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29 June 2000

JUSTICE STEIGMANN delivered the opinion of the court:

In May 1997, the trial court found defendant, Robert V.Donley, guilty of first degree murder (720 ILCS 5/9-1(a)(1),(a)(2) (West 1996)) after a bench trial and later sentenced himto 45 years in prison. He appealed, and this court affirmed hisconviction and sentence, except for our directions that the court(1) modify his sentencing order to reflect that the truth-in-sentencing statute then in effect would not apply to him and (2)issue a corrected judgment and sentencing order grantingdefendant 235 days' credit for time served. People v. Donley,No. 4-97-0564 (May 14, 1999) (unpublished order under SupremeCourt Rule 23).

In November 1998, defendant filed a pro se petition forpostconviction relief under the Post-Conviction Hearing Act (Act)(725 ILCS 5/122-1 through 122-8 (West 1998)). One week later,the trial court dismissed the petition pursuant to section 122-2.1(a)(2) of the Act, concluding that it was patently withoutmerit (725 ILCS 5/122-2.1(a)(2) (West 1998)). Defendant appeals,arguing that because his petition raised the gist of ameritorious claim--namely, that the trial judge was asleep duringpart of his bench trial--the court erred by dismissing hispetition. We agree and reverse and remand for furtherproceedings.

Judge Charles Glennon presided at defendant's May 1997bench trial for the first degree murder of defendant's wife,Carol Donley. The evidence at trial showed that on November 4,1996, despite an order of protection barring defendant fromcontact with Carol, he went to her home, disabled the telephoneline to the residence, argued with her, broke out a window, andentered her house. He then stabbed her repeatedly with a knife,killing her. He fled the scene but later turned himself in andgave the police a videotaped statement admitting to the actsdescribed above. Various items of physical evidence corroboratedthe State's case.

At defendant's trial, he testified that he had gone toCarol's house hoping they could resolve their differences. Hesuggested the incident was not planned but that he reacted inanger when Carol argued with him. Defendant claimed that thecircumstances provoked him into his conduct, and his attorneyargued that the stabbing had been an act of rage. Judge Glennonrejected these arguments, found defendant guilty of first degreemurder, and noted that in his 21 years as a trial judge, he couldnot "imagine a more conclusive case where the evidence is sooverwhelming as to a defendant's guilt of the offense of firstdegree murder."

The primary focus of defendant's lengthy November 1998 pro se postconviction petition was his claim that his trialcounsel had provided ineffective assistance. However, at onepoint in defendant's lengthy petition, he asserts that during hisbench trial, he and his counsel observed Judge Glennon "sleepingabout 15 minutes."

Judge Harold Frobish dismissed defendant's petition ina December 1998 written order. Judge Frobish rejected theassertions regarding defendant's trial counsel for a variety ofreasons, and defendant on appeal does not challenge the dismissalof his petition as to those claims. Judge Frobish's orderdismissing the petition made no specific mention of defendant'sallegation that Judge Glennon had slept during the trial butsimply concluded generally as follows: "Other matters raised indefendant's petition are conclusions, mere accusations, orirrelevant." This appeal followed.

Defendant argues that the trial court erred bydismissing his petition because he had raised the gist of ameritorious claim--namely, that the trial judge was asleep duringpart of his bench trial. We agree.

The Act provides a three-stage process for adjudicationof petitions for postconviction relief. At the first stage, thetrial court should not decide the petition on the merits;instead, without input from the State or further pleadings fromthe defendant, the court should simply determine under section122-2.1 of the Act if the petition is frivolous or patentlywithout merit (725 ILCS 5/122-2.1 (West 1998)). See People v.Frieberg, 305 Ill. App. 3d 840, 846-47, 713 N.E.2d 210, 215(1999). If a petition presents the gist of a meritorious claim,the court should not dismiss it under section 122-2.1. People v.Dredge, 148 Ill. App. 3d 911, 913, 500 N.E.2d 445, 446 (1986). We review de novo the trial court's dismissal of defendant'spetition. People v. Wilson, No. 84692, slip op. at 8 (May 18,2000), ___ Ill. 2d ___, ___, ___ N.E.2d ___, ___; People v.Coleman, 183 Ill. 2d 366, 389, 701 N.E.2d 1063, 1075 (1998).

In People v. Lemons, 242 Ill. App. 3d 941, 946, 613N.E.2d 1234, 1237 (1993), this court explained that the term"gist of a meritorious claim" is not a bare allegation of adeprivation of a constitutional right. Instead, the prose defendant must plead sufficient facts from which the trialcourt could find a valid claim of deprivation of a constitutionalright. Lemons, 242 Ill. App. 3d at 946, 613 N.E.2d at 1237. Wefurther explained that "the trial court should consider thepetition at the first stage to determine whether it containssufficient facts upon which a meritorious constitutional claimcould be based." (Emphasis in original.) Lemons, 242 Ill. App.3d at 947, 613 N.E.2d at 1238. We conclude that defendant'sallegation that Judge Glennon was asleep for 15 minutes duringdefendant's bench trial for first degree murder sufficientlycontains the "gist of a claim for relief which is meritorious" asthat term was explained in Lemons. Lemons, 242 Ill. App. 3d at946, 613 N.E.2d at 1237.

The State contends that defendant has waived this issueby not raising it in the trial court. In support, the Statecites People v. Silagy, 101 Ill. 2d 147, 461 N.E.2d 415 (1984),and People v. Nix, 150 Ill. App. 3d 48, 501 N.E.2d 825 (1986). However, Silagy was a direct appeal in which a claim ofprocedural forfeiture would properly apply, whereas the presentcase involves claims brought pursuant to the Act. Nix appliedSilagy in a postconviction context, but we doubt that Silagyapplies in such a case. Applying the procedural forfeituredoctrine as the Nix court did seems contrary to the whole purposeof a collateral attack, which the Act authorizes.

The State also argues that the defendant's claim iscontradicted by the trial record and that he has failed toestablish prejudice. We first note that the record is silent onthe question of whether Judge Glennon was asleep during anyportion of the bench trial over which he presided, and we expressno opinion regarding the merits of defendant's assertion that hewas. The State's claim to the contrary is based solely upon thedetailed discussion of the evidence that Judge Glennon providedwhen he rendered his guilty finding. However, the inference fromthat discussion is not sufficient to overcome the low thresholdthat defendant must cross at this first stage of the postconvic-tion process.

Last, despite the strength of the State's case againstdefendant, an allegation that the trial judge was asleep during aportion of defendant's bench trial for first degree murder issufficiently troubling that the matter should proceed to seewhat, if any, evidence defendant can muster in support of thatclaim at the second or (possibly) the third stage of proceedingsunder the Act.

For the reasons stated, we reverse the trial court'sjudgment dismissing defendant's postconviction petition undersection 122-2.1 of the Act and remand for further proceedings.

Reversed and remanded.

GARMAN, J., concurs.

McCULLOUGH, J., dissents.

JUSTICE McCULLOUGH, dissenting:

The bench trial began May 13, 1997. The trial courtconducted the trial over a five-day period, and on May 19, 1997,the trial court found defendant guilty of first degree murder andentered a judgment thereon.

On June 18, 1997, defendant filed a motion for newtrial. The defendant made no mention in his motion of the trialcourt's personal behavior during trial. At the hearing on June26, 1997, defendant's argument on his motion referred merely tothe trial court record.

The defendant's assertion that "[(]12) During [p]etitioner's bench trial [p]etitioner an [sic] counsel observedpresiding judge Charles Glennon sleeping about 15 minutes duringpetitioner's bench trial," was not raised in his motion for newtrial or in his direct appeal. Even accepting defendant'sassertion as true, it is without merit and subject to waiver. Both defendant and his counsel were aware at the time of trial ofthis asserted error. The issue, not having been raised at trial,in his posttrial motion, or on direct appeal is waived. Inaddition, defendant's petition does not point to any prejudice orruling by the trial court to give any substance to hisallegation.

To give merit to defendant's assertion as suggested bythe majority will open the floodgates in postconviction matters. To raise this issue to constitutional muster--after a five-daytrial where defendant and his attorney observed all thehappenings as they occurred but made no objection, did not asserterror in his posttrial motion, did not raise the issue in directappeal, and does not point to any prejudice--has me buffaloed.

I would affirm the trial court's dismissal ofdefendant's postconviction petition.