THIRD DIVISION
FILED: 03/19/03

JUSTICE HOFFMAN delivered the opinion of the court:

The defendant, Thomas McGhee, 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 affirm.

On October 7, 1997, following a bench trial, the defendant wasconvicted of first degree murder, attempted first degree murder,aggravated battery with a firearm, and aggravated battery basedupon accountability principles. The trial court sentenced thedefendant to consecutive prison terms of 22 years and 6 years,respectively, for first degree murder and attempted first degreemurder. On November 10, 1999, this court resolved the defendant'sdirect appeal and affirmed his convictions and sentences. Peoplev. McGhee, No. 1-98-0232 (1999) (unpublished order under SupremeCourt Rule 23). The defendant did not seek leave to appeal to theIllinois Supreme Court.

On October 4, 2000, the defendant filed a pro se petitionpursuant to the Act, alleging ineffective assistance of counselboth at trial and on direct appeal. Specifically, the defendantalleged that his constitutional right to effective assistance ofcounsel was violated when his trial attorney failed to object tothe admission of testimony relating to certain statements that hisco-defendant, Charles Ward, made to the police. The defendant alsoalleged that his appellate counsel was ineffective when, on directappeal, he failed to raise either the inadmissibility of testimonyrelating to Ward's statements or the ineffective assistance oftrial counsel.

On January 3, 2001, the trial court summarily dismissed thedefendant's post-conviction petition. In its written order, thecourt found: 1) that the defendant's petition was "time-barred;" 2) "that a number of the defendant's claims involve issues whichwere raised or could have been raised on direct appeal;" and 3)that the matters raised by the defendant in his petition are"frivolous and patently without merit." This appeal followed.

For his first assignment of error, the defendant argues thatthe trial court erred when it held that his post-convictionpetition was untimely. In its brief, the State concedes that oursupreme court, in its recent decision in People v. Boclair, 202Ill. 2d 89, ___ N.E.2d ___ (2002), held that a post-convictionpetition may not be dismissed as untimely during a first stagereview. We find, therefore, that the trial court improperly reliedon the ground of timeliness in summarily dismissing the defendant'spetition in this case.

Next, the defendant asserts that the trial court erred infinding that the grounds asserted in his post-conviction petitionhad been waived or were barred under the doctrine of res judicata. In its written order summarily dismissing the defendant's petition,the trial court stated that "a number of the defendant's claimsinvolve issues which were raised or could have been raised ondirect appeal". From this language, it is unclear which of thedefendant's claims the trial court found to be waived or to bebarred by the doctrine of res judicata. As we will explain,however, we find that it was improper for the trial court to havedismissed any of the claims stated in the defendant's petition onthese grounds.

The defendant acknowledges that, in post-conviction proceedings, the determinations of the reviewing court on the priordirect appeal are res judicata as to issues actually decided andthat issues which could have been presented on direct appeal, butwere not, are waived. People v. Rogers, 197 Ill. 2d 216, 221, 756N.E.2d 831 (2001). Nevertheless, he argues that this generalproposition is inapplicable when, as in this case, the allegedwaiver stems from ineffective assistance of appointed counsel onappeal. People v. Whitehead, 169 Ill. 2d 355, 371, 662 N.E.2d 1304(1996), overruled in part on other grounds, People v. Coleman, 183Ill. 2d 366, 701 N.E.2d 1063 (1998). For its part, the Stateacknowledges that the defendant could not have raised the issue ofineffective assistance of appellate counsel on direct appeal. SeePeople v. Foster, 168 Ill. 2d 465, 474, 660 N.E.2d 951 (1995). However, neither party has addressed the more basic issue ofwhether a trial court can rely upon waiver or res judicata as thebasis for summarily dismissing a post-conviction petition at thefirst-stage of the proceedings.

One of the three consolidated cases which the Illinois SupremeCourt reviewed in Boclair was People v. McCain, 312 Ill. App. 3d529, 727 N.E.2d 383 (2000), in which the Fifth District of theAppellate Court held that petitions should not be dismissed asuntimely or on waiver or res judicata grounds at the first stage ofa post-conviction proceeding. Although the decision in Boclairdoes not specifically address the propriety of summarily dismissinga post-conviction petition on grounds of waiver or res judicata atthe first stage of the proceeding, the supreme court, nonetheless,affirmed the appellate court's decision in McCain. Boclair, 202Ill. 2d at 94. Additionally, we believe that the analysis thesupreme court employed in Boclair to address the propriety ofsummarily dismissing a post-conviction petition as untimely duringa first stage examination is equally applicable to first stagedismissals based on grounds of waiver or res judicata.

In Boclair, our supreme court held that:

"The Act provides a three-stage process for theadjudication of post-conviction petitions. In the firststage, the circuit court determines whether the post-conviction petition is "frivolous or is patently withoutmerit.' 725 ILCS 5/122-2.1(a)(2) (West 2000). The Statedoes not have an opportunity to raise any argumentsagainst the petition during this summary review stage.People v. Gaultney, 174 Ill. 2d 410 (1996). The circuitcourt is required to make an independent assessment inthe summary review stage as to whether the allegations inthe petition, liberally construed and taken as true, setforth a constitutional claim for relief. The court isfurther foreclosed from engaging in any fact finding orany review of matters beyond the allegations of thepetition. People v. Coleman, 183 Ill. 2d 366 (1998).

To survive dismissal at this stage, the petitionmust only present 'the gist of a constitutional claim.'Gaultney, 174 Ill. 2d at 418. If the petition is foundto be 'frivolous' or 'patently without merit,' the court'shall dismiss the petition in a written order,specifying the findings of fact and conclusions of law itmade in reaching its decision.' 725 ILCS 5/122-2.1(a)(2)(West 2000)." Boclair, 202 Ill. 2d at 99-100.

Based upon its construction of section 122-2.1(a)(2) of the Act(725 ILCS 5/122-2.1(a)(2) (West 2000)), the Boclair court concludedthat the circuit court may dismiss a post-conviction petition atthe initial stage "only if the petition is deemed to be 'frivolousor *** patently without merit,' not if it is untimely filed." (Emphasis added.) Boclair, 202 Ill. 2d at 100. It reasoned, inpart, that the fact that a petition is untimely does notnecessarily mean that it is without merit. Boclair, 202 Ill. 2d at101. Like timeliness, the doctrines of waiver and res judicata donot address the question of whether a claim is frivolous or withoutmerit; rather, they constitute procedural bars to a defendant'sright to prevail on a claim, regardless of its substantive merit.

We are not unmindful that section 122-2.1(c) of the Actprovides that, in considering a post-conviction petition during thefirst stage of the proceeding, the trial court "may examine thecourt file of the proceeding in which the petitioner was convicted,any action taken by the appellate court in such a proceeding andany transcripts of such proceedings." 725 ILCS 5/122-2.1(c) (West2000). We believe, however, that the purpose of the examinationauthorized by this section is to enable the court to determine ifthe facts pled in the petition are positively rebutted by therecord. Such a determination assists the court in resolving theissue of whether the petition is frivolous or patently withoutmerit. People v. Montgomery, 327 Ill. App. 3d 180, 184, 763 N.E.2d369 (2001). We do not read this section of the statute asauthorizing the court in the first stage of a post-convictionproceeding to examine the record in order to determine whether adefense such as waiver or res judicata exists to bar the claimasserted by the defendant and, if such a defense is apparent, toresolve the issue summarily.

Although we have determined that the circuit court's summarydismissal of the defendant's post-conviction petition cannot beaffirmed on the grounds that the petition was untimely or that theclaims asserted therein have been waived or are barred by thedoctrine of res judicata, we must still resolve the question ofwhether the petition was properly dismissed as frivolous orpatently without merit.

The ultimate question of the sufficiency of the allegations ina post-conviction petition to demonstrate the gist of a claim ofconstitutional deprivation is a legal inquiry subject to plenaryappellate review. People v. Coleman, 183 Ill. 2d 366, 387-88, 701N.E.2d 1063 (1998). We are, therefore, free to substitute ourjudgment for that of the circuit court in order to resolve thequestion. Coleman, 183 Ill. 2d at 388.

In his petition, the defendant alleged that his trial attorneywas ineffective for failing to object to the testimony of twopolice officers concerning various statements made by his co-defendant, Ward, implicating the defendant in the crimes with whichhe was charged. The officers' testimony was introduced at thehearing on the defendant's motion to quash his arrest and suppresshis own subsequent statement, and it formed the basis of the trialcourt's finding that probable cause existed for the defendant'sarrest. According to the defendant, since Ward's statements tothe police were made after Ward had been illegally detained, thestatements should have been suppressed as the fruits of an unlawfularrest and detention. Although not asserted in the defendant's prose petition, his appellate brief seems to argue that his trialcounsel was additionally ineffective for not objecting to theadmission at trial of the defendant's own statement on the theorythat it too was "tainted evidence from the illegal arrest anddetention of Charles Ward ***." The defendant also charged thathis appellate counsel was ineffective for failing to raise thesesame admissibility issues on his direct appeal and for failing toraise the issue of the ineffective assistance of trial counsel.

The State asserts that the defendant did not have standing toobject to the officers' testimony regarding the statements made byWard or to object to the admission of his own statement on thegrounds asserted because his own constitutional rights were notalleged to have been violated. As a consequence, the State arguesthat the defendant's claims of ineffective assistance of trial andappellate counsel are patently without merit. We agree with theState.

In People v. James, 118 Ill. 2d 214, 226, 514 N.E.2d 998(1987), our supreme court held that a claim to suppress the productof a fourth amendment (U.S. Const., amend. IV) violation can onlybe asserted by the individual whose rights were violated. The rulehas been applied in circumstances where the evidence sought to besuppressed was a statement made to the police by a third party(People v. Barton, 286 Ill. App. 3d 954, 959-60, 677 N.E.2d 476(1997)) or the defendant's own statement made after beingconfronted with a statement illegally obtained from a co-defendant(James, 118 Ill. 2d at 225-26). Nevertheless, the defendant,relying on this court's decision in People v. Bates, 267 Ill. App.3d 503, 642 N.E.2d 774 (1994), argues that the testimony relatingto Ward's statements and the defendant's own statement were subjectto suppression as having been obtained by exploitation of Ward'sillegal arrest. We believe, however, that Bates is distinguishableon its facts.

In Bates, the issue was whether the defendant's confession wassufficiently attenuated from his illegal arrest to make itadmissible as evidence at his trial. The defendant confessed afterbeing confronted with an illegally coerced statement of a co-defendant. The Bates court held that the use of evidence obtainedfrom coercing the co-defendant could not serve to attenuate thetaint of the defendant's illegal arrest. Bates, 267 Ill. App. 3dat 506-07. In this case, however, just as in James, the issue wasprobable cause, not attenuation. See People v. Beamon, 255 Ill.App. 3d 63, 70, 627 N.E.2d 316 (1993) (distinguishing James on thisbasis); but see People v. Austin, 293 Ill. App. 3d 784, 791-93, 688N.E.2d 740, (1997) (Quinn, J., specially concurring). The facts ofthis case are akin to those present in James and Barton, not Bates.

In order to succeed on a claim of ineffective assistance ofeither trial counsel or appellate counsel, a defendant must satisfythe two-pronged test set forth in Strickland v. Washington, 466U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). People v.Enis, 194 Ill. 2d 361, 376-77, 743 N.E.2d 1 (2000). The defendantmust establish both that counsel's representation fell below anobjective standard of reasonableness and that there is a reasonableprobability that, but for counsel's errors, the outcome of theproceeding would have differed. Strickland, 466 U.S. at 687, 694. In light of our finding that the defendant lacked standing toobject to the admission of testimony relating to the statementsmade to the police by Ward or the admission of his own statement onthe grounds of Ward's illegal detention, we conclude that thedefendant cannot satisfy the first prong of the Strickland testand, as a consequence, cannot establish that he receivedineffective assistance of trial counsel. It follows that, if trialcounsel's representation was not ineffective, then the defendant'sclaim that his appellate counsel was ineffective must also fail. See People v. Childress, 191 Ill. 2d 168, 175, 730 N.E.2d 32(2000).

Based on the foregoing analysis, we conclude that thedefendant's post-conviction petition is patently without merit andaffirm the circuit court's summary dismissal of that petition.

Affirmed.

SOUTH, P.J., and HALL, J., concur.