dissenting:
This case involves a murder conviction and a sentence of 70 years’ imprisonment. On appeal, the defendant argued that the evidence was insufficient to prove him guilty beyond a reasonable doubt. In finding the evidence sufficient and thereby affirming the defendant’s conviction, the appellate court relied on the defendant’s purported post-arrest statement. The majority opinion holds that the appellate court’s reliance upon the defendant’s alleged post-arrest statement in affirming the judgment of the trial court was not improper. 179 Ill. 2d at 566-67. For the reasons that follow, I find that the actions of the appellate court deprived the defendant of a fair appellate review.
It is a basic principle of appellate law that a court of review is prohibited from considering matters outside the record on appeal. See Logan v. Old Enterprise Farms, Ltd., 139 Ill. 2d 229 (1990). In Logan, the plaintiff sued the defendant for damages resulting from injuries sustained on the defendant’s property. The trial court granted the defendant’s motion for summary judgment. On appeal, the appellate court reversed, but in so doing, the appellate court considered an affidavit from an expert filed by the plaintiff after the filing of the notice of appeal. This court held that the appellate court erred in considering the affidavit, which was not a part of the trial court record. See Logan, 139 Ill. 2d at 237. Here, the defendant’s alleged post-arrest statement was considered by the trial court but was never made part of the trial court’s record. As a result, the statement was not a part of the record on appeal. When the appellate court denied the defendant’s motion to compel the State to supplement the record with the alleged post-arrest statement, the defendant submitted his brief without reference to that statement. Despite the fact that the post-arrest statement was not a part of the record on appeal, the appellate court relied on that statement in its original order affirming the defendant’s conviction. Thus, the appellate court improperly considered a document not reflected in the record on appeal in upholding the defendant’s murder conviction. The majority opinion fails to provide a sufficient basis for upholding this obviously inappropriate action of the appellate court.
It is true that, in his petition for rehearing, the defendant pointed out the appellate court’s error in relying on the alleged post-arrest statement. In its response, the State sought to supplement the record on appeal with the statement, although the State had originally objected to the inclusion of the statement in the record. As noted in the facts, the appellate court then allowed the statement to be included in the record and, in its modified order upon denial of rehearing, the appellate court continued to rely on the statement to reject the defendant’s argument that the evidence was insufficient. These actions by the appellate court did not remedy its prior error. Instead, because the appellate court relied on a statement outside the record on appeal to decide a critical issue on appeal, without providing his defense counsel an opportunity to use that same statement in preparing the defendant’s appeal, the appellate court deprived the defendant of his constitutional right to assistance of counsel. See Penson v. Ohio, 488 U.S. 75, 102 L. Ed. 2d 300, 109 S. Ct. 346 (1988).
In Penson, the defendant’s court-appointed appellate counsel filed a "Certification of Meritless Appeal” and was given leave by the state appellate court to withdraw. The state appellate court subsequently reviewed the record and considered the briefs of the codefendants. The court determined that there existed several arguable claims and that plain error had been committed which required reversal of the defendant’s conviction on one count. Nevertheless, the court affirmed the defendant’s convictions and sentences on the remaining counts. The preceding determinations were made by the state appellate court without the benefit of any input by any counsel on behalf of the defendant. The United States Supreme Court initially noted that "the right to be represented by counsel is among the most fundamental of rights.” Penson, 488 U.S. at 84, 102 L. Ed. 2d at 311, 109 S. Ct. at 352. The Penson Court then held that the state appellate court had violated the defendant’s constitutional right to counsel on appeal. Penson, 488 U.S. 75, 102 L. Ed. 2d 300, 109 S. Ct. 346. It further found that such decisionmaking by the state appellate court without the benefit of counsel on appeal amounted to reversible error. The Court stated: "It is apparent that the Ohio Court of Appeals *** committed *** serious error when it failed to appoint new counsel after finding that the record supported several arguably meritorious grounds for reversal of petitioner’s conviction ***. As a result, petitioner was left without constitutionally adequate representation on appeal.” Penson, 488 U.S. at 81, 102 L. Ed. 2d at 309, 109 S. Ct. at 350.
The actions taken by the state appellate court in Penson are analogous in their result to those of the appellate court in the case at bar. As previously noted, the appellate court entered its orders affirming the defendant’s conviction predicated upon the defendant’s purported post-arrest statement, which was unavailable to defense counsel in preparing his brief and argument on appeal. Such actions by the appellate court resulted in a denial of counsel during the appellate court’s actual decisional process. See Penson, 488 U.S. at 88, 102 L. Ed. 2d at 313, 109 S. Ct. at 354.
After examining the unusual procedural circumstances in this case, I find that the defendant was deprived of his constitutional right to assistance of counsel because defense counsel was not provided an opportunity to consider the defendant’s purported post-arrest statement when preparing his appeal. In light of this constitutional violation and on grounds of fundamental fairness, I believe that the appellate court’s judgment should be vacated and the cause remanded to the appellate court, where the parties can proceed with a complete record in preparing their briefs and arguments on appeal.
JUSTICES McMORROW and NICKELS join in this dissent.