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SIXTH DIVISION
March 19, 2004

No. 1-02-3741

PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Following a bench trial, defendant, Anthony Boyd, was convicted of first-degree knowingmurder (720 ILCS 5/9-1(a)(2) (West 1998)), aggravated battery (720 ILCS 5/12-4(b)(1) (West1998)), and felony murder predicated on the aggravated battery offense (720 ILCS 5/9-1(a)(3)(West 1998)). During sentencing, the judge referenced the one-act, one-crime rule and mergedthe felony murder conviction into the first-degree murder conviction. The order of commitmentand sentence to the Illinois Department of Corrections signed by the judge accurately reflected thesentence imposed as 45 years on first-degree knowing murder (720 ILCS 5/9-1(a)(2) (West1998)) concurrent with 5 years on aggravated battery (720 ILCS 5/12-4(b)(1) (West 1998)).

On direct appeal defendant raised one issue only, whether his trial counsel was ineffectivefor eliciting testimony from him that he had struck one of the victims with a gun, which accordingto defendant, ensured his conviction for felony murder. We affirmed on direct appeal. People v.Boyd, No. 1-00-0491 (2002) (unpublished order under Supreme Court Rule 23). Defendant fileda post-conviction petition which was dismissed at the first stage of the post-conviction process. Defendant now appeals the trial court's first-stage dismissal of his post-conviction petition.

BACKGROUND

Around 6:30 p.m. on February 5, 1998, Marcus Bolden and a friend, Jermaine Muse, wentto visit the apartment of Steve Robinson at 7410 South Chappel Avenue in Chicago to buycocaine. Bolden initially remained in the car. Besides Robinson, also present in the apartmentwere defendant, Kenji Hawthorne, and Vernon Watts. While in Robinson's apartment, Robinsonasked Hawthorne for two bags of cocaine. Hawthorne gave two small bags of crack cocaine toRobinson. Robinson and Muse then went outside to the car to talk to Bolden. While Robinsonand Muse were outside, defendant asked for and received a gun from Hawthorne. Robinson andMuse, together with Bolden, eventually returned to the apartment. At that point, defendant,Hawthorne, and Vernon Watts were in the front room of the apartment. Robinson toldHawthorne that Bolden wanted to test the cocaine.

As Bolden paid Hawthorne and began to smoke the cocaine, defendant asked Muse whyhe had his hands in his pockets. Defendant instructed Muse to remove his hands from hisclothing. Defendant, with Hawthorne and Watts, went into a front bedroom, while Muse, Boldenand Robinson stayed in the kitchen. Muse suggested to Bolden that they leave because defendantwas making Muse nervous. When Bolden indicated he wanted to stay, Muse left the kitchen andattempted to leave the apartment. However, as Muse approached the front door, he was stoppedby Hawthorne. Defendant also appeared, displayed the gun and stated that nobody was leavingthe apartment.

Defendant pointed the gun at Muse and instructed Muse to get on the floor. Defendantsuddenly struck Muse several times in the head with the gun and asked Muse if he was a policeofficer. Muse stated no and attempted to explain to defendant that he worked at Ford MotorCompany. As defendant confronted Muse, Hawthorne grabbed and searched Bolden. Robinson,who, like Muse, was on his knees, repeatedly told defendant that neither Muse nor Bolden was apolice officer. Defendant told Robinson to be quiet and threatened to shoot Robinson. WhenRobinson continued telling defendant that his friends were not the police, defendant told Robinson"to get the fuck out" and Robinson ran to the kitchen. Muse escaped by jumping through aclosed front-room window, shattering the glass, and began searching for help.

During the commotion caused by Muse escaping, Bolden attempted to grab the gun fromdefendant and a struggle ensued. Hawthorne testified that Bolden grabbed defendant around thewaist in a bearhug, while defendant, holding the gun in his hands, attempted to break free. Duringthe struggle, the gun was fired and Bolden fell to the floor. According to Hawthorne, defendanthad the gun in his hands the entire time and he never observed defendant pick the gun up off thefloor.

Defendant searched Bolden while Bolden was on the floor and pulled some unidentifieditems from Bolden's pants pocket. Defendant, together with Hawthorne and Watts, then fledfrom the apartment. Bolden was transported to Cook County Hospital, where he later died of agunshot wound to the chest. Several days later defendant was arrested and placed in a lineup. The lineup was viewed separately by Muse, Robinson and Hawthorne, each of whom positivelyidentified defendant as being present at Robinson's apartment with the gun on the night of theshooting.

After the State rested, the defendant testified. Defendant stated that he went toRobinson's apartment on the night of the shooting to meet Hawthorne, who had asked defendantto obtain a gun for him. Upon his arrival, defendant gave Hawthorne a gun and the two went to arestaurant to eat. They eventually returned to Robinson's apartment, and because Hawthorne was"playing" with the gun, defendant took the gun away from Hawthorne.

Defendant testified that Robinson asked Hawthorne for some cocaine. Hawthorne gaveRobinson two bags of cocaine and Robinson went outside. Robinson returned shortly with Museand Bolden and everyone gathered in the kitchen. After some hesitation, Bolden agreed topurchase the cocaine and gave Hawthorne money. Defendant, Hawthorne and Watts then wentinto a room in the front of the apartment. Defendant noticed Muse attempting to open the frontdoor. Hawthorne asked Muse where he was going and Muse stated he was going outside to get abeer. Hawthorne, according to defendant, responded by suggesting that Muse was a policeofficer. Defendant agreed with Hawthorne and Hawthorne grabbed Muse, pushing him awayfrom the door and back into the apartment. Defendant indicated that he assisted Hawthorne,during which time Muse "kind of like pulled the gun out" of defendant's clothing. Defendant thentold Muse to get on the floor.

Defendant grabbed hold of the gun while Bolden and Robinson entered the room. According to defendant, Hawthorne began to tussle with Bolden. Defendant stood next to Muse,who was on his knees, and told Bolden to let go of Hawthorne. During his direct examination,defense counsel specifically asked defendant if he ever hit Muse with the gun while Muse was onhis knees. Defendant acknowledged that he did hit Muse with the gun. Defendant indicated thatwhile he and Robinson talked about whether Muse and Bolden were police officers, Muse got upand jumped out of a window. Defendant stated that Bolden then suddenly rushed him andgrabbed the gun's handle. Defendant explained his finger was on the trigger and the gun's barrelwas pointed in the direction of Bolden. Defendant and Bolden began to struggle, during whichthe gun fired and dropped to the floor. Defendant stated that both he and Bolden were holdingonto the gun during their altercation and that they released their respective hold of the gun afterits discharge. When defendant realized that Bolden, not he, had been shot, defendant walked overto where Bolden was lying and picked up the gun. Defendant fled the apartment and threw thegun in a nearby alley.

Following the shooting, defendant knew that Bolden had died and that the police weresearching for him. Defendant, however, never contacted the police to explain his involvement inthe shooting. Defendant maintained the shooting was an accident and that he had no intention toshoot or kill Bolden.

The trial judge found the defendant not guilty of the attempted robbery charge, but founddefendant guilty of first-degree murder, aggravated battery and felony murder predicated on theoffense of aggravated battery. The court sentenced defendant to 45 years in prison on the first-degree murder conviction and a concurrent term of 5 years in prison for the aggravated batteryconviction. On direct appeal, defendant argued one issue: whether his trial counsel wasineffective for eliciting testimony from him that he had struck Muse with a gun, which, defendantcontended, ensured his conviction for felony murder. People v. Boyd, No. 1-00-0491 (2002)(unpublished order under Supreme Court Rule 23). Defendant contended because the shooting ofBolden occurred shortly after defendant struck Muse several times in the head with a handgunwithout the intervention of any independent act, defense counsel's eliciting the admission fromdefendant that he committed an aggravated battery upon Muse guaranteed a finding of guilty onthe greater charge of felony murder.

In resolving that argument raised by defendant on direct appeal, we indicated in pertinentpart as follows:

"Even assuming defense counsel's concession ofdefendant's guilt for aggravated battery constitutes incompetence,we do not believe a reasonable probability exists that the trial courtwould have found defendant not guilty of felony murder based onthe aggravated battery if defendant had not been questioned abouthis assault on Muse. The crux of defendant's ineffective assistanceclaim is that his attorney's concession of guilt on the aggravatedbattery charge lead the court to enter a conviction for felonymurder based on that offense. The State's evidence, however,overwhelmingly established defendant's guilt for aggravatedbattery. Most notably, Muse, one of the victims, and Robinsonand Hawthorne, both eye witnesses, all testified that defendantstruck Muse in the head with the handgun several times. Given thestrength of the State's evidence introduced in support of itsaggravated battery charge, we cannot conclude defendant wouldhave been acquitted of felony murder if he had not testified tostriking Muse with a gun." Boyd, slip op. at 15.

Defendant filed a pro se post-conviction petition. The petition alleged variousconstitutional deprivations based on the alleged ineffective assistance provided by trial andappellate counsel. We will address each in turn, but first we briefly discuss as backdrop the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)).

POST-CONVICTION HEARING ACT

The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)) providesa mechanism by which criminal defendants can assert that their convictions were the result of asubstantial denial of their rights under the United States Constitution and the Illinois Constitution.People v. Mahaffey, 194 Ill. 2d 154, 170 (2000). A post-conviction petition is a collateral attackon a prior conviction. Mahaffey, 194 Ill. 2d at 170.

In a noncapital case, the Act creates a three-stage procedure for post-conviction relief. People v. Boclair, 202 Ill. 2d 89, 99 (2002). At stage one, the trial court, without input from theState, examines the petition to determine whether it is frivolous or patently without merit. 725ILCS 5/122-2.1 (West 2000). If the petition is not dismissed at stage one, it proceeds to stagetwo, where section 122-4 of the Act provides for the appointment of counsel for an indigentdefendant. 725 ILCS 5/122-4 (West 2000). At stage two the State has the opportunity to eitheranswer or move to dismiss the petition (725 ILCS 5/122-5 (West 2000)), and the trial courtdetermines whether the petition makes a substantial showing of a constitutional violation (Peoplev. Coleman, 183 Ill. 2d 366, 381 (1998)). If the petition is not dismissed at stage two, it proceedsto stage three, where the trial court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West2000). An evidentiary hearing on the petition is required when the allegations of the petition,supported by the trial record and the accompanying affidavits, demonstrate a substantial violationof a constitutional right. People v. Mitchell, 189 Ill. 2d 312, 322 (2000).

The instant case presents a pro se petition dismissed at the first stage of the post-conviction process. The standard of review of either first-stage or second-stage dismissal is denovo. Coleman, 183 Ill. 2d at 389. At the first stage, the trial court must determine whether thepetition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2000). "A post-conviction petition is considered frivolous or patently without merit only if the allegations in thepetition, taken as true and liberally construed, fail to present the 'gist of a constitutional claim.' " People v. Edwards, 197 Ill. 2d 239, 244 (2001), quoting People v. Gaultney, 174 Ill. 2d 410, 418(1996).

In the instant case, defendant's allegations involve claims of ineffective assistance of trialand appellate counsel. Such claims are resolved by application of the Strickland standard. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Claims ofineffective assistance of appellate counsel are measured against the same standard as claims ofineffective assistance of trial counsel. People v. Caballero, 126 Ill. 2d 248, 269-70 (1989). Adefendant must demonstrate both a deficiency in counsel's performance and prejudice resultingfrom the deficiency. People v. Edwards, 195 Ill. 2d 142, 162 (2001), citing Strickland, 466 U.S.at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. To demonstrate performance deficiency, adefendant must establish that counsel's performance was below an objective standard ofreasonableness. Edwards, 195 Ill. 2d at 163. Prejudice is demonstrated if there is a reasonableprobability that, but for counsel's deficient performance, the result of the proceeding would havebeen different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A defendantwho claims that appellate counsel was ineffective for failing to raise an issue on appeal must allegefacts demonstrating such failure was objectively unreasonable and that counsel's decisionprejudiced defendant. People v. Enis, 194 Ill. 2d 361, 377 (2000). Keeping these principles inmind, we next address defendant's various allegations of ineffective assistance of trial andappellate counsel.
 

FAILURE TO ARGUE FOR SECOND-DEGREE MURDER CONVICTION WAS NOT
INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL

Defendant, in his post-conviction petition, alleged that trial and appellate counsel providedineffective assistance of counsel for failure to argue that the court should have found him guilty ofsecond-degree, rather than first-degree, murder. Regarding that issue the pro se petition allegedin pertinent part as follows:

"a. The first degree murder charges against him wereexcessive. *** Because petitioner's trial counsel failed to arguethat the court should find him guilty of second degree murderinstead of first degree murder, and because petitioner's appellateattorney did not raise this issue on direct appeal, petitioner wasdeprived of his right to the effective assistance of counsel that heis guaranteed under the Sixth and Fourteenth Amendments to theConstitution. While an issue which could have been presented ondirect appeal, but was not, is deemed waived for post-convictionproceedings, the Illinois Supreme [C]ourt has held that 'thedoctrine of waiver ought not to bar issues from considerationwhere the alleged waiver stems from incompetency of appointedcounsel on appeal.' "

As previously noted, in order to establish ineffective assistance of counsel, defendant mustsatisfy both prongs of the two-part Strickland test. The defendant must demonstrate that hisattorney's performance was deficient in that " 'counsel made errors so serious that counsel wasnot functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' " Coleman,183 Ill. 2d at 397, quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 194 S. Ct. at 2063. Under the second prong, the prejudice component of the Strickland test, defendant must show "areasonable probability that, but for counsel's unprofessional errors, the result of the proceedingwould have been different." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. "Courts, however, may resolve ineffectiveness claims under the two-part Strickland test byreaching only the prejudice component, for lack of prejudice renders irrelevant the issue ofcounsel's performance." Coleman, 183 Ill. 2d at 397-98.

In the instant case, defendant failed to show prejudice by demonstrating that had his trialor appellate counsel argued that he was guilty of second-degree murder, the trial court wouldhave found him not guilty of first-degree murder, or the appellate court would have reverseddefendant's first-degree murder conviction. The record rebuts defendant's allegation that he wasdeprived of the effective assistance of trial and appellate counsel. There is more than ampleevidence in the record to establish defendant was proven guilty beyond a reasonable doubt ofmurder. The record does not reflect the result at trial or on appeal would have been different hadeither trial or appellate counsel argued in favor of a second-degree murder conviction.

We note the experienced trial judge, consistent with the provisions of the Post-ConvictionHearing Act for the first stage of the post-conviction proceeding, substantively addressed thisargument in her extensively researched and factually detailed written order dismissing defendant'spetition. In her order, recalling evidence from the trial she had presided over, the trial judge notedin relevant part as follows:

"It is quite clear from the record that the trier of fact, the trialjudge in this case, did not find petitioner's testimony credible. *** Petitioner contends evidence of mitigating factors was presented,and while that is true, it is up to the trier of fact to determinewhat weight to give that evidence. [People v.] Emerson, 189 Ill.2d [436,] 474-75 [(2000)]. The trial court characterized theincident as 'a drug transaction that goes bad,' but did not findmitigating factors reducing the crime to second-degree murder.*** In fact, the court expressly noted at the time of the shooting,the victim dove out a glass window in an effort to save himself."

Applying a de novo standard of review, as we are required to do when resolving an appealof a petition dismissed at the first stage of the post-conviction process (Coleman, 183 Ill. 2d at389), we find the record positively rebuts the defendant's allegation that he suffered aconstitutional deprivation as the result of ineffective assistance of trial and appellate counsel in thecontext of both trial and appellate counsel failing to argue for a second-degree murder conviction. Even had such an argument been raised at the trial or appellate level, the evidence was more thansufficient to support defendant's first-degree murder conviction. Applying the Strickland test, wecannot say that either trial or appellate counsel was objectively unreasonable by failing to arguefor a second-degree murder conviction. The record reflects that such an argument would nothave changed the results of the proceeding at trial or on direct appeal. People v. Barrow, 195 Ill.2d 506, 523 (2001). The record positively rebuts any reasonable probability that had either trialor appellate counsel argued in favor of a second degree murder conviction, the results of theproceeding would have been different. The defendant suffered no constitutional deprivation asthe result of the performance of trial and appellate counsel.

The record fails to satisfy the prejudice component under Strickland. Strickland, 466 U.S.at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. We are mindful that the prejudice component ofStrickland entails more than an "outcome-determinative test." The defendant must show thatdeficient performance of counsel rendered the result of the trial unreliable or the proceedingfundamentally unfair. People v. Richardson, 189 Ill. 2d 401, 411 (2000). In the instant case, theresult of the trial and the result of the direct appeal was neither unreliable, nor fundamentallyunfair.
 

APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR FAILING
TO ARGUE THE STATE FAILED TO PROVE DEFENDANT
GUILTY BEYOND A REASONABLE DOUBT

Regarding ineffective assistance of appellate counsel, the pro se petition alleged inpertinent part as follows:

"b. The State failed to prove petitioner guilty beyond areasonable doubt because it failed to prove that he had the intent toshoot Marcus Bolden. *** [B]ecause even the State's witness saidthat Bolden lunged towards petitioner and that the gun went offduring their subsequent struggle, the State did not prove beyond areasonable doubt that petitioner had the intent or knowledgenecessary to support a conviction for first degree murder. Becauseappellate counsel failed to raise this issue on direct appeal,petitioner was deprived of his constitutional right to the effectiveassistance of counsel."

We note the defendant was found guilty of first-degree knowing murder (720 ILCS 5/9-1(a)(2) (West 1998)) in that he, without lawful justification, shot and killed Marcus Bolden "witha gun knowing that such shooting with a gun created a strong probability of death or great bodilyharm to Marcus Bolden, in violation of 720 ILCS 5/9-1(a)(2) (West 1998)." The State was notrequired to prove as alleged by the defendant that the defendant intended to kill Marcus Bolden;rather, as previously noted, defendant was charged with knowing that shooting with a gun createda strong probability of death or great bodily harm to Marcus Bolden. The trial judge substantivelyaddressed this argument in her written order dismissing the petition. The record rebutsdefendant's allegation that the State did not prove beyond a reasonable doubt that petitioner wasguilty of first-degree knowing murder. The record positively rebuts any reasonable probabilitythat had appellate counsel raised this issue the results of the proceeding would have beendifferent. The defendant suffered no constitutional deprivation as the result of appellate counsel'sperformance in this regard. The record fails to satisfy the prejudice component under Strickland. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct at 2068.
 

TRIAL AND APPELLATE COUNSEL WERE NOT INEFFECTIVE FOR FAILURE
TO ARGUE THE SENTENCE IMPOSED WAS EXCESSIVE

Defendant contends the sentence imposed was excessive and regarding that issue the prose petition in pertinent part alleges as follows:

"c. In light of the petitioner's limited criminal background,his young age, and the circumstances of this case, petitioner'ssentence of 45 years for first degree murder was excessive. Beforehis arrest in connection with this case petitioner only had one priorjuvenile adjudication and one prior adult conviction - both of whichwere for non-violent offenses and which both resulted in sentencesof probation. *** Because petitioner's trial lawyer did notchallenge his sentence with a motion to reconsider, and because hisappellate lawyer did not raise this issue on direct appeal, petitionerwas deprived of his constitutional right to the effective assistance ofcounsel."

The alleged excessiveness of a sentence that is within the statutory limits when imposeddoes not create a constitutional issue that may serve as a basis for post-conviction relief. Peoplev. Hoffman, 25 Ill. App. 3d 261, 271 (1974).

As noted by the trial court in resolving this issue:

"In Illinois, the sentencing range in 1999 for first-degreemurder was 20 to 60 years, except when circumstances were suchthat natural life or death was appropriate. 730 ILCS 5/5-8(1)(West 1999). Petitioner's sentence of 45 years clearly falls withinthe statutorily authorized limits; therefore, petitioner has failed toraise a cognizable claim under the Act."

We agree with the trial judge. Although defendant's prior criminal background is limited, nothingin the record indicates that a sentence of 45 years, which is mid-level in the context of thesentencing range, is excessive in light of the seriousness of the offense.

Regarding the allegations of ineffective assistance of trial counsel as to the sentencingissue, the record directly rebuts defendant's claim. Trial counsel did seek a reduction of sentencewhich was denied. Moreover, even had appellate counsel raised an argument alleging anexcessive sentence, for the reasons previously discussed that argument would not have changedthe results of the appeal. The record positively rebuts defendant's allegation that trial andappellate counsel were ineffective for failing to argue that his sentence was excessive. Thedefendant suffered no constitutional deprivation as the result of the performance of trial andappellate counsel. The record fails to satisfy the prejudice component under Strickland.Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct at 2068.
 

ALLEGATIONS RAISED FOR THE FIRST TIME ON APPEAL NOT
RAISED IN POST-CONVICTION PETITION

As we find is too frequently the case in appealing a trial judge's dismissal of a first-stagepro se petition, appellate counsel has presented in the brief various allegations not raised in thepro se petition. In the instant case, rather than pursuing the pro se petitioner's allegation ofconstitutional deprivation as the result of ineffective assistance of trial and appellate counselbecause trial and appellate counsel failed to argue for a second-degree murder conviction, failedto challenge evidence sufficiency regarding intent and failed to challenge the sentence, post-conviction appellate counsel raises new allegations. We will address each in turn.

The Act does not provide for representation at the first stage of the post-convictionprocess, as a result, frequently resolution by the appellate court of petitions dismissed at the firststage and challenged on appeal presents us with a moving target as to defendant's allegations ofconstitutional deprivations. See People v. Porter, 122 Ill. 2d 64, 75-76 (1988) (neitherfundamental fairness nor due process considerations require that counsel be appointed for post-conviction petitioners at the initial pleading stage). On a regular and consistent basis theinarticulate allegations of constitutional deprivation presented by a pro se petitioner to the trialcourt take on a completely different meaning in both form and substance once appellate litigatorsbecome involved during the appeal of pro se petitions dismissed at the first stage. We note, in theinstant case, the experienced circuit court judge painstakingly addressed each and every allegationpresented in the pro se petition on its merits. However, the circuit court judge was never giventhe opportunity to address the new allegations raised by counsel on appeal of the post-convictiondismissal. Such a procedure frustrates the very purpose of first-stage review as articulated bysection 122-2.1(a)(2), which provides the mechanism by which the circuit court judge is todetermine whether the petition substantively is frivolous or patently without merit because therecord rebuts the alleged constitutional deprivation. 725 ILCS 5/122-2.1(a)(2) (West 2000).

Section 122-3 of the Act requires that post-conviction claims be included in "the originalor an amended petition." 725 ILCS 5/122-3 (West 2000). The Act specifically delineates theconsequences of omitting an issue: "[a]ny claim of substantial denial of constitutional rights notraised in the original or an amended petition is waived." 725 ILCS 5/122-3 (West 2000). "Apost-conviction petitioner may not wait until appeal to formulate the matters that he wishes toassert as grounds for post-conviction relief." People v. McNeal, 194 Ill. 2d 135, 153 (2000);People v. Moore, 189 Ill. 2d 521, 544 (2000); see also People v. Sutherland, No. 1-01-3770, slipop. at 11 (January 30, 2004); People v. Jones, No. 95576, slip op. at 5-6 (March 18, 2004). Where, as here, petitioner fails to raise an issue in his pro se petition for post-conviction relief but,rather, raises an issue for the first time on appeal of the dismissal of the post-conviction petition,the issue is waived. 725 ILCS 5/122-3 (West 2000).

Our application of the principle of waiver to allegations of constitutional deprivationraised for the first time on appeal is in no way inconsistent with the position previously taken bythis court in People v. Etherly, 344 Ill. App. 3d 599, 622-23 (2003). In Etherly, the circuit courtsua sponte dismissed a first-stage pro se petition based on waiver. We held that the circuit courtcannot dismiss a petition at the first stage of the post-conviction process on the basis of waiver,because, like timeliness, waiver is a procedural bar to the defendant's right to present a claim, nota consideration of the petition's substantive merits, which is properly raised by the State at thesecond stage of the post-conviction process. Etherly, 344 Ill. App. 3d at 622-23. Unlike Etherly,in the instant case, the circuit court judge did not dismiss the pro se petition based on waiver orany other procedural bar but, rather, addressed each and every allegation in the petitionsubstantively on its merits. Unlike Etherly, in the instant case, we are presented with newallegations raised for the first time on appeal of the dismissal of the post-conviction petition.

In application of waiver to the new arguments raised by defendant on appeal of thedismissal of his first-stage petition, we are mindful of the principles of fundamental fairness. It haslong been recognized that in appropriate cases, we may resolve issues not withstanding theirwaiver. This general rule was recently discussed by the Illinois Supreme Court in People v. De LaPaz, 204 Ill. 2d 426, 431 (2003):

" '[T]he general rule is that where a question is not raised orreserved in the trial court, or where, though raised in the lowercourt, it is not urged or argued on appeal, it will not be consideredand will be deemed to have been waived. However, this is a rule ofadministration and not of jurisdiction or power, and it will notoperate to deprive an accused of his constitutional rights of dueprocess. "The court may, as a matter of grace, in a case involvingdeprivation of life or liberty, take notice of errors appearing uponthe record which deprived the accused of substantial means ofenjoying a fair and impartial trial, although no exceptions werepreserved or the question is imperfectly presented." ' [Citations.]" De La Paz, 204 Ill. 2d at 431.

As further noted in De La Paz, it has long been recognized that under appropriatecircumstances issues may be resolved, notwithstanding their waiver:

"this court has 'the responsibility *** for a just result and for themaintenance of a sound and uniform body of precedent [that] maysometimes override the considerations of waiver that stem from theadversary character of our system.' " De La Paz, 204 Ill. 2d at432-33, quoting Hux v. Raben, 38 Ill. 2d 223, 225 (1967).

Pro se litigants operate at a disadvantage when it comes to identifying issues andarticulating allegations of constitutional deprivations under the terms of the Act; however, a post-conviction petitioner is not without recourse for failing to include issues in the petition. SeePeople v. Jones, No. 95576, slip op. at 6 (March 18, 2004). We are mindful of the principlerecently recognized by the Illinois Supreme Court in Jones. "A defendant who fails to include anissue in his original or amended postconviction petition, although precluded from raising the issueon appeal from the petition's dismissal, may raise the issue in a successive petition if he can meetthe strictures of the 'cause and prejudice test.' [Citations.]" Jones, slip op. at 6. The defendantmust demonstrate "cause" for failing to raise the error and "prejudice" resulting from the errordefendant failed to raise. Jones, slip op. at 6. " '[T]he cause-and-prejudice test is the analyticaltool that is to be used to determine whether fundamental fairness requires that an exception bemade to section 122-3 so that a claim raised in a successive petition may be considered on itsmerits.' " Jones, slip op. at 6, quoting People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002).

In the instant case, rather than remand for defendant to raise these issues in a successivepetition, in the interest of judicial economy and because these issues have been fully briefed, wesubstantively address the new issues raised for the first time on post-conviction appeal. Post-conviction appellate counsel argues that the trial court erred in dismissing the first-stage petitionbecause petitioner's original appellate counsel "was ineffective for not raising in his direct appealthat he was not proven guilty beyond a reasonable doubt of first degree murder under section 9-1(a)(2) or of felony murder." In support of that argument, post-conviction appellate counselcontends that the record reflects defendant's gun fired accidentally "following petitioner's recklessconduct of pointing a gun at the victim, which was conduct that supported a conviction for onlyinvoluntary manslaughter."

The constitutional deprivation argued by post-conviction appellate counsel is that becausethe evidence was allegedly insufficient to prove defendant guilty of first-degree murder, and atmost supported a conviction for involuntary manslaughter, appellate counsel was ineffective forfailing to raise the issue of evidence sufficiency. While the requirement of proof of guilt beyond areasonable doubt is a matter of constitutional right, it has been repeated many times that it is notthe purpose of the Post-Conviction Hearing Act to redetermine guilt or innocence. People v.Rogers, 197 Ill. 2d 216, 221 (2001).

Moreover, the record in the instant case substantively rebuts the merits of defendant's newallegations raised for the first time on post-conviction appeal that appellate counsel wasineffective for not arguing that defendant was not proven guilty beyond a reasonable doubt ofknowing first-degree murder under section 9-1(a)(2) or felony murder. Based on our review ofthe record, we find that the evidence of defendant's guilt is such that there is no reasonableprobability that the outcome of the direct appeal would have been any different had appellatecounsel challenged the sufficiency of the evidence to prove defendant guilty beyond a reasonabledoubt of knowing first-degree murder or felony murder. The record rebuts defendant's argument,raised for the first time on post-conviction appeal, that at most the evidence supported aconviction for involuntary manslaughter, rather than first-degree murder. An argument in favor ofinvoluntary manslaughter would not have been successful on direct appeal. Defendant suffered noprejudice from appellate counsel's failure to make such an argument and, therefore, the recordfails to satisfy the prejudice component under Strickland. Strickland, 466 U.S. at 94, 80 L. Ed.2d at 698, 104 S. Ct. at 2068.

In addition to alleging ineffective assistance of appellate counsel for failure to argue theevidence at most supported a conviction for involuntary manslaughter, defense counsel, on post-conviction appeal, for the first time challenges the felony murder conviction. Defense counsel onpost-conviction appeal contends the felony murder conviction was "unsupported by the evidencebecause the commission of the predicate felony of aggravated battery was completed before theseparate incident in which the victim was shot." Defense counsel on post-conviction appealargues that counsel on direct appeal was ineffective for not challenging the felony murderconviction.

However, the record substantively rebuts the allegation that counsel on direct appeal wasineffective for failing to challenge the felony murder conviction. Regarding the felony murderconviction, the law in Illinois recognizes only one offense of murder. People v. Toney, 337 Ill.App. 3d 122, 129 (2003). In the instant case, defendant's conviction for felony murder mergedwith his conviction for first-degree knowing murder (720 ILCS 5/9-1(a)(2) (West 1998)) and hewas sentenced to 45 years on the knowing murder conviction. The record reflects a continuingcourse of conduct during which the defendant committed an aggravated battery on Muse andkilled Bolden. The judge in merging the felony murder conviction with the conviction forknowing murder referenced the one-act, one-crime rule and sentenced defendant to 45 years forthe crime of first-degree knowing murder under section 9-1(a)(2) (720 ILCS 5/9-1(a)(2) (West1998)).

Defendant received no additional sentence for the felony murder conviction; rather thejudge correctly imposed a sentence consistent with the fact that the law in Illinois recognizes onlyone offense of first-degree murder. Defendant was sentenced to 45 years in prison for first-degree knowing murder, and no sentence was imposed on the felony murder conviction based onthe judge's correct application of the law. For the reasons previously discussed, there wassufficient evidence to prove defendant guilty beyond a reasonable doubt of first-degree murder,and even if any error occurred regarding the felony murder conviction it was harmless and in noway prejudiced defendant. The record substantively rebuts the allegation that counsel on directappeal was ineffective for failing to challenge the felony murder conviction.

We further reject defendant's argument that his appellate counsel was ineffective forfailing to challenge the felony murder conviction on direct appeal because the predicate felony ofaggravated battery was completed before the victim was shot and killed. Defendant committed anaggravated battery on Muse, Muse escaped and during the commotion caused by Muse escaping,Bolden attempted to grab the gun from defendant and was shot and killed by the defendant. Aspreviously discussed, the record reflects the defendant put into play a course of felonious conductwhich ended with Bolden being shot and killed by defendant. The evidence was sufficient toprove defendant guilty beyond a reasonable doubt of felony murder. Based on the record, wedetermine that the underlying issue regarding the completion of the aggravated battery of Musebefore Bolden was shot and killed is nonmeritorious. Where an issue not raised on direct appealwas not meritorious, defendant is not prejudiced from appellate counsel's failure to raise the issueon direct appeal. People v. Harris, 206 Ill. 2d 1, 15-16 (2002).

We therefore conclude that even if appellate counsel had raised these issues on directappeal, there is no reasonable probability that the result of the appeal would have been different. People v. Barrow, 195 Ill. 2d 506, 523 (2001). The record substantively rebuts defendant'sargument that the State only proved involuntary manslaughter, and therefore, rebuts defendant'sargument that appellate counsel was ineffective for not arguing that the evidence was insufficientto prove first-degree murder. The record substantively rebuts defendant's challenge to the felonymurder conviction and defendant's argument that appellate counsel was ineffective for notchallenging that conviction. The defendant suffered no constitutional deprivation as the result ofappellate counsel's performance regarding these issues. The record fails to satisfy the prejudicecomponent under Strickland. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct at2068.
 

CONCLUSION

Regarding defendant's post-conviction petition, we find the allegations of ineffectiveassistance of trial and appellate counsel based on defendant's claim that the facts of his casesupported a conviction for second-degree murder, that the State failed to prove defendant's intentto kill, and that defendant's sentence was excessive are positively rebutted by the record. Wenote the trial judge addressed each allegation substantively on its merits, rather than relying onwaiver or procedural default as a basis for dismissal. See Etherly, 344 Ill. App. 3d at 599. Thesecond-degree-murder argument and the argument that the State failed to prove defendant'sintent to kill implicate questions of evidence sufficiency raised in the context of ineffectiveassistance of counsel which, under the Strickland standard, are directly and positively rebutted bythe record. Regarding whether this first-stage petition is frivolous or patently without merit, ourexamination of the record reflects the petition alleges constitutional deprivations eachsubstantively rebutted by the record, rendering the petition frivolous and patently without merit.

This is not a case where the trial judge gave short shrift to the defendant's pro se petition. Rather, consistent with section 122-2 of the Act, the judge substantively addressed each and everyallegation of the petition on its merits consistent with the mechanism provided by section 122-2.1(c) by which the circuit court at the first stage is to determine whether the petition is frivolousor patently without merit: "In considering a petition pursuant to this Section, the court mayexamine the court file of the proceeding in which the petitioner was convicted, any action takenby an appellate court in such proceeding and any transcripts of such proceeding." 725 ILCS5/122-2.1(c) (West 2000).

Consistent with the determinations to be made by the circuit court at the first stage asprovided by the Act, the circuit court judge in the instant case considered whether the petitionalleged a constitutional deprivation which was substantively rebutted by the record, rendering thepetition frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2), (c) (West 2000). In theinstant case, there was no reliance on waiver or other procedural default as the basis for first-stagedismissal by the circuit court judge. The petition was reviewed substantively on its merits anddismissed because each alleged constitutional deprivation was positively rebutted by the recordrendering the petition frivolous and patently without merit. The written order entered by theexperienced trial judge specifically articulated the way in which each and every allegation of thepetition was substantively without merit and positively rebutted by the record.

Regarding the allegations raised for the first time on appeal, we note that when adefendant raises new allegations on appeal, the trial judge, contrary to the intent of the Act, isprecluded from determining whether the petition alleges a constitutional deprivation unrebutted bythe record frustrating the very purpose of the Act. 725 ILCS 5/122-2.1(a)(2), (c) (West 2000). We are mindful that a petitioner, as in the instant case, without representation at the first stage ofthe post-conviction process is disadvantaged in terms of identifying and pleading allegationswhich raise the "gist of a constitutional violation." See Edwards, 197 Ill. 2d at 244. Aspreviously noted, however, a petitioner is not without recourse for failing to include issues in thepetition but may raise the issue in a successive petition if he meets the "cause and prejudice test." Jones, slip op. at 6. In the instant case, in the interest of judicial economy and because the issueshave been fully briefed, we address the new issues raised for the first time on post-convictionappeal. For the reasons previously discussed, the new allegations raised for the first time on post-conviction appeal are substantively without merit and positively rebutted by the record.

We affirm the dismissal of the first-stage post-conviction petition by the trial court.

Affirmed.

GALLAGHER and FITZGERALD SMITH, JJ., concur.