*1 circuit court reasons, foregoing County is affirmed. Kane
Affirmed. JOHNSON, JJ., concur. GILLERAN
HUTCHINSON ILLINOIS, JOSEPH Plaintiff-Appellee, v. OF OF THE STATE THE PEOPLE MURRAY,Defendant-Appellant. J. No. 2 — 03 — 0255
Second District July 30, Opinion filed Office, Springfield, Schiedel, Defender’s Appellate of State Charles M. for appellant. (Martin E Waller, Attorney, Waukegan Moltz J. State’s Michael Office, Attorneys Appellate Prosecutor’s Kripke, M. both of State’s
Joan counsel), People. for the of the court: opinion KAPALA delivered the dismissal of his
Defendant, Murray, appeals Joseph J. Act) (725 Hearing Act the Post-Conviction pursuant the trial He contends 5/122 —1 We improperly dismissed remand. reverse and trial, jury defendant was of escape convicted 6(c) (West 2000)) years’ and sentenced to 14 imprisonment. He
5/31— appealed, contending he was represent himself at trial. This court People Murray, affirmed. No. 2—01— (2002) (unpublished pursuant order Supreme Court Rule then filed a petition in he which contended that “the trial court improperly deprived [him] of the *2 of self representation.” The trial court finding that judicata res barred defendant from raising this claim. Defendant timely appeals.
Defendant contends that the trial court could not dismiss his peti- ground judicata tion at the first stage agree. review. We Act, postconviction
Under the
a
involving
the death
(2002).
penalty
stages.
Boclair,
has three
People
89,
v.
Ill.
99
202
2d
At
the trial court must
examine the
90
within
days. The
court shall dismiss the
if it
peti
“determines the
tion is
or is patently
without merit.” 725 ILCS 5/122—
2.1(a)(2) (West 2002). We review de novo the
a petition
dismissal of
at
stage.
People Coleman,
v.
Boclair,
supreme
our
court held that
court could not dismiss
a petition at the first stage
ground
on the
that it was not filed within
the time limit specified
Boclair,
in the Act.
This court has untimeliness, held that like Cleveland, not be the basis of a first-stage People dismissal. v. 342 (2003); App. People Stivers, Ill. 3d 915 v. App. 338 Ill. 3d 264 (2003). However, has not specifically this court addressed whether a may summarily ground dismiss a on the that judicata. People Smith, claim is barred v. App. 345 Ill. 3d 742, 746 Appellate panels that have considered the issue have divergent reached conclusions.
Defendant relies
principally
v.
338 Ill.
3d
App.
429
(2003),
allowed,
There,
221 Boclair, held that a for decision cases consolidated one of the three summarily could not be mention res supreme court did Although Blair, 338 Ill. McCain. affirmed opinion, in its nevertheless judicata McGhee, v. People 2d at 101. In 431, citing 202 Ill. 3d at App. different First District (2003), panel of the Ill. 3d App. reached the conclusion. same disagreement with
Later, expressed its panel another First District judicata are and res Blair. The court believed that waiver McGhee and than the statute closely petition’s merit related to substantive more Smith, People App. in Boclair. limitations defense issue, however, decide the The court did not second question was the defendant’s pleading because the Britt-El, court held (2002), apply peti does not to successive that Boclair Smith, App. tions. 341 Ill. 3d at 537-38. (2003), the District People Etherly, App. 344 Ill. 3d 599 First pronouncements in Blair and Smith. The
attempted to harmonize the first-stage be the basis of court concluded that did not dismissal 3d at 614.
evidence outside the record. Sutherland, this approach. followed *3 considering agree we with McGhee approaches, these various for judicata may summarily Blair the dismiss that res be basis an absolute bar to rais ing petition. We note that is not exist, ap and the doctrine will not be ing exceptions issue. Various West, fundamentally to do Cload v. plied where it would be unfair so. Blair, appellate in example, the of allegedly barred issue the context court first considered the pursuant Anders v. granting counsel’s motion to withdraw appellate L. S. The California, 386 U.S. 18 Ed. 2d 87 Ct. the pro response the se the motion and defendant raised issue his rejected the on the merits. appellate court issue prior in the ostensibly appeal, at 430. while the issue raised was op as full an plausibly argue that he did not have the defendant could counsel. by the if it had been briefed portunity to raise issue as the However, petition sponte, to dismiss his sua the trial court were argue exception that an to res not have a chance to defendant would judicata applies. Wright, the court held that the State appeal. first time on defense for the
not raise statute-of-limitations part other Wright, 189 Ill. 2d 10-11 overruled expressed concern that Ill. 2d The court grounds, at 99. allowing the State to raise the issue for the first time appeal would deprive a defendant of the chance to amend petition his to overcome defense, by for example, showing delay was not the result (see (West 1(c) 2002)). of culpable negligence 725 ILCS Wright, 189 Ill. 2d at A11. similar concern applies Allowing here. the basis of res judicata deprive would a defendant of the chance to amend his petition to respond to the defense.
Here, the trial court petition solely basis judicata. Accordingly, we reverse the order dismissing and remand the cause for proceedings under through sections 122—4 (725 122—6 the Act through 122—6 5/122—4 The County circuit court of Lake is reversed and the cause is remanded.
Reversed and remanded.
O’MALLEY, EJ., concurs. BOWMAN, dissenting: I respectfully Specifically, dissent. I believe that the trial court properly the postconviction petition on the ground of res judicata, as the engage trial court did not in fact-finding or consider the record, had already on direct appeal.
We review de novo the dismissal a postconviction petition at the stage. People Coleman, first Act)
Under
the Fost-Conviction Hearing Act
2002)),
postconviction
5/122—1
been,
is limited to constitutional matters that have not
and could not
been, previously adjudicated
Lucas,
appeal.
Any
the court on
issues considered
direct
are
Lucas,
barred
Res is a substantive consideration to the extent Smith, Act. scope purpose delineates the App. provides
The Act but only the court files may examine not the court proceeding, 2.1(c) appellate court.” 725 taken “any also action 2002); People v. conviction, that the trial contending directly appealed This court self-representation. deprived court had him his again postconviction petition, affirmed. Defendant then filed him of his self- contending that the trial court had outside evidence. Defendant did not include additional representation. dismissing the trial court did not my opinion, to hold that outside the record. dismiss the this case could 2.1(c) judicata effectively section Act. based on res nullifies record, court, looking only to the determined Because the trial was, the issue had Act, therefore, I would affirm. al., COMPTON, Plaintiff-Appellant,
ANNETTE v. RODRIGO UBILLUZ et Centers, P.C., Testing Neuro-Spinal (Neuro-Diagnostic Defendants n/k/a Center, Ltd., Defendant-Appellee).
Second District No. 2 — 03 — 0383
Opinion filed June