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SIXTH DIVISION
November 21, 2003

No. 1-01-4166

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

The issue in the instant case is whether the first-stage post-conviction petition can bedismissed based on res judicata, waiver, or procedural default under the terms of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)). Defendant alleges in his pro se petition that he was deprived of a fair trial because prospective jurors were not questionedas to their potential bias toward gang members. People v. Strain, 194 Ill. 2d 467 (2000). Thecircuit court found the petition frivolous and patently without merit and dismissed defendant'sfirst-stage post-conviction petition based on waiver and res judicata.

In People v. Boclair, 202 Ill. 2d 89 (2002), the Illinois Supreme Court held that the circuitcourt may not dismiss a first-stage petition as untimely, but it did not address whether waiver orres judicata can provide the basis for first-stage dismissal. People v. McGhee and People v. Blairapplied the reasoning in Boclair regarding timeliness to res judicata and waiver and held a first-stage petition may not be dismissed based on res judicata or waiver. People v. McGhee, 337 Ill.App. 3d 992, 995 (2003); People v. Blair, 338 Ill. App. 3d 429, 431-32 (2003), appeal allowed,No. 96198. We follow McGhee and Blair's application of Boclair with modification. We agreethat waiver or procedural default cannot provide the basis for first-stage dismissal; however,under certain circumstances res judicata may provide the basis for first-stage dismissal.

We hold when the circuit court engages in fact finding, resolution of disputed facts orconsideration of matters outside the record in applying res judicata, first-stage dismissal isprecluded by the terms of the Act. 725 ILCS 5/122-2.1(a)(2), (c) (West 2000); People v.Boclair, 202 Ill. 2d 89 (2002); People v. Coleman, 183 Ill. 2d 366, 380-81 (1998). However,unlike McGhee and Blair, we recognize there are circumstances that, under the terms of the Act,allow for first-stage dismissal based on res judicata. We hold that when no fact finding,resolution of disputed facts or consideration of matters outside the record is necessary, the circuitcourt may dismiss the petition as frivolous or patently without merit at the first stage byapplication of res judicata if the petition alleges issues previously decided and therebysubstantively rebutted by the record, as reflected by the circuit court's consideration of the trialand appellate records in accordance with section 122-2.1(a)(2) and section 122-2.1(c) of the Act.

Res judicata, unlike waiver or procedural default, addresses the substantive merits of thepetition, rather than procedural compliance of the petition at the initial pleading stage. "Theprocess at the summary review stage measures a petition's substantive virtue rather than itsprocedural compliance." People v. Boclair, 202 Ill. 2d 89, 102 (2002). Determining substantivemerit, not procedural compliance, is the purpose of first-stage review. 725 ILCS 5/122-2.1(a)(2),(b) (West 2000); Boclair, 202 Ill. 2d at 102. Section 122-5 of the Act provides for matters ofprocedural compliance to be raised by the State at the second stage; section 122-6 provides forresolution of disputed facts to be resolved by an evidentiary hearing at the third stage. 725 ILCS5/122-5, 122-6 (West 2000); Coleman, 183 Ill. 2d at 380-81.

Regarding waiver or procedural default, section 122-5 of the Act provides the mechanismby which procedural compliance regarding affirmative matters such as waiver and proceduraldefault can properly be raised by the State at the second stage of the post-conviction process in amotion to dismiss. 725 ILCS 5/122-5 (West 2000). No such mechanism is provided under theterms of the Act at the first stage. 725 ILCS 5/122-2.1(West 2000). We hold when theapplication of waiver or procedural default raises questions of procedural compliance or requiresfact finding, resolution of disputed facts or consideration of matters outside the record, first-stagedismissal based on waiver or procedural default is precluded by the terms of the Act. 725 ILCS5/122-5, 122-6 (West 2000); see People v. Boclair, 202 Ill. 2d 89, 99 (2002); see also People v.Coleman, 183 Ill. 2d 366, 380-81 (1998).

We agree with McGhee and Blair that the doctrine of waiver does not address thequestion of whether a claim is frivolous or without merit, but constitutes a procedural bar to adefendant's right to prevail on a claim, regardless of its substantive merit. McGhee, 337 Ill. App.3d at 995; Blair, 338 Ill. App. 3d at 431-32. Similarly, procedural default constitutes aprocedural bar to a defendant's right to prevail on a claim regardless of its substantive merit.

In the instant case, the gang bias voir dire issue alleged by the pro se defendant states aconstitutional deprivation. The circuit court properly considered res judicata because in applyingthis principle it was not necessary for the circuit court to engage in fact finding, resolution ofdisputed facts, or consideration of matters outside the record. As noted, res judicata raisesquestions regarding the substantive merits, not the procedural compliance of the petition. However, the circuit court erred in dismissing the petition based on res judicata because the gangbias voir dire issue was not in fact previously decided; therefore, under the terms of the Act, therecord substantively rebuts res judicata as the basis for first-stage dismissal. First-stage dismissalbased upon the res judicata principle that an issue that has in fact been raised and ruled upon isfrivolous or patently without merit is directly rebutted by the record in the instant case. It isundisputed that the gang bias voir dire issue was not pursued by defense counsel at trial and notraised by defense counsel on appeal, thereby rendering the issue neither frivolous nor patentlywithout merit.

Application of waiver or procedural default to the gang bias voir dire issue raisedquestions of procedural compliance or required fact finding, resolution of disputed facts orconsideration of matters outside the record and, therefore, under the terms of the Act, cannotprovide the basis for first-stage dismissal. We reverse and remand for further proceedingsconsistent with the terms of sections 122-4 through 122-6 of the Act because, in the instant case,res judicata, waiver or procedural default cannot provide the basis for first-stage dismissal underthe terms of the Act.

I. POST-CONVICTION HEARING ACT

The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)) providesthe mechanism by which criminal defendants can assert their convictions were the result of asubstantial denial of rights under the United States Constitution and the Illinois Constitution. People v. Mahaffey, 194 Ill. 2d 154, 170 (2000). In a noncapital case, the Act provides a three-stage procedure for post-conviction relief. People v. Boclair, 202 Ill. 2d 89, 99 (2000). Varioussections of the Act provide guidance for each stage. At stage one, the trial court, without inputfrom the State, examines the petition only to determine if the petition pleads a constitutionaldeprivation unrebutted by the record, rendering the petition neither frivolous nor patently withoutmerit. 725 ILCS 5/122-2.1(a)(2), (b) (West 2000); Boclair, 202 Ill. 2d at 99. Section 122-2.1provides guidelines for resolution of a petition at the first stage. 725 ILCS 5/122-2.1 (West2000).

If the petition is not dismissed at stage one, it proceeds to stage two, where section 122-4of the Act provides for the appointment of counsel for an indigent defendant who wishes counselto be appointed. 725 ILCS 5/122-4 (West 2000). At stage two, pursuant to section 122-5, theState has the opportunity to answer or move to dismiss the petition (725 ILCS 5/122-5 (West2000)) and the circuit court determines whether the petition alleges a substantial showing of aconstitutional violation. People v. Coleman, 183 Ill. 2d 366, 381 (1998). Sections 122-4 and122-5 provide guidelines for resolving a second stage post-conviction petition. At stage one andstage two, the circuit court resolves pleading questions. Coleman, 183 Ill. 2d at 385. Under first-stage procedure as provided by section 122-2.1 or under second-stage procedure as provided bysection 122-5, the circuit court is foreclosed from engaging in any fact finding because all well-pleaded facts not rebutted by the record are to be taken as true at stage one and stage two of the post-conviction process. Coleman, 183 Ill. 2d at 380-81.

If the petition is not dismissed at stage two, it proceeds to stage three for an evidentiaryhearing. Section 122-6 provides guidelines for resolution of a petition at the third stage. 725ILCS 5/122-6 (West 2000). At stage three, the circuit court resolves questions of disputed fact. An evidentiary hearing on the petition is required when the allegations of the petition, supportedby the trial record and the accompanying affidavits, demonstrate a substantial violation of aconstitutional right unrebutted by the record. People v. Mitchell, 189 Ill. 2d 312, 322 (2000).

II. BACKGROUND

Defendant was convicted of first degree murder. His conviction and sentence of 40 years'imprisonment were affirmed on direct appeal. The instant case presents a petition dismissed at thefirst stage of the post-conviction process. At the first stage the trial court must determinewhether the petition is frivolous or patently without merit for failure to plead a substantialconstitutional deprivation unrebutted by the record. 725 ILCS 5/122-1(a), 5/122-2.1 (West2000).

On the last page of his pro se petition, defendant alleged the "failure to ask prospectivejurors question[s] that would reveal prejudice against gang members is reversible error." SeePeople v. Strain, 194 Ill. 2d 467 (2000). In dismissing defendant's first-stage petition, the courtrecognized various reasons alleged by petitioner for relief, but did not specifically address thegang bias voir dire issue. Rather, in a general statement the court concluded as follows:

"From an analysis of the petition, it is clear that the issues raised bypetitioner are matters of record which could have been raised ondirect appeal. Accordingly, these claims are barred by the doctrineof res judicata and waiver. Thus, the claims raised by petitioner aredismissed. Based upon the foregoing discussion, this Court findspetitioner's claims to be frivolous and patently without merit. Assuch, the petition is dismissed. Petitioner's request for appointmentof counsel and leave to proceed in forma pauperis are denied."

The circuit court concluded the claims were frivolous and patently without merit andfound that the issues raised by the post-conviction petition were barred by res judicata and waiverbecause the issues "could have been raised on direct appeal." We review the circuit court'sdismissal de novo. Coleman, 183 Ill. 2d 366. The circuit court's order and resolution of thepetition predated the Illinois Supreme Court decision in People v. Boclair, 202 Ill. 2d 89 (2002). It also predated the Illinois Appellate Court decisions in People v. McGhee, 337 Ill. App. 3d 992,995-96 (2003), and People v. Blair, 338 Ill. App. 3d 429 (2003), appeal allowed, No. 96198,which held that a first-stage post-conviction petition could not be dismissed based on waiver orres judicata.

At the first stage there are essentially two circumstances that render a petition frivolous orpatently without merit: (1) if the petition fails to plead a constitutional deprivation; or (2) if constitutional deprivations are pled, but the record positively rebuts the deprivations alleged. Wewill address each in turn.

III. PETITION ALLEGES A CONSTITUTIONAL DEPRIVATION

Consistent with the terms of the Act and the purpose of the first stage, we first addresswhether the petition alleges a constitutional deprivation. 725 ILCS 5/122-2.1 (West 2000);Boclair, 202 Ill. 2d at 99. If no constitutional deprivation is alleged, further analysis isunnecessary. In his petition, the defendant alleged that he did not receive a fair trial because theprospective jurors were not questioned about their potential bias against gang members. TheState informed the trial judge that it planned to question a witness about gang activity, includingasking the witness to describe photographs depicting gang graffiti in the area of the shooting todemonstrate that gang rivalry was prevalent. Defense counsel's objections to the testimony andphotographs were overruled. Before jury selection, the following exchange occurred betweendefense counsel and the trial judge:

"THE COURT: Do you want me to ask the questionabout gangs then?

DEFENSE COUNSEL: Which would be?

THE COURT: There may be some evidence that gang organg activity may be involved in this case. Would that prevent youfrom giving either side a fair trial.

DEFENSE COUNSEL: Sure."

Neither that question nor any other question regarding possible gang bias was asked of thejurors by the judge or defense counsel. The judge offered to ask prospective jurors about gangbias because of the gang evidence that would be presented at trial, but failed to do so. The recordfurther reflects that defense counsel failed to remind the judge to ask the potential jurors aboutgang bias and failed to directly question them about gang bias when she was given the opportunityto do so. The gang bias voir dire issue was not raised by defense counsel on appeal.

Defendant's conviction arose from the fatal shooting of Jeremy Rush on July 13, 1995, at103 West 112th Street in Chicago. At trial Henry Wingard testified that he was a member of theVice Lords gang and that the Gangster Disciples were a rival gang. On the night of the shooting,Wingard was standing on his front porch with Rush, wearing a hat turned to the left signifying hisaffiliation with the Vice Lords. He heard shots being fired and ran into the house. Uponreturning to the porch, he saw Rush lying at the bottom of the porch with a bullet in his head.

Wingard was shown various photographs of gang graffiti and explained to the jury themeaning behind the gang graffiti. He testified that the six-pointed star or pitchfork in thephotographs symbolized his rival, the Gangster Disciples. He explained the graffiti in thephotograph, "VL killer" and "[H]ook killer," could be found in his neighborhood, and would havebeen placed there by a Gangster Disciple, and that "[H]ooks" meant Vice Lords.

The defendant, in his statement to the police, admitted to being a Gangster Disciple andadmitted that on the night of the murder he joined his codefendants in order to "kill some[H]ooks," that "[H]ooks" were rival Vice Lords, and that the area where the victim was killedwas "[H]ooks" territory. The defendant's statement to the police, together with the testimony ofWingard offered by the State, interjected gang-related evidence into the trial process. In fact, theState was allowed to call witness Wingard to testify as an expert regarding the meaning of variousphotographs depicting gang graffiti. Both during trial and on direct appeal defendant challengedthis testimony. On direct appeal, the State maintained that Wingard was called as a lay witness totestify about gang rivalry and that the testimony was relevant to corroborate defendant'sstatement, assist the jury in understanding it, and to show motive.

The United States and Illinois Constitutions guarantee the right to trial by an impartialjury. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I,