{ "id": 1281450, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY SMITH, Defendant-Appellant", "name_abbreviation": "People v. Smith", "decision_date": "2001-12-07", "docket_number": "No. 1-00-1341", "first_page": "831", "last_page": "856", "citations": [ { "type": "official", "cite": "326 Ill. App. 3d 831" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "65 Ill. 2d 157", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5434877 ], "year": 1976, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0157-01" ] }, { "cite": "191 Ill. 2d 168", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229709 ], "year": 2000, "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/191/0168-01" ] }, { "cite": "126 Ill. 2d 248", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557518 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "269-70" }, { "page": "269-70" }, { "page": "269-70" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0248-01" ] }, { "cite": "180 Ill. App. 3d 263", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5372474 ], "year": 1994, "pin_cites": [ { "page": "1079-80", "parenthetical": "without consideration of the substance of defendant's potential testimony, appellate court reversed summary dismissal of defendant's claim that his attorney misled him into not testifying" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/1075-01" ] }, { "cite": "262 Ill. App. 3d 79", "category": "reporters:state", "reporter": "Ill. 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GREGORY SMITH, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019HARA FROSSARD\ndelivered the opinion of the court:\nFollowing a bench trial, defendant Gregory Smith was convicted of first degree murder and sentenced to 20 years in prison. The judgment was affirmed on direct appeal. People v. Smith, No. 1\u201497\u20142853 (1998) (unpublished order under Supreme Court Rule 23). Defendant filed an initial and an amended petition for postconviction relief, both of which were prepared by retained counsel. The trial court summarily dismissed the petition as frivolous and patently without merit. Defendant contends on appeal that his amended petition stated meritorious claims of ineffective assistance of trial and appellate counsel.\nBACKGROUND\nDefendant\u2019s conviction arose from the fatal shooting of George Barron on July 3, 1993, in Chicago. The only eyewitness to testify at trial was Richard Campbell. According to Campbell, he, Barron, and Antonio Cox were walking on the street when three men approached them. Campbell recognized one of the men as Ronald Ware. Ware fled the scene, but one of the men who was with Ware started shooting at Campbell and his companions. Campbell testified that the shooter was wearing a cream- and black-colored hooded shirt. He described the shooter\u2019s gun as an automatic, stating that he heard shells hitting the ground. Campbell testified that the shooter continued toward them, firing the gun. Eventually, the shooter came within two feet of Barron and shot him in the right temple. Campbell testified that the third offender simply stood and looked around. The third man was short and dark-skinned with a mustache, wearing a cream-colored North Carolina \u201cTargets\u201d hooded shirt. Campbell later identified Ware during a lineup. He also identified the cream-colored North Carolina \u201cTargets\u201d hooded shirt, which was worn by defendant in the lineup. However, Campbell did not identify defendant as one of the offenders.\nOfficer John McCann testified that he recovered five 9-millimeter Luger shell casings \u201ca few feet\u201d from Barron\u2019s body. Officer McCann interviewed Campbell and obtained Ware\u2019s address. When Officer Mc-Cann brought Ware to the station for questioning, Ware implicated defendant and a man named Yaw Appiah. Officer McCann went to Appi-ah\u2019s home, where he found Appiah and defendant. Defendant was taken to the police station, where he was given Miranda warnings and was advised that he could be charged as an adult. Defendant\u2019s mother arrived at the police station sometime after defendant. Defendant told Officer McCann that on the night of the shooting, he had taken a gun from his mother\u2019s bedroom because some Folks were going to shoot him. About 7 p.m. that night, he went to a party where he met Ware and Appiah, who had a black 9-millimeter semiautomatic gun. Defendant told Officer McCann that Ware, Appiah, and two other men he did not know were talking about going to shoot some Folks. Defendant gave his gun, which was a .357, to Ware, who handed it to one of the men defendant did not know. When that man indicated he wanted defendant\u2019s shirt because it had a hood, defendant switched shirts with him. Defendant told Officer McCann that Ware, Appiah, and the man wearing defendant\u2019s shirt then left the party for about 20 minutes. When they returned, Appiah told defendant that he wanted to leave. While they were walking to Appiah\u2019s house, Appiah told defendant that he shot some Folks. Defendant asked Appiah about his .357 gun, but Appiah did not answer.\nOfficer McCann testified that he owned a Smith & Wesson .357 Magnum handgun that shot \u201c.38 Special, class B\u201d bullets. McCann explained that a .357-caliber handgun will fire either .38- or .357-caliber bullets. Officer McCann testified that a few hours after he interviewed defendant, Assistant State\u2019s Attorney Weaver arrived and defendant gave a statement to Weaver that was \u201csubstantially the same\u201d as his statement to Officer McCann.\nThe parties stipulated that if called to testify, Dr. Thamrong Chira would have testified that he performed an autopsy on Barron and cause of death was nine gunshot wounds. Dr. Chira determined that eight of the nine bullets exited Barron\u2019s body and recovered the remaining bullet from Barron\u2019s spinal cord. The parties further stipulated that if called to testify, Richard Fournier, a firearms examiner, would have testified that he examined the recovered bullet, determined that it was \u201ca .38-caliber bullet, and he classified it as a .38 Special.\u201d\nOn direct appeal, defendant argued that the evidence was insufficient to prove him guilty of first degree murder on the theory of accountability because it did not establish that defendant\u2019s gun was used in the commission of the offense. We rejected defendant\u2019s contention and affirmed his conviction. People v. Smith, No. 1\u201497\u20142853 (1998) (unpublished order under Supreme Court Rule 23).\nIn his amended postconviction petition, prepared by retained counsel, defendant alleged that his trial counsel was ineffective for the following reasons: (1) failed to \u201crun\u201d a motion to suppress defendant\u2019s statement; (2) admitted defendant\u2019s accountability in the opening statement and motion for directed verdict; (3) failed to engage in meaningful adversarial testing of the firearm evidence and that failure included a stipulation that the bullet recovered from the victim was a .38 Special; (4) failed to inform defendant of the nature and potential effect of that stipulation; (5) stipulated to the cause of death, failed to engage in meaningful adversarial testing of the medical examiner\u2019s testimony and failed to explore the possibility that if a bullet from defendant\u2019s gun was found in the victim\u2019s body, it was not a cause of death; (6) did not properly inform defendant of the nature and potential effect of stipulating that multiple gunshot wounds were the cause of the victim\u2019s death; (7) caused defendant to involuntarily relinquish his right to testify on his own behalf by telling him that (a) if he testified, his gang affiliation would be brought up and be extremely detrimental to his case; and (b) if he were to testify contrary to what he was claimed to have said in the police reports, it would negatively affect his case; (8) caused defendant to involuntarily relinquish his right to a jury trial by telling defendant that the judge owed him a favor and it would be better to have a bench trial because the judge would have information not available to a jury; (9) failed to engage in meaningful adversarial testing of Officer McCann\u2019s testimony and the State\u2019s evidence regarding defendant\u2019s gun being used in the offense; and (10) provided representation that \u201cconstituted nothing more than a sham and farce.\u201d\nDefendant also contended in his petition that appellate counsel was ineffective for (1) going forward on appeal without a full transcript of the trial record; (2) failing to raise the issue of plain error regarding Officer McCann\u2019s testimony that a .357-caliber handgun is capable of firing .38-caliber bullets; and (3) failing to raise the issue of ineffective assistance of trial counsel.\nDefendant attached a self-executed affidavit and an affidavit executed by his mother in support of the allegations in his petition. He also attached an affidavit executed by postconviction counsel. The trial court dismissed defendant\u2019s petition as frivolous and patently without merit. Defendant now appeals from the summary dismissal of his petition for postconviction relief.\nANALYSIS\nThe Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 1998)) provides that a defendant may challenge his conviction for violations of federal or state constitutional rights. People v. Tenner, 175 Ill. 2d 372, 377 (1997). Postconviction relief is a collateral proceeding, not an appeal from the underlying judgment. People v. Evans, 186 Ill. 2d 83, 89 (1999). All issues decided on direct appeal are res judicata, and all issues that could have been raised in the original proceeding but were not are waived. People v. Whitehead, 169 Ill. 2d 355, 371 (1996). There are circumstances under which the waiver rule may be relaxed. For example, res judicata and waiver will be relaxed when appropriate under principles of fundamental fairness. People v. Holman, 191 Ill. 2d 204, 210 (2000). The waiver rule is relaxed where the alleged waiver stems from the incompetence of appellate counsel. Whitehead, 169 Ill. 2d at 371. If a claim of ineffective assistance of counsel is based on matters outside the record, then it could not have been raised on appeal and, consequently, is not waived in a postconviction petition. People v. Owens, 129 Ill. 2d 303 (1989).\nThe Act establishes a three-stage process for adjudicating a petition for postconviction relief. 725 ILCS 5/122 \u2014 1 et seq. (West 1998). This case was before the trial court at the first stage of the postconviction process. We rely on the language of the Act for purposes of defining the first-stage pleading standard. A defendant may proceed under the Act by alleging \u201cthat in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both.\u201d 725 ILCS 5/122 \u2014 1 (West 1998). A petition filed under the Act must \u201cclearly set forth the respects in which petitioner\u2019s constitutional rights were violated.\u201d 725 ILCS 5/122 \u2014 2 (West 1998). The petition shall have attached \u201caffidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.\u201d 725 ILCS 5/122 \u2014 2 (West 1998).\nAt the first stage, the Act does not permit any further pleadings from the defendant or any motions or responsive pleadings from the State. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). The trial court is not to consider the petition on the merits; rather, it is to consider the petition independently, without any input from either side. Gaultney, 174 Ill. 2d at 418. At the first stage of a postconviction proceeding, the circuit court determines whether the petition alleges a constitutional infirmity which would necessitate relief under the Act. People v. Coleman, 183 Ill. 2d 366, 380 (1998). The first stage presents a pleading question. Unless positively rebutted by the record, all well-pled facts are taken as true at this stage and the trial court\u2019s determination is subject to de novo review. Coleman, 183 Ill. 2d at 388-89. Substantive questions relating to the issues raised in the petition are not to be addressed at the first stage of the postconviction proceeding. People v. Topps, 309 Ill. App. 3d 813, 819 (1999).\nSection 122 \u2014 2.1 of the Act directs the trial court to conduct a threshold evaluation of the allegations pled in postconviction petitions and to dismiss those which are \u201cfrivolous\u201d or \u201cpatently without merit.\u201d The Act provides: \u201cIf the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision.\u201d 725 ILCS 5/122 \u2014 2.1(a)(2) (West 1998). \u201cIn considering a petition pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.\u201d 725 ILCS 5/122 \u2014 2.1(c) (West 1998). Those records should be examined to determine whether the allegations are positively rebutted by the record. That determination will assist the trial court in resolving the issue as to whether the petition is frivolous or patently without merit. We are mindful that this case is reviewed by this court at the first stage of the postconviction process. Based on the procedural posture of this case, the relevant question is whether the petition is frivolous or patently without merit. 725 ILCS 5/122 \u2014 2..1(a)(2) (West 1998); People v. Edwards, 197 Ill. 2d 239, 244, 246-47 (2001). Whether the petition and any accompanying documents make a substantial showing of a constitutional violation is a second-stage inquiry. Edwards, 197 Ill. 2d at 245-46. If at the second stage a substantial showing of a constitutional violation is set forth, the petition is advanced to the third stage for an evidentiary hearing. 725 ILCS 5/122 \u2014 6 (West 1998); Gaultney, 174 Ill. 2d at 418.\nI. Ineffective Assistance of Trial Counsel\nDefendant contends on appeal that his petition stated a meritorious claim of ineffective assistance of trial counsel. The petition pled 10 separate allegations of ineffective assistance of trial counsel in detail. The State argues that because defendant did not raise this issue on direct appeal, it is waived. However, defendant also alleged ineffective assistance of appellate counsel, including appellate counsel\u2019s failure to raise the issue of ineffective assistance of trial counsel. As we have previously noted, the waiver rule may be relaxed where the facts relating to the claim do not appear in the original appellate record, where the defendant\u2019s arguments are based on the incompetency of the original appellate counsel, or where fundamental fairness so requires. We review defendant\u2019s claim that he received ineffective assistance of trial counsel based on these recognized exceptions to the waiver rule. Holman, 191 Ill. 2d at 210; People v. Tooles, 177 Ill. 2d 462, 464-65 (1997); Whitehead, 169 Ill. 2d at 371.\nIn Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), the United States Supreme Court set forth the following two-pronged test to determine whether a defendant has been denied effective assistance of counsel: (1) the defendant must show that counsel\u2019s representation fell below an objective standard of reasonableness, and (2) the defendant must show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. The defendant must overcome a \u201cstrong presumption\u201d that his counsel\u2019s conduct falls within the wide range of reasonable professional assistance and that the challenged conduct constitutes sound trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. If the ineffectiveness claim can be disposed of on the basis that the defendant did not suffer sufficient prejudice, a court need not consider whether counsel\u2019s performance was deficient. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Hall, 157 Ill. 2d 324, 337 (1993). Mindful that we are reviewing the trial court\u2019s dismissal of a first-stage post-conviction petition, we address each of defendant\u2019s allegations of ineffectiveness of counsel. Whether we find the allegations of ineffective assistance meritorious, not frivolous, and not positively rebutted is determined by a close review of the record.\nA. Motion to Suppress Statements\nDefendant asserts that although his trial counsel filed a motion to suppress statements, he failed to litigate the motion. Defendant argues that his statement to the police was involuntary, and if the motion had been litigated, it would have likely succeeded. Defendant contends that because the only evidence directly connecting him to the murder was his statement, its suppression would have prevented the State from prosecuting him for murder. Finally, defendant asserts that because \u201c[tjhere was no downside to running the motion,\u201d trial counsel\u2019s failure to do so \u201cevidence[d] no conceivable trial strategy.\u201d\nDefendant indicated in his petition that he was 15 years old at the time he was arrested and interrogated, and he asserted that he was never surrendered to a juvenile officer. Defendant alleged that he was interrogated for approximately 10 minutes before his mother arrived at the police station. According to his mother\u2019s affidavit, she learned of defendant\u2019s arrest through a codefendant\u2019s mother, and by the time she arrived at the police station, the police had already begun interrogating her son. Defendant\u2019s mother also stated that at the time of his arrest, defendant was \u201cvery impressionable and would quickly acquiesce to any show or display of authority.\u201d She indicated that defendant\u2019s acquiescence in giving his statement to the police \u201cwas due to his young age, lack of experience with the court system, natural tendency to submit to authority, marginal intelligence and the deception by the officers involved in his interrogation that his \u2018confession\u2019 would lead to his not being charged with the murder.\u201d Both defendant and his mother asserted in their affidavits that Officer McCann led them to believe that if defendant cooperated, he would not be charged. According to the affidavit executed by defendant\u2019s postconviction counsel, trial counsel\u2019s reason for not litigating the motion to suppress was because defendant\u2019s testimony at a hearing on the motion \u201cwould be \u2018inconsistent\u2019 with the police reports.\u201d\nAt trial, Officer McCann testified that he and his partner arrested defendant and codefendant Yaw Appiah at Appiah\u2019s house. While Officer McCann and his partner were still at Appiah\u2019s house, Appiah\u2019s mother called defendant\u2019s mother and informed her that the police were taking her to the police station with their sons. Appiah\u2019s mother asked defendant\u2019s mother come to the station. Appiah\u2019s mother accompanied her son and defendant to the station.\nAt the time of his arrest, defendant was 15 years old and had no prior contact with the criminal justice system. The record confirms that defendant\u2019s mother arrived at the police station sometime after defendant, but does not reveal how much later. Officer McCann\u2019s testimony that defendant\u2019s mother was present when he questioned defendant around 9:15 p.m. and that she was present also at 1 a.m. when the assistant State\u2019s Attorney questioned defendant does not affirmatively establish that she was present during the earlier points of the interview as alleged in the petition. At this point in the proceeding, the record does not positively rebut the allegation that defendant\u2019s mother was not present when the interrogation began and was not allowed to consult with defendant before the interrogation.\nThe opportunity to advise and counsel a juvenile before interrogation begins is a significant factor in determining whether a confession was given voluntarily. In re Lashun H., 284 Ill. App. 3d 545, 553 (1996). Procuring an incriminating statement from a juvenile in the absence of counsel requires great care to assure that the statement was not suggested or coerced and not the product of ignorance, fright, or despair, particularly since the coerciveness of the situation is enhanced when a juvenile is involved. Lashun H., 284 Ill. App. 3d at 550. The presence or absence of a parent is a factor to consider when determining the voluntariness of a confession; however, there is no per se rule that a parent or guardian be present. People v. Gardner, 282 Ill. App. 3d 209, 218 (1996). Conduct by law enforcement personnel that undermines the ability of a parent or concerned adult to confer with a juvenile before questioning is a significant factor in determining whether a confession was given voluntarily. Lashun H., 284 Ill. App. 3d at 553. The relevant inquiry is whether the absence of a parent or other adult interested in the juvenile\u2019s welfare contributed to the coercive circumstances of the interview. In re A.R., 295 Ill. App. 3d 527, 533 (1998).\nAdditionally, while the absence of a juvenile officer at the time of defendant\u2019s confession does not per se make the statement involuntary, it is a material factor. See A.R., 295 Ill. App. 3d at 533, 535. Here, the record reflects no youth officer was present. We note that where the State failed to take appropriate steps to ensure that a juvenile defendant had an opportunity to confer with an interested adult, either a parent or a youth officer, we have held that the police conduct rendered the confession inadmissible. See People v. R.B., 232 Ill. App. 3d 583, 593 (1992).\nIn considering whether a statement has been voluntarily given, our court looks at the \u201ctotality of the circumstances.\u201d In re G.O., 191 Ill. 2d 37, 54 (2000). Voluntariness is determined by whether the statement was made freely, voluntarily and without compulsion or inducement of any sort, or whether the defendant\u2019s will was overcome at the time of the confession. People v. Miller, 173 Ill. 2d 167, 181 (1996). Factors to consider include age, education, intelligence, duration of the interrogation, Miranda warnings, and evidence of physical threats or punishment. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 862, 93 S. Ct 2041, 2047 (1973). Further, relevant factors regarding voluntariness include emotional characteristics, previous experience with the\u2019criminal justice system, promises of leniency, and whether the confession was induced by police deception. People v. MacFarland, 228 Ill. App. 3d 107, 117 (1992). Here, the petition alleges that, during the course of the interrogation, Officer McCann led defendant and his mother to believe that, if he would admit involvement in the shooting, he would not be charged. The allegation that, police deception was used to induce the confession was not rebutted by the record.\nWe further note that defendant\u2019s trial counsel did in fact file a motion to suppress statements. Although trial counsel did not pursue the motion, the act of filing indicates that, at one point in time, trial counsel believed there was justification for such a motion. Trial counsel ordered transcripts of proceedings that covered seven dates from January 22, 1997, through June 19, 1997. The record of 36 additional court dates from August 18, 1993, through November 20, 1996, was not ordered. Pretrial matters, including withdrawing the motion to suppress, were disposed of during that time period. Defendant alleges the record that was not ordered by trial counsel \u201cwould have included information on why petitioner\u2019s trial counsel would have withdrawn the motion to suppress statements.\u201d The question before us is not whether defendant\u2019s statement to the police was voluntary. At this stage of the process, the question is whether the petition clearly sets forth a violation of petitioner\u2019s constitutional rights by alleging ineffective assistance of counsel for failure to litigate the motion to suppress.\nHere, it is not rebutted by the record that the coercive nature of the juvenile defendant\u2019s encounter with the police began immediately at Appiah\u2019s home, where Officer McCann took defendant into custody and then transported him in a squad car to the station. The petition alleges that for 10 minutes defendant was interrogated outside the presence of his mother. It is uncontested by this record that the police did not notify defendant\u2019s mother. She learned of defendant\u2019s arrest from Appiah\u2019s mother. Based on this record, defendant had no previous contact with the police. The intimidation inherent in this type of encounter was not mitigated by defendant\u2019s previous life experience. Nothing in the record indicates any prior experiences that would have given defendant the sophistication or insight as to how to conduct himself while being interrogated by the police in a murder case.\nThe record does not rebut the allegation that defendant was interrogated for approximately 10 minutes before the arrival of his mother, during which time Officer McCann told defendant that he would not be charged if he cooperated with the police and admitted to his involvement in the murder. This record does not rebut the allegation in the petition that defendant gave a statement to the police as the result of \u201chis young age, lack of experience with the court system, natural tendency to submit to authority, marginal intelligence and the deception by the officers involved in his interrogation that his \u2018confession\u2019 would lead to his not being charged with the murder.\u201d\nFor the reasons previously discussed, it is reasonable to conclude that after filing a motion to suppress statements, an attorney rendering effective assistance would have continued the effort to suppress defendant\u2019s statements on the basis that the confession was not voluntary. If counsel had succeeded in suppressing the statements, the trial court would not have had a factual basis for the accountability theory under which defendant was found guilty of murder. Trial counsel\u2019s alleged reason for not pursuing the motion to suppress\u2014 because defendant\u2019s testimony at a hearing on such a motion \u201cwould be \u2018inconsistent\u2019 with that which was in the police reports\u201d \u2014 does not demonstrate trial strategy. It is to be expected that the State and the defense would offer conflicting evidence on voluntariness. If trial counsel\u2019s explanation were accepted as sound trial strategy, there would be no basis to litigate any criminal motion. Witnesses for the State and the defense regularly contradict each other. Here, where the only evidence directly connecting defendant to the murder was his statement, we cannot say that the failure to litigate the motion to suppress was reasonable strategy that did not affect the outcome of the trial.\nSummary dismissal at the first stage of the postconviction process based on allegations of ineffective assistance of counsel for failure to litigate the motion to suppress was not warranted. The allegations are not positively rebutted by the record. Coleman, 183 Ill. 2d at 385. These allegations are neither frivolous nor patently without merit. Regarding these allegations, the petition should advance to the second stage of the postconviction process.\nB. Right to Testify\nDefendant contends that trial counsel was ineffective for causing him to involuntarily waive his right to testify by incorrectly advising him regarding this right. In his affidavit, defendant asserted that he relied upon trial counsel\u2019s advice in deciding whether to testify; that trial counsel persuaded him to give up his right to testify; and that trial counsel informed him that if he testified, his gang involvement would come out, but that it would not come out if he did not testify. Defendant further alleged that trial counsel informed him that if he testified contrary to what he supposedly said in the police reports, it would negatively affect his case, and that trial counsel never explained the right to testify in detail, but only discussed it \u201cbriefly on two or \u25a0 three occasions shortly before trial.\u201d Defendant\u2019s mother made the same assertions in her affidavit.\nUltimately, the decision whether to testify belongs to the defendant. People v. Enis, 194 Ill. 2d 361, 399 (2000). It is generally recognized that a defendant\u2019s prerogative to testify is a fundamental right, which only the defendant may waive; whether to exercise that right is not one of those matters that is considered a strategic or tactical decision best left to trial counsel. Jones v. Barnes, 463 U.S. 745, 751, 77 L. Ed. 2d 987, 993, 103 S. Ct. 3308, 3312 (1983); People v. Madej, 177 Ill. 2d 116, 146 (1997). However, the decision whether to take the stand and testify should be made with the advice of counsel. People v. Smith, 176 Ill. 2d 217, 235 (1997).\nDefendant claims that trial counsel\u2019s advice to him regarding testifying was incorrect. Defendant\u2019s gang affiliation was introduced into the case despite his silence at trial; therefore, trial counsel\u2019s alleged advice that defendant\u2019s gang involvement would not come out if defendant did not testify was erroneous. With this erroneous advice trial counsel allegedly provided ineffective assistance and caused defendant to waive his right to testify. At this point, we need not determine whether defendant would be entitled to relief on this claim. Instead, the question is whether the allegation that defendant\u2019s trial counsel was constitutionally ineffective for advising him not to testify based on erroneous legal analysis was frivolous, patently without merit, and rebutted by the record.\nThe State concedes in its brief, \u201cCertainly, if defendant had testified, his gang affiliation would have been exposed with detailed scrutiny under cross[-]examination.\u201d However, the State contends the dismissal of the petition should be affirmed because \u201cit is not likely that defense counsel told defendant that his gang affiliation would not come out as defendant admitted his affiliation in his statement.\u201d That argument is pure speculation, not supported by the record and directly contradicted by the allegations in the record. The State completely ignores the applicable test regarding summary dismissal, which is whether defendant\u2019s allegations are frivolous, patently without merit and rebutted by the record.\nThe alleged erroneous advice failed to satisfy the objective standard of reasonableness required by the first prong of the Strickland test. Under the second prong of the Strickland test, the record does not reflect a reasonable likelihood that defendant would not have waived his right to testify absent the erroneous legal advice. See, e.g., People v. Seaberg, 262 Ill. App. 3d 79, 83-84 (1994) (even though defendant did not state the nature or substance of his intended testimony, appellate court reversed summary dismissal of defendant\u2019s claim that he would have testified but for his attorney\u2019s erroneous advice); People v. Lester, 261 Ill. App. 3d 1075, 1079-80 (1994) (without consideration of the substance of defendant\u2019s potential testimony, appellate court reversed summary dismissal of defendant\u2019s claim that his attorney misled him into not testifying).\nWhether defendant would be entitled to relief on this postconviction claim is a separate matter not before the trial court at this initial stage. Substantive questions relating to the issues raised in the petition are not to be addressed at the first stage of the postconviction proceeding. The test is whether defendant\u2019s alleged deprivation of his constitutional rights is positively rebutted by the record. Defendant\u2019s allegations of ineffective assistance of counsel based on erroneous advice that misled him into waiver of his right to testify are not positively rebutted by the record. Coleman, 183 Ill. 2d at 385. Summary dismissal is not warranted because the petition\u2019s allegations of fact are not frivolous or patently without merit. 725 ILCS 5/122\u2014 2.1(a)(2) (West 1998). Regarding this issue, the petition should advance to the second stage of the postconviction process.\nC. Right to Jury Trial\nDefendant contends that trial counsel was ineffective for causing him to waive his right to a jury trial by advising him that a bench trial would be better because the judge owed trial counsel a favor and the judge would have information not available to a jury. The State argues that because defendant did not raise this issue on direct appeal, it is waived. We reject that argument because defendant\u2019s petition alleges that appellate counsel was ineffective for failing to raise the issue of ineffective assistance of trial counsel. We are mindful of the importance of the right to a jury trial, and fundamental fairness further supports our decision to review defendant\u2019s claim. Holman, 191 Ill. 2d at 210.\nDefendant argues that trial counsel was ineffective because the advice he received from his trial counsel regarding whether to waive his right to a jury trial was erroneous. Under the first prong of the Strickland test, the appropriate inquiry is whether trial counsel\u2019s advice fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Under the second prong, we must determine whether there exists a reasonable likelihood that defendant would not have waived his right to a jury trial in the absence of the alleged error. People v. Maxwell, 148 Ill. 2d 116, 142 (1992) (adapting Strickland test to claim of ineffective assistance involving waiver of jury for purposes of capital sentencing hearing). There is a strong presumption that the defendant\u2019s representation fell within a wide range of reasonable professional assistance and that the challenged conduct might be considered sound trial strategy. People v. Giles, 209 Ill. App. 3d 265, 269 (1991).\nThe right to a trial by jury is fundamental to the American criminal justice system. Duncan v. Louisiana, 391 U.S. 145, 149, 20 L. Ed. 2d 491, 496, 88 S. Ct. 1444, 1447 (1968). Both the United States Constitution and the Illinois Constitution provide for jury trials in criminal cases. U.S. Const, amends. VI, XIV; Ill. Const. 1970, art. I, \u00a7\u00a7 8, 13. Section 103 \u2014 6 of the Code of Criminal Procedure provides that every person accused of a crime has the right to a jury trial unless that right is '\u2018understanding^ waived by the defendant in open court.\u201d 725 ILCS 5/103 \u2014 6 (West 1998). The determination of whether this right has been validly waived does not rest on any precise formula but, rather, turns on the facts of each particular case. People v. Frey, 103 Ill. 2d 327, 332 (1984). Ultimately, the decision whether to waive a iury trial belongs to the defendant. People v. Segoviano, 189 Ill. 2d 228, 240 (2000).\nThe Illinois Supreme Court has not specifically required that the record \u201c \u2018affirmatively establish that the court advised defendant of his right to a jury trial and elicited his waiver of that right [citation], nor that7 the court or counsel advised defendant of the consequences of the waiver.\u2019 \u201d People v. Dockery, 296 Ill. App. 3d 271, 276 (1998), quoting Frey, 103 Ill. 2d at 332. The Illinois Supreme Court has concluded that if a defendant is present when the court and defense counsel discuss a jury trial waiver and the defendant does not object to the waiver, the defendant is deemed to have acquiesced in the waiver. People v. Sailor, 43 Ill. 2d 256, 260 (1969).\nHowever, the Illinois Supreme Court has also recognized the duty imposed on the courts \u201cof ensuring that a defendant\u2019s waiver of his right to a jury trial be made expressly and understanding.\u201d People v. Smith, 106 Ill. 2d 327, 334 (1985). We review defendant\u2019s jury waiver in this case based on whether the record reflects the waiver was made expressly and understandingly, thereby positively rebutting defendant\u2019s allegation that trial counsel caused him to waive jury by advising him that the judge owed him a favor and would have information not available to the jury.\nAt this stage of the proceeding all well-pled facts are to be taken as true unless positively rebutted by the record. Coleman, 183 Ill. 2d at 385. The reasons for waiving a jury, as alleged by defendant, would not constitute valid grounds for choosing to waive a jury. When defense counsel informs the court that his client waives a jury, it is the professional responsibility of defense counsel to insure that the waiver is knowingly and understandingly consented to by his client. By allegedly advising defendant that it would be better to take a bench trial because the judge owed him a favor and would have information not available to the jury, trial counsel would have been acting in a professionally unreasonable manner. Therefore, defendant has sufficiently alleged facts to establish deficient performance by trial counsel under the first prong of the Strickland test. Under the second prong, we find a reasonable likelihood that defendant would not have waived his right to a jury trial in the absence of the alleged deficient performance and erroneous advice of trial counsel. See Maxwell, 148 Ill. 2d at 142. Therefore, defendant has sufficiently alleged facts to demonstrate the prejudice prong of the Strickland test. Maxwell, 148 Ill. 2d at 142.\nThe trial judge did not address these allegations in his written order dismissing the petition. The trial court\u2019s admonitions, together with defendant\u2019s signature on the jury waiver, do not rebut the specific allegations in the petition. At no time during the admonition did the trial judge ask the defendant whether he had been promised anything in exchange for giving up his right to a jury trial. Trial counsel\u2019s alleged representation that the judge would have information not available to the jury is legally inaccurate, as the law is clear that a judge is presumed not to consider inadmissible matters.\nIn the context of the ineffective assistance claim, the issue to be determined is whether the advice given defendant prevented defendant from waiving his constitutional right to a jury trial voluntarily, knowingly, and understandingly. Defendant\u2019s allegations that trial counsel persuaded him to take a bench trial by promising that he had influence over the judge because the judge owed him a favor and that the judge would have more information in a bench trial are not rebutted by the record. Those allegations are neither frivolous nor patently without merit. While we take no position on defendant\u2019s ability to prove his ineffective assistance claim, we find his petition should advance to the second stage of the postconviction process.\nD. Meaningful Adversarial Testing of State\u2019s Case\nDefendant contends that trial counsel was ineffective because he abandoned his defense by failing to subject the prosecution\u2019s case to any meaningful adversarial testing in the following ways: (1) admitting defendant\u2019s accountability in the opening statement and the motion for directed verdict; (2) agreeing to incriminating stipulations; and (3) not challenging Officer McCann\u2019s testimony that a .357 Magnum handgun can fire .38 Special bullets. Relying on People v. Hattery, 109 Ill. 2d 449 (1985), defendant argues that because there was no effective representation by counsel in his case, prejudice may be presumed to have resulted from counsel\u2019s unprofessional errors and, therefore, we need not apply the two-pronged Strickland test.\nIn Hattery, defense counsel conceded his client\u2019s guilt to murder charges in the opening statement, did not introduce any evidence at trial, and did not make a closing argument to the jury. Hattery, 109 Ill. 2d at 458-59. Counsel in Hattery \u201ccompletely and unequivocally conceded defendant\u2019s guilt\u201d (People v. Williams, 192 Ill. 2d 548, 566 (2000)) and acted \u201cas a proponent for the prosecution\u201d (People v. Shatner, 174 Ill. 2d 133, 146 (1996)). In contrast, here, trial counsel extensively cross-examined State witnesses, introduced exhibits, argued at length in favor of a directed verdict, presented a closing argument during which he forcefully argued that defendant should be found not guilty, and argued a motion for a new trial or to vacate the finding of guilt. Defense counsel conceded what defendant had admitted to the police. However, he argued that defendant\u2019s statement was not sufficient evidence of guilt under a theory of accountability. Accordingly, the two-pronged Strickland test supplies the proper standard in this case. Williams, 192 Ill. 2d at 566-67.\n1. Opening Statement and Motion for Directed Verdict\nDefendant argues that during the opening statement and argument for directed verdict, trial counsel admitted defendant\u2019s accountability for Barron\u2019s murder. Defendant asserts that trial counsel\u2019s arguments were contrary to the testimony presented at trial that only one gun \u2014 an automatic \u2014 was fired at Barron. He also argues that counsel\u2019s statements subverted any argument against accountability and thus constituted an abandonment of defendant\u2019s case. The portions of the opening statement to which defendant objects are as follows:\n\u201cAs far as the evidence is, there were at least two guns that were potentially involved in shooting Mr. Barron. *** We know that at least four people left the presence of \u2014 or four people left the presence of [defendant] saying they were going to shoot some Folks. *** You will hear no evidence whatsoever that a gun, a .357 which [defendant] gave to one of the individuals had anything whatsoever to do with the killing. *** The bottom line is that you had a 15-year-old kid who has made some stupid choices four years ago.\u201d\nDefendant objects to the following statements made by trial counsel during argument for directed verdict: \u201cI think it\u2019s reasonable to believe that all three of the characters out on the street had weapons,\u201d and \u201c[D]id [defendant] stupidly encourage these people? You bet he did; of course, he did.\u201d\nDefendant presents trial counsel\u2019s statements out of context. A full reading of trial counsel\u2019s arguments reveals that he sought to show that defendant\u2019s .357 gun was not used during the shooting by asserting that the only guns used to shoot Barron were a 9-millimeter and a .38 Special and that there was no evidence that defendant\u2019s gun was loaded with .38-caliber ammunition. Defense counsel sought to convince the trial court that the evidence was insufficient to prove defendant guilty of murder beyond a reasonable doubt under a theory of accountability. While this strategy was ultimately unsuccessful, it was nonetheless reasonable strategy. Based on the record, we cannot say the trial court erred in finding frivolous and patently without merit defendant\u2019s allegations that trial counsel\u2019s opening statement and argument for directed verdict failed to subject the State\u2019s case to meaningful adversarial testing. These allegations are rebutted by the record.\n2. Stipulations\nDefendant argues that trial counsel was ineffective for entering into two stipulations. First, defendant asserts that when counsel stipulated that the bullet recovered from Barron\u2019s body was a .38 Special caliber bullet, he allowed the inference that defendant\u2019s gun was used during the shooting. Second, defendant alleges that by stipulating that the cause of death was multiple gunshot wounds, trial counsel allowed the inference that a bullet fired from defendant\u2019s gun was the cause of Barron\u2019s death. Defendant contends counsel was ineffective for failing to inform defendant of the nature and effect of these stipulations. Defendant maintains that these topics were not appropriate for stipulations because they were not foundational issues.\nThe mere use of stipulations does not establish ineffective assistance of counsel. People v. Coleman, 301 Ill. App. 3d 37, 46 (1998). An incorrect or erroneous stipulation may establish the first prong of the Strickland test. See Coleman, 301 Ill. App. 3d at 47; People v. Shepherd, 242 Ill. App. 3d 744, 748 (1993). However, in order to establish that counsel was ineffective for entering into a stipulation, a defendant must still satisfy the prejudice prong of Strickland and overcome the strong presumption that counsel\u2019s actions arose from trial strategy. See Coleman, 301 Ill. App. 3d at 47; Shepherd, 242 Ill. App. 3d at 748.\nHere, trial counsel\u2019s stipulations were not incorrect or erroneous. Trial counsel may have considered the stipulations to be preferable to the possibility of lengthy and detailed testimony from the medical examiner and the firearms examiner, which could have highlighted the stipulated evidence and made it appear more important than it was. See People v. Penrod, 316 Ill. App. 3d 713, 725 (2000). Moreover, defense counsel argued that there was no evidence that defendant\u2019s .357-caliber handgun was loaded with .38-caliber bullets. Based on the record, we cannot conclude that the trial court erred in finding frivolous and patently without merit defendant\u2019s allegations that trial counsel was ineffective for entering into the previously discussed stipulations.\n3. Testimony of Officer McCann\nDefendant alleges trial counsel failed to engage in meaningful adversarial testing of the State\u2019s evidence that defendant\u2019s gun was used in the offense. Defendant argues that trial counsel was ineffective when he failed to object to the relevancy of or require the State to lay a foundation for Officer McCann\u2019s opinion that a .357 Magnum handgun is capable of firing .38 Special caliber bullets. That approach left the conclusion that defendant\u2019s gun was used in the shooting unchallenged. Defendant suggests that trial counsel should have inquired whether the bullet in fact recovered from Barron\u2019s body could have been fired from a .357 Magnum handgun or a 9-millimeter automatic and whether a 9-millimeter gun could fire a .38-caliber bullet. Defendant asserts that by failing to challenge Officer McCann\u2019s opinion, trial counsel in effect \u201cstipulated\u201d to testimony that was crucial in linking defendant with Barron\u2019s murder. Further, defendant argues that lack of investigation and cross-examination on this issue constituted an abandonment of the case by trial counsel.\nThe significance of the evidence regarding the firing capabilities of a .357 Magnum handgun was recognized in our original Rule 23 order, which affirmed the. defendant\u2019s murder conviction. We indicated that \u201c[ajlthough there was no conclusive evidence that the bullet recovered was in fact fired from defendant\u2019s handgun, the evidence concerning the capabilities of a .357 Magnum, when considered together with the other evidence of defendant\u2019s involvement in this offense, tends to establish that the .38 caliber bullet found in the victim\u2019s body was fired from defend\u00e1nt\u2019s gun.\u201d People v. Smith, slip order at 6. Moreover, it was the testimony of Officer McCann which provided evidence that a .357 Magnum handgun was capable of firing .38-caliber bullets. On appeal in support of the theory that the evidence was insufficient to prove defendant guilty beyond a reasonable doubt, appellate counsel argued that Officer McCann\u2019s testimony that a .357 Magnum handgun was capable of firing .38-caliber bullets was not probative of the issue because the testimony was irrelevant and McCann was never qualified as an expert. McCann\u2019s testimony that the .38 Special bullet recovered from the murder victim\u2019s body could be fired from the gun that, in his statement, defendant admitted he gave to Ronald Ware so he could go shoot some rival gang members was crucial evidence corroborating defendant\u2019s statement and connecting defendant to the murder.\nIn reviewing the postconviction petition, the trial judge concluded that defendant\u2019s argument regarding the failure of trial counsel to object to McCann\u2019s testimony was raised on appeal and therefore the trial judge refused to consider this allegation based on res judicata. While appellate counsel attempted to argue this issue on appeal, we did not address the merits of the argument because we found that \u201cdefendant waived his objection to the admission of this evidence by failing to object to the testimony at trial and failing to raise the issue in a post-trial motion.\u201d Slip order at 6. Therefore, rejection of this allegation by the trial judge based on res judicata was error. We did not address the merits of this issue on appeal precisely because trial counsel failed to object to McCann\u2019s testimony at trial and failed to raise the issue in a posttrial motion.\nThis record does not positively rebut the allegation that trial counsel\u2019s failure to cross-examine Officer McCann or object to Officer McCann\u2019s testimony was not reasonable trial strategy. If counsel had succeeded in challenging this evidence, the trial court would not have had corroboration for the defendant\u2019s incriminating statement. Moreover, based on this record we cannot say that defendant was not prejudiced by trial counsel\u2019s failure to challenge Officer McCann\u2019s qualifications or testimony. Summary dismissal of the petition in the context of ineffective assistance of counsel for failure to challenge this testimony was not warranted. The allegations are neither frivolous nor patently without merit. Regarding these allegations the petition should advance to the second stage of the postconviction process.\nE. Representation By Defense Counsel Was a Sham\nDefendant contends that representation by defense counsel was a sham and a farce. In support of that argument he attaches an affidavit executed by postconviction counsel alleging trial counsel\u2019s failure to investigate. In his affidavit, postconviction counsel stated that defendant\u2019s trial counsel told him that he (1) conducted no investigation for defendant\u2019s case; (2) did not speak with the medical examiner regarding whether the bullet found in the victim\u2019s body was the cause of death; (3) did not discuss with the firearms examiner the basis for his identification of the bullet as a . 38-caliber bullet, as he had known the examiner from \u201cway back\u201d and accepted his opinion on that basis; (4) did not pursue a motion to suppress statements because defendant\u2019s testimony at such a motion \u201cwould be \u2018inconsistent\u2019 with that which was in the police reports\u201d; and (5) did not order transcripts before January 21, 1997, because those proceedings consisted of routine continuances.\nWhether defense counsel\u2019s failure to investigate is ineffective assistance is determined by the value of the evidence that was not presented at trial and the closeness of the evidence that was presented. People v. Dillard, 204 Ill. App. 3d 7, 10 (1990). In People v. House, 141 Ill. 2d 323, 386 (1990), trial counsel failed to investigate evidence that would have established the foundation for testimony that the victim described someone other than defendant at the scene. Based on the closeness of the evidence, the Illinois Supreme Court found that the failure to conduct such investigation and present evidence was ineffective assistance of counsel that likely affected the outcome of the case. House, 141 Ill. 2d at 386. In People v. Garza, 180 Ill. App. 3d 263 (1989), we found ineffective assistance of counsel that was outcome determinative when defense counsel failed to call alibi witnesses or to elicit inconsistencies from the State\u2019s only eyewitness who linked defendant to the crime.\nAt this point in the proceeding, we conclude that defense counsel\u2019s representation, as alleged, falls below the objective standard of reasonableness required under the first prong of the Strickland test. The firearms evidence as developed through Officer McCann\u2019s testimony, together with the defendant\u2019s statement, was critical in linking defendant to the murder. Based on this record we cannot say the alleged failure by trial counsel to investigate these matters was not prejudicial. For the reasons previously discussed, the record does not positively rebut defendant\u2019s claims that his trial counsel was ineffective. Coleman, 183 Ill. 2d at 385. These allegations are not frivolous or patently without merit. Therefore the case should advance to the second stage of the postconviction process.\nII. Ineffective Assistance of Appellate Counsel\nDefendant contends that his petition stated a meritorious claim that appellate counsel was ineffective for proceeding without a complete transcript from the trial court, failing to raise the issue of ineffective assistance of trial counsel, and failing to raise the issue of plain error with regard to Officer McCann\u2019s testimony. The two-pronged Strickland test applies to claims of ineffective appellate counsel. People v. Caballero, 126 Ill. 2d 248, 269-70 (1989). A defendant who claims that appellate counsel was ineffective for failing to raise an issue on appeal must allege facts showing such failure was objectively unreasonable and that counsel\u2019s decision prejudiced defendant. Enis, 194 Ill. 2d at 377. Unless the underlying issue has merit, a defendant cannot be considered to have suffered prejudice from appellate counsel\u2019s failure to brief that issue. People v. Childress, 191 Ill. 2d 168, 175 (2000).\nFor the reasons previously discussed, the meritorious underlying allegations that appellate counsel should have raised on direct appeal regarding ineffective assistance of trial counsel include the following: (1) the failure to litigate the motion to suppress the statement; and (2) the failure to engage in meaningful adversarial testing of Officer McCann\u2019s testimony and the firearms evidence that linked defendant to the murder. At this stage of the proceeding, we conclude that the failure to raise these issues on direct appeal was objectively unreasonable. Caballero, 126 Ill. 2d at 269-70. If appellate counsel had raised these issues on direct appeal, we cannot say there is no reasonable probability that the result of the appeal would have been different. Caballero, 126 Ill. 2d at 269-70.\nMoreover, the facts surrounding these issues are contained in the trial record, which appellate counsel had the responsibility to review for purposes of appeal. Defendant alleged that he was denied his right to effective assistance of appellate counsel in that appellate counsel represented defendant without a full transcript of the trial record. Regarding that allegation, the trial court concluded in its written order, \u201cIn this case, this court does not consider appellate counsel\u2019s failure to order a full transcript unreasonable and/or prejudicial conduct, especially since appellate counsel was also the trial counsel and was presumably well versed with the facts of the case.\u201d The court further stated when addressing the issue of ineffective assistance of trial counsel that \u201csince the same attorney who handled the trial also handled the appeal, the issues of ineffective assistance of trial counsel will be examined in the context of the ineffective assistance of appellate counsel claim.\u201d This factual basis for the trial court\u2019s rejection of the allegations of ineffective assistance of trial and appellate counsel was in error. Trial and appellate counsel were not the same. Trial counsel was a private attorney and appellate counsel was the Cook County public defender\u2019s office.\nThe trial court erred in summarily dismissing defendant\u2019s petition. The allegations that appellate counsel was ineffective for failing on direct appeal to pursue trial counsel\u2019s ineffective assistance regarding litigating the motion to suppress and challenging the firearms evidence are neither frivolous nor patently without merit. These allegations are not positively rebutted by the record and the petition should advance to the second stage of the postconviction process.\nIII. Different Trial Judge on Remand\nDefendant\u2019s final contention is that a different trial judge should consider this petition on remand. We take judicial notice that the trial judge has retired from the bench; therefore, a different judge will consider this petition on remand. See In Circuit Court, Chi. Daily L. Bull., May 23, 2001, at 3 (announcing Judge Bolan\u2019s retirement effective May 31, 2001); People v. Davis, 65 Ill. 2d 157, 165 (1976); see also M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 202.2, at 56 (6th ed. 1994) (\u201cAlthough not generally known, matters may be so capable of verification as to be beyond reasonable controversy and hence proper subjects of judicial notice\u201d).\nCONCLUSION\nWe conclude for the reasons previously discussed that defendant\u2019s petition was not properly dismissed at the first stage of the postconviction proceeding. The record does not support the conclusion that defendant\u2019s claims of ineffective assistance of trial and appellate counsel are positively rebutted by the record. Summary dismissal is not warranted because the petition\u2019s allegations of fact are not frivolous or patently without merit. 725 ILCS 5/122 \u2014 2.1(a)(2) (West 1998). Our holding is limited to the specific issue before us as to whether the circuit court erred in dismissing defendant\u2019s petition at the first stage of the postconviction process. Therefore, the petition advances to the second stage. The State will be allowed to file responsive pleadings (725 ILCS 5/122 \u2014 5 (West 1998)). At the second stage the circuit court must determine whether the petition and any accompanying documentation make a substantial showing of a constitutional violation. Coleman, 183 Ill. 2d at 381. If a substantial showing is not made, the petition is dismissed. If a substantial showing of a constitutional violation is made, then the petition advances to the third stage, where the circuit court conducts an evidentiary hearing. 725 ILCS 5/122 \u2014 6 (West 1998); Gaultney, 174 Ill. 2d at 418. We note that if the trial court dismisses the petition or denies postconviction relief at any stage, the defendant may appeal.\nThe recommendation of Justice Fitzgerald in his special concurring opinion to People v. Edwards will well serve the trial bench and bar who struggle on a daily basis with balancing justice and judicial economy when interpreting and complying with the pleading requirements for first-stage postconviction petitions:\n\u201cWhere doubt exists regarding dismissal at the first stage, the trial court should not hesitate to allow the claim to proceed to the second stage, where counsel may amend the petition and craft a more proper pleading for the court\u2019s review. If the petition is dismissed at the second stage of the proceedings, a reviewing court is presented with more adequately pleaded facts. Conversely, if the defendant is granted an evidentiary hearing, the defendant will obtain that which by law is his right. At present, this solution serves both the ends of justice and judicial economy.\u201d Edwards, 197 Ill. 2d at 270 (Fitzgerald, J., specially concurring).\nFor the reasons stated above, the judgment of the trial court is reversed and we vacate the dismissal of the postconviction petition. The cause is remanded with directions to reinstate defendant\u2019s petition for further consideration under the second stage of the postconviction proceeding.\nReversed and remanded with directions.\nGALLAGHER, P.J., and O\u2019BRIEN, J., concur.", "type": "majority", "author": "JUSTICE O\u2019HARA FROSSARD" } ], "attorneys": [ "Brucar, Conger & Yetter, P.C., of Glen Ellyn (Wayne E. Brucar, of counsel), for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Mary L. Boland, and Linda Halperin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY SMITH, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1 \u2014 00\u20141341\nOpinion filed December 7, 2001.\nBrucar, Conger & Yetter, P.C., of Glen Ellyn (Wayne E. Brucar, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Mary L. Boland, and Linda Halperin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0831-01", "first_page_order": 849, "last_page_order": 874 }