dissenting:
I believe that defendant is entitled to an evidentiary hearing to prove his claim of ineffective assistance of appellate counsel. Accordingly, I dissent.
Defendant’s conviction and sentence of death were affirmed by this court on direct appeal. People v. Erickson, 117 Ill. 2d 271 (1987) (Erickson I). The instant appeal concerns defendant’s second attempt to obtain post-conviction relief from his convictions and sentence of death. In defendant’s first post-conviction proceeding, defendant alleged, inter alia, that he received ineffective assistance of counsel during the sentencing phase of trial when trial counsel proffered the testimony and report of John Weliczko regarding defendant’s emotional and mental condition at the time of the offenses. Defendant alleged that trial counsel failed to discover that Weliczko was not qualified to provide a psychological evaluation of defendant, and that, in fact, Weliczko had no bona fide psychological training or experience whatsoever. According to defendant, Weliczko’s testimony was incompetent and unreliable, and trial counsel’s decision to proffer that testimony actually undermined the strategy of the defense. Defendant also alleged that trial counsel failed to offer in mitigation significant, valid psychological evidence which was available at the time of sentencing. In support of the allegations raised in his post-conviction petition, defendant submitted affidavits from two qualified mental health professionals. The circuit court dismissed defendant’s first post-conviction petition without an evidentiary hearing.
Upon review, this court affirmed the dismissal of defendant’s first post-conviction petition. People v. Erickson, 161 Ill. 2d 82 (1994) (Erickson II). This court concluded that defendant had waived his claim that the presentation of Weliczko’s testimony undermined the strategy of the defense because that claim could have been presented on direct appeal. This court also determined that defendant was not prejudiced by trial counsel’s failure to present the additional psychological evidence offered by the mental health professionals.
I dissented from this court’s decision affirming the dismissal of defendant’s first post-conviction petition. Erickson II, 161 Ill. 2d at 96 (McMorrow, J., dissenting, joined by Harrison, J.). I concluded that defendant’s claim with respect to the presentation of Weliczko’s testimony was not waived. I also disagreed with the conclusion that defendant was not prejudiced by trial counsel’s failure to present the additional mitigating evidence from the mental health professionals. In my view, defendant should have received an evidentiary hearing to prove his claim of ineffective assistance of counsel.
In the case at bar, defendant again raises a claim of ineffective assistance of counsel. On this occasion, defendant’s claim of ineffective assistance of counsel is directed toward his appellate counsel on direct appeal. Defendant asserts that appellate counsel was ineffective for failing to raise on direct appeal the claim of ineffective assistance of trial counsel relating to the proffer of Weliczko’s testimony and report. Because the merits of the underlying ineffective assistance of counsel claim must be assessed to determine the effectiveness of appellate counsel (People v. Guest, 166 Ill. 2d 381, 390 (1995)), defendant’s second post-conviction petition again addresses the failings of trial counsel in presenting Weliczko’s testimony. Specifically, defendant contends that Weliczko’s testimony and report were incompetent and constituted aggravating rather than mitigating evidence, and that £1[a]s a result of [trial] counsel’s professional dereliction in relying on an unqualified witness, [defendant] never had an expert mental health professional testify on his behalf.” As with defendant’s first post-conviction petition, defendant’s second post-conviction petition was dismissed by the circuit court without an evidentiary hearing.
The majority affirms the dismissal of defendant’s second post-conviction petition. The majority treats defendant’s claim of ineffective assistance of counsel as having two distinct parts, as this court did in Erickson II. The majority asserts that the first aspect of defendant’s claim relates to whether trial counsel was ineffective for failing to present in mitigation valid psychological evidence prepared by competent mental health professionals. The majority concludes that this argument was raised and rejected in Erickson II and, therefore, is procedurally barred under principles of res judicata.
The majority asserts that the second aspect of defendant’s claim of ineffective assistance of counsel is whether trial counsel was constitutionally ineffective in presenting Weliczko’s incompetent and aggravating testimony during the sentencing hearing. The majority acknowledges that under People v. Flores, 153 Ill. 2d 264 (1992), this aspect of defendant’s claim is properly before this court. However, the majority determines that defendant suffered no prejudice from the presentation of Weliczko’s testimony or report, and, therefore, that defendant is not entitled to an evidentiary hearing to prove his claim of ineffective assistance of counsel.
I agree with the majority that defendant’s claim of ineffective assistance of counsel relating to the presentation of Weliczko’s testimony is properly before us. Unlike the majority, however, I believe that defendant is entitled to an evidentiary hearing. In reaching this decision, I rely upon both Weliczko’s testimony and the affidavits from qualified mental health professionals which defendant has included with his post-conviction petition. As the majority notes, it may be improper to consider the affidavits of the mental health professionals with respect to any of defendant’s claims which are barred by principles of res judicata. However, there is no reason why the affidavits may not be considered when evaluating the claim which is properly before the court, i.e., whether trial counsel was ineffective in proffering Weliczko’s testimony and report. Indeed, it is not possible to determine whether defendant has made a substantial showing that trial counsel’s proffer of Weliczko’s testimony was objectively unreasonable, or to determine whether defendant has shown that he suffered prejudice as a result of that testimony, without examining what further evidence could have been presented in its place.1
In my dissent from this court’s decision affirming the dismissal of defendant’s first post-conviction petition, I examined in detail Weliczko’s testimony and the affidavits of the mental health professionals presented in defendant’s petition. Erickson II, 161 Ill. 2d at 112-18 (McMorrow, J., dissenting, joined by Harrison, J.). That examination revealed the damning and prejudicial nature of Weliczko’s testimony. I also observed that the trial court had never been advised of the true nature of Weliczko’s allegedly fraudulent representations, nor advised of the extent to which Weliczko’s evaluation of defendant differed from those given by the mental health professionals. For these reasons, I concluded that defendant was entitled to an evidentiary hearing to prove his claim of ineffective assistance of counsel. I believe that conclusion applies with equal force to defendant’s claim of ineffective assistance of appellate counsel presented in the case at bar.
I emphasize the serious nature of the allegations contained in defendant’s post-conviction petition. Defendant asserts that he was sentenced to death following a sentencing hearing in which the only witness to testify in mitigation, Weliczko, provided a fatally unreliable and completely incompetent psychological and emotional evaluation of defendant. Defendant’s petition shows that Weliczko was a fraud and a sham who had a history of engaging in deceptive activities, and, further, that his evaluation of defendant actually supported the State’s argument in aggravation. Moreover, there is no question that Weliczko’s testimony was considered by the trial court during sentencing, as this court itself noted in its decision affirming defendant’s convictions and sentence on direct appeal. Erickson I, 117 Ill. 2d at 301-02. All of the foregoing indicates that the integrity of the capital sentencing process has been seriously compromised in the case at bar. Despite this fact, the majority refuses to grant defendant even an evidentiary hearing to prove his claim of ineffective assistance of counsel. I cannot join in this result.
Accordingly, I dissent.
JUSTICE HARRISON joins in this dissent.
The State argues that because the affidavits of the mental health professionals were not part of the record on direct appeal, they may not be considered in addressing defendant’s claim that counsel on direct appeal was ineffective. However, a majority of this court held in Erickson II that defendant’s claim that trial counsel was ineffective in proffering Weliczko’s testimony could have been presented on direct appeal. As I note in the text, the only way this court can now determine whether defendant has made a substantial showing that trial counsel was ineffective in proffering Weliczko’s testimony is to compare that testimony to the evidence offered in the affidavits of the mental health professionals.