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SIXTH DIVISION
January 30, 2004

No. 1-01-3770

JUSTICE GALLAGHER delivered the opinion of the court:

Defendant William Sutherland appeals from the trial court's first-stage dismissal of his prose petition for relief pursuant to the Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq.(West 2000) (the Act). For the reasons discussed herein, we vacate the trial court's orderdismissing defendant's postconviction petition and remand for proceedings under sections 122-4through 122-6 of the Act.

Following a jury trial, defendant was convicted of two counts each of attempted firstdegree murder, aggravated battery with a firearm, and home invasion. The trial court sentenceddefendant to 30 years for each count of attempted murder and 30 years for one count of homeinvasion, with the sentences to be served consecutively for a total sentence of 90 years in prison.

In his direct appeal, defendant contended that: (1) the trial court abused its discretion infinding that a six-year-old child was competent to testify; (2) the State failed to prove his guiltbeyond a reasonable doubt; (3) the trial court erred in incarcerating defendant's counsel overnightfor contempt during the trial; and (4) prosecutors made improper statements in closing argument. Defendant also argued that his consecutive 30-year sentences violated Apprendi v. New Jersey,530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and that his 90-year sentence wasexcessive in light of his rehabilitative potential. This court rejected those assertions and affirmeddefendant's convictions and sentence. People v. Sutherland, 317 Ill. App. 3d 1117, 743 N.E.2d1007 (2000). The Illinois Supreme Court denied defendant's petition for leave to appeal. Peoplev. Sutherland, 195 Ill. 2d 594, 755 N.E.2d 482 (2001).

On May 23, 2001, defendant filed a pro se petition for postconviction relief, alleging that:(1) several State witnesses offered perjured testimony; (2) due to his counsel's overnightincarceration, he was denied his right to present a defense; (3) he was denied the ability to cross-examine the six-year-old witness at a competency hearing; (4) prosecutorial misconduct preventedhim from receiving a fair trial; (5) the trial court failed to address the prosecutors' misconduct;and (6) his trial counsel was ineffective in several respects. Defendant also asserted that hisappellate counsel was ineffective for failing to raise some of those issues in his direct appeal.

On August 10, 2001, the trial court entered a written order dismissing defendant'spostconviction petition as frivolous and patently without merit. The trial court held that the sixclaims delineated above either were raised or could have been raised on direct appeal. The courtstated that res judicata barred reconsideration of defendant's claim regarding his right to presenta defense, as well as his allegations of prosecutorial misconduct and the trial court's purportedinaction. The court held that defendant's remaining assertions were waived because they couldhave been raised on direct appeal. As to defendant's claims of ineffective assistance of appellatecounsel, the court concluded that defendant had not shown that his attorney's failure to raisecertain issues affected the outcome of his appeal.

Defendant now contends that pursuant to People v. Boclair, 202 Ill. 2d 89, 789 N.E.2d734 (2002), the trial court improperly dismissed his postconviction petition on waiver and resjudicata grounds at the first stage of postconviction proceedings. Defendant also argues that hispetition stated the gist of a constitutional claim regarding the denial of his right to counsel. Inaddition, he asserts that the trial court issued an erroneous jury instruction, a contention that wasnot included in his postconviction petition.

Before addressing defendant's specific assertions, it is necessary to set out the generalprinciples of postconviction proceedings and the three-stage procedure for analyzing petitionsfiled pursuant to the Act. A postconviction petition is a collateral attack on a prior conviction andsentence, and as such, it is not a substitute for or an addendum to a direct appeal. People v.Rissley, 206 Ill. 2d 403, 411-12, 795 N.E.2d 174, 178 (2003). The scope of a postconvictionproceeding is limited to constitutional matters that have not been, and could not have been,previously adjudicated. Rissley, 206 Ill. 2d at 412, 795 N.E.2d at 179. Thus, any issues whichcould have been raised on direct appeal, but were not are procedurally defaulted, and any issueswhich were previously decided by a reviewing court are barred by the doctrine of res judicata. Rissley, 206 Ill. 2d at 412, 795 N.E.2d at 179, citing People v. Ruiz, 132 Ill. 2d 1, 547 N.E.2d170 (1989), and People v. Silagy, 116 Ill. 2d 357, 507 N.E.2d 830 (1987). To be consideredtimely, a postconviction petition must be filed within six months of the completion of directreview of the defendant's conviction, if such review is sought, or within three years of the date ofthe defendant's conviction, whichever is earlier. 725 ILCS 5/122-1(c) (West 2000).

At the first stage of postconviction proceedings, the trial court examines the petition todetermine whether it is frivolous or patently without merit and may dismiss the petition on thatbasis. 725 ILCS 5/122-2.1(a)(2) (West 2000). At this stage, neither the petitioner nor the Stateoffers any arguments to supplement the petition; rather, the trial court makes an independentassessment whether the allegations in the petition set forth a constitutional claim for relief. Boclair, 202 Ill. 2d at 99, 789 N.E.2d at 740-41. The trial court is precluded from engaging inany fact-finding or review of matters outside the allegations of the petition. Boclair, 202 Ill. 2d at99, 789 N.E.2d at 741. To survive dismissal at the first stage of postconviction proceedings, thedefendant's petition need only state "the gist of a constitutional claim." Boclair, 202 Ill. 2d at 99-100, 789 N.E.2d at 741. At this stage, the petition must only set forth a limited amount of detailand need not present an entire constitutional claim. People v. Edwards, 197 Ill. 2d 239, 245, 757N.E.2d 442, 446 (2001).

If the trial court does not dismiss the postconviction petition at this stage, the courtdockets the petition for further consideration under sections 122-4 through 122-6 of the Act. 725ILCS 5/122-2.1(b) (West 2000). At the second stage, the court may appoint counsel for thedefendant if the defendant is indigent, and counsel may amend the petition. The State has 30 daysto answer or move to dismiss the petition. 725 ILCS 5/122-5 (West 2000). The trial court thendetermines whether the allegations in the petition, as supported by the trial record oraccompanying affidavits and liberally construed in favor of the petitioner, make a substantialshowing of a constitutional violation. Rissley, 206 Ill. 2d at 412, 795 N.E.2d at 179. If the trialcourt does not dismiss the petition at this stage, the petition proceeds to the third stage of post-conviction review, where pursuant to section 122-6, the trial court holds an evidentiary hearing toresolve questions of disputed fact. On appeal, the trial court's decision to dismiss the petitionwithout an evidentiary hearing is reviewed de novo. People v. Harris, 206 Ill. 2d 1, 13, 794N.E.2d 314, 323-24 (2002).

Defendant's first argument to this court requires a review of Boclair and other recentcases that have refined the circumstances under which the trial court may summarily dismiss apostconviction petition. In Boclair, our supreme court held that at the first stage ofpostconviction review, a trial court cannot dismiss a postconviction petition on the basis that thepetition is untimely. Boclair, 202 Ill. 2d at 99, 789 N.E.2d at 740. Studying the Act'sconstruction and gleaning the legislature's intent, the Boclair court noted that section 122-2.1(a)(2) orders the trial court to dismiss a petition only if it is frivolous or lacks substantivemerit, not if the defendant failed to file the petition within the time limits of section 122-1(c). Boclair, 202 Ill. 2d at 99, 789 N.E.2d at 740.

Since Boclair, this court has held that, in addition to timeliness, a trial court cannotdismiss a postconviction petition at the first stage of proceedings on grounds of res judicata orwaiver. See People v. Blair, 338 Ill. App. 3d 429, 788 N.E.2d 240 (2003), appeal allowed, No.96198 (October 7, 2003); People v. McGhee, 337 Ill. App. 3d 992, 787 N.E.2d 324 (2003). McGhee noted that although Boclair's holding only addressed the issue of timeliness, the supremecourt in Boclair affirmed People v. McCain, 312 Ill. App. 3d 529, 727 N.E.2d 383 (2000), whichheld that postconviction petitions could not be dismissed at the first stage of proceedings based ontimeliness, waiver or res judicata. Boclair, 202 Ill. 2d at 95-96, 789 N.E.2d at 738. McGheelikened the doctrines of waiver and res judicata to the issue of timeliness, stating that waiver andres judicata do not address the substantive merits of a petition but rather "constitute proceduralbars to a defendant's right to prevail on a claim, regardless of its substantive merit." McGhee,337 Ill. App. 3d at 995, 787 N.E.2d at 326.

Less than two weeks after McGhee, Blair reached the same result, relying on Boclair andMcGhee. Blair, 338 Ill. App. 3d at 432, 788 N.E.2d at 242. Furthermore, the appellate court inBlair rejected the State's request that it review the substance of the defendant's petition andaffirm the petition's dismissal if the petition was frivolous or patently without merit. Blair, 338Ill. App. 3d at 432, 788 N.E.2d at 242-43. The court noted that although it had engaged in suchsubstantive review in the past, that review occurred only when the trial court previously hadconsidered the merits of the petition, and the Blair court held it would be inappropriate toundertake such analysis "for the first time on appeal." Blair, 338 Ill. App. 3d at 432, 788 N.E.2dat 243.

More recently, this court addressed McGhee and Blair in People v. Etherly, No. 1-01-4166, slip op. at 2 (November 21, 2003), and held that although a first-stage dismissal cannot bebased on waiver or procedural default, the trial court can dismiss a petition at that stage on thegrounds of res judicata, provided that the court is not required to engage in fact-finding orconsider matters outside the record. Because the Act allows dismissal at the first stage only if thepetition is frivolous or lacks substantive legal merit (725 ILCS 5/122-2.1(a)(2) (West 2000)),Etherly agreed with McGhee and Blair that waiver or procedural default cannot provide the basisfor summary dismissal.⁽¹⁾

Etherly, No. 1-01-4166, slip op. at 23-24. Etherly points out that thedefenses of waiver and untimeliness are meant to be resolved no sooner than the second stage ofpostconviction proceedings, after counsel has been appointed for the defendant and the State hasthe opportunity to raise such affirmative matters in a motion to dismiss. Etherly, No. 1-01-4166,slip op. at 24-25, citing 725 ILCS 5/122-5 (West 2000).

Noting that the purpose of first-stage postconviction review is to determine the petition'ssubstantive merit and not its procedural compliance, Etherly reasoned that if an issue was raisedand ruled upon in the trial court, the issue already was considered on its merits, thus triggering thetheory of res judicata. In such an instance, the trial record would rebut the allegation containedin the defendant's postconviction petition. Etherly, No. 1-01-4166, slip op. at 20-21. Therefore,first-stage postconviction review allows the dismissal of a substantive issue on the grounds of resjudicata, i.e., that the issue was previously decided, because it is frivolous for the defendant toagain raise the issue in a postconviction petition. Etherly, No. 1-01-4166, slip op. at 21.

Applying those theories to the claim before it, the Etherly court noted that the defendantalleged in his petition that he was denied a fair trial because prospective jurors were not askedabout their potential bias toward gang members. The court found that the petition stated aconstitutional deprivation that "was not pursued by defense counsel at trial and not raised bydefense counsel on appeal, thereby rendering the issue neither frivolous nor patently withoutmerit." Etherly, No. 1-01-4166, slip op. at 3-4. Because the gang bias voir dire issue had notbeen previously decided, the trial court erred in dismissing the petition on res judicata grounds. Etherly, No. 1-01-4166, slip op. at 4. This court ordered that the trial court docket the petitionfor second-stage proceedings. Etherly, No. 1-01-4166, slip op. at 35-36.

Shortly after Etherly was decided, a different division of this court in People v. Jefferson,No. 1-01-4483, slip op. at 14-15 (November 26, 2003), declined to follow McGhee and Blair,stating those opinions fail to explain "why it is permissible for a trial court to rely on the record indetermining whether those claims in a petition that are rebutted by the record are patently withoutmerit, but it is impermissible for the trial court to rely on the record in determining whether theprinciples of waiver or res judicata are applicable." Noting that "those claims that are positivelyrebutted by the original trial court record are patently without merit," Jefferson examined the trialcourt record in the case before it and concluded that the defendant's claim of ineffectiveassistance of trial counsel was meritless. Jefferson, No. 1-01-4483, slip op. at 26-27. The courtthus affirmed the summary dismissal of the defendant's postconviction petition. Jefferson, No. 1-01-4483, slip op. at 27.

With that still-evolving precedent in mind, we turn to defendant's contention that Boclair,Blair and McGhee prohibit the summary dismissal of his petition based on waiver and resjudicata. In response to defendant's position, the State cites People v. Wright, 189 Ill. 2d 1, 723N.E.2d 230 (1999), in arguing that Blair and McGhee were wrongly decided. The supreme courtheld in Wright that the trial court could dismiss a postconviction petition based on timeliness atthe first stage of proceedings. Wright, 189 Ill. 2d at 11-12, 723 N.E.2d at 237. However,although the State cites Boclair at great length, the State fails to acknowledge that Boclairexpressly overturned Wright in holding that the Act does not authorize a trial court to dismiss apetition based on lack of timeliness. Boclair, 202 Ill. 2d at 98-99, 789 N.E.2d at 740.

We agree with defendant that McGhee and Blair, and more precisely, Etherly, espouse themore reasoned view. We also note that Etherly addresses the concerns raised in Jeffersonregarding the trial court's reliance on the record in determining whether waiver or res judicatabars a defendant's postconviction claims. Here, the trial court dismissed several claims indefendant's petition on the basis of waiver and dismissed several other contentions on the groundsof res judicata. In addition, the trial court found defendant's four claims of ineffective assistanceof appellate counsel to be frivolous and patently without merit. A trial court cannot dismiss apostconviction petition at the first stage of proceedings on the basis of waiver because, liketimeliness, waiver represents a procedural bar to the defendant's right to present a claim, not aconsideration of the petition's substantive merits. Etherly, No. 1-01-4166, slip op. at 23-24. Etherly held, however, that the trial court could summarily dismiss a petition on res judicatagrounds regarding previously decided issues if the trial court was not required to resolve disputedfacts, engage in fact-finding, or consider matters outside the record. Etherly, No. 1-01-4166, slipop. at 21.

This case thus requires us to decide the propriety of the summary dismissal of apostconviction petition containing claims that the trial court rejected on the separate bases ofwaiver, res judicata and lack of merit. Under McGhee, Blair and Etherly, waiver is not a properground for dismissal of a petition at the first stage of postconviction proceedings. See alsoPeople v. Cleveland, 342 Ill. App. 3d 912, 915, 796 N.E.2d 201, 203 (2003). Our conclusionthat the trial court cannot dismiss claims at the first stage of postconviction review on the basis ofwaiver necessarily requires the remand of defendant's entire petition because the petition mustsurvive as a whole or be dismissed as a whole. People v. Rivera, 198 Ill. 2d 364, 365, 763N.E.2d 306, 310-11 (2001); see also People v. Plummer, No. 1-01-0123 (December 5, 2003). The Act does not allow the summary dismissal of some allegations while other claims proceed tothe second stage of postconviction review. People v. Brown, 336 Ill. App. 3d 711, 721, 784N.E.2d 296, 304 (2002); see also People v. Noel, 291 Ill. App. 3d 541, 544, 684 N.E.2d 414, 416(1997) (noting that "allowing partial dismissal raises serious questions about the judicial reviewprocess, since first stage dismissals are final and appealable judgments").

We recognize that the trial court in this case dismissed defendant's entire postconvictionpetition at the first stage of proceedings and did not improperly enter a partial summary dismissaland parse certain claims for further review, as the trial courts did in Rivera and Noel. Moreover,at the time of its August 2001 order, the trial court lacked the guidance of Boclair, McGhee,Blair or the subsequent cases analyzing the bases for first-stage dismissal of postconvictionpetitions. However, because we have concluded that portions of defendant's postconvictionpetition cannot be dismissed at the initial stage of postconviction review on the basis of waiver,the entire petition must be docketed for second-stage proceedings in accordance with sections122-4 through 122-6 of the Act, including the appointment of counsel for defendant, amendmentof defendant's petition by counsel, and responsive pleadings by the State. 725 ILCS 5/122-2.1(b)(West 2000). In light of that disposition, we need not consider whether portions of defendant'spetition present the gist of a constitutional claim.⁽²⁾

In closing, we note that defendant's final contention on appeal, that the trial court issuedan erroneous jury instruction regarding the factors used to assess the reliability of identificationtestimony, was not included in defendant's postconviction petition. Pursuant to section 122-3 ofthe Act, any claims not raised in the original or an amended petition are waived. 725 ILCS 5/122-3 (West 2000); see also People v. Jones, 341 Ill. App. 3d 103, 106, 791 N.E.2d 1118, 1120(2003), appeal allowed, No. 96503 (October 7, 2003). Because we are remanding this case forfurther proceedings under the Act, counsel for defendant will have the opportunity to consider themerits of that assertion and amend the petition to include that claim. 725 ILCS 5/122-5 (West2000).

Accordingly, for all of the foregoing reasons, the trial court's order dismissing defendant'spostconviction petition is vacated. The trial court is instructed to docket the petition for second-stage proceedings in accordance with sections 122-4 through 122-6 of the Act. 725 ILCS 5/122-2.1(b) (West 2000).

Reversed and remanded with directions.

O'MARA FROSSARD, P.J., and SMITH, J., concur.

1. As Etherly noted, another division of this court disagreed with McGhee's extension ofBoclair to encompass waiver and res judicata. People v. Smith, 341 Ill. App. 3d 530, 537-38,794 N.E.2d 367, 375-76 (2003). Smith stated that while the Act treats timeliness as a separateprocedural consideration, waiver and res judicata address the petition's substantive merits andprovide bases for summary dismissal. Smith, 341 Ill. App. 3d at 537, 794 N.E.2d at 376. However, the Smith court admitted its comments were dicta because the case before it involved asuccessive postconviction petition, not an initial petition. Smith, 341 Ill. App. 3d at 537-38, 794N.E.2d at 376.

2. Although we are remanding defendant's petition, we also reject, for the record,defendant's repeated contentions that his petition must proceed to the second stage ofpostconviction review because the trial court did not rule on the petition within 90 days of itsfiling. Defendant filed his pro se petition on May 23, 2001, and the trial court issued its writtenorder dismissing the petition on August 10, 2001. While we make no comment on the merits ofdefendant's assertions or the trial court's grounds for dismissing them, the timeliness ofdefendant's filing and the trial court's ruling are not at issue.