¶1dissenting:
¶2I respectfully dissent, for the reasons set forth in my dissenting opinion in People v. Lemons (1993), 242 Ill. App. 3d 941, 949. In Lemons the majority held the petition was not specific enough and was not supported by affidavits. The petition here is specific, and supported by affidavits, but is still rejected. I would be willing to support a summary dismissal on the merits where the record clearly refutes what is said in the petition or in the affidavits, but do not see that to be the case here.
¶3An issue which could have been raised at trial is not an appropriate subject of a post-conviction petition. Strict application of the doctrine of res judicata may be relaxed, however, where fundamental fairness so requires. “It would be unreasonable to expect appellate counsel to convincingly raise and argue his own incompetency.” {People v. Gaines (1985), 105 Ill. 2d 79, 91, 473 N.E.2d 868, 875.) If counsel told defendant that defendant would receive probation even though the plea agreement allowed a maximum of five years defendant may have received ineffective assistance of counsel. Defendant may not have believed that he was engaged in any wrongdoing— State’s Attorneys, for example, sometimes agree to a potential maximum sentence which includes prison time, but agree further that they will not argue for prison time. On the second issue, defendant had a right to employ counsel of his choice on appeal, and if it is true counsel told defendant no change was possible on appeal, defendant may have been deprived of that choice.