SIXTH DIVISION
June 3, 2005

Following a jury trial defendant was found guilty of first degree murder and armedrobbery. He was sentenced to natural life in the Illinois Department of Corrections for murderand consecutively to 60 years for armed robbery. On appeal defendant argued his statementshould have been suppressed, the trial court erred in excluding witness testimony, and theprosecution made improper remarks in closing argument. People v. Makiel, 263 Ill. App. 3d 54,55, 72-73 (1994). We affirmed on these issues, but remanded the case for voir dire of theexcluded witness to determine the competence and relevance of the excluded witness. The trialcourt on remand conducted a hearing and held that the testimony of the witness was not relevantand we affirmed. People v. Makiel, No. 1-97-2140 (1998) (unpublished order under SupremeCourt Rule 23).

Defendant filed a post-conviction petition on June 30, 1995. It was stayed pending thecompletion of the appeal, which, as noted above, was affirmed. The petition was supplemented. The State filed a motion to dismiss. In April 2002, defendant filed his final motion to supplementthe petition. The State filed a supplemental motion to dismiss. The circuit court granted theState's motion. Defendant appeals.

On appeal of the dismissal of the petition at the second stage of the post-convictionprocess, defendant makes the following arguments: (1) an evidentiary hearing was requiredbecause the circuit court improperly relied on evidence outside the record regarding defendant'sallegation that trial counsel was ineffective for failing to interview or call Sam Illich as a witness;(2) an evidentiary hearing should have been conducted on defendant's allegation that appellatecounsel was ineffective for failing to challenge the trial court's exclusion of evidence thatprosecution witness Allen Martin lied when he denied having a pending forgery charge; and (3) anevidentiary hearing should have been conducted regarding defendant's allegation that appellatecounsel was ineffective for failing to challenge the trial court's exclusion of defense witness BrianSpodach from providing testimony of character evidence. We address each argument in turn.

Defendant was found guilty of the murder and armed robbery of Katherine Hoch, whichoccurred on October 19, 1988, at the Mobil gasoline station she managed in Calumet City,Illinois. The facts surrounding this case are fully discussed in People v. Makiel, 263 Ill. App. 3d54 (1994), and will be repeated here as they relate to the issues raised in the instant post-conviction appeal.

The Post-Conviction Hearing Act (Act) (725 ILCS 6/122-1 et seq. (West 2000)) providesa mechanism by which criminal defendants can assert that their convictions were the result of asubstantial denial of their rights under the United States Constitution and the Illinois Constitution.People v. Mahaffey, 194 Ill. 2d 154, 170 (2001). A post-conviction petition is a collateral attackon a prior conviction. Mahaffey, 194 Ill. 2d at 170.

In a noncapital case, the Act creates a three-stage procedure for post-conviction relief. People v. Boclair, 202 Ill. 2d 89, 99 (2002). At stage one, the trial court, without input from theState, examines the petition to determine whether it is frivolous or patently without merit. 725ILCS 5/122-2.1 (West 2000). If the petition is not dismissed at stage one, it proceeds to stagetwo, where section 122-4 of the Act provides for the appointment of counsel for an indigentdefendant. 725 ILCS 5/122-4 (West 2000). At stage two the State has the opportunity to eitheranswer or move to dismiss the petition (725 ILCS 5/122-5 (West 2000)), and the trial courtdetermines whether the petition makes a substantial showing of a constitutional violation (Peoplev. Coleman, 183 Ill. 2d 366, 381 (1998)). If the petition is not dismissed at stage two, it proceedsto stage three, where the trial court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West2000).

The instant case presents an appeal from the dismissal of a petition at the second stage ofthe post-conviction process. Defendant contends the circuit court erred in dismissing his post-conviction petition without an evidentiary hearing. A defendant is not entitled to an evidentiaryhearing on a post-conviction petition as a matter of right. People v. Albanese, 125 Ill. 2d 100,105 (1988). "[A] hearing is required only when the allegations of the petition, supported by thetrial record and accompanying affidavits, make a substantial showing of a violation of aconstitutional right." People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). All well-pleaded factsare taken as true at this stage; therefore, the summary dismissal of a post-conviction petition issubject to de novo review. Coleman, 183 Ill. 2d at 380-81.

Issues that were decided on direct appeal are barred by the doctrine of res judicata andissues that could have been raised on direct appeal, but were not, are deemed waived. People v.Towns, 182 Ill. 2d 491, 502-03 (1998). The doctrines of res judicata and waiver will be relaxed"where fundamental fairness so requires." People v. Gaines, 105 Ill. 2d 79, 91 (1984). Wherethe alleged waiver stems from the incompetence of appellate counsel, the doctrine is relaxed. People v. Barnard, 104 Ill. 2d 218, 229 (1984). The rule is also relaxed when the facts relating tothe claim do not appear on the face of the original appellate record. People v. Eddmonds, 143 Ill.2d 501, 528 (1991). A claim may survive waiver as the result of any one of these threeexceptions. People v. Whitehead, 169 Ill. 2d 355, 372 (1996). The Illinois Supreme Court hasrepeatedly recognized that waiver or procedural default may not preclude an ineffective assistanceclaim for what trial or appellate counsel allegedly ought to have done in representing a criminaldefendant. See People v. Erickson, 161 Ill. 2d 82, 88 (1994) (and cases cited therein).

In the instant case, defendant's allegations involve claims of ineffective assistance of trialand appellate counsel. Such claims are resolved by application of the Strickland standard. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). A defendantmust demonstrate both a deficiency in counsel's performance and prejudice resulting from thedeficiency. People v. Edwards, 195 Ill. 2d 142, 162 (2001), citing Strickland, 466 U.S. at 687,80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Claims of ineffective assistance of appellate counsel aremeasured against the same standard. People v. Caballero, 126 Ill. 2d 248, 269-70 (1989).

To demonstrate performance deficiency, a defendant must establish that counsel'sperformance was below an objective standard of reasonableness. Edwards, 195 Ill 2d at 163. Prejudice is demonstrated if there is a reasonable probability that, but for counsel's deficientperformance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694,80 L. Ed. 2d at 698, 104 S. Ct. at 2068. "A reasonable probability is a probability sufficient toundermine confidence in the outcome, namely, that counsel's deficient performance rendered theresult of the trial unreliable or the proceeding fundamentally unfair." People v. Enis, 194 Ill. 2d361, 376-77 (2000), citing Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. The defendant must overcome a "strong presumption" that his lawyer's conduct falls within thewide range of reasonable professional assistance and that the challenged conduct constitutessound trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.

Based on the second-stage procedural posture of the instant case, the relevant question iswhether the allegations of the petition, supported by the trial record and the accompanyingaffidavits, demonstrate a substantial constitutional deprivation which requires an evidentiaryhearing. Coleman, 183 Ill. 2d at 381.
 

I. Ineffective Assistance of Trial And Appellate Counsel;
Improper Fact Finding Based on Evidence Outside Record

Both defendant's original and supplemental petition alleged he was denied effectiveassistance of counsel as guaranteed by the United States and Illinois Constitutions as follows:"Trial counsel should have subpoenaed and provided transportation for Sam Illich to appear attrial. Illich was crucial to the defense case in that he denied being with defendant and Hlinko thenight of the murder, thus undermining the State's theory of the case." Defendant further allegedhe was denied effective assistance of appellate counsel "to the extent appellate counsel failed toraise" the above noted issue.

A. Ineffective Assistance of Counsel

A defendant is guaranteed the right to the effective assistance of counsel under the UnitedStates and Illinois Constitutions. U.S. Const., amends. VI, XIV; Ill. Const. art. I,