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FOURTH DIVISION
November 26, 2003

1-01-4483
  
   

PRESIDING JUSTICE QUINN delivered the opinion of the court:

The defendant, Kendrick Jefferson (defendant), appeals from anorder of the circuit court dismissing his petition for relief underthe Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.(West 2000)). On appeal, defendant argues that the trial courterred in dismissing the postconviction petition without appointingcounsel where defendant stated the gist of a meritorious claim byasserting that (1) his trial counsel was ineffective for (a)failing to call an alibi witness; and (b) failing to explain whydefendant's cellular phone records were exculpatory evidence; and(2) his appellate counsel was ineffective for (a) failing to raisethe issue that defendant's confession was the fruit of an unlawfularrest and detention; and (b) failing to provide the appellatecourt with the transcripts of the hearing on the defendant's motionto suppress statements. For the reasons that follow, we affirm.

BACKGROUND

The facts of this case are adequately set forth in thiscourt's opinion on defendant's direct appeal (People v. Jefferson,No. 1-96-3830 (1999) (unpublished order under Supreme Court Rule23)). Consequently, we will recite only those facts that arenecessary to explain our decision.

In a bench trial before Judge Richard Neville, Herbert Taylor(Herbert) testified that on May 9, 1995, he was living about ablock away from the defendant, who lived at 4707 West Ohio Street. Herbert had known the defendant for about eight years. Herbertfurther testified that Karl Taylor (victim) also lived in thevicinity. Herbert testified that the defendant owed the victimover $30,000.

Shortly before 8 p.m., Herbert and the defendant were in thevictim's car. The victim asked the defendant about the money. Thedefendant claimed he would not be able to retrieve the money untilhis mother had gone to church. At about 8 p.m., the victim droppedHerbert off and told him to call the defendant and tell him thatthe victim wanted to pick up his money that night.

Herbert called the defendant's house at about 8:30 p.m. and at8:45 p.m. Defendant's mother answered both calls. She toldHerbert that the defendant was not home. Shortly after 8:45 p.m.,the defendant returned Herbert's phone call and told Herbert totell the victim that he could pick up the money that night.

Herbert went to the defendant's house to meet the victim. Herbert got into the front passenger seat of the victim's car. Thevictim then drove around to the alley behind the defendant's house. At this time, the defendant emerged, carrying a bag. The defendantgot into the backseat of the victim's car.

Inside the car, the victim asked the defendant how much moneywas in the bag. The defendant responded that he only had $15,000in the bag. The victim asked where was the rest of the money. Atthis moment, Herbert heard a "click," and then he heard the victimsay, "Kenny, no." Herbert looked over to his left and saw thedefendant holding a nickel-plated gun to the victim's head. Herbert immediately opened the car door and rolled out of the careven though the car was moving. As Herbert rolled out of the car,he heard a shot, then he heard several more shots. Herbert fled.While fleeing, Herbert heard the car crash. The car crashed in thealley halfway between 4707 and 4755 West Ohio Street.

Jimmy Fisher, a neighbor living at 547 North Cicero,testified. He testified that at about 9 p.m. on the night inquestion, he was in his kitchen watching TV when he heard twogunshots. He ran into the hallway and then heard two moregunshots.

Assistant State's Attorney (ASA) Mark Ertler testified thatthe defendant made an inculpatory statement that Ertlersubsequently reduced to a handwritten statement that defendantsigned. In the statement, the defendant admitted that for theeight months prior to the shooting, he had been holding a lot ofmoney for the victim. On the evening in question, the victimdemanded the money back. The defendant asked Herbert to bring thevictim to the alley behind the defendant's house to pick up themoney. Prior to meeting with the victim, the defendant obtained asilver-colored handgun. At about 9 p.m., the defendant, armed withthe loaded gun, went to meet with the victim in the alley behindhis house.

In the statement, the defendant further stated that the victimwas driving and Herbert was in the front passenger seat. Thedefendant got into the backseat. When the victim asked thedefendant where the money was, the victim slowed down as if to stopthe car. The defendant said that he then pulled the gun out fromhis pants pocket and pointed it at the victim's back and shot thevictim two or three times. Herbert rolled out of the car while itwas moving. Herbert fled. With the victim now dead, the carcrashed. The defendant got out of the car and dropped the gun ashe ran down the alley. There was no one in the area at that time. The defendant ran to his own car and drove to his girlfriendShanell Townes' house. He spoke with Townes for approximately 15minutes and then drove to his father's house.

Detective Duffin testified that he interviewed the defendanton May 10, 1995. Detective Duffin "Mirandized" the defendant. Thedefendant admitted shooting the victim because he was unable to payback the money that he owed the victim. The defendant said he wasafraid the victim would have him beaten. The defendant furthertold Detective Duffin that while he, the defendant, was in the carwith the victim and Herbert, the victim was driving the car. Herbert sat on the passenger side, and the defendant sat in theback. The defendant shot the victim twice, the car crashed and thedefendant fled.

Betty Grandberry, the defendant's mother, testified for thedefense that the defendant picked her up from work at about 6 p.m. At about 7 p.m., the defendant went out, returning home at 8 p.m. At about 8:15 p.m., the defendant told his mother that he was goingto see Townes. After defendant had gone to see Townes, Grandberryanswered two calls from someone asking for the defendant. Thesecond call was at 8:45 p.m..

Townes testified that on May 9, 1995, she saw the defendant atabout 7:15 p.m. and that at about 8 p.m. the defendant dropped heroff at her house. At about 9:15 p.m., Townes paged the defendant. When the defendant returned her page, he was already in front ofher house. Townes got into his car and they drove around for 20minutes.

Defendant testified that after giving Townes a ride home thefirst time, he returned home by about 8 p.m. The defendant thenwent to see Angela Thomas (Thomas). When asked what time hearrived, the defendant answered "It had to be close to about 8:30p.m." When asked how long he stayed at Thomas's house, thedefendant answered "about 30 to 40 minutes." While the defendantwas at Thomas's house, Townes paged him and asked to see him. Thedefendant drove back to Townes' home, and they drove up and downNorth Avenue. Townes told the defendant that she was pregnant. After approximately 20 minutes, the defendant dropped her off andcalled his father. The defendant then went to see his father. Hearrived at his father's house at around 10:20 p.m.

Defendant testified that while he was at his father's house,he called his mother. His mother told him that the police werelooking for him. The defendant then called the police. Afterward,the police met the defendant at his mother's house. The defendanttestified that he voluntarily went with the police to the policestation. After arriving at the police station, the defendant wasplaced in an interview room. The police checked his hands for "mudand blood" and questioned him about the shooting. The defendanttestified that the police did not read his rights to him beforequestioning him.

The defendant testified that he denied holding money for thevictim or obtaining a gun. The defendant denied shooting thevictim or throwing the gun and his clothes away as he fled thescene. The defendant testified that Detective Duffin took noteswhile questioning him. The defendant testified that ASA Ertler wasnot present. Later, Detective Duffin returned and read thepreprinted portion of the statement to the defendant. However, thehandwritten portion was not read to the defendant. The defendantsigned the statement without reading it.

After hearing arguments presented by both sides, the trialcourt found the defendant guilty of first degree murder. The trialcourt stated that it believed the testimony of Herbert Taylor,Detective Duffin and ASA Ertler. The court found that thedefendant shot and killed the victim because the defendant owed thevictim money and he was afraid the victim would harm him for notreturning the money. The trial court further found that thedefense witnesses did not provide an alibi for the defendant. Thecourt found that, with the exception of the defendant, the defensewitnesses were credible but that their testimony as to the timethat things occurred was amorphous and "not delineated with greatspecificity, because that's the way people live." The trial courtsentenced the defendant to 25 years in prison.

On direct appeal, the defendant argued that (1) the statementattributed to him at trial differed significantly from thestatement he actually made to the police; (2) even if the statementwas properly attributed to him, it was insufficient to sustain hisconviction because it was not sufficiently corroborated; (3) hisconfession should have been suppressed because he was detainedwithout probable cause; and (4) his trial counsel was ineffectivefor failing to object to various hearsay statements.

This court reviewed the defendant's direct appeal and affirmedhis conviction and sentence. People v. Jefferson, No. 1-96-3830(1999)(unpublished order under Supreme Court Rule 23).

On April 19, 2001, the defendant filed a pro se postconvictionpetition claiming his constitutional rights were violated. Thedefendant alleged that: (1)(a) his trial counsel was ineffectivefor failing to interview and call Angela Thomas as an alibiwitness, and (1)(b) appellate counsel was ineffective for failingto raise the issue that trial counsel was ineffective for failingto interview and call Angela Thomas as a witness; (2)(a) trialcounsel was ineffective for failing to thoroughly investigateHerbert Taylor's motive to testify against the defendant, whichresulted in an inadequate cross-examination, (2)(b) appellatecounsel was ineffective for failing to raise the issue that trialcounsel did not thoroughly investigate Herbert Taylor; and (3)(a)trial counsel was ineffective for failing to explain howdefendant's cellular records were exculpatory evidence, and (3)(b)appellate counsel was ineffective for failing to raise the issuethat trial counsel was ineffective for failing to explain how thetelephone records were exculpatory evidence.

On May 4, 2001, a judge other than the judge who presided overthe defendant's bench trial issued a six-page opinion summarilydismissing the defendant's postconviction petition because it was"untimely and without merit." In the written opinion, the courtopined that even if the defendant's claims were not barred by timelimitations, his position would not be much improved because thedefendant's claim of ineffective assistance of trial counsel basedon the failure to call Angela Thomas as an alibi witness wasunfounded because her affidavit did not say that she was with thedefendant at the time of the shooting. The court found that theother claims involved matters of record that either were raised orcould have been raised on direct appeal. Hence, the court heldthese claims were barred from consideration in a postconvictionproceeding by the doctrines of res judicata and waiver. Defendant now appeals.

On appeal, the defendant argues that the trial court erred indismissing his postconviction petition without appointing counselwhere (1) his trial counsel was ineffective for (a) failing to callAngela Thomas as an alibi witness; and (b) failing to explain whythe defendant's cellular phone records were exculpatory evidence;and (2) his appellate counsel was ineffective for (a) failing toraise the issue that the defendant's confession was the fruit of anunlawful arrest and detention; and (b) failing to provide theappellate court with the transcripts of the hearing on thedefendant's motion to suppress statements.

ANALYSIS

In People v. Rissley, 206 Ill. 2d 403 (2003), our supremecourt once again addressed the principles relating topostconviction proceedings.

"A postconviction action is a collateral attack on aprior conviction and sentence. People v. Brisbon, 164Ill. 2d 236, 242 (1995); People v. Free, 122 Ill. 2d 367,377 (1988). As such, the remedy 'is not a substitutefor, or an addendum to, direct appeal.' People v.Kokoraleis, 159 Ill 2d 325, 328 (1994). The scope of theproceeding is limited to constitutional matters that havenot been, nor could have been, previously adjudicated. Any issues which could have been raised on direct appeal,but were not, are procedurally defaulted (People v. Ruiz,132 Ill. 2d 1, 9 (1989)) and any issues which havepreviously been decided by a reviewing court are barredby the doctrine of res judicata (People v. Silagy, 116Ill. 2d 357, 365 (1987))." Rissley, 206 Ill. 2d at 411-12.

At the summary dismissal stage, the circuit court mustindependently review the postconviction petition within 90 days ofits filing and determine whether "the petition is frivolous or ispatently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2000). Apostconviction petition is frivolous or patently without merit onlyif the allegations in the petition, taken as true and liberallyconstrued, fail to present the " 'gist of a constitutional

claim.' " People v. Edwards, 197 Ill. 2d 239, 244 (2001), quotingPeople v. Gaultney, 174 Ill. 2d 410, 418 (1996). As the "gist"standard is a low threshold, the postconviction petition only needsto present a limited amount of detail and does not need to setforth the claim in its entirety. Edwards, 197 Ill. 2d at 244,quoting Gaultney, 174 Ill. 2d at 418.

Our review of the circuit court's summary dismissal of thedefendant's postconviction petition is de novo. Edwards, 197 Ill.2d at 247. "[T]he question is, essentially, a legal one whichrequires the reviewing court to make its own independentassessment of the allegations. Thus, a court of review [is] freeto substitute its own judgment for that of the circuit court inorder to formulate the legally correct answer." People v. Coleman,183 Ill. 2d 366, 388 (1998), quoted in Edwards, 197 Ill. 2d at 247.

At the outset, we note that the defendant did not assert inhis postconviction petition that his appellate counsel wasineffective for failing to argue that the defendant's confessionwas the fruit of an unlawful arrest and detention.

Similarly, the defendant did not assert in his petition thathis appellate counsel was ineffective for failing to provide theappellate court with the transcripts of the hearing on thedefendant's motion to suppress statements.

In reply to the State's waiver argument, the defendant assertsin his reply brief that in fact he did allege in his postconvictionpetition that his appellate counsel was ineffective. In quotingthe claims asserted in the petition, appellate defense counselleaves out the word "this." The use of the qualifier "this"clearly indicates that the defendant was complaining of hisappellate counsel's efforts only in regard to that lawyer's failureto argue that defendant's trial counsel was ineffective for: (1)failing to interview and call as a witness Angela Thomas; (2)failing to conduct a more thorough investigation of Herbert Taylor;and (3) failing to elaborate on the significance of the telephonerecords evidence. None of these issues involved an allegation thatappellate counsel was ineffective for (1) failing to assert andargue that defendant's trial counsel was ineffective for failure tofile a motion to quash defendant's arrest and suppress evidence; or(2) failing to provide the appellate court with the transcripts ofthe hearing on the defendant's motive to suppress.

Section 122-3 of the Post-Conviction Hearing Act provides:"Any claim of substantial denial of constitutional rights notraised in the original or an amended petition is waived." 725 ILCS5/122-3 (West 2000). Thus, the issue we must initially decide iswhether we can consider postconviction claims that are raised forthe first time on appeal.

On appeal, defendant asserts that the issues of waiver and resjudicata are not applicable to first-stage postconvictionproceedings. The defendant relies on the fact that in decidingPeople v. Boclair, 202 Ill. 2d 89 (2002), our supreme court upheldthe Fifth District Appellate Court's decision in People v. McCain,312 Ill. App. 3d 529, 531 (2000). In McCain, the appellate courtcommented:

"In the dismissal order, the trial court did notfind that the defendant's petition was frivolous andpatently without merit. Rather, the trial court foundthat the petition was untimely and determined that theconstitutional issues raised in the petition were eitheraddressed on direct appeal or otherwise waived.

In our view, the trial court exceeded this verylimited determination and assumed the adversarial role ofthe prosecutor. Here, the court raised issues oftimeliness and res judicata, and then went on to makefindings of fact and decide those issues." McCain, 312Ill. App. 3d at 530-31.

The defendant correctly points out that a division of theFirst District has followed McCain and held that "the analysis thesupreme court employed in Boclair to address the propriety ofsummarily dismissing a postconviction petition as untimely duringa first-stage examination is equally applicable to first-stagedismissals based on grounds of waiver or res judicata." People v.McGhee, 337 Ill. App. 3d 992, 995 (2003). Unlike the supreme courtin Boclair or the appellate court in McCain, the McGhee courtconsidered section 122-2.1(c) of the Post-Conviction Hearing Act.725 ILCS 5/122-2.1(c) (West 2000). Section 122-2.1(c) providesthat, in considering a postconviction petition during the firststage of the proceeding, the trial court "may examine the courtfile of the proceeding in which the petitioner was convicted, anyaction taken by an appellate court in such proceeding and anytranscripts of such proceeding." 725 ILCS 5/122-2.1(c)(West 2000). The McGhee court held that "the purpose of the examinationauthorized by this section is to enable the court to determine ifthe facts pled in the petition are positively rebutted by therecord. Such a determination assists the court in resolving theissue of whether the petition is frivolous or patently withoutmerit. People v. Montgomery, 327 Ill. App. 3d 180, 184, 763 N.E.2d 369 (2001)." People v. McGhee, 337 Ill. App. 3d at 996.

The McGhee court opined that this section did not authorizethe trial court to examine the record to determine whether theprinciples of waiver or res judicata applied. The same division ofthis court which wrote McGhee followed its rationale in People v.Blair, 338 Ill. App. 3d 429, 431-32 (2003), appeal allowed, No.96198 (October 7, 2003). Neither the McGhee nor the Blair opinionexplains why it is permissible for a trial court to rely on therecord in determining whether those claims in a petition that arerebutted by the record are patently without merit, but it isimpermissible for the trial court to rely on the record indetermining whether the principles of waiver or res judicata areapplicable.

In People v. Rogers, 197 Ill. 2d 216 (2001), our supreme courtreiterated that "any issues which were decided on direct appeal arebarred by res judicata; any issues which could have been raised ondirect appeal are forfeited." Rogers, 197 Ill. 2d at 221. Rogersaffirmed the summary dismissal of a postconviction petition at thefirst stage. Section 122-2.1(c) of the Act provides that a courtmay "examine * * * any action taken by an appellate court in suchproceeding" in considering a postconviction petition at the summarydismissal stage 725 ILCS 5/122-2.1(c)(West 200). The holdings inBlair and McGhee are contrary to the plain language of the Act andthe holding in Rogers.

In People v. Smith, 341 Ill. App.3d 530, 794 N.E.2d 367(2003), another division of the First District considered theholdings in Boclair and McGhee and distinguished the issue oftimeliness from the issues of waiver and res judicata. The Smithcourt noted:

"Timeliness is treated under a separate provision of theAct [(section 122-1(c) as opposed to section 122-3)] and,unlike waiver and res judicata, does not enter into adetermination of the substantive merits of the petitionas mandated under section 122-2.1(a)(2) [citation] ***.*** [T]he substantive scope and purpose of the Act wasnot designed to provide for the retrial of issues thateither were previously decided or could have been raisedand decided at an earlier time [previously citing Peoplev. Kitchen, 189 Ill. 2d 424, 432 (1999), for thisproposition]. Consequently, waiver and res judicata,although procedural constructs, are also substantiveconsiderations to the extent that they define and limitthe substantive scope and purpose of the Act." Smith,341 Ill. App. 3d 530, 537, 794 N.E.2d 367, 376 (2003).

We agree with the reasoning of Smith and we decline to follow theholdings in People v. McGhee, 337 Ill. App. 3d 992, and People v.Blair, 338 Ill. App. 3d 429, as those cases are wrongly decided.

In the postconviction setting, the doctrine of waiver isimplicated in three conceptually distinct situations. First, waiverbars claims that a defendant failed to advance on direct appeal, ifthose claims are based on facts ascertainable from the record onappeal. See, e.g., People v. Scott, 194 Ill. 2d 268, 273-74(2000); People v. Adams, 338 Ill. App. 3d 471, 475 (2003), citingPeople v. Kitchen, 189 Ill. 2d at 432. This general proposition isinapplicable when the alleged waiver stems from ineffectiveassistance of appointed counsel on appeal. People v. Whitehead,169 Ill. 2d 355, 371 (1996), overruled in part on other grounds,People v. Coleman, 183 Ill. 2d 366 (1998).

Second, in the case of successive postconviction petitions,any claims that were not raised in the defendant's original oramended postconviction petition are waived. 725 ILCS 5/122-3 (West2000); People v. Britt-El, 206 Ill. 2d 331, 338-39 (2002). Finally, a defendant may not raise for the first time on appeal,constitutional claims that were not actually presented in hispetition. People v. Jones, 341 Ill. App. 3d 103, 106 (2003), appeal allowed, No. 96503 (October 7, 2003), citing People v.Britt-El, 206 Ill. 2d at 339 and 725 ILCS 5/122-3 (West 2000). Anywaiver that occurs in this last situation, by its own terms, couldnever have been the basis for a trial court's order of summarydismissal because the waived claim was not raised in the petitionand was never before the trial court.

In an appeal from the summary dismissal of a postconvictionpetition, the issue before the reviewing court is "whether,pursuant to section 122-2.1(a)(2) of the Act, defendant's petitionwas properly dismissed at the first stage of the post-convictionproceedings. Thus, the issue before us is limited solely towhether defendant's 'petition is frivolous or is patently withoutmerit.' 725 ILCS 5/122-2.1(a)(2) (West 1998)." Edwards, 197 Ill.2d at 246-47.

At the first stage of a postconviction proceeding, our supremecourt has held "[t]he circuit court is required to make anindependent assessment in the summary review stage as to whetherthe allegations in the petition, liberally construed and taken astrue, set forth a constitutional claim for relief." (Emphasisadded.) People v, Boclair, 202 Ill. 2d 89, 99 (2002). Issues thatare raised for the first time on appeal are by definition not "allegations in the petition."

Our supreme court recently addressed the applicability ofsection 122-3 to a claim that was raised for the first time onappeal rather than in a postconviction petition in People v. De LaPaz, 204 Ill. 2d 426, 431-33 (2003). The slip opinion of De La Pazwas originally filed on May 8, 2003 and the supreme court suasponte filed a revised opinion on June 18, 2003. Confining ourdiscussion of De La Paz to the revised opinion, the court quotedPeople v. Burson, 11 Ill. 2d 360, 370-71 (1957): " '[Waiver] is arule of administration and not of jurisdiction or power, and itwill not operate to deprive an accused of his constitutional rightsof due process.' " De La Paz, 204 Ill. 2d at 432. The court alsopointed out "this court has 'the responsibility *** for a justresult and for the maintenance of a sound and uniform body ofprecedent [that] may sometimes override the considerations ofwaiver that stem from the adversary character of our system.' " DeLa Paz, 204 Ill. 2d at 433, quoting Hux v. Reben, 38 Ill. 2d 223,225 (1967). The De La Paz court went on to find that the Statewaived the issue of waiver by failing to raise it in its argument. The court then held "accordingly, we address the waived issue onthe merits." De La Paz, 204 Ill. 2d at 433. Although none of thecases cited in De La Paz that relate to the waiver issue addressedunder what circumstances the appellate court (as opposed to thesupreme court) may decline to follow section 122-3's requisite ofwaiver, we will address the three principles considered by the DeLa Paz court - the need for a uniform body of precedent, therequirement of due process and waiver by the State.

In De La Paz, our supreme court held that the holding inApprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct.2348 (2000), was not to be applied retroactively. It is difficultto imagine an issue that more desperately needed uniformity in itsapplication than whether Apprendi applied to cases on collateralreview or whether Apprendi could provide the basis forpostconviction relief. If the facts in the present case presentany issue as to the desirability of applying a uniform body ofprecedent, this factor would favor finding the claims raised forthe first time on appeal to have been waived. After all, section122-3 mandates that such claims are waived.

Further, finding the claims raised for the first time onappeal to be waived will not operate to deprive this defendant ofdue process. In his direct appeal, the defendant raised theargument that his confession should have been suppressed as theproduct of an unlawful arrest. He argued he was "seized" withoutprobable cause from his home late at night and held in custodyuntil he gave his written statement some 26 hours later. Duringthis time he was not allowed to speak to his family. See People v.Jefferson, No. 1-96-3830, slip op at 20-22 (unpublished order underSupreme Court Rule 23). In our decision, we pointed out that thetrial court conducted an evidentiary hearing on a motion tosuppress statements filed by defendant's trial counsel. Consequently, defendant's argument in this appeal - that priorappellate counsel was ineffective for failing to assert on appealthat petitioner's confession was the fruit of an unlawful arrestand detention - is directly contradicted by the record.

It is well-settled that the dismissal of a postconvictionpetition may be upheld when the record from the original trialproceedings contradicts the allegations in the defendant'spetition. People v. Rogers, 197 Ill. 2d 216, 222 (2001), citingPeople v. Coleman, 183 Ill. 2d 366 (1998), and quoting People v.Jones, 66 Ill. 2d 152, 154 (1977). As our review is plenary(People v. Coleman, 183 Ill. 2d at 388-89), this rule should applywith equal force to claims raised for the first time on appeal.

We also reject the claim that defendant's prior appellatecounsel was ineffective for failing to make the transcripts of thehearing on the motion to suppress the defendant's statements partof the record on appeal. The transcripts at issue have been madea part of the record in this case. As new appellate counsel pointsout in her statement of facts, the defendant testified at thehearing on his motion to suppress that he phoned the police andtold them to meet him at his mother's house. During the hearing,the defendant testified that he told the police that he was withShanell Townes at the time of the shooting. Defendant testifiedthat he signed the statement before he left the police station togo to the polygraph examiner. At the conclusion of the hearing,the trial court denied the motion to suppress.

The trial court said it disbelieved the defendant's testimony.The court said it believed the detective's testimony that, after hehad the results of the polygraph examination (which defendantfailed) and after he had spoken to Herbert Taylor (who saiddefendant shot the victim), he confronted the defendant with thisinformation and defendant then gave an inculpatory statement. Itshould be noted that at trial, defendant testified that he leftwith the police voluntarily. Further, defendant testified thatDetective Duffin, not ASA Ertler, gave the written statement to thedefendant. The defendant said he signed it without reading it. After the defendant testified during his trial, the trial courtmade a specific finding that it did not believe the defendant'stestimony. In upholding a circuit court's decision refusing tosuppress a defendant's confession, a reviewing court can considerevidence introduced at trial in addition to the evidence presentedat the suppression hearing. People v. Centeno, 333 Ill. App. 3d604, 620 (2002), citing People v. Brooks, 187 Ill. 2d 91, 127(1999).

Based on all of the above facts, it is clear that our holdingthat the issues raised for the first time on appeal are waived doesnot violate defendant's constitutional right to due process. SeeDe La Paz, 204 Ill. 2d at 432.

We also note that the State strenuously argued in its brief onappeal that section 122-3 of the Act requires that we find that anyissue not raised in the defendant's postconviction petition is waived. Unlike the State in De La Paz, here, the State did notwaive the issue of waiver. See De La Paz, 204 Ill. 2d at 433. Although we have found the claims raised by the defendant for thefirst time on appeal to be waived and, waiver aside, to bemeritless, we must still resolve the question of whether the trialcourt properly dismissed the petition as being untimely and meritless.

UNTIMELINESS

For his first assignment of error, the defendant argues thatthe trial court erred when it held that his postconviction petitionwas untimely. In People v. Boclair, 202 Ill. 2d 89 (2002), oursupreme court interpreted section 122-2.1(a)(2) of the Act (725ILCS 5/122-2.1(a)(2) (West 2000)) as permitting the circuit courtto dismiss a postconviction petition at the initial stage "only ifthe petition is deemed to be 'frivolous or *** patently withoutmerit,' not if it is untimely filed." (Emphasis added.) Boclair,202 Ill. 2d at 100. The court further held that a postconvictionpetition may be dismissed based on untimeliness only if the Stateraises the issue in a motion to dismiss. Boclair, 202 Ill. 2d at102. As a postconviction petition may not be dismissed as untimelyduring a first-stage review, the trial court improperly relied onthe ground of timeliness in summarily dismissing the defendant'spetition in this case.

PATENTLY WITHOUT MERIT

The defendant's assertions that remain to be addressed in thisappeal are that his trial counsel was ineffective for failing tocall a corroborating alibi witness, Angela Thomas, to testify attrial and for failing to explain why defendant's cellular phonerecords were exculpatory evidence.

In order to succeed on a claim of ineffective assistance oftrial counsel, a defendant must satisfy the two-pronged test setforth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, (1984). People v. Enis, 194 Ill. 2d 361, 376(2000). The defendant must establish both that counsel'srepresentation fell below an objective standard of reasonablenessand that there is a reasonable probability that, but for counsel'serrors, the outcome of the proceeding would have been different.Strickland, 466 U.S. at 694, 80 L. Ed. at 698, 104 S. Ct. at 2068. Courts may resolve ineffectiveness claims under the two-partStrickland test by reaching only the prejudice component, for lackof prejudice renders irrelevant the issue of counsel's performance.People v. Coleman, 183 Ill. 2d at 397-98.

In a petition for rehearing, defendant argues that the two-pronged standard announced in Strickland is "a higher standard thanthat mandated by the Post-Conviction Hearing Act for stage one prose petitioners. Edwards, 197 Ill. 2d at 244." In holding that apostconviction petition need only present the "gist of aconstitutional claim," Edwards followed clear precedent asestablished by the supreme court's decisions in People v. Gaultney,174 Ill. 2d 416, 418 (1996), and People v. Porter, 122 Ill. 2d 64,74 (1988). Edwards did not change the supreme court's standardsfor reviewing summary dismissals in any way. It certainly did nothold that the Strickland standards were not to be applied at thesummary dismissal stage.

To the contrary, in People v. Rogers, 196 Ill. 2d at 223, thecourt applied the Strickland standards in affirming the summarydismissal of a postconviction petition which alleged that thedefendant's trial counsel and appellate counsel providedineffective assistance of counsel. The supreme court denied apetition for rehearing in Rogers 10 days after the opinion inEdwards was filed.

While the petitioner in Rogers was represented by counsel,this fact is not dispositive of the issue before us. In People v.McGhee, 337 Ill. App. 3d at 997-98, a case heavily relied upon bythe defendant, this court relied on the Strickland standards inaffirming the summary dismissal of the pro se petitioner'spostconviction petition. Finally, we note that in his openingbrief, Jefferson asserts that his trial and appellate counselviolated the standards set forth in Strickland. We hold that whendetermining whether a petition is frivolous or patently withoutmerit pursuant to section 122-1 of the Act, the circuit court mayapply the two-pronged Strickland test to claims of ineffectiveassistance of counsel.

In Angela Thomas's affidavit attached to the postconvictionpetition, she states that she and defendant "spent nearly an hourin one another's company." However, Thomas does not specify atwhat time the defendant arrived or when he left. At trial, thedefendant testified that he arrived at Thomas's home "close toabout 8:30 p.m." and he stayed for "about 30-40 minutes."

Herbert Taylor testified that he waited at the defendant'shome until defendant arrived and they both got into the victim'scar. The defendant shot the victim almost immediately upon gettinginto the victim's car. Jimmy Fisher testified at trial that heheard shots at "approximately" 9 p.m. Officer Conroy testifiedthat he responded to the call "sometime around 9 and thereabouts." Per defendant's testimony, he had left Thomas's home at"about" 9 to 9:10 p.m.. Thomas lived at 5432 West Cortland Streetand the shooting took place in the alley at 4755 West Ohio Street. These locations are approximately 20 blocks apart. Further, Thomasand Townes lived less than two blocks from each other.

After hearing all of the evidence at trial, Judge Nevillespecifically found that the defendant's witnesses did not know theexact times that they saw the defendant and that their testimonywas credible because "that's the way people live." The trial courtalso pointed out that all of the defense witnesses put thedefendant within a short distance of the scene of the shooting. The trial court said that the defense witnesses at trial did notpresent an "alibi." Similarly, the postconviction court pointedout that Thomas's affidavit "fails to indicate what time she waswith the defendant or spoke to him on the phone." The court thenheld: "Clearly, presentation of testimony which does not indicatethat petitioner was with someone else at the time of the crimewould not be beneficial to the defense in any way. Accordingly,this court finds that counsel's decision [not to call Thomas as awitness] was sound and does not rise to the level of ineffectiveassistance." Applying this same rationale to the prejudice prongof Strickland, the defendant cannot demonstrate any prejudiceresulting from the failure to call Thomas. There is no reasonableprobability that had Thomas testified, the outcome would have beendifferent.

Not only did Thomas's affidavit not say what time she was withthe defendant, the affidavit contradicts the defendant's trialtestimony that he was with Thomas for 30 to 40 minutes, not onehour. Further, as noted previously, the defendant testified duringhis suppression hearing that he was at Shanell Townes' home at thetime of the shooting. Section 122-2.1(a)(2) of the Act permitstrial courts to review the trial record and our supreme court hasconsistently upheld the summary dismissal of postconvictionpetitions when the record from the original trial proceedingscontradicts the defendant's allegations and supportingdocumentation attached to the petition. People v. Rogers, 197 Ill.2d 216, 222 (2001); People v. Ramirez, 162 Ill. 2d 235 (1994). "Atthe dismissal stage of a post-conviction proceeding, all well-pleaded facts that are not positively rebutted by the originaltrial record are to be taken as true." (Emphasis added.) Coleman,183 Ill. 2d at 385.

It is only through reviewing the record of the trial courtproceedings that a trial court can determine whether theallegations in a postconviction petition are positively rebutted bythe record. If the claims made in a petition are positivelyrebutted by the record, they should not be taken as true. Rather,those claims that are positively rebutted by the original trialcourt record are patently without merit. Here, defendant's claimof ineffective assistance of trial counsel based on Thomas'saffidavit is patently without merit.

The defendant's claim that his trial counsel was ineffectivefor failing to explain the significance of the phone records alsorequires a review of the record in order to determine whether it iswithout merit.

The fact that the defendant's phone records show that hisphone was used to call Townes at 9:13 and 9:20 p.m., whenconsidered with the defendant's testimony that he was in front ofher house at the time he called her the second time, would indicatethat the defendant arrived at her home at 9:20 p.m. The calls toThomas at 9:17 and 9:41 p.m. are also of little aid to thedefendant. The evidence established that the murder took place atapproximately 9 p.m. As the time of the defendant's phone callsdoes not support an inference that the defendant could not havecommitted the murder, it was not ineffective assistance by trialcounsel to fail to argue such an inference. Also, the defendantcannot demonstrate any prejudice resulting from the failure toexplain how the phone records exculpated the defendant. There isno reasonable probability that defendant's trial counsel could haveexplained the phone records in such a way that the trial's outcomewould have been different.

For the foregoing reasons, we conclude that the defendant'spostconviction petition is patently without merit and we affirm thecircuit court's summary dismissal of the petition.

Affirmed.

HARTMAN and GREIMAN, JJ., concur.