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FOURTH DIVISION
May 12, 2005

No. 1-03-2587

JUSTICE GREIMAN delivered the opinion of the court:

Defendant Michael Chatman appeals from an order of the circuit court granting the State'smotion to dismiss several counts in his petition for postconviction relief and following anevidentiary hearing on the remaining claim. For the reasons that follow, we affirm.

Defendant was initially convicted of first degree murder and aggravated battery with afirearm and sentenced to consecutive terms of 40 years and 15 years in prison. At trial, witnessesConnie Calvert and Kim Chatman testified that they observed defendant and two other individualsshoot the victims on the night of September 7, 1992. Defendant called witnesses who testifiedthat he was working at another location at the time of the shooting. The jury found him guilty offirst degree murder, attempted first degree murder, and aggravated battery with a firearm, withthe attempt offense merging into the aggravated battery count.

On direct appeal, defendant sought reversal arguing that he had been denied effectiveassistance of counsel in that his attorney was not adequately prepared for trial, failed to producepromised evidence, pursued unsound defense theories, introduced testimony that damageddefendant's case, and conceded deficiencies in his closing. Defendant also argued that the trialcourt abused its discretion in imposing his sentences and that the mittimus required clarification. This court affirmed defendant's convictions and sentences and perceived no need to correct themittimus. People v. Chatman, No. 1-93-2093 (1995) (unpublished order under Supreme CourtRule 23).

In April 1995, defendant filed a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994)), contending that theState's witnesses had perjured themselves at trial. The State filed a motion to dismiss, which thetrial court granted.

In January 1998, defendant filed the instant postconviction petition through counsel,alleging numerous instances of ineffective assistance of trial and appellate counsel. The State fileda motion to dismiss, which the circuit court granted on all counts except for one, and ordered anevidentiary hearing on defendant's claim that his trial and appellate counsel had not advised him ofhis right to testify in his own defense.

At the hearing, defendant's mother and sister both testified that they were present duringdefendant's trial and that defendant had been represented by counsel at that time. They statedthat they had spoken with defendant's counsel during the course of the trial and counsel hadstated that he did not intend to call defendant or his family members as witnesses for the defense. Neither witness was present for any conversations between defendant and his counsel that tookplace before and during the trial.

Defendant testified that his counsel spoke with him on only two occasions and for shortperiods of time prior to the trial. Counsel never informed defendant that he had a constitutionalright to testify in his own defense and did not call defendant as a witness even though he hadexpressed a desire to testify. Further, defendant's appellate counsel never inquired as to why hedid not testify at trial, nor did she inquire as to which issues defendant wished to raise on directappeal.

The State called defendant's trial counsel, who testified that he had practiced law forseveral years and had represented several criminal defendants prior to representing defendantduring his trial. He stated that he had informed defendant of his right to testify on his own behalfand that he had never told defendant that he could not testify. He further recalled that he haddiscussed the possibility of defendant testifying with him several times and that defendant hadnever expressed a desire to testify. Counsel also stated that his law license had been suspended in1995 for matters involving his work on divorce cases but not his work on defendant's trial.

On cross-examination, counsel stated that it appeared to him as if defendant was aware ofhis rights during trial and understood the nature of the proceedings against him. He did notspecifically recall the detail of his conversations with defendant's mother and sister regardingwhether defendant would testify, nor did he recall the details of such conversations withdefendant, but he did recall discussing that subject and that he had made it clear to defendant thatit was his (defendant's) choice whether or not to testify.

Following arguments, the trial court found that defense counsel's conversations withdefendant's mother and sister were not relevant and that the validity of defendant's claim ofineffective assistance rested on the conversations he had had with counsel before and during histrial. The court also opined that it was likely that defendant knew of his right to testify because hehad indicated a desire to do so and could have made that desire apparent to the court during trial. The court also found counsel's testimony that he had informed defendant of his right to testifycredible and believable. On that basis, the court dismissed defendant's postconviction petition. This court granted leave to file a late notice of appeal, and we now affirm.

The Post-Conviction Hearing Act (Act) provides defendants with a means of challengingtheir convictions or sentences for violations of their constitutional rights that could not have beenraised on direct appeal. 725 ILCS 5/122-1 et seq. (West 2002). The Act establishes a three-stageprocess for adjudication of a postconviction petition. At the first stage, the trial court determineswhether the defendant's allegations sufficiently demonstrate a constitutional violation that wouldnecessitate relief, and it may summarily dismiss the petition upon finding that it is frivolous andpatently without merit. People v. Coleman, 183 Ill. 2d 366, 380 (1998); 725 ILCS 5/122-2.1(a)(2) (West 2002). At the second stage, the defendant may be appointed counsel to amendhis petition, and the State may file a motion to dismiss. We review the trial court's grant of sucha motion de novo as a matter of law. People v. Dodds, 344 Ill. App. 3d 513, 520 (2003). At thethird stage, the trial court hears evidence and determines whether the evidence demonstrates thatthe defendant is entitled to relief. Dodds, 344 Ill. App. 3d at 520. A trial court's decisionfollowing an evidentiary hearing will not be reversed on appeal unless it was manifestly erroneous,that is, it contains error that is clearly evident, plain, and indisputable. People v. Frieberg, 305 Ill.App. 3d 840, 847 (1999).

On appeal, defendant initially contends that he was denied effective assistance of trialcounsel, appellate counsel, and postconviction counsel when trial counsel failed to ensure that thejury was properly instructed on identification testimony, and appellate and postconviction counselfailed to raise this issue in subsequent proceedings. Specifically, defendant argues that his trialcounsel failed to claim error where the trial court included the word "or" when listing the facts thejury was to consider when weighing the identification testimony of the State's witnesses, inaccordance with Illinois Pattern Jury Instructions.

The jury instruction defendant claims was erroneous reads as follows:

"When you weigh the identification testimony of a witness, youshould consider all the facts and circumstances in evidence, including, butnot limited to, the following:

The opportunity the witness had to view the offender at the time ofthe offense.

[or]

The witness's degree of attention at the time of the offense.

[or]

The witness's earlier description of the offender.

[or]

The level of certainty shown by the witness when confronting thedefendant.

[or]

The length of time between the offense and the identificationconfrontation."

See Illinois Pattern Jury Instructions, Criminal, No. 3.15 (4th ed. 2000).

Defendant argues that the instruction as issued violated the holding of People v. Gonzalez,326 Ill. App. 3d 629 (2001), where this court concluded that the use of the word "or" betweeneach factor listed above was erroneous because its insertion implied, as a matter of law, that aneyewitness's identification testimony may be deemed reliable if only one of the five factors weighsin favor of reliability. Gonzalez, 326 Ill. App. 3d at 640. He also argues that his trial counsel'sfailure to object to the issued instruction, his appellate counsel's failure to raise the issue on directappeal, and his postconviction counsel's failure to include it in his petition each amounted toineffective assistance.

The State responds that defendant has waived the issue of the jury instruction for purposesof appeal because it was not included in his postconviction petition and, in the alternative, that anytrial error that may have resulted was harmless. We reject defendant's claim of error, but on adifferent basis.

In order to demonstrate ineffective assistance of counsel at trial and on direct appeal, adefendant must allege facts showing that counsel's performance was objectively unreasonable andresulted in prejudice to the defendant. People v. Flores, 153 Ill. 2d 264, 283 (1992). Inpostconviction proceedings, a defendant is entitled to a reasonable level of assistance. People v.Turner, 187 Ill. 2d 406, 410 (1999).

Here, defendant was tried and convicted in 1993; his direct appeal was decided in 1995;and the instant postconviction petition was filed in 1998. Gonzalez was not decided until 2001. We cannot conclude that counsel's failure to invoke a ruling that had not occurred was objectivelyunreasonable or resulted in prejudice to defendant. Indeed, to require counsel to preminiscefuture appellate court holdings would render "effective assistance" an impossible standard to meetand would, we believe, render nearly all Illinois attorneys incompetent. We will not ascribeincompetence to defendant's counsel based on a ruling issued well after their service to defendantended. Moreover, Illinois courts generally will not apply new rules retroactively to cases oncollateral review. People v. De La Paz, 204 Ill. 2d 426, 433 (2003). Additionally, this court hasalready considered and rejected several claims by defendant of ineffective assistance on the part ofhis trial counsel. We need not entertain further claims as they occur to defendant. Accordingly,we reject defendant's initial claim of error.

Defendant next contends that the trial court erred in failing to grant a hearing on hisallegations of ineffective assistance other than his claim that trial counsel limited his right totestify. Defendant's petition alleged that he was denied effective assistance of trial counsel wherecounsel failed to prepare a proper alibi defense; failed to interview and subpoena materialwitnesses; failed to make proper objections and seek to bar admission of evidence as todefendant's gang membership, an unauthenticated document, and his juvenile court proceedings;failed to conduct proper examination and impeachment of witnesses; asserted flawed theories ofmistaken identity and an unreasonable alibi; failed to object to the testimony of a rebuttal witnesswho had not been excluded from the courtroom; failed to call witnesses in mitigation atsentencing; and failed to inform defendant of the possibility of consecutive sentences. He nowargues that those claims of ineffective assistance warranted an evidentiary hearing because theywere supported by affidavits and by evidence of disciplinary proceedings against his trial counsel.

The State responds that defendant's additional claims of ineffective assistance are barredfrom consideration as res judicata because the same allegations were disposed of on direct appealand because they fail to show substantial constitutional violations or prejudice to defendant. Weagree.

A postconviction action is a collateral attack on a prior conviction and sentence, and thescope of such a proceeding is generally limited to constitutional matters that have not been, orcould not have been, previously adjudicated. People v. Rissley, 206 Ill. 2d 403, 411-12 (2003). There exists a split of authority within our own appellate district as to the ability of trial courts tosummarily dismiss postconviction claims on purely procedural bases. While all divisions concurwith and follow our supreme court's holding in People v. Boclair, 202 Ill. 2d 89 (2002), thatuntimeliness may not serve as the sole basis for the summary dismissal of a postconvictionpetition, some divisions have ruled that postconviction claims may be subject to both waiver andres judicata, while others have held that claims may be summarily dismissed on the basis of resjudicata but not on the basis of waiver.

The third division has held that, in general, a trial court may not summarily dismiss apostconviction petition on solely procedural bases, such as untimeliness, waiver, or res judicata. People v. McGhee, 337 Ill. App. 3d 992 (2003); People v. Blair, 338 Ill. App. 3d 429 (2003),appeal allowed, 205 Ill. 2d 594 (2003). In McGhee, the panel extended the ruling in Boclair tohold that procedural bars do not address the question of whether the claims contained in apostconviction petition are frivolous or patently without merit, but only bar the hearing of claimsregardless of their substantive merit. McGhee, 337 Ill. App. 3d at 995. The same divisionfollowed that holding in Blair, reversing the trial court's summary dismissal of a postconvictionpetition solely on the finding that the defendant's claims were barred by waiver and res judicata. Blair, 338 Ill. App. 3d at 432.

Conversely, the first division has distinguished the issue of timeliness from those of waiverand res judicata, reasoning that the latter two bars, although procedural constructs, are alsosubstantive considerations in that they define and limit the substantive scope and purpose of theAct. People v. Smith, 345 Ill. App. 3d 868 (2004). The Smith panel concluded that the issue ofwaiver does indeed address the substantive merits of a postconviction petition, stating, "[t]hesubstantive scope and purpose of the Act does not include providing for the retrial of issuespreviously decided or that could have been raised and decided at an earlier time," and that circuitcourts may summarily dismiss a petition on the basis of waiver. Smith, 345 Ill. App. 3d at 871. Cf. People v. Johnson, 352 Ill. App. 3d 442 (2004).

Similarly, this division declined to follow the holdings of McGhee and Blair, finding thatthe issue of timeliness is distinct from both waiver and res judicata, and that the latter two dealwith the substance of postconviction claims and may serve as the basis for summary dismissal. People v. Jefferson, 345 Ill. App. 3d 60, 70 (2003).

The sixth division took a different course in People v. Etherly, 344 Ill. App. 3d 599(2003), where it held that res judicata could provide the basis for summary dismissal of apostconviction petition, but waiver could not. That panel reasoned that dismissal on the basis ofres judicata is proper where the trial court does not have to engage in any fact finding and it isapparent from the record that the issue raised was in fact previously adjudicated, whereas waiverwould involve consideration of matters outside the record and thus could only lead to dismissal atthe second stage of postconviction proceedings. Etherly, 344 Ill. App. 3d at 614-15.

This division has not changed its stance with regard to the procedural bars topostconviction claims since we issued our decision in Jefferson. Accordingly, we will not hesitateto apply procedural bars in circumscribing the claims available to defendant in his pursuit ofpostconviction review.

On direct appeal, defendant contended that his trial counsel was ineffective in that he wasnot adequately prepared at trial, failed to produce evidence he had promised in his openingstatement, pursued unsound defense theories, introduced damaging testimony through his ownwitnesses, and gave a rambling closing which conceded deficiencies in his case. This courtconsidered and rejected each instance of claimed ineffectiveness, finding that defendant sufferedno prejudice because the trial's outcome would not have been affected had counsel proceededdifferently. Chatman, slip op. at 9-10. Obviously, the issue of ineffective assistance of trialcounsel was raised and decided on direct appeal, and any further consideration of the issue isbarred by the doctrine of res judicata, and we therefore conclude that the trial court actedproperly in dismissing defendant's claims thereof.

Defendant argues that his claims of ineffective assistance remain viable because theallegations are supported by evidence outside the record, specifically the disciplinary proceedingsagainst Wright and an affidavit by the surviving victim, Randy Porter, who had attested in supportof defendant's section 2-1401 motion that defendant was not one of the individuals who shot himand that he had stated as much to detectives only out of gang-inspired animosity.

However, defendant provides this court with no explanation as to how possible falsestatements by Porter support each and every allegation of counsel's deficient performance. Moreover, it was established at the evidentiary hearing that counsel was suspended from thepractice of law for his actions concerning divorce cases that he handled well after he hadparticipated in defendant's trial; no disciplinary actions were instituted against Wright for hisconduct with respect to his representation of defendant. Illinois courts generally adhere toobjectively unreasonable-prejudice analysis even when defendants claim ineffective assistance ofcounsel based on attorney disciplinary proceedings. People v. Szabo, 144 Ill. 2d 525, 529-31(1991). Defendant has failed to provide any coherent explanation as to how Porter's affidavit orthe disciplinary proceedings indicate objectively unreasonable performance by trial counsel andresultant prejudice against defendant. A reviewing court is entitled to have the issues before itclearly defined and is not simply a repository in which appellants may dump the burden ofargument and research; an appellant's failure to properly present his own arguments can amountto waiver of those claims on appeal. See Pecora v. Szabo, 109 Ill. App. 3d 824, 826 (1982). Without proper explanation as to how the cited evidence substantiates defendant's postconvictionclaims, we will not overturn the trial court's dismissal of them.

Defendant next contends that he was improperly denied his constitutional right to testify inhis own defense and the trial court failed to obtain from defendant a voluntary waiver of thatright. The State responds that defendant has waived this issue because it was not raised in hisdirect appeal. We agree. See People v. Smith, 176 Ill. 2d 217, 233 (1997). However, waiveraside, and in light of the evidentiary hearing held below, we will consider the merits of defendant'sargument.

A criminal defendant has a constitutional right to testify in his own defense, but that rightmay be waived. People v. Burchette, 257 Ill. App. 3d 641, 659 (1993). In order to effect waiverof his right to testify, a defendant is not required to execute a specific type of waiver, nor is thetrial court required to ascertain whether a defendant's silence is the result of a knowing andvoluntary waiver to testify. Burchette, 257 Ill. App. 3d at 659-60.

Defendant argues that his young age at the time of trial, 16, militates against any findingthat he knowingly and voluntarily waived his right to testify, and he cites to a Hawaii SupremeCourt case, Tachibana v. State, 79 Haw. 226, 900 P.2d 1293 (1995), which held that trial courtsmust advise defendants of their right to testify and must obtain an on-the-record waiver of thatright where defendants opt not to testify. Defendant also analogizes the right to testify to jurywaivers and guilty pleas, contending that such decisions by defendants require that trial courtsestablish clear records that defendants knowingly and voluntarily enter into such decisions. However, the Illinois Supreme Court has explicitly declined to follow Tachibana, holding thatwhere defendants argue on appeal that they were precluded from testifying at trial, theirconvictions will not be reversed unless they contemporaneously assert the right to testify byinforming the trial court of their desire to do so, and following the majority of jurisdictions inmaintaining that a defendant's waiver of his right to testify is presumed where he fails to notify thecourt of his desire to do so. Smith, 176 Ill. 2d at 234.

From this record, we ascertain no instance where defendant notified the court of his desireto testify at his own trial, and we therefore conclude that the trial court, in reviewing hispostconviction claim of his alleged deprivation of that right, was correct in presuming thatdefendant had waived it.

Defendant attempts to overcome the rule of Smith by citing esoteric United StatesSupreme Court quotations concerning the evolving nature of due process. We find his argumentsattenuated and irrelevant, and having found no authority from this jurisdiction to the contrary, wedecline to deviate from the holding of Smith.

Defendant lastly argues that the trial court erred in dismissing his claim of ineffectiveassistance and prejudice following the evidentiary hearing, contending that counsel's deficientrepresentation and his young age at the time of trial merit reversal of his convictions and a newtrial.

In postconviction proceedings, we review the trial court's decision following anevidentiary hearing under the manifestly erroneous standard. Frieberg, 305 Ill. App. 3d at 847. Insuch a hearing where the judge serves as the finder of fact, it is the function of the trial court todetermine the credibility of witnesses, decide the weight to be given their testimony, and resolveany conflicts in the evidence. People v. Williams, 193 Ill. 2d 306, 338 (2000). This court may notsubstitute its judgment for that of the trial court and will not reverse its decision unless it is clearlyevident, plain, and indisputable that the decision was erroneous. People v. Lundy, 334 Ill. App.3d 819, 825 (2002); Frieberg, 305 Ill. App. 3d at 847.

Here, the court heard the testimony from defendant and from his attorney at the time oftrial. Defendant stated that he had expressed to counsel a desire to testify, but that counsel neverexplicitly told him that he had a constitutional right to do so. His counsel recalled discussing thepossibility of defendant testifying and indicating to defendant that it was his decision whether ornot to testify. The trial judge noted that defendant had undergone criminal prosecution before his1993 trial and that it seemed unlikely that defendant would not have been aware of his right totestify at that time. From this record, we cannot discern an instance where defendant waswrongfully denied his right to testify at his own trial. There is no evidence that defendant wasunaware of that right or that his trial counsel prevented him from exercising it. Accordingly, wefind that the trial court's dismissal of defendant's claim was not evidently, plainly, or indisputablyerroneous.

For the forgoing reasons, we uphold the judgment of the circuit court.

Affirmed.

THEIS and QUINN, JJ., concur.