                  NOTICE                          NO. 5-02-0526
 Decision filed 03/20/06. The text of
 this decision may be changed or                     IN THE
 corrected prior to the filing of a
 Petition   for    Rehearing   or   the   APPELLATE COURT OF ILLINOIS
 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                       ) Circuit Court of
   Plaintiff-Appellee,                 ) Williamson County.
                                       )
v.                                     ) No. 98-CF-460
                                       )
ANTHONY W. NEWBOLDS,                   ) Honorable
                                       ) John Speroni,
   Defendant-Appellant.                ) Judge, presiding.
________________________________________________________________________

            JUSTICE WELCH delivered the opinion of the court:

            Following a bench trial in the circuit court of Williamson County, the defendant,
Anthony W. Newbolds, was convicted of home invasion and, on April 11, 2000, was

sentenced to a term of imprisonment of 22 years. His conviction and sentence were affirmed

by this court on direct appeal. People v. Newbolds, 325 Ill. App. 3d 192 (2001). The facts

relating to the defendant's crime, conviction, and sentence are set forth therein, and we will

not repeat them here. In that appeal, the defendant raised a single issueBthe applicability of

Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), to the
truth-in-sentencing law.

            On May 31, 2002, the defendant, acting pro se, filed the first of two petitions pursuant
to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2002)). The
petition was 72 pages long and raised a myriad of issues. It was subsequently amended, pro

se, adding an additional argument.
            On July 1, 2002, the circuit court of Williamson County dismissed the petition as

frivolous or patently without merit pursuant to section 122-2.1(a)(2) of the Act (725 ILCS

                                                       1
5/122-2.1(a)(2) (West 2002)). The circuit court specifically found that the defendant had not
"met his burden of making a substantial showing" of a denial of his constitutional rights and

that the issues raised in the petition either had been raised and decided in the defendant's
direct appeal, and were therefore res judicata, or could have been raised in the direct appeal
but were not, and were therefore waived. After the denial of his motion to reconsider the

dismissal of his postconviction petition, the defendant filed a notice of appeal.
       While the appeal from the dismissal of his first postconviction petition was pending,
the defendant filed, on January 22, 2003, a second pro se postconviction petition asserting,

among other things, that the dismissal of the first petition on waiver and res judicata grounds

had been improper. This second petition was 152 pages long and, like the first petition, was
verified.

       On February 5, 2003, the circuit court of Williamson County dismissed the second

postconviction petition as frivolous or patently without merit. The circuit court specifically

found that the defendant had not "met his burden of making a substantial showing" of a
deprivation of his constitutional rights. After the denial of his motion to reconsider, the

defendant also appealed the dismissal of his second postconviction petition.

       On this court's own motion, the two appeals were consolidated for review. In his brief
on appeal, the defendant points out that the second postconviction petition raises no

substantive claims independent of those contained in the first petition. Accordingly, the
defendant states that on appeal he challenges only the dismissal of the first postconviction
petition, urging that both bases for the circuit court's dismissal were erroneous.

       On September 30, 2004, we reversed the circuit court's summary dismissal of the
defendant's postconviction petition, holding that a summary dismissal on the grounds of res
judicata and waiver was not appropriate at the first stage of postconviction proceedings

because these grounds for a dismissal are affirmative defenses which, like the ground of

                                              2
untimeliness, are properly left for the second stage of postconviction proceedings. People v.
Newbolds, 352 Ill. App. 3d 678 (2004). We remanded the cause to the circuit court for

further proceedings under the Act.
       On June 3, 2005, the Illinois Supreme Court decided People v. Blair, 215 Ill. 2d 427
(2005), in which it held that section 122-2.1(a)(2) of the Act does allow a summary, first-

stage dismissal of a postconviction petition on the grounds of res judicata and/or waiver.
The supreme court concluded that, in enacting section 122-2.1(a)(2) of the Act, the
legislature had intended that the phrase "frivolous or *** patently without merit"

encompassed res judicata and waiver.

       On September 29, 2005, pursuant to its supervisory authority, the Illinois Supreme
Court directed us to vacate our previous judgment herein (People v. Newbolds, 352 Ill. App.

3d 678 (2004)) and to reconsider the case in light of the supreme court's decision in People v.

Blair, 215 Ill. 2d 427 (2005). Accordingly, we vacated our previous judgment which held

that the circuit court could not, at the first stage of postconviction proceedings, dismiss the
defendant's postconviction petition on the grounds of res judicata and waiver. We must now

examine the allegations of the defendant's petition to determine whether the circuit court's

findings that the defendant's claims are barred by res judicata or waiver are correct.
       Our review of the circuit court's dismissal of a postconviction petition pursuant to

section 122-2.1(a)(2) of the Act is de novo. People v. Edwards, 197 Ill. 2d 239, 247 (2001).
We are free to substitute our own judgment for that of the circuit court in order to formulate
the legally correct answer. Edwards, 197 Ill. 2d at 247.

       The purpose of a postconviction proceeding is to permit an inquiry into constitutional
issues involved in the original conviction and sentence that were not, and could not have
been, adjudicated previously on direct appeal. People v. Harris, 206 Ill. 2d 1, 12 (2002).

Accordingly, in an initial postconviction proceeding, the common law doctrines of res

                                              3
judicata and waiver operate to bar the raising of claims that were or could have been
adjudicated on direct appeal. Blair, 215 Ill. 2d at 443. The doctrine of res judicata bars the

consideration of issues that were previously raised and decided on direct appeal. Blair, 215
Ill. 2d at 443. The doctrine of waiver or forfeiture bars claims that could have been raised on
direct appeal but were not. Blair, 215 Ill. 2d at 443-44. Exceptions to these doctrines may

allow otherwise-barred claims to proceed where fundamental fairness so requires, where the
alleged forfeiture stems from the incompetence of appellate counsel, or where the facts
relating to the claim do not appear on the face of the original appellate record. Blair, 215 Ill.

2d at 450-51. With respect to this third exception to the waiver rule, it is not so much that the

claim could not have been presented or raised by a party on direct appeal, but that such a
claim could not have been considered by the reviewing court because the claim's evidentiary

basis was de hors the record and a reviewing court may not consider matters not of record.

People v. Whitehead, 169 Ill. 2d 355, 372 (1996). The exception saves such claims

irrespective of whether their supporting facts are available as a practical matter at the time of
the direct appeal; if they are not a part of the trial record, they may not be considered by the

reviewing court on a direct appeal. Whitehead, 169 Ill. 2d at 372.

       The defendant challenges the dismissal of only five of the claims contained in his
postconviction petition: that he was deprived of a fair trial when he was forced to wear a

50,000-volt electric stun belt at the trial and that trial counsel was ineffective for failing to
object to the use of the device, that his 22-year prison sentence was unconstitutionally
disproportionate to the 2-year terms received by his codefendants, that the trial court failed to

make an inquiry into allegations of trial counsel's ineffectiveness, that trial counsel was
ineffective in failing to pursue allegations of improper communication between the
prosecutor and a detective during the detective's testimony at the hearing on the motion to

quash his arrest, and that his appellate counsel was ineffective for failing to raise any and all

                                               4
of these claims on direct appeal.
       Initially, we note that none of the claims raised by the defendant in his postconviction

petition were raised on direct appeal. Accordingly, they have not been ruled upon and are
not res judicata. To the extent the trial court found that the claims were barred by res
judicata, the trial court erred. The question then is whether the claims were waived, or

forfeited, by the defendant's failure to raise them on direct appeal. 1 The defendant argues
that the claims were not forfeited by his failure to raise them on direct appeal, because they

rely on facts outside the record for proof and therefore could not have been raised on direct
appeal and/or because the failure to raise them on direct appeal is attributable to appellate

counsel's ineffectiveness.
       With respect to the first claimBthat he was deprived of a fair trial when he was forced
to wear a stun belt during the trial and that his trial counsel was ineffective in failing to

objectBwe note that while it is clear from the record on appeal that the trial court permitted

the sheriff's department to force the defendant to wear a stun belt during the defendant's

       1
           Although we have traditionally referred to the defendant's failure to raise an issue on

direct appeal as a "waiver" of that issue, the supreme court made it clear in Blair, 215 Ill. 2d

at 443-44, that it prefers the term "forfeiture." Accordingly, we will refer to claims that are
barred because they could have been raised on direct appeal, but were not, as having been
forfeited.




                                                 5
bench trial, it is not clear from the record whether the defendant actually did wear a stun belt.
The record on appeal reflects only that the trial court ruled that it was up to the sheriff's

department to determine whether and how best to restrain the defendant, but it does not
reflect what the sheriff's department actually did. Accordingly, any direct appeal of the trial
court's ruling allowing the use of the stun belt would have been met with the argument that

the defendant could not demonstrate prejudice because the record did not show that he
actually did wear a stun belt. The defendant could only have been prejudiced by the trial
court's ruling if he had, in fact, been forced to wear a stun belt. Because the record is not

sufficient to establish this fact, the claim could not have been raised on direct appeal.

Accordingly, this claim was not forfeited by the defendant's failure to raise it on direct
appeal.

       Furthermore, the defendant alleges alternatively that his failure to raise this claim on

direct appeal was due to his appellate counsel's ineffectiveness. A defendant is guaranteed

the effective assistance of counsel on appeal. People v. Coleman, 168 Ill. 2d 509, 522
(1995). Accordingly, the doctrine of forfeiture does not bar the consideration of an issue

where the forfeiture stems from the incompetency of counsel on appeal. Coleman, 168 Ill. 2d

at 522-23. The trial court erred in summarily dismissing this claim as frivolous or patently
without merit on the ground that it had been forfeited.

       With respect to the disparate-sentencing claim, we do not agree with the defendant
that this claim relied on matters outside the record and therefore could not have been raised
on direct appeal. The record on appeal contains sufficient facts regarding the sentences

received by the defendant's codefendants on which to base a disparate-sentencing argument
on direct appeal. The record contains docket entries indicating that the codefendants had
entered guilty pleas to reduced charges of aggravated battery in exchange for their testimony

against the defendant and four-year sentence caps and that they had each received a two-year

                                               6
prison sentence. Accordingly, the exception to the forfeiture doctrine for matters based on
facts outside the record does not apply to this claim. Nevertheless, the defendant also alleges

that the failure to raise this alleged error on direct appeal was due to his appellate counsel's
ineffectiveness. Accordingly, the doctrine of forfeiture does not bar the consideration of this
claim. Coleman, 168 Ill. 2d at 522-23. The circuit court erred in summarily dismissing this

claim as frivolous or patently without merit on the ground that it had been forfeited.
       Similarly, the defendant's third claimBthat the trial court erred in not adequately
addressing the defendant's posttrial claims of the ineffective assistance of trial counselBis not

based on matters outside the record and could have been raised on direct appeal. The

defendant concedes this point in his brief on appeal. However, again the defendant argues
that the failure to raise this alleged error on direct appeal was a result of his appellate

counsel's ineffectiveness. Accordingly, this claim is not barred by the doctrine of forfeiture,

and the circuit court erred in summarily dismissing this claim as frivolous or patently without

merit on the ground that it had been forfeited.
       The defendant's fourth claimBthat his trial counsel was ineffective in failing to pursue

allegations of improper communication, through facial gestures and head shaking, between

the prosecutor and a detective during the detective's testimony at the hearing on the motion to
quash arrestBis based on matters outside the record and could not have been raised on direct

appeal. This claim was supported by the affidavits of Barbara Owens, who stated that she
had witnessed the improper facial gestures and told the defendant's trial counsel about it.
Because this claim relies for its proof on facts that are outside the record on appeal, it could

not have been raised on direct appeal. Furthermore, the defendant argues alternatively that
the failure to raise this claim on direct appeal was due to his appellate counsel's
ineffectiveness. Accordingly, this claim was not forfeited by the defendant's failure to raise it

on direct appeal.

                                               7
       Because none of the defendant's postconviction petition claims are either res judicata
or forfeited for the failure to raise them on direct appeal, the circuit court erred in dismissing

the postconviction petition as frivolous or patently without merit on the grounds of res
judicata and forfeiture.      Accordingly, we reverse the dismissal of the defendant's
postconviction petition on these grounds.

       The circuit court also dismissed the defendant's postconviction claims as frivolous or
patently without merit because it found that the defendant had not "met his burden of making
a substantial showing" of a denial of his constitutional rights. A postconviction petition is

considered frivolous or patently without merit only if the allegations of the petition, taken as

true and liberally construed, fail to present the "gist of a constitutional claim." Edwards, 197
Ill. 2d at 244. The "gist" standard is a low threshold, and to set forth the "gist" of a

constitutional claim, the postconviction petition need only present a limited amount of detail

and need not set forth the claim in its entirety. Edwards, 197 Ill. 2d at 244. Further, the

petition need not include legal arguments or citations to legal authority. Edwards, 197 Ill. 2d
at 244. Accordingly, at this first stage of proceedings, the defendant need not make a

"substantial showing" of a constitutional violation but need only present the "gist" of a

constitutional claim, without legal argument or citation to legal authority. Edwards, 197 Ill.
2d at 246-47. If the defendant passes this initial hurdle of presenting the "gist" of a

constitutional violation, he is entitled to the appointment of counsel, who can amend the
petition to meet the higher hurdle of making a "substantial showing" of a constitutional
violation. 725 ILCS 5/122-4 (West 2002).

       In Edwards, 197 Ill. 2d at 246-47, the supreme court made it clear that, at the first
stage of postconviction proceedings, the petition need only present the "gist" of a
constitutional claim in order to proceed to the second stage of proceedings, at which the State

is required to answer or move for a dismissal. 725 ILCS 5/122-5 (West 2002). At the second

                                                8
stage, the court must determine whether the petition and any accompanying documentation
make a "substantial showing of a constitutional violation." Edwards, 197 Ill. 2d at 246. If no

such showing is made, the petition is dismissed; if the requisite showing is made, the petition
is set for an evidentiary hearing. Edwards, 197 Ill. 2d at 246. The supreme court made it
clear that at the first stage of proceedings it is "inappropriate" to consider whether a

"substantial showing of a constitutional violation" has been made. At this first stage, the
circuit court may only consider whether the petition states the "gist of a constitutional claim."
See also People v. Coleman, 183 Ill. 2d 366, 380-81 (1998).

       Because in the instant case the circuit court appears to have employed the

inappropriate standard of a "substantial showing of a constitutional violation," rather than the
lighter burden of presenting a "gist of a constitutional violation," we reverse the dismissal of

the defendant's postconviction petition on this ground.

       For the foregoing reasons, we reverse the decision of the circuit court of Williamson

County that summarily dismissed the defendant's postconviction petition. We remand this
cause to the circuit court for further proceedings in accordance with sections 122-4 through

122-6 of the Act (725 ILCS 5/122-4 through 122-6 (West 2004)). See People v. Rutkowski,

225 Ill. App. 3d 1065, 1068 (1992).



       Judgment reversed; cause remanded.


       CHAPMAN and DONOVAN, JJ., concur.




                                               9
                                           NO. 5-02-0526
                                              IN THE

                                APPELLATE COURT OF ILLINOIS
                                  FIFTH DISTRICT
___________________________________________________________________________________
      THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                            ) Circuit Court of
         Plaintiff-Appellee,                ) Williamson County.
                                            )
      v.                                    ) No. 98-CF-460
                                            )
      ANTHONY W. NEWBOLDS,                  ) Honorable
                                            ) John Speroni,
         Defendant-Appellant.               ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed:   March 20, 2006
___________________________________________________________________________________

Justices:           Honorable Thomas M. Welch, J.
                 Honorable Melissa A. Chapman, J., and
                 Honorable James K. Donovan, J.,
                 Concur
___________________________________________________________________________________

Attorneys        Daniel D. Yuhas, Deputy Defender, Jacqueline L. Bullard, Assistant Appellate
for              Defender, Office of the State Appellate Defender, Fourth Judicial District, 400 West
Appellant        Monroe Street, Suite 303, P.O. Box 5240, Springfield, IL 62705-5240
___________________________________________________________________________________
Attorneys        Hon. Charles Garnati, State's Attorney, Williamson County Courthouse, Marion, IL
for              62959; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kevin D.
Appellee         Sweeney, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730
                 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________
