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FOURTH DIVISION

November 27, 2002

JUSTICE KARNEZIS delivered the opinion of the court:

Petitioner Edward Hanks appeals the circuit court's summary dismissal of his prose petitions for relief pursuant to the Post-Conviction Hearing Act (hereinafter the Act)(725 ILCS 5/122-1 et seq. (West 2000)). The circuit court dismissed petitioner's initialand successive petitions after finding the issues raised therein to be frivolous andpatently without merit.

Petitioner was convicted of aggravated criminal sexual assault and armedrobbery following a jury trial. The trial court sentenced petitioner to extended terms of60 years' imprisonment for aggravated criminal sexual assault and 40 years for armedrobbery, to be served consecutively.

The evidence adduced at trial was set forth by this court in People v. Hanks, No.1-97-1769 (1999) (unpublished order pursuant to Supreme Court Rule 23). Therefore,we will discuss only those facts relevant to the resolution of this appeal. On December9, 1992, Felicia S. left her Chicago home to go to work. While walking on North LawlerAvenue, Felicia S. was approached from behind by a man who put a handgun to herhead and announced, "This is a stickup, bitch." He then forced her down an alley andinto a garage where he tied her up and pushed pills into her mouth, which he saidwould relax her. Her clothes were removed and she was sexually assaulted. Severaldollars were also taken from her pocket before the attacker fled. After freeing herselffrom the bindings, Felicia phoned the police and was taken to the hospital. A policeinvestigation led to defendant's arrest. Felicia subsequently identified defendant in alineup and at trial. In addition, evidence taken from the victim at the hospital and fromher clothing was consistent with defendant's DNA pattern. A jury convicted defendantof aggravated criminal sexual assault and armed robbery on March 27, 1996, and thecourt sentenced him to consecutive, extended-term sentences of 60 years and 40years, respectively. Petitioner appealed from that judgment and we affirmed. Hanks,No. 1-97-1769 (unpublished order pursuant to Supreme Court Rule 23). On February2, 2000, the Illinois Supreme Court denied petitioner's petition for leave to appeal. People v. Hanks, 187 Ill. 2d 579 (2000).

On March 28, 2000, petitioner filed a pro se petition alleging numerousdeprivations of his constitutional rights. The trial court summarily dismissed the petitionon June 2, 2000, pursuant to section 122-2.1 of the Post-Conviction Hearing Act (725ILCS 5/122-2.1 (West 2000)), after concluding that the issues raised were patentlywithout merit.

Petitioner filed a second pro se petition for postconviction relief on September 6,2000, arguing that the consecutive, extended-term sentences imposed wereunconstitutional in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d435, 120 S. Ct. 2348 (2000). The trial court summarily dismissed this petition onOctober 19, 2000. It is from the orders dismissing petitioner's postconviction petitionsthat he now appeals.

Petitioner now argues that: (1) the postconviction court erred in summarilydismissing his pro se petition where it included a nonfrivolous claim of the denial of afair and impartial trial in that a juror had previously worked with defendant in thehousekeeping department of the Hyatt Regency O'Hare Hotel; (2) the postconvictioncourt erred in summarily dismissing his pro se petition where it included a nonfrivolousclaim that appellate counsel was ineffective for failing to raise the issue that petitionerwas denied a fair and impartial trial on appeal; (3) the consecutive, extended-termsentences imposed are unconstitutional under the United States Supreme Court rulingin Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000);(4) one of his extended-term sentences must be vacated as the trial court imposed twoextended-term sentences based on the same aggravating factor, thereby violating theprinciples against double enhancement; and (5) the enactment of Public Act 83-942(Pub. Act 83-942, eff. November 23, 1983), which amended the Act to permit thedismissal of certain petitions prior to the appointment of counsel, violated the singlesubject rule of the Illinois Constitution. We remand for further proceedings.

The Act allows a criminal defendant a procedure for determining whether he wasconvicted in substantial violation of his constitutional rights. 725 ILCS 5/122-1(a) (West2000); People v. Edwards, 197 Ill. 2d 239, 243-44, 757 N.E.2d 442, 445 (2001). Wherethe death penalty is not involved, the Act sets forth a three-stage process foradjudicating a defendant's request for collateral relief. People v. Gaultney, 174 Ill. 2d410, 418, 675 N.E.2d 102, 108 (1996).

At the first stage, all well-pleaded facts are to be taken as true. 725 ILCS 5/122-2.1(a) (West 2000); People v. Coleman, 183 Ill. 2d 366, 385, 701 N.E.2d 1063, 1073(1998). The petitioner must also support his or her allegations by attaching affidavits,record or other evidence to the petition or must state why the same are not attached. 725 ILCS 5/122-2 (2000); People v. Collins, No. 90679, slip op. at 4-5 (March 15,2002). A trial court may summarily dismiss a petition at the first stage as frivolous andpatently without merit only if the allegations, taken as true, fail to present a " 'gist of aconstitutional claim.' " Edwards, 197 Ill. 2d at 244, quoting Gaultney, 174 Ill. 2d at 418.To establish a gist of a constitutional claim, a defendant must only present, " 'a limitedamount of detail.' " Edwards, 197 Ill. 2d at 244 quoting Gaultney, 174 Ill. 2d at 418. However, the petition must clearly identify the alleged constitutional violations. Collins,slip op. at 4-5.

It was at the first stage that these petitions were dismissed. Our review of thesummary dismissal of a post-conviction petition is de novo. Coleman, 183 Ill. 2d at 388-89.

Petitioner first argues that the trial court erred in summarily dismissing his pro sepetition and asserts that he stated a "gist" of a meritorious claim when he argued thathe was denied a fair and impartial trial and that appellate counsel was ineffective forfailing to raise denial of a fair and impartial trial on appeal.

Petitioner claims that he was denied a fair and impartial trial in that juror Alvarez,a woman who served on his jury, had worked during the same time period as petitionerin the housekeeping department of the Hyatt Regency O'Hare Hotel. The denial of hisright to a fair trial is made more palpable, petitioner argues, by the fact that he wasconvicted of raping a guest at the Hyatt Regency O'Hare when both he and Alvarezworked there in 1984. Therefore, petitioner urges that juror Alvarez's ability to serve asa fair and impartial juror was compromised and this issue should have been raised bycounsel on direct appeal.

Following petitioner's conviction, but prior to sentencing, defense counselinformed the trial court that petitioner had advised him that juror Alvarez worked withpetitioner and petitioner's brother in the housekeeping department at the Hyatt RegencyO'Hare. There is no indication as to when petitioner received this information from hisbrother. The State relayed to the court that petitioner had worked at that hotel in 1984. Petitioner admitted to the trial court that he hadn't "noticed or recognized her until mybrother * * * had recognized her and inform [sic] me again of my [sic] recollection." Inresponse, the trial court stated, "[a]ll I can do is go by her answer that she didn't knowdefendant." The case was then passed.

Subsequent to the break, the court was informed that the State and one of itsinvestigators had spoken to juror Alvarez during the break. According to the informationrelayed to the court, the substance of that interview was that juror Alvarez did notrecognize defendant or anyone else in the case. She did not work with defendant anddid not know that defendant was the individual who had been arrested for a crimecommitted at the Hyatt Regency O'Hare. This interview was memorialized in anunsworn report that was tendered to defense counsel, but not to the court. In addition,the State informed the court that during voir dire, the court questioned juror Alvarez withregard to what type of work she did, where she worked and for how long. Juror Alvarezstated that she had worked in the housekeeping department of the Hyatt Regency for22 years. Also during voir dire, juror Alvarez did not respond when the trial court askedif any of the prospective jurors knew anyone involved in the case, even after defendantintroduced himself. She also stated that there was nothing that would prevent her frombeing a fair and impartial juror.

The State argues that petitioner's argument with respect to juror Alvarez is notsupported by an affidavit of his brother, Earl Hanks, who allegedly brought the matter topetitioner's attention at trial. Relying on People v. Collins, No. 90679 (March 15, 2002), the State argues that this omission is fatal to the survival of petitioner's claims as thisaffidavit is necessary to establish that Earl Hanks had recognized juror Alvarez and thathe so informed his brother.

In Collins, our supreme court ruled that the trial court properly dismissed apetitioner's postconviction petition under Section 122-2 (725 ILCS 5/122-2 (West2000)), as petitioner failed to attach "affidavits, records, or other evidence" to supporthis allegation that trial counsel failed to file an appeal after petitioner had so requested. Moreover, petitioner had failed to explain why "affidavits, records, or other evidence"was unavailable as required by Section 122-2 (725 ILCS 5/122-2 (West 2000)). Collins,slip op. at 4-5.

In the instant case, however, an affidavit from petitioner's brother regarding hisrecollection of juror Alvarez is unnecessary. Unlike Collins, this is not a case where apetitioner makes a bald allegation with no factual support. Petitioner does not arguethat witness X could provide newly discovered evidence and then fails to provide anaffidavit of witness X. See People v. Fields, 331 Ill. App. 3d 323, 331, 772 N.E.2d 742,749 (2002). We do not construe the ruling in Collins to require an affidavit in everypostconviction petition. Rather, as in the case at bar, the record, the contents of thecourt file and the exhibits allow for objective and independent corroboration of theallegations. Collins, slip op. at 4-5.

Section 122-2.1 of the Act states, "[i]n considering a petition pursuant to thisSection, the court may examine the court file of the proceeding in which the petitionerwas convicted, any action taken by an appellate court in such proceeding and anytranscripts of such proceeding." 725 ILCS 5/122-2.1(c) (West 2000). Contained in therecord in the case at bar is the discussion had between the court, the State and thedefense regarding juror Alvarez, as well as the State's representations as to what jurorAlvarez said when she was interviewed by its investigator. In addition, the recordcontains the actual report prepared by the State's Attorney's investigator memorializinghis conversation with juror Alvarez. Furthermore, petitioner attached to hispostconviction petition an excerpt of the record from voir dire where the prospectivejurors, including juror Alvarez, were asked whether they knew defendant and whereinjuror Alvarez stated that she worked as a housekeeper at the Hyatt Regency for 22years. Accordingly, we find that the absence of the affidavit from petitioner's brother isnot detrimental to the survival of his petition.

The State next argues that petitioner's claim that he was denied a fair andimpartial trial could have been brought on direct appeal but was not and is thereforesubject to waiver. Moreover, the State suggests that petitioner is seeking to avoid thedoctrine of waiver by alleging ineffective assistance of appellate counsel for failure toraise this issue on appeal.

Generally, issues not raised on direct appeal are considered waived for purposesof postconviction proceedings. People v. Mahaffey, 194 Ill. 2d 154, 170, 742 N.E.2d251, 261 (2000). However, the doctrines of res judicata and waiver are relaxed in threesituations: where fundamental fairness so requires; where the alleged waiver stemsfrom a claim of ineffective assistance of appellate counsel; or where the facts relating tothe postconviction claim do not appear on the face of the original record. Mahaffey,194 Ill. 2d at 171. With these principles in mind, we will consider whether appellatecounsel was ineffective for failing to raise petitioner's denial of a fair and impartial trialon appeal.

In determining whether a defendant has made a substantial showing thatappellate counsel was ineffective, we turn to the two-part test articulated in Strickland v.Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). People v. Haynes, 192 Ill. 2d 437, 476, 737 N.E.2d 169 (2000). First, the defendantmust show that appellate counsel's failure to raise the issue complained of wasobjectively unreasonable. Haynes, 192 Ill. 2d at 476. Second, the defendant mustdemonstrate that appellate counsel's decision not to raise the issue prejudiceddefendant. Haynes, 192 Ill. 2d at 476. Appellate counsel is not, however, obligated toraise every issue on appeal. People v. Easley, 192 Ill. 2d 307, 329, 736 N.E.2d 975(2000). Moreover, appellate counsel is not incompetent for refraining to raise issues,that, in his or her judgment, are without merit. Easley, 192 Ill. 2d at 329. In otherwords, if the underlying issue is without merit, defendant can suffer no prejudice fromappellate counsel's failure to raise the issue. Easely, 192 Ill. 2d at 329.

Petitioner argues that appellate counsel's failure to raise this issue on directappeal was objectively unreasonable where the record demonstrated that one of thejurors who sat on petitioner's jury may have possessed exceptionally prejudicialinformation concerning petitioner's prior conviction for rape. Additionally, had appellatecounsel raised this issue on direct appeal, there is a reasonable likelihood that thematter would have been remanded for an evidentiary hearing. We agree.

A criminal defendant's right to an impartial jury is guaranteed by both the UnitedStates and the Illinois Constitutions. U.S. Const. amends. VI, XIV; Ill. Const. 1970, art.1,