Third Division

								    Filed: March 31, 2003

No. 1-01-1453

THE PEOPLE OF THE STATE OF ILLINOIS, 	) 	Appeal from the 

								) 	Circuit Court of 

			Plaintiff-Appellee,		) 	Cook County.

								)

v.								) 

		   						)

LEON BLAIR,						) 	Honorable 

								) 	Leo E. Holt,

			Defendant-Appellant.	) 	Judge Presiding.

	JUSTICE HOFFMAN delivered the opinion of the court:

	The defendant, Leon Blair, appeals from an order of the

circuit court summarily dismissing his petition for relief under

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)).  For the reasons which follow, we reverse and remand

this cause to the circuit court with instructions.

	Following a jury trial, the defendant was convicted of first

degree murder and sentenced to a prison term of 55 years. 

Thereafter, both the defendant and his trial counsel filed motions

for a new trial.  The defendant's pro so motion alleged that, during trial, his attorney became physically ill and failed to ask

for a continuance, and that counsel's illness "may have caused her

to inadequately represent" him.  The court denied both motions, and

the defendant filed a timely notice of appeal. 

	The Cook County Public Defender was appointed to represent the defendant on his direct appeal.  However, after concluding that

there were no issues of merit warranting argument, the Public

Defender moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967).  The defendant

filed a response, arguing, inter alia, that his trial counsel was ineffective for failing to object to certain gang-related evidence

introduced at trial.  The defendant further claimed that his trial

counsel neglected his case because she was "obviously medicated"

during trial due to an illness, making her "often incoherent."

	This court granted appellate counsel's motion to withdraw and

affirmed the defendant's conviction and sentence.  People v. Blair, No. 1-98-4119 (2000) (unpublished order under Supreme Court Rule

23).  Although we addressed the merits of the defendant's first

claim, we concluded that the latter claim was "either unsupported

by the record or based on matters outside the record."      

	On January 8, 2001, the defendant filed a pro se post- conviction petition, setting forth several claims of ineffective

assistance of counsel both at trial and on direct appeal. 

Specifically, the defendant asserted that his trial counsel had

instructed him to decline argument on his pro se motion for a new trial, which resulted in the denial of the motion.  The defendant

alleged that, had he not relied on the erroneous advice of counsel,

he would have argued to the court that his attorney was suffering

from a physical illness and was under medication which impaired her judgment during trial.  According to the defendant, counsel was

incoherent on several occasions when she visited with him in his

holding cell outside of the courtroom.  Further, the defendant

maintained that counsel was distracted during trial and was "merely

just there going through the motions of representation."  The

defendant alleged that his attorney failed to properly prepare for

trial, as she presented limited argument in support of a motion to

suppress his written statement; failed to present evidence that he

was under the influence of alcohol and marijuana in support of his

self-defense claim; and introduced irrelevant and prejudicial gang-

related evidence at trial.  Along with these claims, the defendant

also asserted that his appellate counsel was ineffective for

failing to raise the foregoing issues of ineffective assistance of

trial counsel on direct appeal, even though he had asked counsel to

do so.  In this regard, the defendant stated that, by filing a

motion to withdraw pursuant to Anders, appellate counsel in effect waived his right to raise issues of substantial constitutional

violations.

	The circuit court summarily dismissed the defendant's post-

conviction petition, stating as follows:

		"The Court has considered the petition, the orders

of the appellate court, and the trial record, and being

fully advised find [sic]:  One, the issues sought to be raised are res judicata or waived.

		Wherefore, pursuant to the provisions of 725 ILCS 5/122.2 the petition is dismissed."

The circuit court's written order reflects the same grounds for its

summary dismissal of the petition.  The defendant now appeals.

	In addition to his arguments addressing the merits of the

circuit court's summary dismissal of his post-conviction petition,

the defendant also argues for the first time on appeal both that

Public Act 83-942, which amended the Act to permit the summary

dismissal of a petition prior to the appointment of counsel,

violates the single subject clause of the Illinois Constitution

(Ill. Const. 1970, art. IV, § 8(d)), and that his mittimus should

be corrected to reflect the number of days for which he is entitled

to credit for time spent in custody.  We need not address the

substantive issues raised by the defendant, however, since we agree

with his assertion that a circuit court may not summarily dismiss

a post-conviction petition on the grounds of res judicata or waiver.

	In People v. McCain, 312 Ill. App. 3d 529, 727 N.E.2d 383 (2000), aff'd, People v. Boclair, 202 Ill. 2d 89, ___ N.E.2d ___ (2002), the Fifth District of the Appellate Court held that a post-

conviction petition should not be dismissed as untimely or on the

basis of waiver or res judicata at the summary dismissal stage.  The supreme court granted leave to appeal in McCain and reviewed that decision, along with two other consolidated cases, in People v. Boclair, 202 Ill. 2d 89, ___ N.E.2d ___ (2002).  The Boclair court held that a circuit court may not summarily dismiss a petition based on untimeliness.  The court looked at the specific

language of section 122-2.1(a)(2) of the Act (725 ILCS 5/122-

2.1(a)(2) (West 2000)), and concluded that the circuit court may

dismiss a post-conviction petition at the first stage "only if the petition is deemed to be 'frivolous or *** patently without

merit'". [Emphasis added] Boclair, 202 Ill. 2d at 100.  The Boclair court reasoned, in part, that "[i]f a petition is untimely that

does not necessarily mean that [it] lacks merit."  Boclair, 202 Ill. 2d at 101.  Although the Boclair court did not address the issue of whether a post-conviction petition may be dismissed on

grounds of res judicata or waiver, it did affirm the McCain court's decision.  As we recently held in People v. McGhee, No. 1-01-0766, slip op. at 4 (March 19, 2003), we believe that the analysis the

supreme court employed in Boclair is equally applicable to first stage dismissals based on grounds of waiver or res judicata.  In McGhee, we concluded that "[l]ike timeliness, the doctrines of waiver and res judicata do not address the question of whether a claim is frivolous or without merit; rather they constitute

procedural bars to a defendant's right to prevail on a claim,

regardless of its substantive merit."  McGhee, slip op. at 6.  Accordingly, we follow our decision in McGhee and hold that the circuit court's summary dismissal of a defendant's post-conviction

petition cannot be affirmed on the grounds that the claims raised

in the petition have been waived or are barred by the doctrine of res judicata.  McGhee, slip op. at 7.

	The State argues that, because this court may affirm the

circuit court's decision on any ground in the record, we may still

address the merits of the defendant's petition and affirm the

circuit court's summary dismissal order if we find the petition to

be frivolous or patently without merit.  We acknowledge that, in

the past, we have exercised our plenary power to review the

sufficiency of a post-conviction petition in circumstances where

the circuit court had based its decision to summarily dismiss the

petition on grounds of res judicata and waiver.  When we did so, however, the circuit court had also found the petition to be

frivolous and without merit.  See McGhee, No. 1-01-0766, slip op. at 7.  In this case, the circuit court never addressed the merits

of the claims raised in the defendant's petition, and we deem it

inappropriate to address the issue for the first time on appeal. 

Our conclusion in this regard is consistent with the procedure

employed in McCain, where the court expressly noted that the circuit court did not make a finding that the defendant's petition

was frivolous or patently without merit, and remanded the case to

the circuit court with instructions that it docket the petition for

further proceedings.  McCain, 312 Ill. App. 3d at 531. 

	For the foregoing reasons, we reverse the summary dismissal of

the defendant's post-conviction petition and remand this cause to

the circuit court with instructions that it docket the petition for

consideration in accordance with sections 122-4 through 122-6 of

the Act. 

	Reversed and remanded with instructions.

	SOUTH, Pjl.J>., and HALL, J., concur.