In Kamsler, the Court stated: "It is well settled that where a person convicted of a crime has taken an appeal from the judgment of conviction on a complete record, the judgment of the reviewing court is res judicata as to all issues actually decided by the court * * *" 233 N.E.2d at 416. In Arnold, the Court held that as the petitioner was simply attempting to argue, in somewhat altered form, the same questions originally presented to the trial court and reviewed by the Appellate Court, those issues had become res judicata and post-conviction relief would not lie. See, also, People v. Price, 44 Ill.2d 332, 255 N.E.2d 395 (1970); People v. Derengowski, 44 Ill.2d 476, 256 N.E.2d 455 (1970); People v. Harrison, 46 Ill.2d 159, 263 N.E.2d 87 (1970); People v. Smith, 46 Ill.2d 430, 263 N.E.2d 860 (1970). The petitioner herein is in the identical situation as the defendants were in Kamsler and Arnold. He has heretofore appealed his convictions to the Illinois Appellate Court, and has, in addition, petitioned for leave to appeal to the Illinois Supreme Court, which was denied, raising at trial and in both appeals those claims which he urges herein.
We further note that the defendant raised the question of the discrepancies in Arnold's testimony on his appeal reported in 88 Ill. App.2d 134, where the court stated: "Defendant is in error in attempting to equate the words `He said I could probably get leniency' with the making of a definite promise." An examination of the brief filed by defendant in that appeal reveals that the point he now seeks to have us consider was fully argued on appeal. Issues that have been raised and decided on direct appeal are barred from further consideration in a proceeding under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1969, ch. 38, par. 122-1 et seq.) under the doctrine of res judicata ( People v. Mayfield, 42 Ill.2d 318; People v. Price, 44 Ill.2d 332), and in such cases an evidentiary hearing on the petition for a post-conviction hearing is unnecessary. People v. Derengowski, 44 Ill.2d 476.
( 71 Ill. App. at 214.) And while we believe there is merit to the position of the State that the remaining claims sought to be alleged were waived by defendant's failure to raise them in the original appeal (see: People v. Price, 44 Ill.2d 332; People v. Derengowski, 44 Ill.2d 476), it is enough to say that none of them establish the denial of constitutional rights. In support of the allegation that it was fundamentally unfair to permit the voluntary manslaughter count to be nol-prossed after trial had started, it is argued that the jurors might have been given the impression that they could only find defendant guilty of murder and that it was not permissible for them to find him guilty of a lesser included offense.
Accordingly any claim which petitioner might have had but did not raise in the original proceedings is considered waived and inappropriate for consideration on ancillary review. See People v. Price, 44 Ill.2d 332; People v. Weaver. The judgment of the circuit court of Cook County is affirmed.
As this court indicated in its early discussion of the post-conviction remedy, ( People v. Jennings, 411 Ill. 21, 26), the proper focus of concern at a hearing upon the State's motion to dismiss a post-conviction petition is the sufficiency of its allegations and supporting documents. ( People v. Price, 44 Ill.2d 332, 333; People v. Airmers, 34 Ill.2d 222, 226.) If in this case those allegations and documents are sufficient, if true, to establish incompetent representation, then an evidentiary hearing must be held to determine the true facts, and the circuit court erred in sustaining the motion to dismiss. ( People v. Sigafus, 39 Ill.2d 68, 70; Airmers; Jennings.)
We have heretofore consistently held that where a convicted person has appealed from the judgment of conviction, the judgment of the reviewing court makes res judicata all issues actually decided by that court and all issues which could have been presented to that court and which were not are considered to have been waived. ( People v. Price, 44 Ill.2d 332, 333; People v. Hill, 44 Ill.2d 299; People v. Kamsler, 39 Ill.2d 73, 74; People v. Jennings, 411 Ill. 21, 25.) While we have relaxed the operation of the waiver rule in cases where fundamental fairness so requires ( e.g., People v. Hamby, 32 Ill.2d 291), we see no reason to do so here, where defendant has had a full opportunity to present the matter to an appellate tribunal but has nonetheless failed to do so and now seeks at this late date to raise the contention for the first time in this post-conviction proceeding. No further questions being raised herein, the judgment of the circuit court of Cook County is affirmed.
Our review of the record, however, reveals that this claim of error is also based on facts within the record. Well settled principles of res judicata bar both arguments now. Post-conviction proceedings are not intended to be used as a device to obtain further consideration of claims of denial of constitutional rights where the claims were or could have been raised previously. ( People v. Ward (1971), 48 Ill.2d 117, 121, 268 N.E.2d 692, cert. denied (1971), 404 U.S. 849, 30 L.Ed.2d 87, 92 S.Ct. 155; People v.Price (1970), 44 Ill.2d 332, 333, 255 N.E.2d 395; People v. Hill (1968), 39 Ill.2d 61, 63, 233 N.E.2d 546.) Petitioner's present contention in our opinion could have been raised in the direct appeal, if in fact it was not raised in that appeal. We conclude, therefore, that the court below properly dismissed the petition without an evidentiary hearing.
Since Langford knew of the alleged intimidation at the time of trial, petitioners could have preserved the error for our review in their direct appeal. Well settled principles of res judicata bar this argument now. Post-conviction proceedings are not intended to be used as a device to obtain further consideration of claims of denial of constitutional rights where the claims were or could have been raised previously. People v. Ward (1971), 48 Ill.2d 117, 121, 268 N.E.2d 692, cert. denied (1971), 404 U.S. 849, 30 L.Ed.2d 87, 92 S.Ct. 155; People v. Price (1970), 44 Ill.2d 332, 333, 255 N.E.2d 395; People v. Hill (1968), 39 Ill.2d 61, 63, 233 N.E.2d 546. B.
In the case at bar there has been no showing the outcome would have been different even if those things complained of had been performed to his satisfaction. • 4 Finally, it is well settled that the doctrine of res judicata includes issues which might have been raised on direct appeal but were not. ( People v. Derengowski (1970), 44 Ill.2d 476; People v. Price (1970), 44 Ill.2d 332.) Following his conviction the petitioner filed a timely appeal in which he could have included the allegations which form the basis of this appeal. He is, therefore, deemed to have waived his present contention.