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Docket No. 96198-Agenda 2-November 2004.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LEON BLAIR, Appellee.
Opinion filed June 3, 2005.

JUSTICE FITZGERALD delivered the opinion of the court:

As defendant Leon Blair and two friends were walking towardsan intersection on the south side of Chicago, they encountered a cardriven by Darryl Mims. After harsh words were exchanged, defendantpulled a .357 Magnum from his waistband, said "ball game," and killedMims. A jury convicted defendant of first degree murder and the trialcourt imposed a sentence of 55 years' imprisonment. Following anunsuccessful direct appeal, defendant filed the instant postconvictionpetition, blaming his lawyers for his first degree murder conviction.The trial court summarily dismissed the petition based on res judicataor waiver. The appellate court reversed, holding that both res judicataand waiver are not permitted bases for summary dismissal under thePost-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West2000)). 338 Ill. App. 3d 429, 431. We granted the State's petition forleave to appeal. See 177 Ill. 2d R. 315(a). We find the legislatureintended to allow a judge to summarily dismiss petitions where factsascertainable from the record reveal the petition's claims have alreadybeen decided, waived, or forfeited. We therefore reverse.

BACKGROUND

At trial, the following evidence was adduced. On June 25, 1995,18-year-old defendant, Leon "Little Tray" Blair, acted as a security"look-out" at a Black Disciples gang picnic on the south side ofChicago. After leaving the picnic at either 12 p.m. or in the afternoon,he began "journeying" around the neighborhood with fellow BlackDisciples John McKenzie and Marcus Wright. According to Wright'stestimony on cross-examination by defendant's counsel, the trio hadbeen drinking beer and gin, and defendant had been smokingmarijuana. As daylight waned at 8:45 p.m., defendant, McKenzie, andWright approached a three-way intersection at 73rd Street, EllisAvenue, and South Chicago Avenue. They encountered Darryl Mimsas his red Oldsmobile pulled up to a stop at the intersection. Theyasked Mims the price of his vehicle and Mims replied, "$3,500."Defendant was angered at the high price and said, "That's a robberywithout a gun." Mims then "disrespected" defendant, so defendanttold Mims, "I am a Black Disciple. My name is Little Tray, and youbetter show some respect for me." Mims then called the 5-foot-5-inch,150-pound defendant a "little motherfucker," further angeringdefendant.

Assistant State's Attorney Anne Lorenz testified that in aninterview she conducted with defendant, defendant told her that hesaw Mims reach his right hand over the front passenger seat towardthe glove compartment. Defendant did not see a gun on Mim's personor in the car. Lorenz testified that defendant orally told her that he"extended his arm into the car," and that "before he pulled the trigger,he said, 'ball game' to the driver, which means 'it's over.' "Defendant, however, crossed this statement off the written statementthat Lorenz prepared. At trial, defendant admitted that he shot Mims.Defendant further testified, however, that Mims reached toward theglove compartment with his right hand, which led defendant to thinkthat Mims was retrieving a weapon. Wright disputed this, testifyingthat after words were exchanged between Mims and defendant, heheard defendant say "ball game" and saw defendant lean toward theinside of the vehicle and fire a shot at Mims. Also according toWright, Mims was sitting back comfortably in his car seat with hisright hand on the steering wheel. Eyewitness Taron Cain testified thathe stopped his car at the intersection when he saw two men talking toan occupant of the car which fit the description of Mims' car. He sawdefendant walk or jog up to the car and shoot the occupant. After theshooting, the three men ran away as Cain exited his car to assistMims. Mims died approximately two weeks later.

After leaving the scene, defendant threw the gun into the waterby Rainbow Beach and later went to the residence of CassandraHarris, the mother of two of defendant's children. Harris testified thatshe, Wright, and defendant were on her porch that night. She testifiedthat defendant stated, "[McKenzie] told him to stick that nigger."McKenzie then arrived on the porch, and defendant said to McKenzie,"Man, you told me to stick that nigger." At trial, after first denyingthat he used those words, defendant admitted that he said them.Defendant also admitted at trial that he never told the group on theporch that he shot Mims because he was in fear for his life.

Defendant was charged in a two-count indictment with the firstdegree murder of Daryl Mims. 720 ILCS 5/9-1(a)(1), (a)(2) (West1992). After defendant's motion to suppress was denied, the caseproceeded to a jury trial. The jury rejected defendant's second degreemurder argument premised on defendant's unreasonable belief in thenecessity for self-defense. Instead, the jury found defendant guilty offirst degree murder.

Defendant's trial counsel filed a motion for a new trial allegingthat the evidence was insufficient and that defendant was denied a fairtrial. In addition, defendant filed a separate pro se motion for a newtrial alleging that during the trial his attorney became physically ill andshould have asked for a continuance; and his attorney's illness mayhave caused her to inadequately represent him.

At the sentencing hearing, the trial court offered defendant'scounsel an opportunity to be heard on her motion, but counsel waivedargument. The trial court then offered defendant an opportunity to beheard on his pro se motion. Defendant responded: "I waiveargument." The trial court then denied both motions, stating, interalia, "As to defendant's motion for new trial, based upon the fact hisAttorney was physically ill and did not ask for a continuance in thismatter, I find there is no merit whatsoever. Counsel did an excellentjob in representation of this defendant. This motion will also bedenied."

The trial court received evidence in mitigation and aggravation,including testimony from the mother of the victim and letters fromfour teachers who helped defendant obtain his GED while he wasincarcerated. The trial court subsequently sentenced defendant to 55years' imprisonment.

Defendant filed a notice of appeal and the Cook County publicdefender was appointed to represent him on appeal. Attorneys in thepublic defender's office reviewed the record and concluded that therewere no issues of merit warranting argument on appeal. Accordingly,the public defender filed a motion for leave to withdraw as appellatecounsel and a brief in support of the motion pursuant to Anders v.California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967).Defendant filed a pro se response to the motion to withdraw, arguingthat: (1) his trial counsel rendered ineffective assistance by neglectinghis case because she was "obviously medicated" during trial due to anillness making her "often incoherent"; (2) his trial counsel wasineffective for failing to object to evidence regarding his ganginvolvement, which the trial court improperly admitted at trial; (3) histrial counsel was ineffective for failing to interview potential characterwitnesses to testify at the sentencing hearing; (4) his appellate counsellabored under a conflict of interest because both trial and appellatecounsel were employed at the public defender's office; and (5) his 55-year sentence was excessive because the trial court did not"meaningfully" consider factors in mitigation when imposing thesentence.

On February 3, 2000, the appellate court filed a Rule 23 ordergranting the public defender's motion to withdraw. People v. Blair,No. 1-98-4119 (2000) (unpublished order under Supreme Court Rule23). The appellate court rejected defendant's claim of ineffectiveassistance related to his posttrial motion that trial counsel neglectedhis case because she was "obviously medicated" due to an illness,making her "often incoherent." The court added that his argument was"unsupported by the record or based on matters that are outside therecord." In a footnote, the appellate court noted that defendant hadexpressly declined to argue his posttrial motion on this basis and thatthe trial court denied the motion, stating that it was without merit. Thecourt also rejected each of defendant's additional pro se arguments.The court concluded, "We have carefully reviewed the record in thiscase, the aforesaid brief and defendant's response in compliance withthe mandate of the Anders decision and find no issues of arguablemerit. Therefore, the motion of the public defender for leave towithdraw as counsel is allowed." This court denied defendant'spetition for leave to appeal. People v. Blair, 189 Ill. 2d 663 (2000)(order).

On January 8, 2001, defendant filed a pro se petition forpostconviction relief. 725 ILCS 5/122-1 et seq. (West 2000). In thepetition, defendant set forth six arguments. Defendant first argued thathis trial counsel improperly advised him to decline argument on hispro se posttrial motion, and that the trial court should haveinvestigated his claim as to his counsel's illness. Second, defendantalleged that his trial counsel's illness caused her to be "obviouslymedicated" and "often incoherent" during her few brief visits todefendant outside the courtroom, and caused her to performineffectively during the suppression hearing and at trial. Third,defendant argued that his trial counsel did not present evidence of hisalcohol and marijuana use while he was at the picnic prior to theshooting to support his second degree murder argument. Fourth,defendant alleged that his counsel was ineffective for introducingprejudicial gang-related evidence through his direct testimony. Fifth,defendant alleged that his counsel was ineffective for failing to call histeachers from the Cook County jail as character witnesses at hissentencing hearing. Finally, defendant alleged that he was deniedeffective assistance of appellate counsel because appellate counsel didnot want to file a brief against another lawyer. Defendant attached hisaffidavit, in which he affirmed the petition's statements were true.However, defendant declared no further facts in his affidavit.⁽¹⁾

On February 22, 2001, the circuit court summarily dismisseddefendant's postconviction petition in a written order. Orally, thecourt stated that it had considered the petition, the orders of theappellate court, and the trial record. The court found that the issuessought to be raised were res judicata or waived.

On appeal, the appellate court held that under the Act (725 ILCS5/122-1 et seq. (West 2000)) and People v. Boclair, 202 Ill. 2d 89(2002), a trial court may not summarily dismiss a postconvictionpetition based upon res judicata or waiver because " '[l]ike timeliness,the doctrines of waiver and res judicata do not address the questionof whether a claim is frivolous or without merit; rather, they constituteprocedural bars to a defendant's right to prevail on a claim, regardlessof its substantive merit.' " 338 Ill. App. 3d at 431-32, quoting Peoplev. McGhee, 337 Ill. App. 3d 992, 995 (2003). The appellate courtremanded the matter to the trial court for further proceedings. 338 Ill.App. 3d at 432. We granted the State's petition for leave to appeal.See 177 Ill. 2d R. 315(a).

ANALYSIS

The State argues on appeal that a trial court may summarilydismiss a petition based on res judicata and waiver because they aresubstantive limitations on the availability of postconviction relief underthe plain meaning of the Act. According to the State, unliketimeliness, res judicata and waiver are inherent elements of the rightto bring a postconviction petition because these doctrines go directlyto the authority of a court to grant a petitioner any relief under theAct. The State urges that this interpretation is in accord with thehistory of the Act, and consistent with our decision in Boclair, in that,where a defendant is precluded from obtaining relief due to resjudicata and waiver, a claim is necessarily "frivolous" or "patentlywithout merit."

Defendant responds that the plain language of the Act requiresonly that the petition state the gist of a constitutional claim. Hemaintains that because the Act makes no specific reference to resjudicata or waiver, a court may not summarily dismiss on either basis.Defendant also argues that the State's interpretation is inconsistentwith Boclair. According to defendant, under Boclair, neither resjudicata nor waiver are "substantive" determinations within thepurview of the Act, but rather procedural bars in the nature of anaffirmative defense to which exceptions apply. Furthermore, the legaldoctrines of res judicata and waiver are the sorts of legal issues thatare beyond the ability of a pro se defendant to adequately address,thereby necessitating the assistance of court-appointed counsel.Defendant finally argues that the State's interpretation is contrary tothe legislative history of the Act.

In 1983, the General Assembly amended the Act to includesection 122-2.1, which directed the trial court to conduct a thresholdevaluation of postconviction petitions and to dismiss those which were"frivolous" or "patently without merit." People v. Rivera, 198 Ill. 2d364, 369 (2001), citing Ill. Rev. Stat. 1985, ch. 38, par. 122-2.1(a).As applied to noncapital defendants, the Act then as now provides: "Ifthe court determines the petition is frivolous or is patently withoutmerit, it shall dismiss the petition in a written order, specifying thefindings of fact and conclusions of law it made in reaching itsdecision." Ill. Rev. Stat. 1985, ch. 38, par. 122-2.1(a); 725 ILCS5/122-2.1(a)(2) (West 2002). "Thus, the biggest change wrought tothe Act by virtue of the 1983 amendment was that counsel wasappointed to an indigent petitioner only after the court initiallyreviewed the petition and only if the court did not dismiss the petitionon the ground of frivolity." (Emphasis omitted.) Rivera, 198 Ill. 2d at369. We have noted that "section 122-2.1 provides for a simplifiedprocedure in order to ensure that the criminal justice system's limitedresources are expended where most needed." Rivera, 198 Ill. 2d at372.

The court in People v. Rivera quoted legislative history, notingthat the judge is to look at the petition during the summary dismissalstage to determine " 'whether or not the petition has any merit.' "(Emphasis in original.) Rivera, 198 Ill. 2d at 372, quoting 83d Ill.Gen. Assem., Senate Proceedings, May 19, 1983, at 172 (statementsof Senator Sangmeister). " 'If it is filed frivolously and obviouslywithout merit, then those further steps are necessary to be taken interms of appointment of counsel and so forth, aren't necessary.' "(Emphasis in original.) Rivera, 198 Ill. 2d at 373, quoting 83d Ill.Gen. Assem., House Proceedings, June 21, 1983, at 87 (statements ofRepresentative Johnson). During these same debates quoted by theRivera court, Representative Johnson stated of these petitions,

"in [almost] every instance, matters that were raised at thetrial level and given the normal doctrines of waver [sic] andratio cogna [sic] and so forth, those issues have already beenraised. They can't be raised again. They have had anopportunity with an attorney, with all the rights of adefendant to have gone through the process and have beenconvicted." 83d Ill. Gen. Assem., House Proceedings, June21, 1983, at 96 (statements of Representative Johnson).

Similarly, Senator Sangmeister stated the law addressed petitionswhich were "obviously without merit, frivolous, not filed in good faithor repetitive of issues already litigated and disposed of or simplymalicious." 83d Ill. Gen. Assem., Senate Proceedings, May 19, 1983,at 171 (statements of Senator Sangmeister). We also stated in Rivera,"In our view, the summary dismissal stage of the post-convictionproceeding does nothing more than allow the circuit court to actstrictly in an administrative capacity by screening out those petitionswhich are without legal substance or are obviously without merit."Rivera, 198 Ill. 2d at 373. The General Assembly, however, has neverfurther defined its intent pertaining to the adjectival phrase "frivolousor is patently without merit."

We recently drew contours of this intent in People v. Boclair,202 Ill. 2d 89 (2002), where we found that "frivolous" or "patentlywithout merit" did not include a lack of timeliness for purposes ofsummary dismissal under section 122-2.1(a)(2) (725 ILCS5/122-2.1(a)(2) (West 2002)). We noted, "[b]y addressing timelinessand frivolousness in separate provisions of the Act, the legislatureplainly intended to draw a distinction between these two flaws of post-conviction petitions." Boclair, 202 Ill. 2d at 101. We then found thatthe phrase "frivolous or *** patently without merit," as traditionallydefined, does not include issues of timeliness. Boclair, 202 Ill. 2d at101 (citing Webster's Third New International Dictionary 913 (1993),Black's Law Dictionary 677 (7th ed. 1999), and Anders v. California,386 U.S. 738, 744, 18 L. Ed. 2d 493, 498, 87 S. Ct. 1396, 1400(1967)).

Other considerations militated against first-stage dismissals basedon timeliness. First, we noted that time is not an inherent element ofthe right to bring a postconviction petition because a time limit shouldbe considered an affirmative defense which can be raised, waived, orforfeited by the State. Boclair, 202 Ill. 2d at 101. Second, timelinessinquiries would require that the court engage in fact finding todetermine whether the petitioner had credibly alleged facts showinga lack of "culpable negligence" which would excuse the late filing. Atthe summary review stage, however, courts measure a petition'ssubstantive virtue rather than its procedural compliance. Thus, indetermining an issue of credibility as it pertains to a procedural issue,the circuit court necessarily "exceeds the boundary" set by section122-2.1(a)(2). Boclair, 202 Ill. 2d at 102. Finally, summary dismissalbased on timeliness might result in the loss of a meritorious claim ofactual innocence because the State does not have the opportunity toreview the claim. Boclair, 202 Ill. 2d at 102. We therefore concludedthat matters of timeliness must "be left for the State to assert duringthe second stage of the post-conviction proceedings." Boclair, 202 Ill.2d at 102.

Our appellate court is divided on whether the phrase "frivolousor is patently without merit" in section 122-2.1(a)(2) permits thesummary dismissal of petitions based on res judicata and waiver. Oneview holds that the Act permits summary dismissals based on both resjudicata and waiver. A second view holds that res judicata may be thebasis of a summary dismissal, but not waiver or procedural default.The third view, including the court below, holds that neither resjudicata nor waiver may properly constitute the basis of a summarydismissal.

According to the first view, followed by the first and fourthdivisions of the First District of the appellate court, both res judicataand waiver fall under the general rubric "frivolous" or "patentlywithout merit" in section 122-2.1(a)(2). People v. Smith, 341 Ill. App.3d 530 (2003); People v. Jefferson, 345 Ill. App. 3d 60 (2003);People v. Smith, 345 Ill. App. 3d 868 (2004); People v. Johnson, 352Ill. App. 3d 442 (2004). These courts reason that the legislatureintended that the substantive scope and purpose of the Act precludethe retrial of issues that either were previously decided or could havebeen raised and decided at an earlier time. See, e.g., Smith, 341 Ill.App. 3d at 537. Thus, waiver and res judicata are substantiveconsiderations to the extent that they define and limit the scope andpurpose of the Act. See, e.g., Smith, 341 Ill. App. 3d at 537. Thesecourts distinguish the issue of timeliness, because it is a considerationwholly collateral to the legislature's intention as to the Act'ssubstantive scope and purpose. This intention is demonstrated by thelegislature's treating timeliness in a separate provision than section122-2.1(a)(2). See, e.g., Smith, 341 Ill. App. 3d at 537. Furthermore,waiver and res judicata, while generally deemed to be affirmativedefenses like timeliness, can be characterized for purposes of the Actas being integral to the substantive merits of the petition. Smith, 341Ill. App. 3d at 536-37. These courts affirmed dismissals ofpostconviction petitions where issues raised in the petitions werebased upon facts that were ascertainable from the petition and therecord and were raised, or could have been raised, on direct appeal.See Johnson, 352 Ill. App. 3d at 448; Smith, 345 Ill. App. 3d at 871.

The second approach is held by the sixth division of the FirstDistrict and the Fourth District of the appellate court. These courtshold that a trial court may summarily dismiss a petition as res judicataif the court does not engage in fact finding or consider matters outsidethe record. People v. Etherly, 344 Ill. App. 3d 599 (2003); People v.Campbell, 345 Ill. App. 3d 810 (2004); People v. Sutherland, 345 Ill.App. 3d 937 (2004); see also People v. Newbolds, 352 Ill. App. 3d678, 683 (2004) (Fifth District case discussing this approach, butresolving the case on another basis). This accords with the circuitcourt's ability to consider the trial and appellate records during thefirst stage under section 122-2.1(c) of the Act. See, e.g., Etherly, 344Ill. App. 3d at 613, citing 725 ILCS 5/122-2.1(c) (West 2002).However, a court may not summarily dismiss a petition based onwaiver and procedural default. These petitions may otherwise be fullymeritorious, and matters of procedural compliance may not beconsidered at the initial stage of postconviction review. Etherly, 344Ill. App. 3d at 615, quoting Boclair, 202 Ill. 2d at 124 (McMorrow,J., specially concurring). When the court is acting in this manner, itabandons its "administrative" duty to consider only substantive legalmerit in the first stage and takes on an adversarial role to adjudicateprocedural compliance. See, e.g., Etherly, 344 Ill. App. 3d at 617.Furthermore, under the second view, no mechanism exists at the firststage for a defendant to properly respond to res judicata and waiver.See, e.g., Etherly, 344 Ill. App. 3d at 616-17.

Under the third view, espoused by the third division of the FirstDistrict, the Second District, and the Fifth District of the appellatecourt, both res judicata and waiver are not properly within the terms"frivolous" or "patently without merit" to serve as bases for summarydismissal. 338 Ill. App. 3d 429; People v. McCain, 312 Ill. App. 3d529 (2000); McGhee, 337 Ill. App. 3d 992; People v. Murray, 351 Ill.App. 3d 219 (2004). Principally, these courts reason that res judicataand waiver do not address the substantive merits of the petition. See,e.g., 338 Ill. App. 3d at 431-32. Thus, " '[l]ike timeliness, thedoctrines of waiver and res judicata do not address the question ofwhether a claim is frivolous or without merit; rather, they constituteprocedural bars to a defendant's right to prevail on a claim, regardlessof its substantive merit.' " 338 Ill. App. 3d at 431-32, quotingMcGhee, 337 Ill. App. 3d at 995. Similar to the intermediate view, thethird view is wary of a trial court's assumption of an adversarial role.McCain, 312 Ill. App. 3d at 531. Accordingly, "[l]ike timeliness,waiver is in the nature of an affirmative defense that the State mayeither raise, waive, or forfeit." People v. Stivers, 338 Ill. App. 3d 262,264 (2003). As such, res judicata and waiver are not absolute bars,and if summary dismissal were allowed, defendant would not have achance to argue that an exception applies. Murray, 351 Ill. App. 3d at221-22. Therefore, at the summary dismissal stage, "the court shouldonly determine whether the petition alleges constitutionaldeprivations, not whether the petitioner will ultimately succeed onthose claims." McCain, 312 Ill. App. 3d at 531.

We agree with the State, and with the first and fourth divisionsof the First District, and conclude that the legislature intended thattrial courts may summarily dismiss postconviction petitions based onboth res judicata and waiver. We begin by noting that in construinga statute, our primary objective is to give effect to the intention of thelegislature. People v. Greer, 212 Ill. 2d 192, 208 (2004). If this courtcan ascertain legislative intent from the plain language of the statuteitself, that intent must prevail. Boclair, 202 Ill. 2d at 100. To ascertainthe legislature's intent, we may properly consider not only thelanguage of the statute, but also the purpose and the necessity for thelaw, evils sought to be remedied, and goals to be achieved. People v.Botruff, 212 Ill. 2d 166, 175 (2004). We will not depart from the plainlanguage of the statute by reading into it exceptions, limitations, orconditions that conflict with the express legislative intent. Boclair, 202Ill. 2d at 100. We consider whether the legislature intended that thephrase "frivolous or *** patently without merit" includes res judicataor waiver. We review this issue de novo. Boclair, 202 Ill. 2d at 97;People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).

We thus compare the definitions of res judicata and waiver todefinitions of "frivolous" and "patently without merit." In an initialpostconviction proceeding, the common law doctrines of res judicataand waiver operate to bar the raising of claims that were or could havebeen adjudicated on direct appeal. People v. Pitsonbarger, 205 Ill. 2d444, 458 (2002). The doctrine of res judicata bars consideration ofissues that were previously raised and decided on direct appeal.People v. West, 187 Ill. 2d 418, 425 (1999); accord Black's LawDictionary 1336-37 (8th ed. 2004) ("res judicata is an issue that hasbeen definitively settled by judicial decision"). As to "waiver," we notethat courts often use the terms "forfeit," "waive," and "proceduraldefault" interchangeably in criminal cases. See, e.g., People v. Corrie,294 Ill. App. 3d 496, 506 (1998); People v. Rogers, 197 Ill. 2d 216,221 (2001) (claims which could have been raised are deemed"forfeited"); People v Harris, 206 Ill. 2d 293, 299 (2002) (claimswhich could have been raised are deemed "waived"); West, 187 Ill. 2dat 425 (claims which could have been raised are "procedurallydefaulted"). For purposes of this opinion, we henceforth use the term"forfeited" to mean issues that could have been raised, but were not,and are therefore barred. Rogers, 197 Ill. 2d at 221. Forfeiture isdefined as: "the loss of a right, privilege, or property because of acrime, breach of obligation, or neglect of duty." Black's LawDictionary 677 (8th ed. 2004); see also Webster's Third NewInternational Dictionary 891 (1993) (Forfeit means "something whichis lost or the right to which is alienated by a crime, offense, neglect ofduty, or breach of contract").⁽²⁾

In Boclair, we examined the definitions of "frivolous," "patently,"and "merit." " 'Frivolous' " is defined as " 'of little weight orimportance: having no basis in law or fact.' " Boclair, 202 Ill. 2d at101, quoting Webster's Third New International Dictionary 913(1993); Black's Law Dictionary 677 (7th ed. 1999); Anders v.California, 386 U.S. 738, 744, 18 L. Ed. 2d 493, 498, 87 S. Ct. 1396,1400 (1967) (legal points "arguable on their merits" are not frivolous)." '[P]atently' " means " 'CLEARLY, OBVIOUSLY, PLAINLY.' "Boclair, 202 Ill. 2d at 101, quoting Webster's Third NewInternational Dictionary 1654 (1993); Black's Law Dictionary 1147(7th ed. 1999). " '[M]erit' " means " 'legal significance, standing, orimportance.' " Boclair, 202 Ill. 2d at 101, quoting Webster's ThirdNew International Dictionary 1414 (1993); Black's Law Dictionary1003 (7th ed. 1999). Thus, "frivolous or *** patently without merit"may be defined as having no basis in law or fact and obviously withoutlegal significance.

We conclude that the legislature intended that the phrase"frivolous or *** patently without merit" encompasses res judicataand forfeiture. Determinations of res judicata and forfeiture areinherently legal determinations which may bar relief under the Act.Thus, an otherwise meritorious claim has no basis in law if resjudicata or forfeiture bar the claim. The legal component is thereforeconsistent with "frivolous" defined as "of little weight or importance:having no basis in law or fact." (Emphasis added.) Webster's ThirdNew International Dictionary 913 (1993); Black's Law Dictionary 677(7th ed.1999); accord Anders v. California, 386 U.S. 738, 744, 18 L.Ed. 2d 493, 498, 87 S. Ct. 1396, 1400 (1967) (legal points "arguableon their merits" are not frivolous). It is also consistent with a clear,obvious, or plain lack of "merit," meaning without "legal significance,standing, or importance." (Emphasis added.) Webster's Third NewInternational Dictionary 1414 (1993); Black's Law Dictionary 1003(7th ed. 1999). Thus, where res judicata and forfeiture preclude adefendant from obtaining relief, such a claim is necessarily "frivolous"or "patently without merit."

The legislature has granted the courts the ability to make thesedeterminations in sections 122-2.1(a)(2) and 122-2.1(c). 725 ILCS5/122-2.1(a)(2), (c) (West 2002). The statute states that the circuitcourt "shall dismiss the petition in a written order, specifying thefindings of fact and conclusions of law it made in reaching itsdecision." 725 ILCS 5/122-2.1(a)(2) (West 2002). Again, resjudicata and forfeiture are conclusions of law. The language of section122-2.1(a)(2) does not limit or qualify the type of conclusion of lawand therefore does not disable a judge from considering res judicataand forfeiture. More importantly, when evaluating a petition, a trialcourt "may examine the court file of the proceeding in which thepetitioner was convicted, any action taken by an appellate court insuch proceeding and any transcripts of such proceeding." 725 ILCS5/122-2.1(c) (West 2002). This provision does not limit a court'sreview of the record and appellate court ruling to determine if only thepetition's factual allegations are rebutted. Rather, on the basis of factsand legal rulings that are ascertainable from the court file, appellatecourt action, and any transcripts, a court may also determine if legalclaims have been decided or could have been raised, thus rebutting theclaims contained in the petition.

Accordingly, defendant's argument that a trial judge may onlyconsider the "gist" of a claim in the petition falsely construes thelegislature's intention as to the judge's role at the first stage. Ourdecisions regarding the meaning of the "gist" standard have arisenonly outside the context of res judicata and forfeiture. See, e.g.,People v. Edwards, 197 Ill. 2d 239 (2001). They do not purport todecide the instant issue. Rather, as we have found, the legislatureintended that the court be allowed to make legal determinations basedon both res judicata and forfeiture. We therefore decline defendant'sinvitation to hold that a judge should only attempt to divine a gist ofa claim from a defendant's petition, but then ignore a record whichclearly demonstrates that a prior court had specifically found that afully litigated claim lacked merit. Similarly, we will not direct a judgeto ignore the doctrines of waiver, forfeiture, and procedural defaultwhere a review of the facts ascertainable from the record clearlydemonstrates that the claim could have been raised in the priorproceeding. To hold otherwise, we would be forcing courts to wastejudicial resources by merely delaying the dismissal of a petition whichthe judge knows could never bear fruit for the petitioner. Rather, thelegislature emphatically intended dismissal of these frivolous claimswhen it provided that a court "may examine the court file of theproceeding in which the petitioner was convicted, any action taken byan appellate court in such proceeding and any transcripts of suchproceeding." 725 ILCS 5/122-2.1(c) (West 2002).

Our holding is consistent with the general purpose of thepostconviction proceeding. The Act provides a procedural mechanismthrough which a convicted criminal can assert "that in the proceedingswhich resulted in his or her conviction there was a substantial denialof his or her rights under the Constitution of the United States or ofthe State of Illinois or both." 725 ILCS 5/122-1(a) (West 2002);Coleman, 183 Ill. 2d at 378-79. "The purpose of the post-convictionproceeding is to permit inquiry into constitutional issues involved inthe original conviction that have not already been adjudicated or couldhave been." People v. Silagy, 116 Ill. 2d 357, 365 (1987). Hence, ina postconviction proceeding, the trial court does not redetermine adefendant's innocence or guilt, but instead examines constitutionalissues which escaped earlier review. Rogers, 197 Ill. 2d at 221. Assuch, a petition for postconviction relief is not an appeal of theunderlying judgment; rather, it is a collateral proceeding. Rogers, 197Ill. 2d at 221; West, 187 Ill. 2d at 425. These principles support firststage dismissal based upon collateral rules of law such as res judicataand forfeiture. By its very nature, the Act provides a collateralremedy, and it makes little sense for a judge to disregard the very rulesgoverning collateral attack when he or she "may examine the court fileof the proceeding in which the petitioner was convicted, any actiontaken by an appellate court in such proceeding and any transcripts ofsuch proceeding." 725 ILCS 5/122-2.1(c) (West 2002).

Furthermore, allowing a petition to be summarily dismissed in thismanner is consistent with the legislature's purpose in passing section122-2.1(a)(2) in 1983. In Rivera we stated, "section 122-2.1 providesfor a simplified procedure in order to ensure that the criminal justicesystem's limited resources are expended where most needed." Rivera,198 Ill. 2d at 372. We looked to the legislative history, and noted thatthe judge is to examine the petition to determine " 'whether or not thepetition has any merit.' " (Emphasis in original.) Rivera, 198 Ill. 2d at372, quoting 83d Ill. Gen. Assem., Senate Proceedings, May 19,1983, at 172 (statements of Senator Sangmeister). " 'If it is filedfrivolously and obviously without merit, then those further steps ***in terms of appointment of counsel and so forth, aren't necessary.' "(Emphasis in original.) Rivera, 198 Ill. 2d at 373, quoting 83d Ill.Gen. Assem., House Proceedings, June 21, 1983, at 87 (statements ofRepresentative Johnson). Our holding also accords with statementsmade in these same debates that the law dealt with petitions raised "in[almost] every instance, matters that were raised at the trial level andgiven the normal doctrines of waver [sic] and ratio cogna [sic] and soforth, those issues have already been raised. They can't be raisedagain." 83d Ill. Gen. Assem., House Proceedings, June 21, 1983, at96 (statements of Representative Johnson). Similarly, the lawgoverned petitions which were "obviously without merit, frivolous,not filed in good faith or repetitive of issues already litigated anddisposed of or simply malicious." 83d Ill. Gen. Assem., SenateProceedings, May 19, 1983, at 171 (statements of sponsor SenatorSangmeister).

We also noted in Rivera, "[i]n our view, the summary dismissalstage of the post-conviction proceeding does nothing more than allowthe circuit court to act strictly in an administrative capacity byscreening out those petitions which are without legal substance or areobviously without merit." Rivera, 198 Ill. 2d at 373. Defendant arguesthat a court acting in an "administrative capacity" may not considerissues which may be affirmative defenses raised by the State.Defendant misconstrues Rivera. By "administrative capacity" wemeant to reflect the judge's role in "screening out petitions which arewithout legal substance or obviously without merit" without inputfrom the parties in accordance with the simplified purpose of the Act.In other words, we did not mean by "administrative" that thelegislature intended to pluck the gavel from the judge's hand andreplace it with the clerk's stamp.

Defendant's argument that this claim should proceed to thesecond stage for the benefit of an attorney to refine the claim is alsowithout justification. The constitutional right to counsel does notapply to postconviction proceedings, and the Act only grants that rightduring the second stage. Greer, 212 Ill. 2d at 203, citing People v.McNeal, 194 Ill. 2d 135, 142 (2000). As we stated in Greer, "thelegislature has seen fit to confer upon the circuit court the power,without the necessity of appointing counsel, to dismiss, outright,petitions at first stage when they are deemed frivolous or patentlywithout merit." Greer, 212 Ill. 2d at 208-09; see also People v. Jones,211 Ill. 2d 140, 148 (2004).

We disagree with defendant's related implication that the judgeis assuming an adversarial role. A judge is a neutral arbiter and acts ascounsel for neither party. We do not presume the judge acts as anadvocate; rather, we presume that the trial judge knows and followsthe law unless the record demonstrates otherwise. People v. Gaultney,174 Ill. 2d 410, 420 (1996). Furthermore, just as the judge is not acounsel for defendant when he allows a petition to proceed to thesecond stage, the judge is not a counsel for the State when he findsthat the claim was raised, or could have been raised, in an earlierproceeding.

Our holding in People v. Boclair, 202 Ill. 2d 89 (2002), isconsistent with this resolution. Unlike timeliness, first-stageconsiderations of res judicata and forfeiture raised by an original oramended petition are not mentioned in separate provisions in the Act.Rather, res judicata and forfeiture fall within the plain language of"frivolous or *** patently without merit" in section 122-2.1(a)(2),which permits summary dismissal. 725 ILCS 5/122-2.1(a)(2) (West2000). More importantly, section 122-2.1(c) allows the court to"examine the court file of the proceeding in which the petitioner wasconvicted, any action taken by an appellate court in such proceedingand any transcripts of such proceeding" to determine if issues of resjudicata and forfeiture are present. 725 ILCS 5/122-2.1(c) (West2002). Although the Act allows the State to raise these issues asdefenses later in the second stage, the Act also allow the judge toconsider these issues at the first stage.

Other considerations in Boclair are inapposite here. Unliketimeliness, res judicata and forfeiture do not have exceptions whichwould require a factual determination at the summary dismissal stage,such as the culpable negligence exception to timeliness, requiringcredibility determinations. Since section 122-2.1(a)(2) expresslyrequires the petition to be "frivolous or patently without merit," trialcourts will rely upon those grounds for summary dismissal where it isclear from the facts ascertainable in the record that the petitioner'sclaims are barred by legal concepts of res judicata or forfeiture. Thus,where the court need look only at the record of the formerproceedings, it may properly dismiss the petition.

Notably, exceptions to the doctrines of res judicata and forfeituremay allow otherwise barred claims to proceed. It has long been heldthat res judicata and forfeiture do not apply where fundamentalfairness so requires; where the alleged forfeiture stems from theincompetence of appellate counsel; or where facts relating to the claimdo not appear on the face of the original appellate record. People v.Harris, 206 Ill. 2d 1, 13 (2002); People v. Whitehead, 169 Ill. 2d 355,371-72 (1996), overruled on other grounds, Coleman, 183 Ill. 2d366. Further, defendant has an opportunity to respond to the court'ssummary dismissal based on res judicata and forfeiture. A defendantmay file a motion to reconsider which may claim exceptions to resjudicata and forfeiture. A defendant may also challenge a summarydismissal on appeal. Successive petitions may also be filed aspermitted by law.

Moreover, the judge's power to dismiss petitions which arebarred by res judicata and forfeiture at the first stage remainscircumscribed by the statute, similar to every other petition adefendant may set forth. For example, courts may find that, after areview of the petition and the record of the former proceedings, it isa close call as to whether a petition which states a gist of aconstitutional claim is otherwise barred by res judicata and forfeiture,or whether the petition presents an exception to these doctrines. Inthese cases, the petition is not "frivolous" or "patently without merit."Therefore, the court may properly allow a petition to proceed to thesecond stage to allow the appointment of an attorney to potentiallyamend the defendant's petition, allow the State to file a motion todismiss, and to garner the benefit of the adversarial process.

Because we find the Act is not ambiguous, we need not considerdefendant's remaining arguments hinging on ambiguity.

Propriety of the Trial Court's First-Stage Dismissal

Defendant alternately requests cross-relief, seeking reversal of thecircuit court's dismissal of the petition based on res judicata orwaiver. We note that the trial court did not specify which basis it ruledon as to each claim. Defendant argues only two of six of his claims inhis pro se petition on appeal. The first relates to the health of hiscounsel during his trial. The second concerns his trial counsel'sdecision not to introduce evidence about his alcohol and marijuana useprior to the killing during his direct examination. He alleges that thefacts relating to the claims do not appear on the face of the originalappellate record. He additionally contends that his appellate counselon direct appeal was ineffective for failing to raise these same claimson direct appeal. Defendant makes no argument on appeal as to theother allegations in his petition. Our review is de novo. Boclair, 202Ill. 2d at 97.

First, defendant asserts that counsel was "obviously medicated"and "often incoherent" during her few brief visits to defendant in hisholding cell outside the courtroom and, consequently, her illness andher personal problems affected her judgment and her preparation forthe motion to suppress and trial. Defendant seeks an exception to resjudicata, as he argues this is outside the record of his direct appeal.Defendant presented no further related facts in the affidavit attachedto the petition. On appeal, defendant argues that this allegation statesa claim for ineffective assistance of trial counsel which is not barredby res judicata or forfeiture because it constitutes a new allegation"outside the record."

The record reveals that after trial in the former proceedings,defendant filed a pro se motion for a new trial, alleging that during thetrial his attorney became physically ill and did not ask for acontinuance, and his attorney's illness may have caused her toinadequately represent the defendant. The trial judge stated, "As todefendant's motion for new trial, based upon the fact his attorney wasphysically ill and did not ask for a continuance in this matter, I findthere is no merit whatsoever. Counsel did an excellent job inrepresentation of this defendant. This motion will also be denied." Wenote that the appellate court, in the direct appeal, rejected defendant'sclaim that trial counsel "neglected his case because she was 'obviouslymedicated' due to an illness, making her "often incoherent." Theappellate court stated that "a review of defendant's contentionsestablished that they are either unsupported by the record or based onmatters that are outside the record." In a footnote, the appellate courtprovided that defendant had expressly declined to argue his posttrialmotion on this point and the trial court denied the motion, stating thatit was without merit. People v. Blair, No. 1-98-4119 (2000)(unpublished order under Supreme Court Rule 23).

Defendant has presented nothing outside the record in his instantpetition and affidavit. Rather, he merely reasserts that counsel was"obviously medicated" and "often incoherent." Even assuming theseallegations of illness are not conclusions (West, 187 Ill. 2d at 425-26(broad, unsupported, conclusory allegations in a postconvictionpetition are not allowed)), the petition says nothing as to how, eventaking the illness as true, the illness affected counsel's performance.More importantly, this conclusory claim does not rebut the trialjudge's observation that counsel's in-court performance during theproceedings before him was "excellent." Therefore, the petitioncontains nothing but the bare assertion that counsel neglected his case,which was also rejected by the appellate court on direct appeal.Hence, there is nothing on this issue which has not previously beenaddressed by the trial court and appellate court on direct appeal. Thetrial court correctly decided that this issue was barred by res judicata.

Defendant's next argument pertains to the following allegation,that defendant

"informed his P.D. that while he was at the picnic prior tothe incident, he had indeed been drinking alcohol andsmoking marijuana, which would of course describe his stateof mind and lend to the explanation of how he could haveeasily (however unreasonable) believed he needed to protecthimself if that belief was unreasonable at all. The P.D. shouldnot have withheld this information from the jury, especiallyconsidering the fact that the only evidence offered at trial bythe P.D. was the testimony of the petitioner stating his beliefof being threatened."

Defendant contends the allegation is "outside the record" and notbarred by forfeiture.

We first note that the petition's allegations are factually rebuttedby the record. First, the trial transcript reveals that defendant's friendwho was present at the shooting, Marcus Wright, testified on cross-examination that he had been drinking beer and gin with defendant andthat Wright thought defendant had been smoking marijuana. The trialtranscript reveals, therefore, that defendant's trial counsel did elicitevidence of defendant's marijuana and alcohol use at trial. Second, thetrial transcript reveals that defendant left the picnic at "midday" or "inthe afternoon," and the shooting did not occur until 8:45 p.m., thusnegating an implied time frame in his petition that the shootingoccurred shortly after the picnic. Indeed, although evidence was in therecord and presented to the jury that defendant had consumed drugsand alcohol, this evidence did not alter the jury's verdict.

Moreover, defendant failed to meet the Act's affidavitrequirement. He has provided no facts whatsoever concerning hisalcohol use or marijuana use in his affidavit, other than a generalstatement that the facts in his petition are true. Nor is there anexplanation as to why it is not provided, although such evidencewould be within his own recall. A postconviction petition is requiredto have attached "affidavits, records, or other evidence supporting itsallegations or shall state why the same are not attached." 725 ILCS5/122-2 (West 2002).

More importantly, however, defendant cannot assert an exceptionto forfeiture. Because the facts regarding defendant's mere alcoholand marijuana use are already in the record, defendant presents nonew allegations in his petition or affidavit that can be deemed "outsidethe record." Therefore, defendant's claim on this matter is forfeited.Furthermore, our research has revealed no authority stating that themere fact of alcohol and marijuana use is sufficient to support asecond degree murder instruction or negate the intent for first degreemurder.

Defendant next argues that the rule of res judicata and forfeitureshould be relaxed because of his claim of ineffective assistance ofappellate counsel. Defendant argues that appellate counsel on directappeal was ineffective for failing to argue that the trial court shouldhave conducted an investigation regarding his trial counsel's allegedillness when he presented his posttrial motion pursuant to People v.Krankel, 102 Ill. 2d 181 (1984) (concerning the appointment ofcounsel by the trial court to investigate a defendant's posttrial pro seallegation of ineffective assistance of counsel).

This issue was addressed in the defendant's direct appeal and istherefore barred by res judicata. After the public defender filed amotion for leave to withdraw and a brief in support of the motionpursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87S. Ct. 1396 (1967), defendant filed a pro se response allegingineffective assistance of appellate counsel based on a failure to raiseissues pertaining to ineffective assistance of trial counsel, including theissue of trial counsel's illness. As stated above, the appellate courtrebuffed these claims which were contained in defendant's pro seposttrial motion relating to trial counsel's alleged illness, althoughwithout specifically citing Krankel. The appellate court stated,"[B]ecause we held that trial counsel was not ineffective based upondefendant's various allegations, appellate counsel was not ineffectivefor failing to argue that issue on appeal." Blair, No. 1-98-4119(unpublished order under Supreme Court Rule 23).

Defendant makes no further argument that res judicata andforfeiture should be relaxed under a third exception, fundamentalfairness, nor does our review of the record on appeal and defendant'spetition reveal any such claim. Defendant also makes no argument asto a claim of actual innocence. We also note that the State has notindicated that it wishes to forgo the affirmative defenses of resjudicata and forfeiture on appeal.

Finally, defendant also argues that his mittimus should becorrected to reflect the time he spent in custody from January 17,1996, to and including January 28, 1996. The State has made noobjection. We remand to the circuit court to issue a correctedmittimus.

CONCLUSION

The legislature intended that a judge "may examine the court fileof the proceeding in which the petitioner was convicted, any actiontaken by an appellate court in such proceeding and any transcripts ofsuch proceeding" (725 ILCS 5/122-2.1(c) (West 2002)) to determineif the petition's claims have been or could have been adjudicated in theoriginal proceeding. Further, the legislature intended that, based onfacts ascertainable from the record, a circuit court may summarilydismiss a petition as "frivolous or *** patently without merit" basedon both res judicata and forfeiture under the Act. 725 ILCS5/122-2.1(a)(2) (West 2002). We therefore reverse the judgment ofthe appellate court. Accordingly, we find that the circuit court'ssummary dismissal of defendant's petition was proper, and affirm thatjudgment. We also remand with directions to the circuit court tocorrect the mittimus.

Appellate court judgment reversed;

circuit court judgment affirmed;

remanded with directions.

JUSTICE FREEMAN, dissenting:

I believe the analysis offered by the court in support of its resultis fundamentally inconsistent with previous decisions issued by thiscourt in the area of postconviction litigation. I, therefore, mustrespectfully dissent.

Defendant maintains in this appeal that the Post-ConvictionHearing Act does not allow for summary dismissal on the basis of resjudicata and waiver.⁽³⁾ The State responds that claims that are subjectto res judicata and procedural default constitute claims that are either"frivolous" or "patently without merit" and are therefore subject tosummary dismissal under the plain language of section 122-2.1 of theAct.

Our Post-Conviction Hearing Act provides a mechanism bywhich those under criminal sentence in this state can assert that theirconvictions were the result of a substantial denial of their rights underthe United States Constitution or the Illinois Constitution or both. See725 ILCS 5/122-1 et seq. (West 2000). Proceedings under the Actare commenced by the filing of a petition in the circuit court in whichthe original proceeding took place. Section 122-2.1 of the Act speaksto orders of dismissal. The statute requires that within 90 days afterthe filing and docketing of each petition, the circuit court mustexamine the petition and enter one of two orders set forth within thesubsections of the statute. Relevant to this appeal is section122-2.1(a)(2), which states:

"If the petitioner is sentenced to imprisonment and thecourt determines the petition is frivolous or is patentlywithout merit, it shall dismiss the petition in a written order,specifying the findings of fact and conclusions of law made inreaching its decision." 725 ILCS 5/122-2.1(a)(2) (West2000).

At this juncture in the proceedings, the Act does not allow the Statethe opportunity to raise any arguments against the petition. The Act,at this point, provides only that "[i]n considering a petition pursuantto [section 122-2.1], the court may examine the court file of theproceeding in which the petitioner was convicted, any action taken byan appellate court in such proceeding and any transcripts of suchproceeding." 725 ILCS 5/122-2.1(c) (West 2000). Thus, at this initialstage of the proceedings, the circuit court is acting solely on the filedpetition, without any input from the State. This court has held that tosurvive dismissal at this stage, the petition need only state "the gist ofa constitutional claim." People v. Gaultney, 174 Ill. 2d 410, 418(1996). If the petition survives this initial stage, the proceedingadvances to the second stage, where the circuit court may thenappoint counsel to represent an indigent petitioner (725 ILCS 5/122-4(West 2000)), with counsel being given the opportunity to amend thepetition (725 ILCS 5/122-5 (West 2000)). At this second stage, theAct requires that the State either file an answer or move to dismiss thepetition. 725 ILCS 5/122-5 (West 2000). If the petition is notdismissed at the second stage, the proceeding advances to the thirdstage, where an evidentiary hearing can be held. 725 ILCS 5/122-6(West 2000).

In this case, we must determine whether claims that areprocedurally defaulted or res judicata constitute claims that are"frivolous" or "patently without merit" so as to qualify for summarydismissal under section 122-2.1. In construing a statute, courts shouldconsider the statutory language and give effect to the language of theAct as written when that language is clear. People v. Rivera, 198 Ill.2d 364, 371 (2001). It must be initially pointed out that the term resjudicata is not used within the Act. The term waiver appears only insection 122-3, which provides that "[a]ny claim of substantial denialof constitutional rights not raised in the original or an amendedpetition is waived." 725 ILCS 5/122-3 (West 2000). This is not thetype of "waiver" that is at issue in this case. Moreover, the Act doesnot define the terms "frivolous" or "patently without merit." In Peoplev. Boclair, 202 Ill. 2d 89 (2002), this court addressed what constitutesa "frivolous or patently without merit" petition in the context ofwhether the circuit court could dismiss, at the summary stage, apostconviction petition on timeliness grounds. We held that such adismissal was not proper under the Act. In so holding, we construedsection 122-2.1 to require the circuit court, at that stage of theproceedings, to "measure[ ] a petition's substantive virtue rather thanits procedural compliance." Boclair, 202 Ill. 2d at 102. This view wasespoused by all members of the court. See Boclair, 202 Ill. 2d at 124(McMorrow, J., specially concurring, joined by Freeman, J.) (notingthat opinion stands for the proposition that "matters of 'proceduralcompliance' [citation] may not be considered in the initial stage ofpost-conviction review" (emphasis in original)); Boclair, 202 Ill. 2dat 143 (Thomas, J., specially concurring, joined by Fitzgerald, J.)(noting that in determining whether a postconviction petition isfrivolous or patently without merit, the trial court may not considerwhether the petition suffers from a procedural defect).

I believe today's decision is inconsistent with the principles weestablished in Boclair. Like timeliness, the doctrines of proceduraldefault and res judicata do not address the question of whether aclaim is frivolous or patently without merit. Instead, both doctrinesserve as procedural devices intended to preclude a court fromconsidering in the first instance the substantive merits of the claim. Aclaim that is procedurally defaulted is not necessarily withoutsubstantive merit. It is because of this very fact, i.e., that such claimsmay in fact warrant relief, that courts have developed exceptionswhich serve to excuse the procedural bar. See People v. Simpson, 204Ill. 2d 536, 552 (2001) (acknowledging in postconviction proceedingthat procedural default can be excused upon petitioner's showing of"cause and prejudice"). It is also why procedural default, in particular,is in the nature of an affirmative defense in that the State must raise itor forfeit it. See People v. O'Neal, 104 Ill. 2d 399, 407 (1984) (notingthat principles of procedural default apply to the State as well as todefendants in criminal cases); People v. Holloway, 86 Ill. 2d 78, 91(1981) (same). The fact that the State can "waive waiver" reinforcesthe fact that the doctrine is an affirmative matter that must be raisedby the State-this court has repeatedly stated that the doctrine does notconstitute "a jurisdictional or absolute bar to review of procedurallydefaulted claims." Simpson, 204 Ill. 2d at 552.

Despite the plethora of case law that establishes that the doctrinesof res judicata and procedural default serve as procedural bars toreview of the substantive merits of a claim, the court today,throughout its analysis, characterizes the doctrines as substantivecomponents in determining whether a claim is frivolous or patentlywithout merit. The court concludes that the legislature intended thatthe phrase " 'frivolous or *** patently without merit' encompasses resjudicata and forfeiture" because "[d]eterminations of res judicata andforfeiture are inherently legal determinations which may bar reliefunder the Act." Slip op. at 13. The court, however, fails to take intoaccount that the question of whether a claim is barred by the doctrinesof res judicata and forfeiture is not always a purely legal one. Thereare recognized exceptions to both doctrines that may cause a court toexcuse the procedural bar and reach the substantive merits of a claim,and the summary stage of the post-conviction proceeding is notalways the appropriate venue to engage in the analysis that issometimes necessary to answer whether those exceptions have beenmet. For example, as I have noted, this court has recognized that aclaim can be heard on its merits even if that claim could have beenraised before if defendant shows cognizable cause for his failure tomake timely objections, and shows actual prejudice flowing from theerror complained of. See, e.g., People v. Hudson, 195 Ill. 2d 117, 123(2001) (citing cause and prejudice standard used in postconvictionlitigation). Oftentimes, in order to determine whether that standard ismet, a court may have to hold an evidentiary hearing. See Hudson,195 Ill. 2d at 137, citing United States ex rel. Veal v. DeRobertis, 693F.2d 642 (7th Cir. 1982). Likewise res judicata can be defeated if theends of justice so require. See People v. Tenner, 206 Ill. 2d 381, 402(2002) (Freeman, J., specially concurring). Thus, the court is wrongto conclude that the determinations surrounding res judicata andprocedural default are strictly questions of law. The determination canoften raise mixed questions of law and fact which are inherentlyunsuitable for summary treatment.

The court acknowledges that exceptions to the doctrines existwhich may allow an otherwise barred claim to proceed (slip op. at 18),but implies that these exceptions are of no moment at the first stagebecause a petitioner is protected by other means with which to assertthese exceptions. The court's attempts to demonstrate the viability ofthese other means, miss the mark entirely. For example, the courtsuggests that a petitioner has the ability to respond to a circuit court'ssummary dismissal by filing a motion to reconsider. Slip op. at 18. Mycolleagues, however, overlook the fact that filing such a motion wouldbe a largely futile gesture since any legal points sufficient to challengethe initial ruling are beyond the ken of a pro se litigant. The court alsostates that a petitioner can challenge the summary dismissal on appeal(slip op. at 18), an option which would necessitate appointment ofcounsel, participation of the State, and review by an appellate court,thereby expending even more judicial resources than would have beenexpended by simply advancing the matter to the second stage. Thecourt also states that successive petitions can be filed as well. Slip op.at 18. Successive postconviction petitions, however, are disfavored bylaw and subject to even greater procedural hoops than an originalpetition. The court's attempt to play down the exceptions to thedoctrines of res judicata and procedural are not at all persuasive.

In my view, the plain language of the Act reveals that affirmativedefenses such as procedural default and res judicata are moreproperly addressed during second stage proceedings held pursuant tosections 122-4 and 122-5 of the Act. As noted at the outset of thisdissent, these statutes allow for the (i) appointment of counsel, (ii)amendment of pleadings, and (iii) appearance by the State to answeror move to dismiss. The availability of responsive pleadings at thesecond stage of a postconviction proceeding seemingly would suggestthat the legislature intended to establish a statutory scheme forpostconviction litigation which commences with an initialadministrative screening by the trial court and proceeds forward in anormal, two-party adversarial setting. To hold as the court does todaycompletely eliminates the State's role in filing motions to dismissunder section 122-5 in cases where defendants are not under sentenceof death. I know of no rule of statutory construction which wouldallow for such a result.⁽⁴⁾

I note that the court also cites the language of section 122-2.1,which authorizes the circuit court during the summary dismissal stageto examine the record from the underlying proceedings, as support forits conclusion in this area.

"[W]hen evaluating a petition, a trial court 'may examine thecourt file of the proceeding in which the petitioner wasconvicted, any action taken by an appellate court in suchproceeding and any transcripts of such proceeding.'[Citation.] This provision does not limit a court's review ofthe record and appellate court ruling to determine if only thepetition's factual allegations are rebutted. Rather, on the basisof facts and legal rulings that are ascertainable from the courtfile, appellate court action, and any transcripts, a court mayalso determine if legal claims have been decided or couldhave been raised, thus rebutting the claims contained in thepetition." Slip op. at 14.

While I agree that section 122-2.1(c) authorizes the circuit court toexamine the underlying record, I do not read that section asauthorizing the circuit court at the first stage of the proceeding notonly to examine the record in order to determine whether anaffirmative defense such as procedural default is available to act as abar to the claim raised by the defendant, but to resolve the issue insummary fashion. As I have demonstrated, the question of whether aclaim is barred by either procedural default or res judicata can be acomplex one. Allowing the circuit court to engage in such questionsat the summary dismissal stage runs counter to the "administrative"role that this court has stated our legislature intended for the circuitcourt at that stage. See People v. Rivera, 198 Ill. 2d 364, 373 (2001)(holding that "the summary dismissal stage of the post-convictionproceeding does nothing more than allow the circuit court to actstrictly in an administrative capacity by screening out those petitionswhich are without legal substance or are obviously without merit"). Inthis way, today's opinion is inconsistent with Rivera. Rather thansimplifying the circuit court's job, today's holding gives that courteven more substantive responsibilities. Today's holding in no waycomports with our holding in Rivera that the circuit court is to actstrictly in an administrative capacity at the initial summary stage ofpostconviction litigation. Rather, it requires the judge to don not onlyan administrative hat at this stage, but an adversarial one as well. Ajudge's function, however, is not to advocate. I find the court'sattempt to play down the dual function its holding requires the circuitcourt to undertake (slip op. at 17) to be utterly unpersuasive.Reviewing a criminal record in the manner contemplated by mycolleagues-without any assistance or input from the parties-requiresthat a considerable amount of time be expended to the case by thejudge. My colleagues seem to forget that the typical criminal judge'sdocket contains multiple postconviction petitions and that, for eachpetition, the judge will be required to devote a considerable period oftime to scouring the record for procedural bars to relief and possibleexceptions thereto. The plain language of section 122-2.1 does notrequire that our criminal judges shoulder such a burden, and I see nolegitimate reason for this court to hold otherwise.

As a final matter, I wish to point out that it strains logic for thiscourt to hold as it did in Boclair, i.e., that the circuit court at thesummary stage cannot rule on the timeliness of a petition-a fact easilyascertainable by a simple glance at a calendar-but rather the circuitcourt must allow the matter to be raised only by the State at thesecond stage of the proceedings; and yet today, hold that the circuitcourt can rule on potentially complex procedural bars without anyinput from the parties at all. I submit that both Boclair and Riverastand for the proposition that at the summary dismissal stage, thecircuit court functions administratively and is limited to determiningwhether the petition states the gist of a constitutional claim. All otherconcerns, i.e., whether the petition is timely, whether procedural barsexist or should be excused, are deferred to the second stage of thepostconviction proceeding, where the court would have the assistanceof briefs and argument from both the petitioner and the State. Today'sholding does nothing more than turn the circuit court into an advocateagainst the petitioner as well as his or her judge.

In light of the above, I respectfully dissent.

CHIEF JUSTICE McMORROW and JUSTICE KILBRIDE joinin this dissent.

1. Defendant