                          NO. 4-05-0748        Filed 1/31/07

                     IN THE APPELLATE COURT

                              OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Adams County
RALPH E. MALLORY,                      )    No. 02CF391
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    William O. Mays,
                                       )    Judge Presiding.
_________________________________________________________________

          PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

          Following a February 2003 bench trial, the trial court

convicted defendant, Ralph E. Mallory, of theft of property

valued over $300 (720 ILCS 5/16-1(a)(4)(A) (West 2002)).    The

court later sentenced him to an extended term of 10 years in

prison.

          Defendant appealed, and this court affirmed his convic-

tion (as modified) and remanded with directions that the trial

court amend the sentencing order to reflect 75 additional days of

sentencing credit for time served prior to sentencing.     People v.

Mallory, No. 4-03-0372 (December 15, 2004) (unpublished order

under Supreme Court Rule 23).

          In May 2005, defendant pro se filed a petition for

relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1

through 122-8 (West 2004)).    In August 2005, the trial court
dismissed defendant's petition, upon finding it to be frivolous

and patently without merit (725 ILCS 5/122-2.1 (West 2004)).

          Defendant appeals, arguing that the trial court erred

by dismissing his postconviction petition because his ineffec-

tive-assistance-of-counsel claim regarding his defense counsel's

failure to promptly inform him of the State's September 2002 plea

offer stated the gist of a constitutional claim.   We agree and

reverse and remand.

                          I. BACKGROUND

          In his May 2005 postconviction petition, defendant

alleged, in pertinent part, a violation of his right to effective

assistance of trial counsel in that defense counsel failed to

inform him about the State's offer of an aggregate seven-year

prison sentence in exchange for defendant's guilty plea to the

charge in this case as well as another pending charge.    Attached

to defendant's petition was a copy of a September 16, 2002, offer

letter from the prosecutor to defense counsel.   In pertinent

part, the letter states as follows:

               "In exchange for his plea of guilty to

          offenses in both of these cases, we would

          agree to a cap of 9 years total in the [DOC].

          If he would do a plea and go we would agree

          to a sentence of 3 1/2 years in [No.] 02-CF-

          196 and 4 1/2 years in [No.] 02-CF-391 for a


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          total of 8 years.   The sentences would be

          consecutive (i.e.[,] 3 1/2 and 4 1/2)."

The words "9 years" were circled (apparently in pen) and con-

nected by a vertical line to a handwritten notation at the bottom

of the letter that reads, "7 years."

          Defendant also alleged that (1) he received a copy of

the September 16, 2002, letter on November 18, 2002; (2) at that

time, he had already gone to trial in case No. 02-CF-196; and (3)

defense counsel failed to inform the State of defendant's desire

to accept the plea offer.   Defendant averred that the facts

stated in his petition were true.

          In August 2005, the trial court dismissed defendant's

postconviction petition, upon finding it to be frivolous and

patently without merit.   As to defendant's claim regarding

defense counsel's communication of the State's plea offer, the

court wrote as follows:   "[T]his issue was addressed in defen-

dant's motion for reduction of sentence.    The trial court heard

evidence and ruled against the defendant.   The issue was not

appealed and is therefore waived."

          This appeal followed.

         II. THE TRIAL COURT'S DISMISSAL OF DEFENDANT'S
                     POSTCONVICTION PETITION

                  A. Proceedings Under the Act

          The Act provides a method by which a defendant may

challenge his conviction or sentence on the ground that his

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federal or state constitutional rights were violated in the

proceedings that resulted in his conviction and sentence.       People

v. Jones, 211 Ill. 2d 140, 143, 809 N.E.2d 1233, 1236 (2004).      A

petition brought under the Act is a collateral proceeding that

permits inquiry only into constitutional issues that the defen-

dant did not raise and could not have raised on direct appeal.

People v. Blair, 215 Ill. 2d 427, 447, 831 N.E.2d 604, 617

(2005).

            Petitions under the Act are adjudicated in a three-step

process.    In this case, the trial court dismissed defendant's May

2005 postconviction petition at the first stage of postconviction

proceedings.    At the first stage, the trial court determines,

without input from the State, whether the petition is frivolous

or patently without merit.    725 ILCS 5/122-2.1 (West 2004).    To

withstand dismissal at the first stage, the petition need only

state the gist of a constitutional claim for relief.    People v.

Patton, 315 Ill. App. 3d 968, 972, 735 N.E.2d 185, 189 (2000).

To set forth the "gist" of a constitutional claim, the petition

need not be in great detail or set forth the claim in its en-

tirety.    People v. Williams, 364 Ill. App. 3d 1017, 1022, 848

N.E.2d 254, 258 (2006).    In considering the petition, the trial

court may examine the court file of the proceeding in which the

petitioner was convicted and any action taken by the appellate

court.    The court should examine those records to determine


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whether the allegations in the complaint are positively rebutted

by the record.    Williams, 364 Ill. App. 3d at 1023, 848 N.E.2d at

258.

            The trial court may also dismiss claims that are (1)

barred by res judicata or (2) forfeited because the defendant

could have raised them, but failed to, in an earlier proceeding.

Blair, 215 Ill. 2d at 444-45, 831 N.E.2d at 615-16.    We review de

novo a first-stage dismissal of a petition under the Act.      People

v. Little, 335 Ill. App. 3d 1046, 1051, 782 N.E.2d 957, 962

(2003).

            Defendant contends that the trial court erred by

dismissing his postconviction petition based on res judicata.      We

agree.

            In dismissing defendant's postconviction petition, the

trial court determined that (1) defendant had raised the issue of

trial counsel's alleged failure to timely inform him of the

State's plea offer in his motion to reduce his sentence; (2) at

the hearing on that motion, the court heard evidence and made

findings; and (3) defendant did not appeal that ruling.    Accord-

ingly, the court concluded that the claim was barred by res

judicata.

            However, the record shows that in his pro se motion to

reduce his sentence, defendant did not allege that his trial

counsel failed to promptly inform him of the State's September


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2002 plea offer.   Instead, he alleged that counsel was ineffec-

tive in that he did not include defendant in "any important

discussions regarding the case."    At the hearing on defendant's

motion, defendant was not represented by new counsel, and no

evidence was presented.   Instead, the court heard argument from

counsel on defendant's motion.    In arguing ostensibly on defen-

dant's behalf, defense counsel went through the arguments defen-

dant raised in his pro se motion and essentially informed the

court that each one lacked merit.    He also defended himself

against defendant's allegations of ineffective assistance of

counsel.   Specifically, he stated that he had met with defendant

on "probably 15 occasions" and discussed pertinent matters with

him.   He also stated that (1) those discussions included negotia-

tions with the State's Attorney and (2) defendant at times

indicated a willingness to accept a negotiated plea but had

changed his mind at the "last moment."

           In our view, the proceedings described above were not

sufficient to bar defendant's specific ineffective-assistance-of-

counsel claim based on res judicata.     Although defendant pro se

raised a claim of ineffective assistance of counsel in his post-

sentencing motion, he did not raise the specific claim that his

trial counsel failed to timely inform him of the State's Septem-

ber 2002 plea offer.   Moreover, (1) defendant was not represented

by new counsel at the hearing on his postsentencing motion, (2)


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evidence was not presented at that hearing, and (3) defense

counsel actually argued against defendant's positions.

           We further note that defendant's ineffective-

assistance-of-counsel claim involves matters outside the record,

and thus relaxation of res judicata and forfeiture is appropri-

ate.   See People v. Jones, 364 Ill. App. 3d 1, 4-5, 846 N.E.2d

947, 950-51 (2005) (concluding that the petitioner's claims were

not barred by res judicata or waiver because they were based on

matters outside the record); People v. Simms, 192 Ill. 2d 348,

360, 736 N.E.2d 1092, 1105 (2000) ("[W]hen a petitioner's claims

are based upon matters outside the record, *** it is not the

intent of the Act that such claims be adjudicated on the plead-

ings").

           We acknowledge that (1) section 122-2 of the Act

provides that the allegations of the petition must be supported

by attached documents or must contain a statement of why such

documents are not attached (725 ILCS 5/122-2 (West 2004)) and (2)

defendant failed to attach any supporting affidavits or provide a

coherent explanation for his failure to do so.   The State relies

on People v. Beachem, 336 Ill. App. 3d 688, 690-91, 784 N.E.2d

285, 287-88 (2002), in arguing that the trial court properly

dismissed defendant's postconviction petition because it lacked

supporting evidence of defendant's ineffective-assistance-of-

counsel claim.   In Beachem, the defendant alleged in postconvic-


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tion proceedings that her trial counsel failed to advise her of a

plea offer.   Beachem, 336 Ill. App. 3d at 690, 784 N.E.2d at 287.

The First District upheld the trial court's dismissal of her

claim, stating that it was a "pure unsupported conclusion."

Beachem, 336 Ill. App. 3d at 691, 784 N.E.2d at 288.   However, in

a more recent case, People v. Hall, 217 Ill. 2d 324, 333, 841

N.E.2d 913, 919 (2005), our supreme court held that a peti-

tioner's failure to comply with section 122-2's requirements may

be excused when the only evidence that would support the peti-

tioner's claim would be an affidavit from his trial counsel.

          In this case, as in Hall, the pivotal communications

pertinent to defendant's ineffective-assistance-of-counsel claims

would have taken place between defendant and defense counsel.    We

thus conclude that Hall precludes the summary dismissal of

defendant's postconviction petition based on his failure to

attach a supporting affidavit.

                            III. CONCLUSION

          For the reasons stated, we reverse the trial court's

judgment and remand for further proceedings under sections 122-4

through 122-6 of the Act.

          Reversed and remanded.

          MYERSCOUGH and COOK, JJ., concur.




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