified, however, that Mims reached toward the glove compartment with his right hand, which led defendant to think that Mims was retrieving a weapon. Wright disputed this, testifying that after words were exchanged between Mims and defendant, he heard defendant say “hall game” and saw defendant lean toward the inside of the vehicle and fire a shot at Mims. Also according to Wright, Mims was sitting back comfortably in his car seat with his right hand on the steering wheel. Eyewitness Taron Cain testified that he stopped his car at the intersection when he saw two men talking to an occupant of the car which fit the description of Mims’ car. He saw defendant walk or jog up to the car and shoot the occupant. After the shooting, the three men ran awáy as Cain exited his car to assist Mims. Mims died approximately two weeks later.
After leaving the scene, defendant threw the gun into the water by Rainbow Beach and later went to the residence of Cassandra Harris, the mother of two of defendant’s children. Harris testified that she, Wright, and defendant were on her porch that night. She testified that defendant stated, “[McKenzie] told him to stick that nigger.” McKenzie then arrived on the porch, and defendant said to McKenzie, “Man, you told me to stick that nigger.” At trial, after first denying that he used those words, defendant admitted that he said them. Defendant also admitted at trial that he never told the group on the porch that he shot Mims because he was in fear for his life.
Defendant was chаrged in a two-count indictment with the first degree murder of Daryl Mims. 720 ILCS 5/9 — 1(a)(1), (a)(2) (West 1992). After defendant’s motion to suppress was denied, the case proceeded to a jury trial. The jury rejected defendant’s second degree murder argument premised on defendant’s unreasonable belief in the necessity for self-defense. Instead, the jury found defendant guilty of first degree murder.
Defendant’s trial counsel filed a motion for a new trial alleging that the evidence was insufficient and that defendant was denied a fair trial. In addition, defendant filed a separate pro se motion for a new trial alleging that during the trial his attorney became physically ill and should have asked for a continuance; and his attorney’s illness may have caused her to inadequately represent him.
At the sentencing hearing, the trial court offered defendant’s counsel an opportunity to be heard on her motion, but counsel waived argument. The trial court then offered defendant an opportunity to be heard on his pro se motion. Defendant responded: “I waive argument.” The trial court then denied both motions, stating, inter alia, “As to defendant’s motion for new trial, based upon the fact his Attorney was physically ill and did not ask for a continuance in this matter, I find there is no merit whatsoever. Counsel did an excellent job in representation of this defendant. This motion will also be denied.”
The trial court received evidencе in mitigation and aggravation, including testimony from the mother of the victim and letters from four teachers who helped defendant obtain his GED while he was incarcerated. The trial court subsequently sentenced defendant to 55 years’ imprisonment.
Defendant filed a notice of appeal and the Cook County public defender was appointed to represent him on appeal. Attorneys in the public defender’s office reviewed the record and concluded that there were no issues of merit warranting argument on appeal. Accordingly, the public defender filed a motion for leave to withdraw as appellate counsel and a brief in support of the motion pursuant to Anders v. California,
On February 3, 2000, the appellate court filed a Rule 23 order granting the public defender’s motion to withdraw. People v. Blair, No. 1—98—4119 (2000) (unpublished order under Supreme Court Rule 23). The appellate court rejected defendant’s claim of ineffective assistance related to his posttrial motion that trial counsel neglected his case because she was “obviously medicated” due to an illness, making her “often incoherent.” The court added that his argument was “unsupported by the record or based on matters that are outside the record.” In a footnote, the appellate court noted that defendant had expressly declined to argue his posttrial motion on this basis and that the trial court denied the motion, stating that it was without merit. The court also rejected each of defendant’s additional pro se arguments. The court concluded, “We have carefully reviewed the record in this case, the aforesaid brief and defendant’s response in compliance with the mandate of the Anders decision and find no issues of arguable merit. Therefore, the motion of the public defender for leave to withdraw as counsel is allowed.” This court denied defendant’s petition for leave to appeal. People v. Blair,
On January 8, 2001, defendant filed a pro se petition for postconviction relief. 725 ILCS 5/122 — 1 et seq. (West 2000). In the petition, defendant set forth six arguments. Defendant first argued that his trial counsel improperly advised him to decline argument on his pro se posttrial motion, and that the trial court should have investigated his claim as to his counsel’s illness. Second, defendant alleged that his trial counsel’s illness caused her to be “obviously medicated” and “often incoherent” during her few brief visits to defendant outside the courtroom, and caused her to perform ineffectively during the suppression hearing and at trial. Third, defendant argued that his trial counsel did not present evidence of his alcohol and marijuana use while he was at the picnic prior to the shooting to support his second degree murder argument. Fourth, defendant alleged that his counsel was ineffective for introducing prejudicial gang-related evidence through his direct testimony. Fifth, defendant alleged that his counsel was ineffective for failing to call his teachers from the Cook County jail as character witnesses at his sentencing hearing. Finally, defendant alleged that he was denied effective assistance of appellate counsel because appellate counsel did not want to file a brief against another lawyer. Defendant attached his affidavit, in which he affirmed the petition’s statements were true. However, defendant declared no further facts in his affidavit.
On February 22, 2001, the circuit court summarily dismissed defendant’s postconviction petition in a written order. Orally, the court stated that it had considered the petition, the orders of the appellate court, and the trial record. The court found that the issues sought to be raised were res judicata or waived.
On appeal, the appellate court held that under the Act (725 ILCS 5/122 — 1 et seq. (West 2000)) and People v. Boclair,
ANALYSIS
The State argues on appeal that a trial court may summarily dismiss a petition based on res judicata and waiver because they are substantive limitations on the availability of postconviction relief under the plain meaning of the Act. According to the State, unlike timeliness, res judicata and waiver are inherent elements of the right to bring a postconviction petition because these doctrines go directly to the authority of a court to grant a petitioner any relief under the Act. The State urges that this interpretation is in accord with the history of the Act, and consistent with our decision in Boclair, in that, where a defendant is precluded from obtaining relief due to res judicata and waiver, a claim is necessarily “frivolous” or “patently without merit.”
Defendant responds that the plain language of the Act requires only that the petition state the gist of a constitutional claim. He maintains that because the Act makes no specific reference to res judicata or waiver, a court may not summarily dismiss on either basis. Defendant also argues that the State’s interpretation is inconsistent with Boclair. According to defendant, under Boclair, neither res judicata nor waiver are “substantive” determinations within the purview of the Act, but rather procedural bars in the nature of an affirmative defense to which exceptions apply. Furthermore, the legal doctrines of res judicata and waiver are the sorts of legal issues that are beyond the ability of a pro se defendant to adequately address, thereby necessitating the assistance of court-appointed counsel. Defendant finally argues that the State’s interpretation is сontrary to the legislative history of the Act.
In 1983, the General Assembly amended the Act to include section 122 — 2.1, which directed the trial court to conduct a threshold evaluation of postconviction petitions and to dismiss those which were “frivolous” or “patently without merit.” People v. Rivera,
The court in People v. Rivera quoted legislative history, noting that the judge is to look at the petition during the summary dismissal stage to determine “ ‘whether or not the petition has any merit.’ ” (Emphasis in original.) Rivera,
“in [almost] every instance, matters that were raised at the trial level and given the normal doctrines of waver [sic] and ratio cogna [sic] and so forth, those issues have already been raised. They can’t be raised again. They have had an opportunity with an attorney, with all the rights of a defendant to have gone through the process and have been convicted.” 83d Ill. Gen. Assem., House Proceedings, June 21, 1983, at 96 (statements of Representative Johnson).
Similarly, Senator Sangmeister stated the law addressed petitions which were “obviously without merit, frivolous, not filed in good faith or repetitive of issues already litigated and disposed of or simply malicious.” 83d Ill. Gen. Assem., Senate Proceedings, May 19, 1983, at 171 (statements of Senator Sangmeister). We also stated in Rivera, “In our view, the summary dismissal stage of the post-conviction proceeding does nothing more than allow the circuit court to act strictly in an administrative capacity by screening out those petitions which are without legal substance or are obviously without merit.” Rivera,
We recently drew contours of this intent in People v. Boclair,
Other considerations militated against first-stage dismissals based on timeliness. First, we noted that time is not an inherent element of the right to bring a post-conviction petition because a time limit should be considered an affirmative defense which can be raised, waived, or forfeited by the State. Boclair,
Our appellate court is divided on whether the phrase “frivolous or is patently without merit” in section 122— 2.1(a)(2) permits the summary dismissal of petitions based on res judicata and waiver. One view holds that the Act permits summary dismissals based on both res judicata and waiver. A second view holds that res judicata may be the basis of a summary dismissal, but not waiver or procedural default. The third view, including the court below, holds that neither res judicata nor waiver may properly constitute the basis of a summary dismissal.
According to the first view, followed by the first and fourth divisions of the First District of the appellate court, both res judicata and waiver fall under the general rubric “frivolous” or “patently without merit” in section 122 — 2.1(a)(2). People v. Smith,
The second approach is held by the sixth division of the First District and the Fourth District of the appellate court. These courts hold that a trial court may summarily dismiss a petition as res judicata if the court does not engage in fact-finding or consider matters outside the record. People v. Etherly,
Under the third view, espoused by the third division of the First District, the Second District, and the Fifth District of the appellate court, both res judicata and waiver are not properly within the terms “frivolous” or “patently without merit” to serve as bases for summary dismissal.
We agree with the State, and with the first and fourth divisions of the First District, and conclude that the legislature intended that trial courts may summarily dismiss postconviction petitions based on both res judicata and waiver. We begin by noting that in construing a statute, our primary objective is to give effect to the intention of the legislature. People v. Greer,
We thus compare the definitions of res judicata and waiver to definitions of “frivolous” and “patently without merit.” In an initial postconviction proceeding, the common law doctrines of res judicata and waiver operate to bar the raising of claims that were or could have been adjudicated on direct appeal. People v. Pitsonbarger,
In Boclair, we examined the definitions of “frivolous,” “patently,” and “merit.” “ ‘Frivolous’ ” is defined as “ ‘of little weight or importance: having no basis in law or fact.’ ” Boclair,
We conclude that the legislature intended that the phrase “frivolous or *** patently without merit” encompasses res judicata and forfeiture. Determinations of res judicata and forfeiture are inherently legal determinations which may bar relief under the Act. Thus, an otherwise meritorious claim has no basis in law if res judicata or forfeiture bar the claim. The legal component is therefore consistent with “frivolous” defined as “of little weight or importance: having no basis in law or fact.” (Emphasis added.) Webster’s Third New International Dictionary 913 (1993); Black’s Law Dictionary 677 (7th ed. 1999); accord Anders v. California,
The legislature has granted the courts the ability to make these determinations in sections 122 — 2.1(a)(2) and 122 — 2.1(c). 725 ILCS 5/122 — 2.1(a)(2), (c) (West 2002). The statute states that the circuit 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 2002). Again, res judicata and forfeiture are conclusions of law. The language of section 122 — 2.1(a)(2) does not limit or qualify the type of conclusion of law and therefore does not disable a judge from considering res judicata and forfeiture. More importantly, when evaluating a petition, a trial court “may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.” 725 ILCS 5/122 — 2.1(c) (West 2002). This provision does not limit a court’s review of the record and appellate court ruling to determine if only the petition’s factual allegations are rebutted. Rather, on the basis of facts and legal rulings that are ascertainable from the court file, appellate court action, and any transcripts, a court may also determine if legal claims have been decided or could have been raised, thus rebutting the claims contained in the petition.
Accordingly, defendant’s argument that a trial judge may only consider the “gist” of a claim in the petition falsely construes the legislature’s intention as to the judge’s role at the first stage. Our decisions regarding the meaning of the “gist” standard have arisen only outside the context of res judicata and forfeiture. See, e.g., People v. Edwards,
Our holding is consistent with the general purpose of the postconviction proceeding. The Act provides a procedural mechanism through which a convicted criminal can assert “that in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both.” 725 ILCS 5/122 — 1(a) (West 2002); Coleman,
Furthermore, allowing a petition to be summarily dismissed in this manner is consistent with the legislature’s purpose in passing section 122 — 2.1(a)(2) in 1983. In Rivera we stated, “section 122 — 2.1 provides for a simplified procedure in order to ensure that the criminal justice system’s limited resources are exрended where most needed.” Rivera,
We also noted in Rivera, “[i]n our view, the summary dismissal stage of the post-conviction proceeding does nothing more than allow the circuit court to act strictly in an administrative capacity by screening out those petitions which are without legal substance or are obviously without merit.” Rivera,
Defendant’s argument that this claim should proceed to the second stage for the benefit of an attorney to refine the claim is also without justification. The constitutional right to counsel does not apply to postconviction proceedings, and the Act only grants that right during the second stage. Greer,
We disagree with defendant’s related implication that the judge is assuming an adversarial role. A judge is a neutral arbiter and acts as counsel for neither pаrty. We do not presume the judge acts as an advocate; rather, we presume that the trial judge knows and follows the law unless the record demonstrates otherwise. People v. Gaultney,
Our holding in People v. Boclair,
Other considerations in Boclair are inapposite here. Unlike timeliness, res judicata and forfeiture do not have exceptions which would require a factual determination at the summary dismissal stage, such as the culpable negligence exception to timeliness, requiring credibility determinations. Since section 122 — 2.1(a)(2) expressly requires the petition to be “frivolous or patently without merit,” trial courts will rely upon those grounds for summary dismissal where it is clear from the facts ascertainable in the record that the petitioner’s claims are barred by legal concepts of res judicata or forfeiture. Thus, where the court need look only at the record of the former proceedings, it may properly dismiss the petition.
Notably, exceptions to the doctrines of res judicata and forfeiture may allow otherwise barred claims to proceed. It has long been held that res judicata and forfeiture do not apply where fundamental fairness so requires; where the alleged forfeiture stems from the incompetence of appellate counsel; or where facts relating to the claim do not appear on the face of the original appellate record. People v. Harris,
Moreover, the judge’s power to dismiss petitions which are barred by res judicata and forfeiture at the first stage remains circumscribed by the statute, similar to every other petition a defendant may set forth. For example, courts may find that, after a review of the petition and the record of the former proceedings, it is a close call as to whether a petition which states a gist of a constitutional claim is otherwise barred by res judicata and forfeiture, or whether the petition presents an exception to these doctrines. In these cases, the petition is not “frivolous” or “patently without merit.” Therefore, the court may properly allow a petition to proceed to the second stage to allow the appointment of an attorney to potentially amend the defendant’s petition, allow the State to file a motion to dismiss, and to garner the benefit of the adversarial process.
Because we find the Act is not ambiguous, we need not consider defendant’s remaining arguments hinging on ambiguity.
Propriety of the Trial Court’s First-Stage Dismissal
Defendant alternately requests cross-relief, seeking reversal of the circuit court’s dismissal of the petition based on res judicata or waiver. We note that the trial court did not specify which basis it ruled on as to each claim. Defendant argues only two of six of his claims in his pro se petition on appeal. The first relates to the health of his counsel during his trial. The second concerns his trial counsel’s decision not to introduce evidence about his alcohol and marijuana use prior to the killing during his direct examination. He alleges that the facts relating to the claims do not appear on the face of the original appellate record. He additionally contends that his appellate counsel on direct appeal was ineffective for failing to raise these same claims on direct appeal. Defendant makes no argument on appeal as to the other allegations in his petition. Our review is de novo. Boclair,
First, defendant asserts that counsel was “obviously medicated” and “often incoherent” during her few brief visits to defendant in his holding cell outside the courtroom and, consequently, her illness and her personal problems affected her judgment and her preparation for the motion to suppress and trial. Defendant seeks an exception to res judicata, as he argues this is outside the record of his direct appeal. Defendant presented no further related facts in the affidavit attached to the petition. On appeal, defendant argues that this allegation states a claim for ineffective assistance of trial counsel which is not barred by res judicata or forfeiture because it constitutes a new allegation “outside the record.”
The record reveals that after trial in the former proceedings, defendant filed a pro se motion for a new trial, alleging that during the trial his attorney became physically ill and did not ask for a continuance, and his attorney’s illness may have caused her to inadequately represent the defendant. The trial judge stated, “As to defendant’s motion for new trial, based upon the fact his attorney was physically ill and did not ask for a continuance in this matter, I find there is no merit whatsoever. Counsel did an excellent job in representation of this defendant. This motion will also be denied.” We note that the appellate court, in the direct appeal, rejected defendant’s claim that trial counsel “neglected his case because she was ‘obviously medicated’ due to an illness, making her often incoherent.” The appellate court stated that “a review of defendant’s contentions established that they are either unsupported by the record or based on matters that are outside the record.” In a footnote, the appellate court provided that defendant had expressly declined to argue his posttrial motion on this point аnd the trial court denied the motion, stating that it was without merit. People v. Blair, No. 1—98—4119 (2000) (unpublished order under Supreme Court Rule 23).
Defendant has presented nothing outside the record in his instant petition and affidavit. Rather, he merely reasserts that counsel was “obviously medicated” and “often incoherent.” Even assuming these allegations of illness are not conclusions (West,
Defendant’s next argument pertains to the following allegation, that defendant
“informed his ED. that while he was at the picnic prior to the incident, he had indeed been drinking alcohol and smoking marijuana, which would of course describe his state of mind and lend to the explanation of how he could have easily (however unreasonable) believed he needed to protect himself if that belief was unreasonable at all. The ED. should not have withheld this information from the jury, especially considering the fact that the only evidence offered at trial by the P.D. was the testimony of the petitioner stating his belief of being threatened.”
Defendant contends the allegation is “outside the record” and not barred by forfeiture.
We first note that the petition’s allegations are factually rebutted by the record. First, the trial transcript reveals that defendant’s friend who was present at the shooting, Marcus Wright, testified on cross-examination that he had been drinking beer and gin with defendant and that Wright thought defendant had been smoking marijuana. The trial transcript reveals, therefore, that defendant’s trial counsel did elicit evidence of defendant’s marijuana and alcohol use at trial. Second, the trial transcript reveals that defendant left the picnic at “midday” or “in the afternoon,” and the shooting did not occur until 8:45 p.m., thus negating an implied time frame in his petition that the shooting occurred shortly after the picnic. Indeed, although evidence was in the record and presented to the jury that defendant had consumed drugs and alcohol, this evidence did not alter the jury’s verdict.
Moreover, defendant failed to meet the Act’s affidavit requirement. He has provided no facts whatsoever concerning his alcohol use or marijuana use in his affidavit, other than a general statement that the facts in his petition are true. Nor is there an explanation as to why it is not provided, although such evidence would be within his own recall. A postconviction petition is required to have attached “affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.” 725 ILCS 5/122 — 2 (West 2002).
More importantly, however, defendant cannot assert an exception to forfeiture. Because the facts regarding defendant’s mere alcohol and marijuana use are already in the record, defendant presents no new allegations in his petition or affidavit that can be deemed “outside the record.” Therefore, defendant’s claim on this matter is forfeited. Furthermore, our research has revealed no authority stating that the mere fact of alcohol and marijuana use is sufficient to support a second degree murder instruction or negate the intent for first degree murder.
Defendant next argues that the rule of res judicata and forfeiture should be relaxed because of his claim of ineffective assistance of appellate counsel. Defendant argues that appellate cоunsel on direct appeal was ineffective for failing to argue that the trial court should have conducted an investigation regarding his trial counsel’s alleged illness when he presented his posttrial motion pursuant to People v. Krankel,
This issue was addressed in the defendant’s direct appeal and is therefore barred by res judicata. After the public defender filed a motion for leave to withdraw and a brief in support of the motion pursuant to Anders v. California,
Defendant makes no further argument that res judicata and forfeiture should be relaxed under a third exception, fundamental fairness, nor does our review of the record on appeal and defendant’s petition reveal any such claim. Defendant also makes no argument as to a claim of actual innocence. We also note that the State has not indicated that it wishes to forgo the affirmative defenses of res judicata and forfeiture on appeal.
Finally, defendant also argues that his mittimus should be corrected to reflect the time he spent in custody from January 17, 1996, to and including January 28, 1996. The State has made no objection. We remand to the circuit court to issue a corrected mittimus.
CONCLUSION
The legislature intended that a judge “may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding” (725 ILCS 5/122 — 2.1(c) (West 2002)) to determine if the petition’s claims have been or could have been adjudicated in the original proceeding. Further, the legislature intended that, based on facts ascertainable from the record, a circuit court may summarily dismiss a petition as “frivolous or *** patently without merit” based on both res judicata and forfeiture under the Act. 725 ILCS 5/122 — 2.1(a)(2) (West 2002). We therefore reverse the judgment of the appellate court. Accordingly, we find that the circuit court’s summary dismissal of defendant’s petition was proper, and affirm that judgment. We also remand with directions to the circuit court to correct the mittimus.
Appellate court judgment reversed; circuit court judgment affirmed; remanded with directions.
Notes
Defendant’s affidavit stated, in pertinent part, as follows:
“I, Leon Blair, being first duly sworn upon oath deposes and states:
if: sfc
4) . That, those matters and subjects stated in the petition, yet not found in the record are in fact, true.
5) . That, affiant was in fact, coerced by the trial ED. not orally address the court concerning the post-trial motion.
6) . That, the record does in fact reflect many instances where ED. failed to appear for court, or was late, causing the case to be passed.
7) . That, the trial ED. presence and presentation was a poor representation, at best, as she was unprepared for motion hearing and trial.
8) . That, as reflected in the record, as well as in the petition, the court was indeed aware of the ED.’s illness.
9) . That, the ED. should have requested a continuance to better prepare for trial as well as deal with her own personal problems that distracted her.
10) . That, had his ED. properly advised the affiant, he could/would have argued his post-trial motion which could have allowed thе court to appoint independent counsel to represent affiant in a hearing as the ED. account for her actions of gross neglect.
11) . That, upon hearing such compelling evidence the court would have to order a new trial.
12) . That, on appeal the affiant discussed this matter with his appellate ED. whom had a problem with filing ineffective assistance of counsel issues on other attorneys and refused to raise the issue.”
“Waiver” strictly means the voluntary relinquishment of a known right. Hill v. Cowan,
Dissenting Opinion
dissenting:
I believe the analysis offered by the court in support of its result is fundamentally inconsistent with previous decisions issued by this court in the area of postconviction litigation. I, therefore, must respectfully dissent.
Defendant maintains in this appeal that the Post-Conviction Hearing Act does not allow for summary dismissal on the basis of res judicata and waiver.
Our Post-Conviction Hearing Act provides a mechanism by which those under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. See 725 ILCS 5/122 — 1 et seq. (West 2000). Proceedings under the Act are commenced by the filing of a petition in the circuit court in which the original proceeding took place. Section 122 — 2.1 of the Act speaks to orders of dismissal. The statute requires that within 90 days after the filing and docketing of each petition, the circuit court must examine the petition and enter one of two orders set forth within the subsections of the statute. Relevant to this appeal is section 122 — 2.1(a)(2), which states:
“If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law made in reaching its decision.” 725 ILCS 5/122 — 2.1(a)(2) (West 2000).
At this juncture in the proceedings, the Act does not allow the State the opportunity to raise any arguments against the petition. The Act, at this point, provides only that “[i]n considering a petition pursuant to [section 122 — 2.1], the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.” 725 ILCS 5/122— 2.1(c) (West 2000). Thus, at this initial stage of the proceedings, the circuit court is acting solely on the filed petition, without any input from the State. This court has held that to survive dismissal at this stage, the petition need only state “the gist of a constitutional claim.” People v. Gaultney,
In this case, we must determine whether claims that are procedurally defaulted or res judicata constitute claims that are “frivolous” or “patently without merit” so as to qualify for summary dismissal under section 122 — 2.1. In construing a statute, courts should consider the statutory language and give effect to the language of the Act as written when that language is clear. People v. Rivera,
I believe today’s decision is inconsistent with the principles we established in Boclair. Like timeliness, the doctrines of procedural default and res judicata do not address the question of whether a claim is frivolous or patently without merit. Instead, both doctrines serve as procedural devices intended to preclude a court from considering in the first instance the substantive merits of the claim. A claim that is procedurally defaulted is not necessarily without substantive merit. It is because of this very fact, i.e., that such claims may in fact warrant relief, that courts have developed exceptions which serve to excuse the procedural bar. See People v. Simpson,
Despite the plethora of case law that establishes that the doctrines of res judicata and procedural default serve as procedural bars to review of the substantive merits of a claim, the court today, throughout its analysis, characterizes the doctrines as substantive components in determining whether a claim is frivolous or patently without merit. The court concludes that the legislature intended that the phrase “ ‘frivolous or *** patently without merit’ encompasses res judicata and forfeiture” because “[determinations of res judicata and forfeiture are inherently legal determinations which may bar relief under the Act.”
The court acknowledges that exceptions to the doctrines exist which may allow an otherwise barred claim to proceed (
In my view, the plain language of the Act reveals that affirmative defenses such as procedural default and res judicata are more properly addressed during second stage proceedings held pursuant to sections 122 — 4 and 122 — 5 of thе Act. As noted at the outset of this dissent, these statutes allow for the (i) appointment of counsel, (ii) amendment of pleadings, and (iii) appearance by the State to answer or move to dismiss. The availability of responsive pleadings at the second stage of a postconviction proceeding seemingly would suggest that the legislature intended to establish a statutory scheme for postconviction litigation which commences with an initial administrative screening by the trial court and proceeds forward in a normal, two-party adversarial setting. To hold as the court does today completely eliminates the State’s role in filing motions to dismiss under section 122 — 5 in cases where defendants are not under sentence of death. I know of no rule of statutory construction which would allow for such a result.
I note that the court also cites the language of section 122 — 2.1, which authorizes the circuit court during the summary dismissal stage to examine the record from the underlying proceedings, as support for its conclusion in this area.
“[W]hen evaluating a petition, a trial court ‘may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.’ [Citation.] This provision does not limit a court’s review of the record and apрellate court ruling to determine if only the petition’s factual allegations are rebutted. Rather, on the basis of facts and legal rulings that are ascertainable from the court file, appellate court action, and any transcripts, a court may also determine if legal claims have been decided or could have been raised, thus rebutting the claims contained in the petition.”215 Ill. 2d at 446 .
While I agree that section 122 — 2.1(c) authorizes the circuit court to examine the underlying record, I do not read that section as authorizing the circuit court at the first stage of the proceeding not only to examine the record in order to determine whether an affirmative defense such as procedural default is available to act as a bar to the claim raised by the defendant, but to resolve the issue in summary fashion. As I have demonstrated, the question of whether a claim is barred by either procedural default or res judicata can be a complex one. Allowing the circuit court to engage in such questions at the summary dismissal stage runs counter to the “administrative” role that this court has stated our legislature intended for the circuit court at that stage. See People v. Rivera,
As a final matter, I wish to point out that it strains logic for this court to hold as it did in Boclair, i.e., that the circuit court at the summary stage cannot rule on the timeliness of a petition — a fact easily ascertainable by a simple glance at a calendar — but rather the circuit court must allow the matter to be raised only by the State at the second stage of the proceedings; and yet today, hold that the circuit court can rule on potentially complex procedural bars without any input from the parties at all. I submit that both Boclair and Rivera stand for the proposition that at the summary dismissal stage, the circuit court functions administratively and is limited to determining whether the petition states the gist of a constitutional claim. All other concerns, i.e., whether the petition is timely, whether procedural bars exist or should be excused, are deferred to the second stage of the post-conviction proceeding, where the court would have the assistance of briefs and argument from both the petitioner and the State. Today’s holding does nothing more than turn the circuit court into an advocate against the petitioner as well as his or her judge.
In light of the above, I respectfully dissent.
CHIEF JUSTICE McMORROW and JUSTICE KIL-BRIDE join in this dissent.
I have pointed out, in previous writings while on this court, that what is meant by the term “waiver” in this context is more precisely a “procedural default” — waiver implies a knowing relinquishment оf a right whereas procedural default refers to the failure to adequately preserve an issue for later appellate review. See, e.g., People v. Jung,
I note that the court relies on a statement from Kepresentative Johnson during the legislative debate of the future section 122 — 2.1 where he stated that claims subject to “ ‘waver [sic] and ratio cogno [sic]’ ” cannot be raised again and that these kinds of claims, among others, are subject to summary dismissal.