Docket No. 89313–Agenda 8–March 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

								WILLIAM A. ROGERS, Appellant.

Opinion filed July 26, 2001.

	JUSTICE FITZGERALD delivered the opinion of the court:

	Following a jury trial in the McHenry County circuit court, the

defendant, William Rogers, was convicted of two counts of

criminal sexual assault, six counts of aggravated criminal sexual

abuse, and six counts of child pornography for videotaping his

sexual activities with two teenage boys who lived in his

neighborhood. The trial judge imposed 15-year sentences on each

of the two criminal sexual assault counts, to run concurrently with

7-year sentences on each of the six aggravated criminal sexual

abuse counts. The trial judge also imposed concurrent 10-year

sentences on each of the six child pornography counts. The judge

ordered consecutive sentences under section 5–8–4(b) of the

Unified Code of Corrections. 730 ILCS 5/5–8–4(b) (West 1998).

The defendant first would serve 15 years for the criminal sexual

assault and aggravated criminal sexual abuse convictions against

the older boy. The defendant next would serve 15 years for the

criminal sexual assault and the aggravated criminal sexual abuse

convictions against the younger boy. The defendant finally would

serve 10 years for the child pornography convictions. The

defendant’s three consecutive sentences totaled 40 years’

imprisonment. The judge also ordered the defendant to pay

restitution.

	After sentencing, the defendant obtained a new attorney, who

filed a motion to reduce the defendant’s sentence. Another judge

heard and denied the defendant’s motion, and the appellate court

affirmed the defendant’s conviction and sentence. People v. Rogers, No. 2–95–0542 (1997) (unpublished order under Supreme Court Rule 23). We denied the defendant’s first petition for leave

to appeal. People v. Rogers, 175 Ill. 2d 549 (1997).

	In 1998, the defendant then through counsel filed a post-

conviction petition, which the trial court summarily dismissed as

patently without merit. The appellate court affirmed the dismissal in part, but remanded the cause for further proceedings on the

defendant’s claim that his appellate attorney was ineffective for

failing to raise the issue that certain counts of the indictment were

based on a single act.1 No. 2–98–0725 (unpublished order under Supreme Court Rule 23). We granted the defendant’s second

petition for leave to appeal. People v. Rogers, 189 Ill. 2d 675 (2000); see 177 Ill. 2d R. 315(a). We now affirm.

ANALYSIS

	The defendant raises three issues in his appeal. We focus

initially on his first two contentions: whether the trial court erred

in summarily dismissing ineffective assistance of counsel claims

against his trial attorney and his appellate attorney. The defendant

asserts that his trial attorney was ineffective in failing to advise,

prior to the defendant’s decision to reject the State’s guilty plea

offer, that he could receive consecutive sentences totaling 40 years.

The defendant also asserts that his appellate attorney was

ineffective in failing to raise a meritorious issue on direct appeal:

namely, that the defendant was denied a meaningful hearing on his

motion to reduce sentence because the trial judge hearing the

motion gave deference to the sentencing judge.2

	The Illinois Post-Conviction Hearing Act provides a

procedural mechanism through which a criminal defendant can

assert “that in the proceedings which resulted in his or her

conviction there was a substantial denial of his or her rights under

the Constitution of the United States or of the State of Illinois or

both.” 725 ILCS 5/122–1 (West 1998); see People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). In a post-conviction proceeding,

the trial court does not redetermine a defendant’s innocence or

guilt, but instead examines constitutional issues which escaped earlier review. See People v. Evans, 186 Ill. 2d 83, 89 (1999). A post-conviction petition is a collateral attack upon a prior

conviction and sentence, not a substitute for or an addendum to a

direct appeal. People v. West, 187 Ill. 2d 418, 425 (1999). Consequently, any issues which were decided on direct appeal are

barred by res judicata; any issues which could have been raised on direct appeal are forfeited. West, 187 Ill. 2d at 425.

	The petition must enunciate clearly “the respects in which petitioner’s constitutional rights were violated” and must include

“affidavits, records, or other evidence supporting its allegations”

or an explanation why such evidence is not attached. 725 ILCS

5/122–2 (West 1998). The Act further provides: “If the petitioner

is sentenced to imprisonment and the court determines the petition

is frivolous or is patently without merit, it shall dismiss the petition

in a written order, specifying the findings of fact and conclusions

of law it made in reaching its decision.” 725 ILCS 5/122–2.1(a)(2)

(West 1998).

	We turn to the allegations of the defendant’s petition.

Trial Counsel

	 The defendant’s post-conviction petition did not claim that his

trial attorney was ineffective for failing to advise him of the

sentencing range for the charged offenses. Instead, the defendant

alleged that he was penalized for exercising his right to a jury trial

when he received a sentence 28 years longer than the State’s plea

offer. The defendant attached to his petition a letter from the

McHenry County State’s Attorney’s office, which offered to

recommend a 12-year sentence in return for the defendant’s guilty

plea.

	 In an affidavit attached to his post-conviction petition,

however, the defendant stated:

			“I was never properly admonished as to the ultimate

possible length of my sentence.

			*** I was never properly admonished or instructed as to

how the indictments could be calculated other than the

minimus [sic] and maximus [sic] of each offense.

			*** Until I was actually sentenced, I was led to believe

by both the prosecution and defense attorneys, that the

maximum possible sentence was thirty years.”

	In a supplement to his petition, the defendant alleged,

“Because of the failure to advise defendant of the sum total of

possible consecutive sentences, he was deprived of his right to be

fully informed before rejecting the plea offer extended to him” by

the State.

	However, the record belies the defendant’s claim he was never

advised of the possible length of his sentence.  In the hearing on the

defendant’s presentencing motion to reinstate bond, the

defendant’s attorney stated:

		“[The defendant] understands that those sentences could

be from forty years to sixty years or whatever.  He

understood that when he came to my office for the first

time way back when we sat down, and I gave him all of

the options, and I told him that the sentence could be

extended based on certain circumstances.  So this is

nothing new to him.  He just didn’t learn about the

sentence after he was convicted.  He’s known what the

sentence could be all along.” 

	We have consistently upheld the dismissal of a post-conviction

petition when the record from the original trial proceedings

contradicts the defendant’s allegations.  Coleman, 183 Ill. 2d at 382; accord People v. Jones, 66 Ill. 2d 152, 157 (1977) (“A court may also properly dismiss a post-conviction petition if the record

of proceedings at trial shows the petition to be nonmeritorious”).

	[T]he trial court correctly dismissed this claim.

Appellate Counsel

	The defendant’s post-conviction petition claimed his appellate

attorney was ineffective for failing to raise unspecified

nonsentencing issues. The defendant also alleged he was

			“denied his statutory right to a Motion to Reduce

Sentence, when the judge in denying the motion to reduce

the sentence of incarceration, stated that the sentencing

judge was within the statutory sentencing parameters and there was not abuse of discretion. *** By applying an

appellate standard for review of sentence, instead of

entertaining arguments to reduce for any reason, that

judge frustrated the purpose of the statute and thereby

denied defendant his constitutional right to due process of

law ***.”

	The two-pronged Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), test applies to claims of

ineffective appellate counsel. People v. Caballero, 126 Ill. 2d 248, 269-70 (1989). A defendant who claims that appellate counsel was

ineffective for failing to raise an issue on appeal must allege facts

demonstrating such failure was objectively unreasonable and that

counsel’s decision prejudiced defendant. Enis, 194 Ill. 2d at 377. If the underlying issue is nonmeritorious, the defendant has

suffered no prejudice. Enis, 194 Ill. 2d at 377. Normally, appellate counsel’s choices concerning which issues to pursue are entitled to

substantial deference. People v. Mack, 167 Ill. 2d 525, 532-33 (1995).

	Section 5–8–1(c) of the Unified Code of Corrections provides

for a motion to reduce a sentence. See 730 ILCS 5/5–8–1(c) (West

1998). Such a motion allows the trial court “the opportunity to

review a defendant’s contention of sentencing error and save the

delay and expense inherent in appeal if they are meritorious.”

People v. Reed, 177 Ill. 2d 389, 394 (1997). However, sentence determinations rest within the sentencing judge’s discretion, and a

reviewing court may not substitute its judgment absent an abuse of

discretion. People v. Stacey, 193 Ill. 2d 203, 209-10 (2000); People v. Crete, 113 Ill. 2d 156, 164 (1986); see also People v. Hanna, 155 Ill. App. 3d 805, 811-12 (1987) (holding that a trial court has discretion to, but need not, hear additional evidence on

a motion to reduce sentence).

	Here, in ruling on the defendant’s motion to reduce sentence,

the judge stated: “Under the limited area in which I believe I’m

hearing this motion, I will find that the Judge was within the

sentencing parameters of the statute, and second, the Court cannot

find an abuse of discretion.” We have found no authority indicating

this judge was required to exercise plenary review over the

defendant’s sentence. Accordingly, the defendant’s appellate attorney was not ineffective in failing to pursue this issue. Again,

the trial court correctly dismissed this claim.

	In a supplemental brief, the defendant raises another issue

never previously addressed in this case. The defendant contends

that his consecutive sentences under section 5–8–4(b) violated

Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Recently, however, in People v. Wagener, 196 Ill. 2d ___ (2001), we held that consecutive sentences under section

5–8–4(b) do not violate Apprendi. See also People v. Carney, No. 90549 (June 21, 2001) (holding that consecutive sentences under

section 5–8–4(a) do not violate Apprendi). We, therefore, reject the defendant’s contention.3

CONCLUSION

	For the reasons we have discussed, we affirm the judgment

of the appellate court.

Affirmed.