Third Division
Filed: March 31, 2003

No. 1-01-1453

JUSTICE HOFFMAN delivered the opinion of the court:

The defendant, Leon Blair, appeals from an order of thecircuit court summarily dismissing his petition for relief underthe Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.(West 2000)). For the reasons which follow, we reverse and remandthis cause to the circuit court with instructions.

Following a jury trial, the defendant was convicted of firstdegree murder and sentenced to a prison term of 55 years. Thereafter, both the defendant and his trial counsel filed motionsfor a new trial. The defendant's pro so motion alleged that,during trial, his attorney became physically ill and failed to askfor a continuance, and that counsel's illness "may have caused herto inadequately represent" him. The court denied both motions, andthe defendant filed a timely notice of appeal.

The Cook County Public Defender was appointed to represent thedefendant on his direct appeal. However, after concluding thatthere were no issues of merit warranting argument, the PublicDefender moved to withdraw pursuant to Anders v. California, 386U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). The defendantfiled a response, arguing, inter alia, that his trial counsel wasineffective for failing to object to certain gang-related evidenceintroduced at trial. The defendant further claimed that his trialcounsel neglected his case because she was "obviously medicated"during trial due to an illness, making her "often incoherent."

This court granted appellate counsel's motion to withdraw andaffirmed the defendant's conviction and sentence. People v. Blair,No. 1-98-4119 (2000) (unpublished order under Supreme Court Rule23). Although we addressed the merits of the defendant's firstclaim, we concluded that the latter claim was "either unsupportedby the record or based on matters outside the record."

On January 8, 2001, the defendant filed a pro se post-conviction petition, setting forth several claims of ineffectiveassistance of counsel both at trial and on direct appeal. Specifically, the defendant asserted that his trial counsel hadinstructed him to decline argument on his pro se motion for a newtrial, which resulted in the denial of the motion. The defendantalleged that, had he not relied on the erroneous advice of counsel,he would have argued to the court that his attorney was sufferingfrom a physical illness and was under medication which impaired herjudgment during trial. According to the defendant, counsel wasincoherent on several occasions when she visited with him in hisholding cell outside of the courtroom. Further, the defendantmaintained that counsel was distracted during trial and was "merelyjust there going through the motions of representation." Thedefendant alleged that his attorney failed to properly prepare fortrial, as she presented limited argument in support of a motion tosuppress his written statement; failed to present evidence that hewas under the influence of alcohol and marijuana in support of hisself-defense claim; and introduced irrelevant and prejudicial gang-related evidence at trial. Along with these claims, the defendantalso asserted that his appellate counsel was ineffective forfailing to raise the foregoing issues of ineffective assistance oftrial counsel on direct appeal, even though he had asked counsel todo so. In this regard, the defendant stated that, by filing amotion to withdraw pursuant to Anders, appellate counsel in effectwaived his right to raise issues of substantial constitutionalviolations.

The circuit court summarily dismissed the defendant's post-conviction petition, stating as follows:

"The Court has considered the petition, the ordersof the appellate court, and the trial record, and beingfully advised find [sic]: One, the issues sought to beraised are res judicata or waived.

Wherefore, pursuant to the provisions of 725 ILCS5/122.2 the petition is dismissed."

The circuit court's written order reflects the same grounds for itssummary dismissal of the petition. The defendant now appeals.

In addition to his arguments addressing the merits of thecircuit court's summary dismissal of his post-conviction petition,the defendant also argues for the first time on appeal both thatPublic Act 83-942, which amended the Act to permit the summarydismissal of a petition prior to the appointment of counsel,violates the single subject clause of the Illinois Constitution(Ill. Const. 1970, art. IV,