FOURTH DIVISION

									MARCH 31, 2003

1-01-1122

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

								)	Circuit Court of

		Respondent-Appellee,		)	Cook County.

								)

	v.							)	

								)

ANTHONY ADAMS,					     )	Honorable

								)	James B. Linn,

		Petitioner-Appellant.		)	Judge Presiding.

	JUSTICE HARTMAN delivered the opinion of the court:

	Following a bench trial, petitioner Anthony Adams was found guilty of first-degree murder, upon the principle of

accountability, for the shooting death of Clifford Ray and

sentenced to 30 years in prison.  Petitioner appealed contending

that: (1) the circuit court abused its discretion in granting the

State’s request for an extension of the speedy trial term in order

to procure a witness; (2) he was deprived of effective assistance

of counsel when defense counsel failed to move for the dismissal of

the charges based on speedy trial grounds; and (3) the State failed

to prove him guilty beyond a reasonable doubt.  On December 30,

1999, his conviction was affirmed.  People v. Adams, No. 1-97-4313 (December 30, 1999) (unpublished order under Supreme Court Rule

23).  

	On July 24, 2000, petitioner filed a pro se post-conviction petition which alleged that: (1) the State failed to prove that he

had “specific concurrent intent”; (2) the circuit court erroneously

restricted his right to cross-examine a witness; and (3) he

received ineffective assistance of counsel in that his trial attorneys did not prepare adequately for trial, did not prepare an

intelligent defense, did not assess properly the strength of the

State’s case, did not prepare or call petitioner to testify, did

not object to the State’s extension motion, did not keep an

accurate calculation of the trial term, did not move to dismiss the

charges based on speedy trial grounds, and did not file a severance

motion.  The half sheet indicates that the petition was summarily

dismissed on September 1, 2000.  Petitioner claims he never

received notice of that dismissal.  On December 5, 2000, petitioner

filed an “amendment to post conviction petition” reiterating only

his argument that defense counsel was ineffective for failing to

move to dismiss the charges based on speedy trial grounds, which

was denied on December 13, 2000.  Petitioner unsuccessfully moved

for reconsideration of the denial of his post-conviction petition. 

	On appeal, petitioner contends that the court erred in

summarily dismissing his petition where the dismissal was not until

four months after the filing of the petition in violation of

section 122-2.1 of the Post-Conviction Hearing Act (the Act) (725

ILCS 5/122-2.1 (West 2000)).  He also claims that he set forth the

gist of a constitutional claim when he alleged that his trial

counsel was ineffective for failing to prepare and present his case

properly.  	

	I

	Petitioner first contends that the summary dismissal of his

petition four months after the original filing violated section

122-2.1(a) of the Act (725 ILCS 5/122-2.1(a) (West 2000), which requires the circuit court to examine and rule upon a post-

conviction petition within 90 days after the petition has been

filed and docketed.  The 90 day period set forth in section 122-

2.1(a) is mandatory.  People v. Porter, 122 Ill. 2d 64, 521 N.E.2d 1158 (1988) (Porter); People v. Smith, 312 Ill. App. 3d 219, 726 N.E.2d 776 (2000).    

	According to petitioner he originally filed his petition on

July 24, 2000.  He argues that "the same pro se petition [the July

24 petition] was summarily denied on December 13, 2000."  The

record makes clear, however, that the July 24 petition was

summarily dismissed on September 1, 2000, well within the 90 day

time requirement.1  Without merit is petitioner's claim that "no evidence exists that the petitioner sent in an additional petition,

just that it was docketed again in December 2000."  Petitioner's

handwritten "amendment to post-conviction petition" was notarized

on November 27, 2000, received on December 4, 2000, and filed on

December 5, 2000.  It was this amended petition that was denied on

December 13, 2000.  

	As to petitioner's claim that he never was notified of the

September 1, 2000 dismissal, nothing in the record indicates that

such notice was ever sent to petitioner.  Section 122-2.1(a)(2)

also provides: “[i]f 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.  Such order of dismissal is a final judgment

and shall be served upon the petitioner by certified mail within 10

days of its entry.”  725 ILCS 5/122-2.1(a)(2) (West 2000) (section

122-2.1(a)(2)). 

	The State argues that the notice provision is not mandatory,

but directory and , t.  Therefore, failure to comply with the provision

does not require reversal.  In support of this contention the State

cites Porter where the supreme court found that the provision of the Act requiring the dismissal of a petition to be in a written

order specifying the findings of fact and conclusions of law, was 

not mandatory.  The court found that an interpretation of section

122-2.1 as to the entry of a written order and its contents as

mandatory would violate the doctrine of separation of powers.  The

court also noted that “the statute merely directs that the court’s

written order specify its findings of fact or conclusions of law in

order to facilitate appellate review of the court’s dismissal.” 

Porter, 122 Ill. 2d at 81-82.  

	An interpretation of the notice provision of section 122-

2.1(a)(2) as mandatory does not pose a similar separation of powers

problem.  Moreover, unlike the written order requirement, the

notice requirement is not for the benefit of the reviewing court; rather, the purpose is to protect the petitioner’s right to appeal. 

	In People v. Redmond, 328 Ill. App. 3d 373, 767 N.E.2d 838 (2002) (Redmond), the Second District found that the notice provision of section 122-2.1(a)(2) was mandatory.  The court noted

that section 122-2.1(a)(2) clearly provides that a petitioner

“shall” be served with the dismissal order by certified mail within

10 days of the entry of the order.  The word “shall” generally is

indicative of mandatory intent.  Mandatory intent also is indicated

where a statute prescribes the result that will occur if the

specified procedure is not followed.  Porter, 122 Ill. 2d at 85.  The Act expressly provides that if a petition is not dismissed

pursuant to section 122-2.1, it must be docketed for further

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

the Act (725 ILCS 5/122-4 - 5/122-6 (West 2000)).  725 ILCS 5/122-

2.1(b) (West 2000).  The court held that “the failure to serve

defendant with the order dismissing his petition within the time

frame mandated by section 122-2.1(a)(2) constituted a failure to

comply with the statute and rendered the trial court’s order of

dismissal void.”  Redmond, 328 Ill. App. 3d at 378.  Therefore,  because the petition was not dismissed within the statutorily

mandated 90  days, the court vacated the dismissal and remanded for

further consideration of the petition under sections 122-4 through

122-6 of the Act (725 ILCS 5/122-4 - 122-6 (West 2000)).  The Second District did not consider the substance of the defendant's petition nor did it address the State's argument that because the

post-conviction petition was meritless, a remand for further

proceedings would be an unnecessary waste of judicial resources.

	As in Redmond, petitioner's failure to receive timely notice of the September 1, 2000 dismissal of his petition makes this case

a candidate for remand for further proceedings under the Act. 

Unlike Redmond, however, the substance of the petition and the amendment to the petition reveal that remand is not necessary under

the facts of this case because the issues raised are determinable

as a matter of law.  The original petition and the "amendment to

post-conviction petition" raise similar issues which, as discussed

more fully under point II, are either waived or res judicata.  Under such circumstances, remand for further proceedings in this

case would constitute an unnecessary waste of judicial resources.

	II

	Petitioner contends that he set forth the gist of a

constitutional claim when he alleged that his trial counsel was

ineffective for failing to prepare and present his case properly,

specifically, that he failed: (1) to prepare and advise petitioner

to testify at trial; (2) to object to the State’s motion for an

extension of the speedy trial term in order to procure the

testimony of a material witness; (3) to file a motion to dismiss

the indictment based on speedy trial grounds; and (4) to file a

motion to sever his trial from that of his co-defendants.

	To prevail on a claim of ineffective assistance of trial

counsel in a post-conviction petition, a defendant must show that:

(1) counsel's representation fell below an objective standard of

reasonableness and (2) counsel’s error prejudices the defendant in

that but for counsel's shortcomings, the outcome of the proceeding

would have been different.  People v. Stewart, 141 Ill. 2d 107, 565 N.E.2d 968 (1990);  Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).  In post-conviction

proceedings, all issues actually decided on direct appeal are res judicata, and all those which could have been presented but were not are deemed waived.  People v. Kitchen, 189 Ill. 2d 424, 727 N.E.2d 189 (1999) (Kitchen).

	Petitioner argues that he was denied effective assistance of

counsel because his trial counsel failed to prepare and advise

petitioner to testify at trial.  Although not raised specifically

in his appellate brief now before this court, in his post-

conviction petition, petitioner also made the related claim that

his counsel was ineffective because he failed to assess properly

the strength of the State's case and therefore misadvised

petitioner that his testimony was not needed.  These arguments are

waived, as they could have been raised on direct appeal but were

not.  Kitchen, 189 Ill. 2d at 432.  Waiver aside, the decision whether to testify in one's own behalf ultimately belongs to the

defendant.  People v. Enis, 194 Ill. 2d 361, 743 N.E.2d 1 (2000) (Enis); People v. Ramey, 152 Ill. 2d 41, 604 N.E.2d 275 (1992).  Nothing in the present record, including petitioner's affidavit or

the affidavits of Felicia King and Julia Johnson, demonstrates that

petitioner, at any time, advised counsel of his desire or intention

to testify.  sSignificantly, Further, when admonished by the circuit court

regarding his absolute right to testify, petitioner responded indicated that

he had chosen to exercise his right to remain silent.  In Enis, the supreme court found that where the defendant failed to inform the

circuit court that he wished to testify, he "acquiesced in

counsel's view that defendant should not take the stand" and "[i]n

the absence of a contemporaneous assertion by defendant of his

right to testify, the trial court properly rejected this post-

conviction claim."  Enis, 194 Ill. 2d at 399-400.  

	Petitioner's arguments that his trial counsel was ineffective

for failing to (1) object to the State's extension motion and (2)

move for dismissal of the charges based on speedy trial grounds are

res judicata.2  Kitchen, 189 Ill. 2d at 432.  On direct appeal,  this court found that the circuit court did not abuse its

discretion in granting the State’s extension motion.  This  court

further considered and rejected petitioner’s argument that he was 222deprived of effective assistance of counsel when defense counsel

failed to move for the dismissal of the charges based on speedy

trial grounds.  Even though defendant did not raise the extension motion argument in the form of ineffective assistance of counsel in

his direct appeal, principles of res judicata still apply.  See People v. Thomas, 164 Ill. 2d 410, 647 N.E.2d 983 (1995) (recognizing the ease with which a petitioner may evade the

operation of waiver and res judicata by couching his claims in the context of ineffective assistance and reiterating the rule that a

petitioner cannot obtain relief under the Act by simply "rephrasing

previously addressed issues in constitutional terms."). 

	Petitioner’s claim that he was denied effective assistance of

counsel when defense counsel failed to file a motion to sever

petitioner’s case from that of his co-defendants is waived because

it could have been raised on direct appeal and was not.  Kitchen, 189 Ill. 2d at 432.  Waiver aside, the trial transcript indicates

that motions for severance were made and granted.  Moreover, the

trial judge stated that "[t]hese are bench trials and I will

consider appropriate matters only to appropriate people."

	Although not specifically raised in the instant appeal,

petitioner claimed in his petition below that his constitutional

rights were violated because he received ineffective assistance of

counsel in that his trial attorneys did not prepare adequately for

trial, did not prepare an intelligent theory of defense instead allowing petitioner's speedy trial term to expire as a defense, and

failed to present any evidence oin petitioner's behalf to establish

that he was not accountable for co-defendants' actions.  These

issues are waived as they could have been raised on direct appeal,

but were not.  Kitchen, 189 Ill. 2d at 432.  Waiver aside, decisions by trial counsel that are considered to be trial

strategies or trial tactics ordinarily are not reviewable in the

determination of whether counsel was ineffective.  People v. Barrow, 133 Ill. 2d 226, 549 N.E.2d 240 (1989).             

	Petitioner raised several other issues in his petition that he

did not argue specifically on appeal.  In his petition, petitioner

claimed that his constitutional rights were violated because the

State failed to prove that he had “specific concurrent intent.” 

This issue is res judicata; this court found on direct appeal that petitioner was proved guilty beyond a reasonable doubt of first-

degree murder based on the principle of accountability.  Kitchen, 189 Ill. 2d at 432.  

	Petitioner further claimed that his constitutional rights were

violated because the circuit court erroneously restricted his right

to cross-examine eyewitness Karrience Golden in order to expose

evidence of his motive to testify falsely against petitioner and in

favor of the State.  According to pPetitioner, Golden feared

prosecution on a contempt citation.  This issue is waived because

it could have been raised on direct appeal, but was not.  Kitchen, 189 Ill. 2d at 432.  Waiver aside, the record reveals that

petitioner never attempted to question Golden about the contempt

citation; however, defense counsel did adopt co-defendants' cross-

examinations of Golden, both of which included questioning

regarding the contempt citation.3  Moreover, Golden testified on direct examination that he did not expect to get any deals for

testifying in this case.

	Petitioner failed to set forth the gist of a constitutional

claim.  The issues raised in the post-conviction petition and the "amendment to post-conviction petition" are determinable as a

matter of law and all are either waived or res judicata. 

	Accordingly, for the reasons set forth above, the judgment of

the circuit court of Cook County is affirmed. 

	Affirmed.

	THEIS, P.J. and GREIMAN, J., concur.