dissenting:
I must dissent from the majority decision that the post-conviction petition in this case is sufficient to necessitate an evidentiary hearing to determine the truth or falsity of its allegations.
The court recognizes the statutory requirement that “affidavits, records, or other evidence supporting its allegations” be attached to the petition, or their absence explained, in those cases where the record provides no support for petitioner’s claims. Such is the case before us— the record is barren of corroborating evidence. Petitioner’s only explanation of its absence is that “because "of his incarceration and financial inability to obtain the services of an attorney he is unable to obtain affidavits from [his attorney] or [his sister] for attaching to his Petition.”
While a defendant’s indigency and incarceration might conceivably excuse his failure to provide supporting material in some instances, surely it cannot be thought sufficient to excuse his failure to secure an affidavit from his ■sister corroborating defendant’s allegations regarding her participation in the conversations with his attorney. (People v. Ashley, 34 Ill.2d 402; People v. Reed, 36 Ill.2d 358; People v. Evans, 37 Ill.2d 27.) Defendant’s ability to draft an acceptable affidavit is amply demonstrated by a rather well-drafted pro se post-conviction petition and his verification thereof, and his petition alleges his sister personally visited him in the penitentiary during the week preceding the execution of his petition.
The majority avoid this problem by saying the State did not question the absence of the supporting material at the trial level and are therefore now precluded from doing so. In my opinion this conclusion is neither factually correct nor in accord with our prior decisions. The State’s motion .to dismiss filed in the trial court referred to the inadequacy of the “merely bare allegations” of the petition, and in the oral argument thereon the absence of a supporting affidavit by defendant’s trial counsel was specifically commented upon. Moreover, this court has repeatedly held an appellee may sustain the judgment of a lower court “by any argument and upon any basis appearing in the record which shows that the decree is right, even if he had not previously advanced such argument.” Becker v. Billings, 304 Ill. 190, 205; Mueller v. Elm Park Hotel Co., 391 Ill. 391, 399; Monarski v. Greb, 407 Ill. 281, 291; Merriam v. McConnell, 31 Ill. App. 2d 241; Miller v. Chicago Transit Authority, 78 Ill. App. 2d 375, 381.
The desirability of requiring supporting affidavits is particularly evident in this case.' This defendant, represented by retained counsel, entered a plea of guilty more than seven years ago which he now says was motivated by his counsel’s statement that the judge had agreed to impose a 14-year sentence. The record discloses, however, that prior to accepting his plea that judge explained the charge, defendant’s . right to a jury trial, that he might be sentenced to death or imprisonment for life, and that “there have been no promises made by the court as to what your punishment would be on the plea of guilty” (Emphasis added.) When asked whether he was pleading guilty of “your own free and voluntary will” he answered “That’s correct.” In response to his own attorney’s question “and you are pleading guilty because you are guilty, is that correct ?” defendant said “Correct”. This record, to a considerably greater extent than most, negates the existence of the situation which defendant now asserts induced his plea.
The majority also say a plenary hearing should be held now, for, if it is not, the issue of incompetency oí counsel in failing to seek leave to amend the post-conviction petition or supply additional affidavits will be used as a basis for continued litigation in State and Federal courts. But incompetency of counsel is not the only possible explanation for the absence of the required affidavits corroborating defendant’s allegations — it is at least equally possible that they could not be obtained because defendant’s sister was unwilling to swear to the truth of defendant’s allegations.
Nor do I perceive any valid basis for permitting future litigation of these issues in either State or Federal courts. The defendant would have been entitled to be heard on the merits of his allegations in the trial court, and undoubtedly would have been heard thereon, had he complied with the statutory requirement of affidavits' supporting his newly-made assertions of fraud on the part of his attorney. This requirement was obviously intended by the legislature to limit plenary hearings in post-conviction matters to those instances in which defendant had filed with their petitions such supporting material as was reasonably available to them. This is, it seems to me, a legitimate and desirable requirement which the State may impose upon those seeking to impeach their convictions of crime, and will, if enforced, eliminate the need for evidentiary hearings of unfounded petitions, thus reducing the trend toward successive and interminable litigation of the same or related issues in criminal matters. Dismissal of defendant’s petition without a plenary hearing was proper here, in my judgment, because of the absence of any corroborative affidavits and defendant’s failure to adequately explain their absence. Under our rules this dismissal will be res judicata as to future efforts in State courts for it has been consistently held that where there has been a review by writ of error, including the presentation of a bill of exceptions, any claim which might have been raised, but was not, is considered waived. (People v. Doherty, 36 Ill.2d 286, 291; Ciucci v. People, 21 Ill.2d 81, 85; People v. Dolgin, 6 Ill.2d 109, 111.) And our statutory requirement of supporting material or adequate explanation of its absence is an independent and adequate State ground for dismissal of defendant’s petition which should insulate this conviction from future attack in Federal courts. See Fay v. Noia, 372 U.S. 391, 425, 428, 9 L. Ed. 2d 837, 83 S. Ct. 822; N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 2 L. Ed. 2d 1488, 78 S. Ct. 1163; Fox Film Corp. v. Muller, 296 U.S. 207, 80 L. Ed. 2d 158, 56 S. Ct. 183; Hart, Foreword, The Supreme Court, 1958 Terms, 73 Harv. L. Rev. 84, 101-121 (1959).
If additional reason for affirming the trial court’s action was necessary, it might well be found-in the fact that defendant was represented by retained counsel prior to and at the time of entry of his guilty plea. We have frequently held charges of incompetency of privately retained counsel present no constitutional problem (People v. Nischt, 23 Ill.2d 284; People v. Morris, 3 Ill.2d 437; Mitchell v. People, 411 Ill. 407), and I am not at all certain that the allegations as to the conduct of retained counsel here attain constitutional stature.
If this were an isolated instance, remandment of the cause for a full evidentiary hearing would be of no great significance, but such is not the case. There are -at least hundreds of post-conviction petitions filed each year. If trial judges must, as the majority opinion would seem to indicate, conduct complete hearings on all such petitions even though no reasonable explanation of the failure to attach supporting material is given, the result will be to further impede the efficient administration of justice. The members of this court are all aware of the serious backlog problems in the metropolitan courts of this State. While these delays have heretofore been concentrated in the area of civil jury trials of personal injury claims, we are advised by the public defenders, State’s Attorneys and the Administrative Director of our court system that delay in the disposition of criminal matters is increasing steadily and significantly. While I do not urge these facts as reasons to dilute the quality of justice in criminal matters, I do find them persuasive of the need to enforce the statutory requirement that a post-conviction petitioner supply such corroborative material as he might reasonably be able to secure. In its absence, the petition should be dismissed.
I believe the trial court properly dismissed the petition, and I would affirm.
Mr. Justice House joins in this dissent.