Judgment affirmed.
Mr. CHIEF JUSTICE UNDERWOOD delivered the opinion of the court:
Defendant, Eddie Frank, was convicted in a 1963 Cook County circuit court bench trial of the sale of narcotics, and sentenced to a term of 12 to 15 years imprisonment. His writ of error with appointed counsel was, in 1964, transferred to the appellate court, which affirmed. (People v. Frank, 51 Ill.App.2d 251.) There was no petition for leave to appeal to this court from the appellate court affirmance. The present appeal is from the dismissal, without an evidentiary hearing, of a subsequent petition for post-conviction relief. Ill. Rev. Stat. 1969, ch. 38, par. 122-1 et seq.
The main witness for the State at trial was James Henry, an informer, who testified that he had engaged in a "controlled buy" of narcotics from Frank. The transaction occurred in a pool hall, with marked money provided by three police officers, who waited out of sight. After the transaction, the informer turned a tinfoil packet over to the officers, and directed them to Frank, who was then arrested and found to have a marked bill in his possession. It is now claimed that when the informer took the stand, defendant recognized him as a former fellow prison inmate, James Jones, who had been convicted of burglary. On cross-examination, defense counsel asked the informer if he had ever served time for a felony, but an objection to the question was sustained. The money was marked as exhibit 1 at trial, and the tinfoil packet was marked as exhibit 6. It was stipulated that a police chemist would testify, if called, that he had performed a qualitative analysis on exhibit 1 and concluded that it contained heroin.
Frank raises several issues in the post-conviction proceedings. He argues first that he was not proved guilty
At the outset, we shall consider the application of res judicata and waiver, and the closely related issue of the competency of counsel on the direct appeal. We have earlier suggested that the doctrine of waiver ought not to bar issues from consideration under the Post-Conviction Hearing Act where the alleged waiver stems from incompetency of appointed counsel on appeal (see People v. Weaver, 45 Ill.2d 136; People v. McCracken, 43 Ill.2d 153; People v. Doherty, 36 Ill.2d 286), or denial of counsel on appeal (People v. Keagle, 37 Ill.2d 96). This notion comports with related holdings that waiver will not apply where it would act as a denial of due process (People v. Thompson, 36 Ill.2d 332; People v. Burson, 11 Ill.2d 360), or of fundamental fairness
Turning to the contentions of petitioner Frank, it is claimed that by virtue of the erroneous stipulation, there is a failure of proof that the substance he allegedly sold to the informer was heroin. Frank further maintains that the requirement of proof of guilt beyond a reasonable doubt is a matter of constitutional right, and therefore proper for consideration under the Post-Conviction Hearing Act. We disagree. It has been repeated many times that it is not the purpose of the Act to redetermine guilt or innocence. (People v. Derengowski, 44 Ill.2d 476; People v. Orndoff, 39 Ill.2d 96.) This conclusion as to the applicability of the statute is not overcome by the language of the United States Supreme Court in In re Winship, 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068, where it was decided that conviction of a juvenile must be based upon the same standard of proof applicable to an adult. Yet, although the reasonable doubt issue cannot be raised under the Act in its own right, Frank maintains that his appointed counsel on appeal acted incompetently in failing to raise the issue of the absence of proof in the appellate court. Thus, to refuse review of the question now, on the grounds that it is not within the purview of the Act, or was waived by failure to raise it on appeal, as the State maintains, is said to prejudice Frank for the incompetence of appointed counsel on appeal. We have
Frank's current challenge to the legality of the arrest and search is essentially a challenge to the "controlled buy" procedure. The broad issue was raised and decided on appeal, and is now res judicata. To the extent the issue presently posed may be distinct from that decided by the appellate court, and therefore not subject to res judicata, it is nevertheless barred by waiver. It was available on appeal, and there has been no contention that appointed counsel was incompetent for failure to raise it there.
Attached to Frank's petition in the trial court were numerous affidavits and letters which strongly support the contention
We accordingly affirm the judgment of the Cook County circuit court.
Judgment affirmed.
KLUCZYNSKI and WARD, JJ., took no part in the consideration or decision of this case.
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