delivered the opinion of the court:
Thе petitioner, William J. Ford, was convicted of indecent liberties with a child and attempt rape following a jury trial and sentenced to an indeterminate term of not less than 15 nor more than 25 years’ imprisonment on November 9, 1979. Dean Wilson, specially apрointed counsel, represented the petitioner at trial. The petitioner, then represented by the appellate defender’s office, appealed, and this court vacated the attempt rape conviction and remandеd the cause for resentencing. (People v. Ford (1980),
The petitioner first argues that his post-conviction counsel, Dаn O’Bryant, rendered ineffective assistance of counsel by failing to file an affidavit in accordance with Supreme Court Rule 651(c) (Ill. Rev. Stat. 1979, ch. 110A, par. 651(c)), failing to amend the pro se petition, and failing to argue that the petitioner’s claim of incompetency of trial counsel was not barred by res judicata.
Supreme Court Rule 651(c) provides in part that if notice of appeal is filed from the denial of the post-conviction petition, the record must contain a showing made by a certificate of the petitioner’s attorney that the attorney has consulted with the petitioner, has examined the record, and has amended the petition to ensure adequate representation of the petitioner’s contentions. Compliance with Rule 651(c) need not be determined solely from a certificate, however. The law only requires the record to show that counsel has fulfilled these obligations. (People v. Drew (1976),
As presented to the trial court, the petition adequately apprised the court of the substance of the petitioner’s claims. Accordingly, O’Bry ant’s affidavit and the averments contained therein show an adequate discharge of his statutory duties and refute the petitioner’s first two claims of incompetent post-conviction counsel.
As for the petitioner’s final allegation of post-conviction incompetence, the record clearly shows that counsel did in fact argue at the hearing to dismiss the petition that res judicata was inapplicable. Accordingly, we find that the petitioner was not denied effective assistanсe of post-conviction counsel.
The petitioner also contends that the court erred when it summarily dismissed his post-conviction petition containing more than 20 claims of incompetency committed by his appointed trial counsel.
The Post-Cоnviction Hearing Act provides a supplemental remedy to redress errors at trial which amount to substantial denial of a petitioner’s constitutional rights. The law is well established, however, that a post-conviction petitioner is not entitled to an evidеntiary hearing on his allegations as a matter of right. (People v. McGinnis (1977),
The post-conviction proceeding is a new proceeding for purposes of inquiry into the constitutional issues of the original conviction which have not already been adjudicated. Thus, direct appeal or the failure to appeal makes those issues which were raised or which could have beеn raised res judicata. There are, however, two well-recognized exceptions to the doctrine of res judicata. First, where substantial constitutional errors were not contained within the record and thus were not before the reviewing court, they may be presented in a post-conviction proceeding. Second, res judicata will not bar a claim of incompetence of counsel in a post-conviction proceeding where the same attorney or the same firm who reprеsented the petitioner at trial also represented the petitioner on appeal. The rationale for this exception is that it is unreasonable to expect appellate counsel to argue his own incompetency effectively. People v. Ashley (1966),
The petitioner’s request for post-conviction relief advanced 23 grounds (A-W) which allegedly demonstrated his denial of effective assistance of counsel due to trial counsel’s incompetence. The allegаtions included; refusal to allow the petitioner to testify at trial after counsel had mentioned to each potential juror during voir dire the petitioner’s prior conviction (A); failure to call certain witnesses to establish the petitioner’s alibi (B-J); failurе to impeach several prosecution witnesses (K-N); failure to preserve an accurate record of the preliminary hearing (O); overreaching when cross-examining the victim' (P); failure to request an alibi instruction and object to the proseсution’s instructions (Q); exacerbation of trial counsel’s incompetence by an incompetent defense investigator supplied by the office of the appellate defender (R); failure to object to an alleged violation of the pеtitioner’s right to a speedy trial (S). Appellate counsel has withdrawn objections T and V, admitting they were barred by failure to be raised on direct appeal. The petitioner also alleged he was denied his right to a fair trial because the State planted certain evidence and improperly suppressed other evidence (U) and because the prosecutor through fraud, deceit, and trickery removed a juror (W).
In addressing each claim, the circuit court found the petition failed to establish a basis for constitutional deprivation for the following reasons; the decision not to permit the petitioner to testify was a tactical decision by trial counsel, which traditionally does not constitute ineffective assistance of counsel; claims B-N, R, and U were founded solely upon the petitioner’s unsubstantiated allegations; claims H, K-N, Q, S, U and W should have been brought on direct appeal and, thus, were barred by res judicata; the scope of counsel’s cross-examination of the victim was аlso trial tactics; and the investigator’s alleged incompetence did not represent constitutional error.
In examining the record, we agree with the circuit court that most of the petitioner’s allegations lacked sufficient support by either affidavits or the record, despite assistance from counsel. Clearly, post-conviction counsel interviewed the witnesses whom the petitioner claimed should have been called at trial. Where possible, affidavits were obtained. Neverthelеss, much of what petitioner claimed was simply without support because counsel’s investigation revealed the witnesses’ testimony would be contrary to the petitioner’s allegations. Moreover, even assuming the claims were sufficiently supported, mаny were barred by res judicata or constituted exercise of trial counsel’s prerogative in choosing his trial tactics. Nor are we persuaded by the petitioner’s argument that fundamental fairness demands that the bar of res judicata not be imposed because his specially appointed trial counsel was assisted by an investigator employed by the office of the appellate defender, who directly appealed the petitioner’s conviction. The petitioner would equate this relationship with that of the same counsel representing the petitioner at trial and on appeal and concludes the appellate defender would naturally be less likely to argue incompetence of trial counsel effectively. We cannot accept this argument. First, the petitioner has failed to demonstrate the alleged incompetence of trial counsel was in any way caused by the investigator. Moreover; we simply do not believe the appellate defender’s otherwise vigorous representation would be muted because one of its employees assisted in the trial preparation.
We do find, however, that the petitioner has established that he was entitled to an evidentiary hearing with regard to his first allegation of incompetence. According to the petition, which was supported by affidavits from two jurors, trial counsel asked each potential juror during voir dire whether the petitioner’s prior conviction for second degree murdеr would influence their verdict. Then, after apparently mitigating the potential prejudicial effect caused by the petitioner’s probable impeachment were he to testify, counsel refused to permit the petitioner to testify over his strenuоus wishes to do otherwise. The petitioner further alleges counsel told the petitioner that if he did not testify, he would be acquitted. This claim was also supported by affidavit. This claim was not adjudicated on direct appeal and is not barred by res judicatа because the alleged incompetence occurred during voir dire examination and in discussions between trial counsel and the petitioner, both of which took place outside of the record. Although counsel’s decision not to allow the petitioner to testify would ordinarily be an exercise of counsel’s discretionary trial strategy, we are uncertain as to the reasons for counsel’s instruction following his broaching of the sensitive subject of the petitioner’s prior convictions.
Accordingly, the petitioner is entitled to an evidentiary hearing on this allegation. Of course, we express no opinion as to the merits of the alleged incompetence. The petitioner still must demonstrate that his counsel was actually incompetеnt, as manifested in the performance of his duties as a trial attorney, which resulted in substantial prejudice to the petitioner without which the outcome would probably have been different. People v. Greer (1980),
For the foregoing reasons, we vacate the order of the Circuit Court of Fulton County and remand this cause for an evidentiary hearing consistent with this opinion.
Reversed and remanded.
BARRY and HEIPLE, JJ., concur.