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(People v. Erickson (1987), 117 Ill. 2d 271.) After the United States Supreme Court declined review (Erickson v. Illinois (1988), 486 U.S. 1017, 100 L. Ed. 2d 216, 108 S. Ct. 1754), defendant pursued, unsuccessfully, post-conviction relief (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 1) in the circuit court of Cook County. Defendant appeals the dismissal of his petition for that relief (134 Ill. 2d R. 651(a)), seeking, alternatively, remand for an evidentiary hearing on it or a new sentencing hearing.\nWe affirm.\nAs this court\u2019s earlier opinion summarizes the circumstances of the convictions and sentence, only the facts necessary to understand the issues raised are noted.\nTHE TESTIMONY OF JOHN WELICZKO\nAfter learning of the charges against their son, defendant\u2019s parents sought out, for themselves, the professional counseling services of John Weliczko. (See Erickson, 117 Ill. 2d at 285.) Weliczko eventually extended his services to the defense, testifying as the sole witness on defendant\u2019s behalf during the sentencing phase of the trial.\nIt was intended that Weliczko would give his opinion as a mental health expert that a psychological condition explained defendant\u2019s criminal behavior. (See Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 1(c)(2); Erickson, 117 Ill. 2d at 285, 301.) Weliczko did testify as to what might have accounted for defendant\u2019s acts. But he did so as a lay person, the trial judge having refused to qualify him as an expert. See Erickson, 117 Ill. 2d at 285, 301.\nThere was good reason for this. In relating his credentials, Weliczko had stated that he held a master\u2019s degree in psychology from Harvard University and a doctorate in the field from the University of Chicago. Weliczko, in fact, was not trained in psychology.\nCross-examined about his background, Weliczko admitted the Harvard master\u2019s degree was in theology. As for the doctorate, it was a ministry degree in pastoral counseling and psychology. Further, the degree-granting institution was not the University of Chicago but the Chicago Theological Seminary, an entity affiliated with the university.\nWeliczko did manage to offer that he practiced psychotherapy, and, therefore, was, like a licensed psychologist, recognized to be a mental health care provider. He stated that, like a psychologist, a psychotherapist could evaluate a person and arrive at \"somewhat the same conclusions\u201d about the person\u2019s mental health. For those reasons, it appears, the trial judge considered Weliczko\u2019s opinion, albeit as a lay person, and accepted into evidence his written \"psychological\u201d evaluation of defendant. See Erickson, 117 Ill. 2d at 301.\nDefendant now complains Weliczko\u2019s testimony denied him a fair death penalty hearing. He cites guarantees of the sixth, eighth, and fourteenth amendments of the United States Constitution (U.S. Const., amends. VI, VIII, XIV) as well as unspecified protections of the Illinois Constitution. Defendant also directs attention to decisions decrying the use of perjured testimony. See, e.g., People v. Cornille (1983), 95 Ill. 2d 497 (allowing post-conviction relief where the State\u2019s expert witness lied about his academic scholarship and achievements).\nThe misrepresentation of professional credentials would be a serious concern but for the fact that Welicz-ko was retained by, and testified for, the defense, not the State. But the claim is even more fundamentally flawed: whatever effect Weliczko\u2019s testimony might have had was apparent when his credentials were challenged on cross-examination. The opportunity to take issue with Weliczko\u2019s testimony was therefore on direct appeal, not in a collateral attack in a post-conviction proceeding.\nFailure to raise a claim which could have been addressed on direct appeal is a procedural default which results in a bar to consideration of the claim\u2019s merits in a post-conviction proceeding. (People v. Albanese (1988), 125 Ill. 2d 100, 104-05.) Excused in limited circumstances (see People v. Flores (1992), 153 Ill. 2d 264, 274), the result of a procedural default forces acknowledgment of a conviction\u2019s finality, an elemental concern in any such proceeding (see People v. Free (1988), 122 Ill. 2d 367, 378).\nDefendant attempts to skirt the procedural bar under an exception which looks to matters which were not a part of the record on direct appeal. He points to a copy of Weliczko\u2019s transcript from the Chicago Theological Seminary and an affidavit of an official at Gordon College in Wenham, Massachusetts, which shows Welicz-ko earned a degree in philosophy there.\nDefendant concedes the State debunked Weliczko\u2019s assertion that he was a psychologist. But he insists a different injurious \"perjury\u201d is shown by the affidavit and documents: that is, Weliczko lied about actually holding a degree in the field of psychology.\nThe argument glosses over the reason why the procedural bar properly may be relaxed given matters outside the trial record. The bar normally reaches to all matters that could have been \u2014 not merely were not\u2014 earlier raised. Thus, the mere fact that support for a claim is contained in papers not in the trial record is largely immaterial. Reason to relax the bar occurs only when what is offered in the papers also explains why the claim it supports could not have been raised on direct appeal.\nFor example, the default may not preclude an ineffective-assistance claim for what trial counsel allegedly ought to have done in presenting a defense. (See generally People v. Hall (1993), 157 Ill. 2d 324, 336-37; People v. Kokoraleis (1994), 159 Ill. 2d 325; People v. Owens (1989), 129 Ill. 2d 303, 308-09; see also Perry v. Fairman (7th Cir. 1983), 702 F.2d 119, 122 (collecting Illinois appellate cases).) An ineffective-assistance claim based on what the record on direct appeal discloses counsel did in fact do is, of course, subject to the usual procedural default rule. (See People v. Kokoraleis (1994), 159 Ill. 2d 325.) But a claim based on what ought to have been done may depend on proof of matters which could not have been included in the record precisely because of the allegedly deficient representation. But see People v. Jones (1985), 109 Ill. 2d 19, 23 (barring consideration of a claim of counsel\u2019s ineffectiveness for not presenting evidence which was included in the trial record).\nThere is nothing in the content of the affidavit and documents here offering more than what is evident from the record itself. The issue of prejudice resulting from Weliczko\u2019s testimony could have been raised on direct appeal based on the testimony elicited during the sentencing hearing. Weliczko had admitted that his academic background was in theology and ministry and that, in fact, he was not a psychologist. The admissions were fixed in the record as a result of the cross-examination. The affidavit and documents reveal no more than Weliczko\u2019s own testimony. Finding no reason to excuse the procedural default, defendant\u2019s claim must be dismissed.\nASSISTANCE OF COUNSEL AT THE SENTENCING PHASE\nDefendant claims his counsel\u2019s representation was so deficient at the sentencing phase of trial that the process failed. Although its basis is not identified, such a claim is rooted in protections of the sixth and fourteenth amendments of the United States Constitution. (See U.S. Const., amends. VI, XIV; Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) It should be noted that counsel who represented defendant at sentencing did not represent him on direct appeal or in the post-conviction proceeding.\nDefendant asserts several grounds independently support his claim. Two relate directly to Weliczko\u2019s testimony. Defendant first points to the failure to verify Weliczko\u2019s credentials. He then argues that proffering Weliczko\u2019s testimony actually undermined the defense strategy.\nNeither point may now be considered. Again, defendant\u2019s opportunity to raise those arguments was on direct appeal. Any inadequacy there may have been with counsel\u2019s representation with respect to Weliczko was evident when Weliczko was cross-examined. Defendant failed to take issue with that representation on direct appeal and so is procedurally barred from doing so here (People v. Albanese, 125 Ill. 2d at 104-05) absent some exception. We find none.\nDefendant next asserts counsel failed to independently investigate and present other mitigating evidence, including a competent psychological profile. Defendant argues that that evidence would show he had endured a childhood of psychological, emotional, and sexual abuse and that he had a history of alcohol and drug addiction. Defendant points to reports of two psychologists which recount that background in confirming it could explain defendant\u2019s acts. One adds the factor of head injury. Defendant also points to affidavits from two former teachers. They offer that defendant was a well-adjusted student and that news of his involvement in the crimes came as a shock.\nThe ever present duty of independent investigation in a criminal defense effort (see United States v. Decoster (D.C. Cir. 1979), 624 F.2d 196, 209-10) is to be judged using a standard of reasonableness in light of all circumstances presented (Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066). Reasonableness is to be determined by considering the informed strategic choices of, as well as the information supplied by, the defendant. Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 695-96, 104 S. Ct. at 2066.\nInitially, then, it bears noting that Weliczko, who, it must be remembered, was retained by defendant\u2019s own parents, had already generated a \"psychological\u201d evaluation. Ignoring, as would be proper in separately analyzing this issue, that an ineffectiveness claim for not verifying Weliczko\u2019s training in psychology is barred, the evaluation\u2019s existence would seem reason enough to dismiss the claim that counsel was ineffective for not having obtained another. The State suggests just such a disposition. But defendant\u2019s argument fails substantively as well.\nCourts may resolve ineffectiveness claims against the two-part test of Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reaching only the prejudice component, for lack of prejudice renders irrelevant the issue of counsel\u2019s performance. (People v. Albanese (1984), 104 Ill. 2d 504, 525-27, adopting Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) That involves looking at the findings unaffected by error, accounting for the effect of error on remaining findings, and answering, in the end, whether the decision would \"reasonably likely\u201d have been different. (Strickland, 466 U.S. at 695-96, 80 L. Ed. 2d at 698-99, 104 S. Ct. at 2068-69.) The assessment \"must exclude the possibility of arbitrariness, whimsy, caprice, 'nullification,\u2019 and the like\u201d (Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068) \u2014 an important observation given that, in this State, the sentencer could have elected to preclude the death penalty for any reason found to be sufficiently mitigating (Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 1(h)). Just as importantly, the assessment may include \"evidence about the actual process of decision\u201d if that evidence is a part of the record of the proceedings being reviewed. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.\nThe unaffected findings show that defendant, then 25 years old, enlisted the aid of two juveniles to methodically chart a plan to isolate, bind, and gag a 15-year-old girl for purposes of raping her, stabbing her to death, and, in the end, concealing the corpse. (See Erickson, 117 Ill. 2d at 279-83.) For those crimes, defendant was remorseless. He bragged about the stabbing immediately after the deed. He boasted of the crimes days after and even did so much later when detained in a county jail awaiting trial. Other aggravating evidence, including the commission of another rape at knife point and a third threatened one, attests to some pattern of sexual assault against women.\nAny laxity of counsel notwithstanding, what is offered to bolster the ineffectiveness claim does not show the result would \"reasonably likely\u201d have been different, excluding the possibility of arbitrariness. Briefly, the psychologists\u2019 reports could, at best, only suggest what may have explained defendant\u2019s criminal behavior of July of 1982. The evaluations were produced years after the crimes and, apparently, without the aid of the trial record, which revealed, through witnesses\u2019 testimony, defendant\u2019s actual behavior. The affidavits of the teachers, one from fourth grade and one from high school, disclose that neither maintained close contact with defendant after he left their respective classrooms. And, if anything, they show defendant to be polite, intelligent, and engaging, not a person troubled by a disturbed psyche which might account for his criminal behavior.\nThe record is also revealing as to the process of decision, underscoring the lack of prejudice which might have been occasioned by any deficiencies of counsel. The trial judge, whom defendant elected to impose sentence, actually took into account the notion that defendant may have suffered from a personality disorder. In addition, the trial judge noted that a presentencing investigation report on defendant revealed a background free of what might be normally encountered given the nature of the crimes. It would appear, then, that the trial judge on his own considered, and rejected, the gist of what defendant hoped the evidence might show.\nDefendant raises two other issues, tangentially related to claims of ineffectiveness addressed above, insisting each supports the need for an evidentiary hearing on the petition.\nDefendant claims the judge who ruled on the post-conviction petition did so improperly by guessing at how the original trial judge, who recused himself, would have ruled in light of the evidence defendant claims should have been presented.\nBoth defendant\u2019s post-conviction counsel and the State conceded that the judge ruling on defendant\u2019s petition could do so after reviewing the trial transcript and other evidence in the record. The judge stated that he did, indeed, review the entire record and that he, himself, not the trial judge, found the petition to be without merit. The judge did refer to the original trial judge by name, stating he reviewed the materials supporting defendant\u2019s petition just as the sentencing judge would have had the materials been presented in mitigation. A fair reading of those remarks, however, does not show that the judge evaluated defendant\u2019s petition in any way other than as defense counsel and the State conceded would be the only way possible. No prejudice is found here.\nFinally, defendant notes that his parents had executed a promissory note for the balance of fees for counsel\u2019s representation. Ultimately, counsel sued to collect on the note. Defendant now theorizes that the failure to obtain a competent psychological profile may have been due to a reluctance to incur additional costs. If so, defendant reasons, the conflict contributed to counsel\u2019s ineffectiveness.\nThe record answers any speculation as to why counsel did not seek out a psychological profile in addition to Weliczko\u2019s evaluation. The reasons are not as defendant suggests. Surprised by Weliczko\u2019s disclosure of his true background on cross-examination, counsel sought a continuance of the hearing to obtain an \u201cacceptable\u201d evaluation. (See Erickson, 117 Ill. 2d at 301.) That request, though denied (see Erickson, 117 Ill. 2d at 301-02), would be inconsistent with a reluctance to incur additional expense on defendant\u2019s behalf. Further, as earlier noted, an evaluation of defendant had already been generated. Without reason to doubt Weliczko\u2019s competency, the evaluation\u2019s existence, not conjecture about preoccupation with collecting fees, explains the failure to produce another.\nREFUSAL TO GRANT CONTINUANCE\nDefendant asserts he is entitled to an evidentiary hearing for reasons related to the refusal of a continuance to produce a competent psychological evaluation. But the same argument was raised, and rejected, on direct appeal. (Erickson, 117 Ill. 2d at 301-02.) The matter cannot be relitigated in a post-conviction proceeding under principles of res judicata. People v. Del Vecchio (1989), 129 Ill. 2d 265, 284; Albanese, 125 Ill. 2d at 104-05, citing People v. Silagy (1987), 116 Ill. 2d 357, 365.\nWAIVER OF JURY FOR SENTENCING\nDefendant claims he waived the jury for the sentencing phase without knowing that if even one juror voted to spare his life a death penalty was impossible. (See Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 1(h).) But, in fact, defendant answered affirmatively when the trial judge asked if he understood that, like the finding of guilt, death had to be the jury\u2019s unanimous choice, meaning that all 12 jurors had to agree on the penalty. Nevertheless, defendant states that had he better understood the unanimity requirement, he would not have waived the jury for sentencing.\nDefendant concedes that on direct appeal he argued, without success, that the judge\u2019s admonishment was insufficient. (See Erickson, 117 Ill. 2d at 295-96.) However, he insists a different issue is raised here: whether an evidentiary hearing is required because he generated a sworn statement revealing he did not truly understand the unanimity requirement.\nIt is difficult to see how that different characterization of the issue might change the nature of the claim. The underlying question remains whether there was a knowing, intelligent, and voluntary waiver of the right to a jury for sentencing purposes. That question was answered positively on direct appeal. See Erickson, 117 Ill. 2d at 295-96; see also People v. Ramey (1992), 152 Ill. 2d 41, 59-60 (holding that knowledge of the unanimity requirement is immaterial to assessment of whether a defendant\u2019s waiver of a jury for sentencing is valid).\nPresumably, defendant\u2019s argument is that the waiver could not have been knowing or intelligent if, despite understanding that all 12 jurors had to agree on death, he stood unenlightened of the implication that a lone juror could block it. But if the admonishment was sufficient, and it was, and defendant understood its meaning, and he said he did, it can matter little that he now swears he was ignorant of a nuance he now realizes. Defendant\u2019s answer for the record that he understood the admonishment belies the assertion that he did not really understand the workings of the unanimity rule. There is no need for an evidentiary hearing on the issue.\nWAIVER OF PRIVILEGE AGAINST SELF-INCRIMINATION\nDefendant elected to testify during the guilt phase of trial. He now complains he did so only because counsel had rhetorically asked whether defendant \"would like to go to prison for many years\u201d without \"having *** told his story.\u201d Defendant does not assert that he was not aware of his right not to testify. He argues only that counsel\u2019s question was tantamount to coercion because it assured a conviction unless defendant did so.\nGiven the realities of this case, the question is more reasonably characterized as advice defense counsel would be expected to have imparted to defendant. Defendant\u2019s own testimony was, in fact, the sum and substance of his defense. No other evidence was offered to counter the considerable case the State assembled, which included testimony from the other criminal participants.\nCHALLENGE TO THE ILLINOIS DEATH PENALTY SCHEME\nDefendant last attacks the constitutionality of the death penalty scheme. Specifically, defendant focuses on the requirement that death will be imposed absent mitigation sufficient to preclude it. Defendant also argues the statute does not provide defendants with a right to discovery. The arguments were rejected, respectively, in People v. Strickland (1992), 154 Ill. 2d 489, 538-40, and People v. Foster (1987), 119 Ill. 2d 69, 101-03. We decline to reconsider those conclusions.\nFor the reasons above, we affirm the judgment of the circuit court. We direct the clerk of this court to enter an order setting Tuesday, November 15, 1994, as the date on which the sentence of death, entered by the circuit court of Cook County, shall be carried out. Defendant shall be executed in the manner provided by law. (Ill. Rev. Stat. 1991, ch. 38, par. 119 \u2014 5.) The clerk of this court shall send a certified copy of this mandate to the Director of Corrections, to the warden of Stateville Correctional Center, and to the warden of the institution where defendant is now confined.\nAffirmed.", "type": "majority", "author": "JUSTICE FREEMAN" }, { "text": "JUSTICE McMORROW,\ndissenting:\nI dissent because I believe the defendant is entitled to an evidentiary hearing to prove his allegations of ineffective assistance of counsel; defendant should not be barred from proving his allegations under the doctrine of waiver.\nThe defendant\u2019s post-conviction petition raises a serious allegation that his trial counsel was ineffective because he failed to discover Weliczko\u2019s allegedly fraudulent and perjured misrepresentation that Weliczko was a trained mental health provider qualified to testify regarding whether defendant suffered from a substantial emotional or mental disability. This alleged ineffectiveness was compounded by the attorney\u2019s alleged failure to investigate and present the testimony of truly qualified mental health experts who could have provided critical mitigating evidence to support defendant\u2019s claim that he should be spared the death sentence because he suffered from a substantial mental disturbance.\nThe defendant\u2019s theory of defense at his death sentence hearing was that he suffered from a severe emotional or mental disturbance at the time of the offenses. Defendant\u2019s sole witness in his behalf was John Weliczko, who represented on direct examination that he was a psychologist. On cross-examination, Weliczko admitted that he was not a psychologist and that he had not been wholly forthright on direct examination with respect to his credentials. However, Weliczko maintained that he was a \"psychotherapist\u201d and that he had substantial training, background, and experience as a mental health provider.\nPrior to the sentencing hearing, defendant\u2019s trial counsel thought that Weliczko was a qualified psychologist. It was only at the sentencing hearing that defense counsel learned that Weliczko was not a psychologist.\nIn view of Weliczko\u2019s admissions during the defendant\u2019s sentencing hearing, the trial court was aware that Weliczko had not been completely truthful with respect to his credentials as a mental health provider. Although the trial court did not recognize Weliczko as an \"expert,\u201d the trial court nonetheless believed that Welicz-ko was a psychotherapist who could provide an opinion useful to the court at the sentencing hearing. As a result, the trial court admitted Weliczko\u2019s testimony into evidence and relied on Weliczko\u2019s psychological evaluation of the defendant in deciding whether to impose the death sentence.\nHowever, according to the defendant\u2019s post-conviction petition, what the trial court and the defendant\u2019s trial counsel did not know was that Weliczko had no training, background, or bona fide experience in psychology whatsoever. In addition, the defendant\u2019s post-conviction petition indicates that the trial court and defendant\u2019s trial counsel did not know that Welicz-ko\u2019s psychological assessment and evaluation of the defendant was utterly unreliable. Moreover, affidavits of qualified mental health providers, as attached to the defendant\u2019s post-conviction petition, support defendant\u2019s claim that he suffered from a significant mental disturbance. These affidavits further indicate that Weliczko\u2019s report contained a completely erroneous and incompetent psychological evaluation of the defendant.\nThe majority is incorrect to hold that defendant\u2019s challenges to Weliczko\u2019s testimony are waived. The claims are not waived, because they raise new arguments based on new evidence that was not part of the record from defendant\u2019s direct appeal. The majority is also wrong when it finds that defendant was not prejudiced by the absence of the additional psychological evidence presented in support of defendant\u2019s post-conviction petition. Whether defendant\u2019s allegations of ineffective assistance of counsel are sufficient to satisfy the standard of Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, must be determined following an evidentiary hearing, and cannot lawfully be determined on an appeal from the trial court\u2019s dismissal of the post-conviction petition prior to eviden-tiary hearing.\nFor these reasons, I disagree with the majority\u2019s refusal to grant defendant an evidentiary hearing with respect to his allegation that he was deprived of the effective assistance of counsel at his death sentence hearing.\nI. Waiver of Challenges to Weliczko\u2019s Testimony\nThe majority refuses to consider whether the failure of defendant\u2019s trial counsel to learn that Weliczko lacked any credentials or experience in the mental health field may have deprived defendant of the effective assistance of counsel. The majority claims that the \"defendant\u2019s opportunity to raise\u201d an argument regarding defense counsel\u2019s failure \"to verify Weliczko\u2019s credentials\u201d arose \"on direct appeal.\u201d (161 Ill. 2d at 89.) The majority offers that \"[a]ny inadequacy there may have been with counsel\u2019s representation with respect to Weliczko was evident when Weliczko was cross-examined.\u201d (161 Ill. 2d at 89.) The majority concludes that defendant \"failed to take issue with that representation on direct appeal and so is procedurally barred from doing so here [citation] ***.\u201d 161 Ill. 2d at 89; see also 161 Ill. 2d at 87-88.\nI disagree with the majority on this issue. The defendant\u2019s argument of ineffective assistance of counsel with respect to the Weliczko testimony is not waived, because the pertinent evidence on this issue, presented by the defendant in his post-conviction petition, is evidence that does not appear in the record of his trial court proceedings. Also, this new evidence supports an argument the defendant did not make and could not make on direct appeal: that Weliczko\u2019s testimony was fraudulent and perjured because Weliczko had no bona fide training, experience, or background in psychology that would warrant introduction of his report and opinions.\nTo justify its finding of waiver, the majority minimizes the nature of the defendant\u2019s claim, reasoning as follows:\n\"There is nothing in the content of the affidavit and documents here offering more than what is evident from the record itself. The issue of prejudice resulting from Weliczko\u2019s testimony could have been raised on direct appeal based on the testimony elicited during the sentencing hearing. Weliczko had admitted that his academic background was in theology and ministry and that, in fact, he was not a psychologist. The admissions were fixed in the record as a result of the cross-examination. The affidavit and documents reveal no more than Weliczko\u2019s own testimony. Finding no reason to excuse the procedural default, defendant\u2019s claim must be dismissed.\u201d 161 Ill. 2d at 88.\nHowever, defendant does offer more than what was evident from the appellate record. Defendant alleged two glaring falsities in Weliczko\u2019s trial testimony. First, Weliczko testified on cross-examination that he earned a doctorate degree in counseling psychology from the Chicago Theological Seminary. According to defendant\u2019s post-conviction petition, Weliczko did not receive a degree in counseling psychology; he received a doctor of ministry degree. Second, Weliczko testified at the sentencing hearing that he earned a B.S. degree in psychology and philosophy from Gordon College. According to defendant\u2019s post-conviction petition, Weliczko did not receive a B.S. degree in psychology and philosophy; he received a B.A. degree in philosophy. Consequently, contrary to Weliczko\u2019s trial testimony, Weliczko allegedly did not have the education, background, or training in psychology to qualify him to provide a psychological evaluation of the defendant.\nThe new evidence submitted in support of defendant\u2019s post-conviction petition went far beyond the revelations to which Weliczko admitted when he testified at the defendant\u2019s sentencing hearing. The record reveals that the trial court admitted Weliczko\u2019s opinion based upon the trial court\u2019s allegedly mistaken belief that Weliczko was a qualified psychotherapist, whose opinion regarding defendant\u2019s mental and emotional condition could aid the court in its decision whether to impose the death penalty. Contrary to the impressions of the trial court, however, Weliczko allegedly was not a qualified mental health provider, and his opinion was therefore of no genuine value to the trial court. According to defendant\u2019s post-conviction petition, the trial court erroneously relied upon Weliczko\u2019s evaluation of the defendant, although that evaluation allegedly was an incompetent and grossly inaccurate assessment of the defendant\u2019s mental and emotional condition. Defendant\u2019s post-conviction petition alleged that the report prepared by Weliczko \"does not constitute a competent psychiatric evaluation report\u201d because it \"deviates significantly from what is customarily found in a competent psychiatric report in a number of ways.\u201d Defendant offered the affidavits of qualified mental health professionals, who stated that Weliczko\u2019s report was wholly inadequate, grossly inaccurate, and contained an utterly erroneous psychological evaluation of the defendant.\nThe psychological evaluations offered in support of defendant\u2019s post-conviction petition indicated that defendant had been raised in a troubled and dysfunctional family and suffered from neurological deficit caused by several head injuries and years of polysubstance abuse. In comparison, Weliczko testified that defendant suffered from a personality disorder, and made no reference to defendant\u2019s trouble childhood, dysfunctional family and upbringing, or defendant\u2019s suffering from neurological damage or substance abuse.\nIt is also noteworthy that in his post-conviction petition, defendant submitted various documents relating to a Federal prosecution in which Weliczko pled guilty to bank fraud. Memoranda written by attorneys in the United States Attorney\u2019s office indicate that Weliczko had a pattern of defrauding individuals and companies, and noted his false testimony in the instant cause as an example of this pattern of behavior. The evidence of Weliczko\u2019s pattern of fraud and perjury was not presented to the trial court at defendant\u2019s death sentence hearing.\nGiven the evidence submitted in support of defendant\u2019s post-conviction petition, it is difficult to discern a lawful basis for the majority\u2019s decision to find that defendant has waived his ineffective-assistance-of-counsel argument. The majority wholly ignores that the defendant\u2019s arguments, with respect to the failure to invest\u00ed-gate and present evidence that Weliczko had no credentials to provide any testimony regarding a psychological profile of the defendant, rely upon evidence outside the record of the defendant\u2019s direct appeal. As such, the defendant\u2019s arguments, which relied upon this evidence, could not have been raised in his direct appeal, and are not waived in defendant\u2019s post-conviction proceeding. In People v. Hall (1993), 157 Ill. 2d 324, this court stated:\n\"Defendant *** contends that his trial counsel failed to provide effective assistance during the death sentence hearing ***. [Citation.] Defendant claims that his trial counsel failed to present, or even investigate, meaningful mitigation evidence.\nThe State initially responds that defendant has waived this issue in this post-conviction appeal by failing to raise it on direct appeal. It is true that where a post-conviction petitioner has previously taken a direct appeal from a judgment of conviction, issues that could have been presented on direct appeal but were not are deemed waived. People v. Flores (1992), 153 Ill. 2d 264, 274; People v. James (1970), 46 Ill. 2d 71, 74.\nHowever, defendant\u2019s post-conviction claim relies on affidavits of several alleged mitigating witnesses. Those affidavits were not part of the record on direct appeal. Thus, defendant could not have raised the issue in his direct appeal. Accordingly, the issue is not waived in a post-conviction proceeding. Eddmonds, 143 Ill. 2d at 528; People v. Owens (1989), 129 Ill. 2d 303, 308-09.\u201d (Emphasis added.) Hall, 157 Ill. 2d at 336-37.\nIn light of this reasoning in Hall, the defendant in the instant case cannot be barred, under the doctrine of waiver, from raising the argument that his trial counsel was ineffective for failing to. investigate and introduce evidence that is not found in the record of the defendant\u2019s direct appeal.\nThe majority\u2019s decision is particularly disturbing and troubling because it needlessly and wrongfully conflicts with clear, unambiguous, and respected precedent of this court. For example, in People v. Eddmonds (1991), 143 Ill. 2d 501, and People v. Owens (1989), 129 Ill. 2d 303, the waiver doctrine was not applied because the evidence relied upon by the defendants did not appear in the record of their direct appeals. In both of the decisions, this court held that a defendant is permitted to present, in post-conviction petitions, allegations based on matters that could not have been presented in a direct appeal, because they arose outside the scope of the trial court\u2019s original proceedings. This long-standing rule has been recognized in other decisions of this court as well as our appellate court. See Eddmonds, 143 Ill. 2d at 528; Owens, 129 Ill. 2d at 308-09; People v. Wright (1986), 111 Ill. 2d 18, 25-26; People v. Gaines (1984), 105 Ill. 2d 79, 91; People v. Stepheny (1970), 46 Ill. 2d 153, 155; People v. Thomas (1967), 38 Ill. 2d 321, 324-25; People v. Heartfelt (1992), 232 Ill. App. 3d 198, 204; People v. Davis (1990), 203 Ill. App. 3d 129, 139; People v. Lee (1989), 185 Ill. App. 3d 420, 427; People v. Taylor (1988), 165 Ill. App. 3d 1016, 1019; People v. Mitchell (1987), 163 Ill. App. 3d 1007, 1009; People v. Cobb (1986), 150 Ill. App. 3d 267, 270; People v. Nix (1986), 150 Ill. App. 3d 48, 51; People v. Carroll (1985), 131 Ill. App. 3d 365, 367; People v. Edsall (1981), 94 Ill. App. 3d 469, 472-73; People v. Mengedoht (1980), 91 Ill. App. 3d 239, 241; People v. Edwards (1980), 83 Ill. App. 3d 128, 131; People v. Turner (1979), 74 Ill. App. 3d 840, 844; People v. Owsley (1978), 66 Ill. App. 3d 234, 237; People v. Hudson (1978), 65 Ill. App. 3d 422, 424; People v. Summers (1977), 50 Ill. App. 3d 33, 35; People v. Dennis (1973), 14 Ill. App. 3d 493, 495; see also People v. Johnson (1993), 154 Ill. 2d 227; People v. Jones (1985), 109 Ill. 2d 19, 23-24; People v. Myers (1970), 46 Ill. 2d 270, 271.\nMost recently, in People v. Thompkins (1994), 161 Ill. 2d 148, this court again acknowledged and reaffirmed that there is a valid and important distinction between ineffective-assistance-of-counsel arguments that are waived because the arguments rely upon matters presented at trial, and ineffective-assistance-of-counsel arguments that are not waived for post-conviction review because the arguments present additional matter not found in the record of the trial court proceedings. The majority\u2019s contrary result in the instant cause is patently unfounded in legal precedent of this court.\nThe majority\u2019s waiver analysis in the present case is also untenable, because its reasoning has been rejected or disavowed by several Federal courts of appeal. In Guinan v. United States (7th Cir. 1993), 6 F.3d 468, the Seventh Circuit Court of Appeals adopted precedent, particularly with respect to preserving an ineffective-assistance-of-counsel argument for post-conviction review, that is similar to the precedent of this court which the majority now tacitly overrules. The Seventh Circuit has held that \"if a defendant postpones raising the issue of ineffective assistance of counsel until the collateral stage he must have a valid reason for the postponement ***.\u201d (Guinan, 6 F.3d at 472.) According to the court, one \"valid reason\u201d for postponement is that the ineffective-assistance-of-counsel claim required proof of facts outside the record of the direct appeal. (Guinan, 6 F.3d at 472.) In a concurring opinion, Judge Easterbrook noted that \"[tjhree [Federal] courts of appeals have held that ineffective-assistance claims are forfeited when not presented on direct appeal\u201d and that the \"Solicitor General has confessed error on all three\u201d cases once petitions for writ of certiorari were filed before the United States Supreme Court (Guinan, 6 F.3d at 475, citing Billy-Eko v. United States (2d Cir. 1992), 968 F.2d 281, vacated on confession of error (1993), 509 U.S. 901, 125 L. Ed. 2d 685, 113 S. Ct. 2989; Chappell v. United States (7th Cir. 1989), 878 F.2d 384, vacated on confession of error (1990), 494 U.S. 1075, 108 L. Ed. 2d 931, 110 S. Ct. 1800; Diaz-Albertini v. United States (10th Cir. 1990) (unpublished), vacated (1991), 498 U.S. 1061, 112 L. Ed. 2d 839, 111 S. Ct. 776).\nIn his concurring opinion in Guinan, Judge Easter-brook also made the following cogent observations:\n\"Like my colleagues, I yearn for a system under which one appeal resolves the entire case. Unfortunately, ineffective assistance of counsel eludes once-and-for-all disposition. Trial counsel cannot be expected to attack his own performance, and a new lawyer representing the defendant on appeal finds that it is impossible to upset a conviction by pointing to his predecessor\u2019s actions. Why impossible? Because the absence of a complete record prevents definitive action. No matter how odd or deficient trial counsel\u2019s performance may seem, that lawyer may have had a reason for acting as he did. [Citations.] Or it may turn out that counsel\u2019s overall performance was sufficient despite a glaring omission, or that the shortcoming did not prejudice the defendant. [Citations.] The trial judge is best situated to assess overall performance and prejudice, yet a claim of ineffective assistance presented on direct appeal asks the court of appeals to act without the [trial] judge\u2019s views. ***\nRules of procedure should be designed to induce litigants to present their contentions to the right tribunal at the right time. For ineffective assistance of counsel, the court of appeals on direct appeal is the wrong tribunal at the wrong time. *** Failure to call essential witnesses might show both deficient performance and prejudice, but on direct appeal all we will have is defendant\u2019s say-so that an uncalled witness was critical. To have any hope of success, the defendant must enlarge the record with affidavits establishing what testimony the witness would have provided if called, and demonstrate that his lawyer was actually aware of this potential testimony or grossly deficient in failing to find out about it. This is precisely the type of complaint that should not be presented on direct appeal. It must be developed in an evidentiary hearing [for post-conviction relief].\u201d (Emphasis in original.) Guinan, 6 F.3d at 473-74.\nAs the observations made in Judge Easterbrook\u2019s concurrence show, the majority\u2019s reasoning in the instant cause suffers from a fundamental infirmity: it never acknowledges or explains how the defendant should have brought to this court\u2019s attention, in his direct appeal, the merits of his claim that his trial attorney was ineffective because of a failure to determine that Weliczko was a fraud and a sham who had no credentials, experience, or background in psychology, psychotherapy, or counseling. The record from defendant\u2019s direct appeal does not reveal that Weliczko was a fraud and a sham. In fact this court on direct review specifically and explicitly referred to Weliczko as a \"psychotherapist.\u201d (See People v. Erickson (1987), 117 Ill. 2d 271, 285.) The record of defendant\u2019s direct appeal would not have provided the necessary factual basis for the arguments presented by defendant in the present post-conviction proceeding.\nThe majority\u2019s ruling, and its failure to provide clear guidance with respect to its decision, necessarily places all criminal defendants of this State into a classic \"catch-22,\u201d where they run the risk of being trapped in a number of \"losing\u201d scenarios. For example, if a defendant argues on direct appeal that his attorney was ineffective for failure to investigate certain witnesses, the court might reject his claim on the ground that the defendant cannot show what the investigation would have revealed, if the investigation had been performed. (See, e.g., People v. Williams (1991), 147 Ill. 2d 173, 258; People v. Orange (1988), 121 Ill. 2d 364, 390.) If the defendant argues on direct appeal that his attorney was ineffective for failure to investigate certain witnesses and his appellate counsel includes pertinent affidavits in the briefs or record on appeal, the court may reject his argument on the theory that defendant is not permitted to supplement the record on appeal with evidentiary matters outside the record of the trial court proceedings. (See, e.g., People v. Jones (1985), 109 Ill. 2d 19, 23-24 (amendments of record on direct appeal are limited to those necessary to correct record, not add new material never presented to trial court).) If the defendant files a post-conviction petition alleging ineffective assistance for failure to investigate certain witnesses, the court may deem the issue waived, as it does in the present case, reasoning that defendant should have presented his claim on direct appeal. Given the majority\u2019s ruling in the instant cause, I question how criminal defendants in this State will now be able to preserve and present the merits of their claims based on a failure to investigate witnesses prior to trial.\nThe majority\u2019s waiver decision will be especially confusing for the criminal trial bar, the trial courts, and our courts of review. In light of the majority\u2019s ruling, one is left to speculate, in uncertainty, whether a claim of perjured testimony, and ineffective assistance of trial counsel, must always be presented in the defendant\u2019s direct appeal, regardless of whether the evidence supporting the argument derives from matters outside the appellate record. The majority performs a grave disservice in its lack of clear insight or guidance on these matters.\nIllinois once had a well-publicized reputation for having devised post-conviction requirements that created a \"procedural labyrinth *** made up entirely of blind alleys\u201d (Marino v. Ragen (1947), 332 U.S. 561, 567, 92 L. Ed. 170, 175, 68 S. Ct. 240, 244 (Rutledge, J., concurring)) that effectively insulated the court from ruling on the merits of a defendant\u2019s constitutional challenges to his criminal conviction and sentence. Our Post-Conviction Hearing Act was adopted in 1949 to overcome these shortcomings. (See generally Leighton, Post-Conviction Remedies in Illinois Criminal Procedure, 1966 Ill. L.F. 540, 568-71.) Unfortunately, the majority\u2019s decision harkens back to this earlier era, when technical rules of procedure were manipulated in order to avoid or preclude substantive review of the criminal defendant\u2019s constitutional arguments.\nII. Denial of Evidentiary Hearing\nAside from its determination that defendant has waived any challenge to Weliczko\u2019s testimony, the majority suggests that trial counsel was not ineffective in failing to locate other, qualified mental health providers to offer an expert opinion in defendant\u2019s behalf. In this respect, the majority observes that the defendant\u2019s argument \"fails substantively\u201d and reviews the two-part test of Strickland. (See 161 Ill. 2d at 90-91.) The majority determines that the defendant was not prejudiced by trial counsel\u2019s failure to locate these additional mitigation witnesses, because the defendant would probably have been sentenced to death even if this additional evidence had been offered for consideration at the defendant\u2019s original sentencing hearing.\nSpecifically, the majority reasons that \"[a]ny laxity of counsel notwithstanding, what is offered [in the affidavits of the mental health experts] to bolster the ineffectiveness claim does not show the result would 'reasonably likely\u2019 have been different, excluding the possibility of arbitrariness.\u201d (161 Ill. 2d at 91.) The majority\u2019s reasoning is a misstatement of the proper standard by which a defendant\u2019s post-conviction petition should be judged where the petition has been dismissed without an evidentiary hearing. The proper standard is not whether the \"result would 'reasonably likely\u2019 have been different.\u201d Rather, the proper question is whether the defendant\u2019s allegations, when viewed in the light most favorable to the defendant, are sufficient to demonstrate that the defendant should receive an evidentiary hearing to prove his allegations. These legal principles are well established and longstanding. (People v. Thompkins (1994), 161 Ill. 2d 148; People v. Ruiz (1989), 132 Ill. 2d 1, 25-28; People v. Caballero (1989), 126 Ill. 2d 248, 259; People v. Caldwell (1973), 55 Ill. 2d 152, 155; People v. Bernatowicz (1952), 413 Ill. 181, 185; People v. Vunetich (1989), 185 Ill. App. 3d 415, 419; People v. Witherspoon (1987), 164 Ill. App. 3d 362, 365; People v. Redmond (1986), 146 Ill. App. 3d 259, 262-63.) For example, our appellate court has stated:\n\"The Post-Conviction Hearing Act provides a remedy for violation of substantial constitutional rights at trial. [Citations.] In order to require a hearing, the petitioner must substantially show that there was a violation of a constitutional right. [Citations.] Such a showing must be based on factual allegations rather than conclusory statements. [Citation.] A petitioner is not entitled to an evidentiary hearing on his petition as a matter of right. [Citations.] Rather, it is the function of the post-conviction pleadings to determine whether the petition is entitled to a hearing. [Citation.] Where the trial court determines that the allegations of the petition are sufficient to require a hearing, the petitioner must be afforded an opportunity to prove his allegations. [Citation.] On review of dismissal of a petition, an appellate court must determine whether petitioner has alleged sufficient facts to require an evidentiary hearing. [Citation.] In making that determination this court must necessarily look to allegations contained in the petition, construed liberally in favor of petitioner and as set forth in light of the record and transcript. [Citation.]\u201d (Emphasis added.) People v. Pittman (1989), 192 Ill. App. 3d 943, 946.\nThe majority in the present cause does not consider whether the defendant\u2019s allegations, when liberally construed in his favor, show that the defendant is entitled to an evidentiary hearing. The majority engages in its own review of the sufficiency of the defendant\u2019s evidence, as though the majority were the trier of fact at an evidentiary hearing on the defendant\u2019s post-conviction petition. As established by the considerable precedent cited above, this is not the proper focus on appeal from the trial court\u2019s dismissal of a post-conviction petition in the absence of an evidentiary hearing.\nThe majority also states that the \"psychologists\u2019 reports could, at best, only suggest what may have explained defendant\u2019s criminal behavior of July of 1982. The evaluations were produced years after the crimes and, apparently, without the aid of the trial record, which revealed, through witnesses\u2019 testimony, defendant\u2019s actual behavior.\u201d (161 Ill. 2d at 91.) The majority\u2019s analysis impermissibly delves into a weighing of the sufficiency of the opinions offered by the mental health experts whose affidavits were submitted in support of defendant\u2019s post-conviction petition. It is the prerogative of the trier of fact, at an evidentiary hearing, to consider the significance to be attached to the circumstance that the evaluations of the mental health experts \"were produced years after the crimes.\u201d (161 Ill. 2d at 91.) Moreover, contrary to the majority\u2019s reasoning, there is nothing in the record to show whether the evaluations were prepared \"without the aid of the trial record.\u201d 161 Ill. 2d at 91.\nThe majority also offers the observation that the trial court \"actually took into account the notion that defendant may have suffered from a personality disorder.\u201d (161 Ill. 2d at 92.) However, since the psychological profile offered by Weliczko was allegedly an incompetent and inaccurate portrayal of the defendant, the trial court at defendant\u2019s sentencing hearing did not take into account accurate, bona fide psychological evaluations such as those submitted by defendant in support of his post-conviction petition. Moreover, the mental health professionals\u2019 affidavits attached to defendant\u2019s post-conviction petition indicated that defendant suffered from neurological impairment, not a personality disorder as suggested by Weliczko. The majority also states that the \"trial judge noted that a pre-sentencing investigation report on defendant revealed a background free of what might be normally encountered given the nature of the crimes.\u201d (161 Ill. 2d at 92.) In his post-conviction petition, the defendant has presented psychological evaluations that show the defendant did not enjoy a \"background free of\u2019 disturbance or difficulty. Again, the majority wrongly engages in an unjustified and unfair weighing of the defendant\u2019s evidence without allowing the defendant the opportunity for an evidentiary hearing where the trier of fact may assess the evidence defendant presents in support of his post-conviction petition.\nThe record shows that there were several, highly significant differences between the opinion expressed by Weliczko at the death sentence hearing and the views stated by the mental health providers in the affidavits submitted in support of defendant\u2019s post-conviction petition. Weliczko stated that defendant had been raised in a \"good *** Christian\u201d family, where the defendant had been well taken care of and cared for by his parents. Weliczko stated that defendant bec\u00e1me manipulative, would frequently fabricate to his parents and friends, and cared for nothing but himself. Weliczko also testified that defendant had a highly disrespectful view of women, and had relations with women that Weliczko described as \"[djirty\u201d and short-lived. Weliczko stressed that the defendants\u2019 parents \"cannot be blamed for his disorder.\u201d\nThe affidavits of the mental health providers described defendant as suffering from a neurological deficit prompted by several head injuries and years of polysubstance abuse. These mental health providers also stated that defendant had endured a troubled childhood in a dysfunctional family and that defendant had been the victim of sexual abuse when he was young. Given these marked contrasts in the views of Weliczko and those of the mental health providers whose affidavits support defendant\u2019s post-conviction petition, the majority\u2019s reasoning ignores the facts shown in the record presently before us.\nThe substantial degree to which Weliczko\u2019s testimony was damning to the defendant at his death sentence hearing, and the extent to which his evaluations of the defendant differed from those offered by the mental health professionals relied upon in defendant\u2019s post-conviction petition, deserve detailed attention by this court. Weliczko stated that according to defendant\u2019s parents, defendant had been \"a quarrelsome child\u201d and had been \"basically restless as a young man,\u201d although he had had \"no unusual disruptions\u201d while he was growing up. Weliczko stated that defendant\u2019s parents said that defendant had a \"chronic history\u201d of \"a lot of illnesses\u201d that the parents suspected were \"fabricated.\u201d Weliczko stated that defendant\u2019s parents represented that defendant, especially while a teenager, engaged in \"a lot of lying and manipulating.\u201d Weliczko testified that the parents \"felt they gave him a good nurturing\u2014 and I would say the term carefully \u2014 a Christian environment, as good Roman Catholic parents attempting to bring him to church and music lessons and things that are seemingly normal in the life of a young person growing up. They attempted to discipline him as well as provide a good home.\u201d Weliczko testified that defendant\u2019s parents stated that defendant held many jobs, but only for short periods of time. He represented that defendant left these jobs \"[j]ust [from] a feeling of discontent. A kind of functional attitude that nothing is good enough.\u201d\nWeliczko testified that he had interviewed defendant on several occasions after defendant was arrested. At the first interview, defendant said that he was \"[a]ngry and upset\u201d and that he felt he was not going to receive a fair trial. Weliczko stated that at a subsequent interview, he \"discuss[ed] women\u201d with defendant. Weliczko asked defendant how many women he had dated since defendant was 17 years of age. According to Weliczko, defendant responded that \"he had dated at least or related to at least 30 women and gave a cursory comment that said, 'And most of them enjoyed a good blow job.\u2019 \u201d Weliczko observed that defendant\u2019s comment \"kind of took [him] back\u201d and that it \"wasn\u2019t very enjoyable in terms of hearing.\u201d Weliczko stated that he found defendant felt a \"sense of isolation and loneliness at times mixed with feelings of depression and withdrawal.\u201d Weliczko said that defendant also harbored a great deal of anger, which he directed at himself and a number of other persons. Weliczko stated that defendant did not feel remorseful for anything, and that defendant felt sorry for no one except himself. Weliczko said that he saw defendant as a person who could be violent, mostly from a sense of frustration and fear. Welicz-ko also testified that defendant would do things to seek approval from others. He stated that defendant\u2019s past relations with women had been short-lived, because defendant \"got tired of them\u201d and thought of them \"[l]ike they were almost chattel.\u201d\nWeliczko stated that defendant\u2019s personality traits revealed that he suffered from a narcissistic personality disorder. Weliczko characterized the disorder as neurotic, rather than pathological. Weliczko explained:\n\"The grandiose section of self importance this idea of somehow T had to exaggerate my achievements and my talents,\u2019 preoccupation with fantasies, women without doubt entered into that realm that, 'Somehow I would fulfill something by engaging a woman to do what I wanted to do, but I had no ability to be intimate on a real healthy basis. I used them and I cut them off.\u2019 Dirty relationships and a blow job, as stated by him.\nA feeling of ideal love to a point of not Hallmark cards, but an imaginary fantasy that a woman was going to take him and go off and make it all better. Exhibitionism, the idea \u2014 *** this need for constant attention. *** The other element is no question of personal exploitiveness.\u201d\nWeliczko stated, for example, that defendant \"has admitted to the fact that he spent money many times, not his own, and cheated to do that and lied about it and did things as favors to gain favors.\u201d\nOn cross-examination, Weliczko stated that he did not find any evidence that the defendant had been abused as a child, and that defendant was raised in a \"good, Christian home\u201d and had been given things that a lot of children never receive.\nIn his written report, submitted to the court, Welicz-ko stated that defendant \"lack[ed] empathy for the pain of others.\u201d Weliczko\u2019s report also represented that defendant \"overestimated his sexual prowess and abilities as a man with unrealistic fantasies of achievement, especially with women.\u201d The report stated that defendant \"described his relationships to [women] as 'dropping one and picking up another,\u2019 and [that defendant] admitted to impregnating several.\u201d Weliczko\u2019s report also represented that defendant engaged in \"[interpersonal ex-ploitiveness, in which others are taken advantage of in order to indulge one\u2019s own desires or for self-aggrandizement *** and the personal integrity and rights of others are disregarded.\u201d\nWeliczko\u2019s written report \"[r]ecommend[ed]\u201d that it \"must be understood [that defendant] *** [i]s experiencing the diagnosed personality disorder.\u201d The report\u2019s recommendations acknowledged that defendant\u2019s \"behavior exemplified\u201d defendant\u2019s \"inability to make wise choices\u201d and that \"[t]hose unwise choices must be judged by the court.\u201d Weliczko\u2019s report suggested that defendant receive psychiatric treatment \"for at least one year in a hospital.\u201d The report also stated:\n\"[Defendant\u2019s] parents cannot be blamed for his disorder. The real causes are society, peers and the judicial system who allowed his self-deception to escalate to a point of self-destruction. ***\nSuicide precautions must be administered since without psychological intervention, [defendant\u2019s] need for approval may drive him toward an aggrandized view that self-inflicted death is his only way of saying, \u2019he was never guilty\u2019 and deserves NO punishment for EVEN the faintest implication that he contributed in the group (mass) destruction of the life of [the victim], ***\n[Defendant\u2019s] participation and his accomplices, must be viewed as a group portrayal of a narcissistically preoccupied teenage band of reckless, unempathetic and psychologically unstable young men and women. [Defendant] cannot be the only guilty party. The blood of the victim will never be psychologically excised from the stained group who partied at the Holiday Inn, and those who assisted in the concealment of evidence.\u201d (Emphasis in original.)\nIn contrast to the damning evidence offered by Weliczko, the affidavits of the mental health experts submitted in conjunction with defendant\u2019s post-conviction petition provide a markedly different portrayal of the defendant. The psychological report prepared by Dr. Brad Fisher, a clinical correctional psychologist, stated that the psychologist had evaluated defendant on two occasions in 1990 and had reviewed numerous reports and administered several tests to evaluate defendant\u2019s psychological condition.\nAccording to Dr. Fisher\u2019s report, defendant was adopted by Andzia (then age 39) and Elvin (then age 46) Erickson when defendant was only a few days old. Defendant had only one sibling, a brother much older than the defendant. Dr. Fisher\u2019s report stated that defendant\u2019s \"parents reported no particular problems during this time [his early developmental years], either academically or socially.\u201d The psychologist\u2019s report also noted, however, that \"family members and Paul report that he was sexually abused by a priest when Paul served as an altar boy at the family\u2019s church.\u201d Dr. Fisher also noted that defendant had a history of head trauma and headaches. According to Dr. Fisher\u2019s evaluation, Paul also had a history of \"polysubstance abuse\u201d (alcohol and drug abuse). He also had several episodes of blurred vision, headaches, concussions, or falls.\nDr. Fisher reported that defendant\u2019s mother \"presents as schizophrenic, disorganized type.\u201d Dr. Fisher reported that the mother\u2019s mental instability, defendant\u2019s adoption, and his head injuries caused defendant considerable stress, and that he \"remained an immature person who has a very low self-esteem.\u201d\nDr. Fisher stated that in behavioral observations, the defendant was alert, cooperative, and able to perform most of the tasks. However, he \"demonstrated several instances of marked deficits in long-term recall processing.\u201d The psychologist stated that this was not \"surprising considering his extensive drug abuse and probable neurological damage.\u201d Dr. Fisher stated that the defendant was not psychotic or retarded, \"but *** has significant and diffuse neurological impairments, probably chronic and longstanding.\u201d\nDr. Fisher stated that the \"brain dysfunction evident from the history and the testing related to significant difficulties in cognition.\u201d Dr. Fisher stated that it was his professional opinion, to a reasonable degree of professional certainty, that defendant \"was under extreme mental and emotional disturbance at the time of the offenses and that his capacity to conform his conduct to the requirements of the law was substantially impaired.\u201d\nDr. Fisher stated .that he had reviewed Weliczko\u2019s report that was admitted into evidence at the sentencing hearing. In his opinion, the report \"deviates significantly from what is customarily found in a competent psychological evaluation report.\u201d Dr. Fisher stated that the diagnosis given by Weliczko was \"inaccurate\u201d and that certain of the recommendations given by Weliczko \"appear to represent Mr. Weliczko\u2019s personal views.\u201d Dr. Fisher stated that in his opinion, Weliczko\u2019s document \"does not appear to be in accord with the usual procedures of a competent psychological assessment and is therefore likely to be inadequate, inaccurate, and unreliable.\u201d Dr. Fisher stated the following in summary:\n\"This 33 year old white male is currently on Death Row Status in the Illinois State Prison System. The results of the current evaluation indicate that he is likely to be suffering at the current time from a level of neurological damage which can most easily be attributed to a combination of his substance abuse, combined with multiple head trauma. The current test and case records review findings indicate that the organic impairment has been present for a considerable period of time, and certainly would have been present at the time these crimes were committed. Since the neurological damage was exacerbated by the use of alcohol and/or drugs, Mr. Erickson\u2019s capacity to make reasonable judgments, to form coherent logic, and to properly connect ideas and make appropriate associations was likely to have been impaired. In short, his ability to make logical cognition and to make reasonable judgments were significantly impaired as a result of the substance abuse. This impairment was sufficiently severe that, in my opinion, Paul Erickson was under extreme mental and emotional disturbance at the time of the offense. Furthermore, his capacity to conform his conduct to the requirements of the law was substantially impaired. A number of non-statutory mitigating factors relevant to Mr. Erickson\u2019s mental state were also present, including but not limited to, the above mentioned difficulties in making appropriate decisions, his immaturity and dependence upon others, and his deepseated desire for acceptance from whomever it could be obtained. Considering the long duration of his drug and alcohol abuse, it would be highly unlikely for him not to have a significant level of brain damage.\u201d\nA second psychological evaluation report was provided by David Randall. This evaluation was substantially similar to the one provided by Dr. Fisher.\nIn light of the substantial and significant evidence cited by defendant in his post-conviction petition, I believe that defendant should receive an evidentiary hearing with respect to his allegation of ineffective assistance of counsel. Because the instant cause involves capital punishment, this court should be especially cautious to provide ample opportunity for the defendant to present evidence in his own behalf in his efforts to receive a new sentencing hearing.\nThe majority erroneously finds defendant has waived his challenge to Weliczko\u2019s testimony. Weliczko was the only defense expert to testify in support of defendant\u2019s defense of emotional and mental disturbance. The majority fails to acknowledge that the trial court was never advised of the true nature and extent of Weliczko\u2019s allegedly fraudulent and perjured representations that he was a qualified mental health professional. The majority also ignores defendant\u2019s allegation that Weliczko deceived the trial court from learning that Weliczko did not have the training, background, or education as a mental health provider necessary to give a psychological evaluation of the defendant. The majority fails to recognize that the opinions offered by Weliczko were highly damaging to the defendant, and that the affidavits of the mental health providers, submitted in support of defendant\u2019s post-conviction petition, indicate that defendant suffered from significant mental disturbance.\nIn addition, the majority impermissibly assumes the role of finder of fact, weighs the evidence submitted by the defendant, and denies the defendant any opportunity for a hearing where he could present the mental health provider witnesses to support his allegations of ineffective assistance of counsel. According to the affidavits of the mental health professionals submitted in support of defendant\u2019s post-conviction petition, these witnesses could provide valuable insight into defendant\u2019s mental and emotional condition, thus offering significant mitigating evidence with respect to defendant\u2019s sentence. Nevertheless, the majority refuses to grant the defendant even an evidentiary hearing to attempt to prove the allegations raised in his post-conviction petition. I cannot concur in this result.\nFor these reasons, I respectfully dissent.\nJUSTICE HARRISON joins in this dissent.", "type": "dissent", "author": "JUSTICE McMORROW," } ], "attorneys": [ "Rita A. Fry, Public Defender (Kyle Wesendorf, Assistant Public Defender, of counsel), and Christina M. Tchen and Rawn Howard Reinhard, all of Chicago, for appellant.", "Roland W. Burris, Attorney General, of Springfield, and Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Renee G. Goldfarb, Kenneth McCurry and Michael Golden, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 72667.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PAUL S. ERICKSON, Appellant.\nOpinion filed July 28, 1994.\nRehearing denied October 3, 1994.\nMcMORROW, J., joined by HARRISON, J., dissenting.\nRita A. Fry, Public Defender (Kyle Wesendorf, Assistant Public Defender, of counsel), and Christina M. Tchen and Rawn Howard Reinhard, all of Chicago, for appellant.\nRoland W. Burris, Attorney General, of Springfield, and Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Renee G. Goldfarb, Kenneth McCurry and Michael Golden, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0082-01", "first_page_order": 92, "last_page_order": 129 }