NO. 5-99-0631

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the

							)	Circuit Court of

	Plaintiff-Appellee, 				)	St. Clair County.  

							)

v.							)	No. 94-CF-457

							)

PHILLIP O'NEIL,	 				)	Honorable

							)	Roger M. Scrivner, 

	Defendant-Appellant.			)	Judge, presiding.  

___________________________________________________________________________

	PRESIDING JUSTICE CHAPMAN delivered the opinion of the court:

	Phillip O’Neil (defendant) was found guilty of first-degree murder and sentenced to

30 years’ imprisonment.  On direct appeal, this court affirmed both the conviction and the

sentence.  People v. O'Neil, 294 Ill. App. 3d 1131, 721 N.E.2d 865 (1998) (unpublished order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23)).  Defendant filed a petition of

rehearing, which this court denied, and a petition for leave to appeal, which the Illinois

Supreme Court denied (People v. O'Neil, 178 Ill. 2d 590, 699 N.E.2d 1035 (1998)).  

	Defendant filed a postconviction petition alleging ineffective trial counsel, and after

an evidentiary hearing, the trial court denied the petition.  The trial court found that

defendant was not prevented from taking the stand, that counsel’s advice that he not take the

stand was not incompetent, and that counsel’s performance and preparation exceeded the

requirements of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)).  Defendant’s motion to reconsider was  denied.  Defendant filed this timely appeal.

	The only issue raised on this appeal is whether the denial of postconviction relief was

manifestly erroneous.  See People v. Coleman, 183 Ill. 2d 366, 385, 701 N.E.2d 1063, 1974 (1998).  We conclude that it was not, and we affirm the trial court’s denial of postconviction

relief.

	Defendant testified at the postconviction petition hearing that he had told trial counsel

that he wished to testify on his own behalf and counsel assured him that he could do so. 

Midtrial, however, counsel explained to defendant that self-defense was not a viable theory

in this case and that by exercising his right to testify, it would hurt the case.  Defendant took

counsel's advice and decided not to testify. 

	The Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 1998)) allows criminal

defendants a remedy when substantial violations of their constitutional rights occurred at the

trial.  People v. Moore, 177 Ill. 2d 421, 427, 686 N.E.2d 587, 591 (1997). Such proceedings are collateral attacks on a final judgment.  Moore, 177 Ill. 2d at 427, 686 N.E.2d at 591.  The scope of the review is therefore limited to issues that neither have been, nor could have been,

previously adjudicated.  Moore, 177 Ill. 2d at 427, 686 N.E.2d at 591.  The determinations of the reviewing court on the prior direct appeal are res judicata as to those issues actually decided, and any issues that could have been presented on direct appeal, but were not, are

waived.  Moore, 177 Ill. 2d at 427, 686 N.E.2d at 591.  

	Defendant argued on direct appeal to this court the ineffectiveness of trial counsel for

failing to advance a theory of self-defense, for failing to put two specific witnesses on the

stand, and for not allowing defendant to testify on his own behalf.  We concluded at that time

that self-defense was not a viable defense in the case and that counsel was not ineffective. 

	Defendant argues that courts have found the application of the doctrine of res judicata to be a rule of administrative convenience and that it may be relaxed when required by

"fundamental fairness."  See Moore, 177 Ill. 2d at 427-28, 686 N.E.2d at 591.  Despite this fact, defendant has raised the same issues in this postconviction petition as he did on direct

appeal.  A defendant cannot avoid the bar of res judicata by merely rephrasing issues previously raised on direct appeal.  People v. Simms, 192 Ill. 2d 348, 360, 736 N.E.2d 1092, 1105 (2000).  Therefore, we conclude that these issues are barred by the doctrine of res judicata, and the trial court properly denied defendant’s petition for postconviction relief.

	Affirmed. 

	HOPKINS , J., and GOLDENHERSH, JJ., concurring.

	NO. 5-99-0631

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the

							)	Circuit Court of

	Plaintiff-Appellee, 				)	St. Clair County.  

							)

v.							)	No. 94-CF-457

							)

PHILLIP O'NEIL,	 				)	Honorable

							)	Roger M. Scrivner, 

	Defendant-Appellant.			)	Judge, presiding.  

___________________________________________________________________________

Opinion Filed:	March 9, 2001

___________________________________________________________________________

Justices:	Honorable Charles W. Chapman, P.J.

	Honorable Terrence J. Hopkins, J.

	Honorable Richard P. Goldenhersh, J.

	Concur

___________________________________________________________________________

Attorneys	Daniel D. Yuhas, Deputy Defender, Office of the State Appellate

for	Defender, Fourth Judicial District, 400 South Ninth Street, Suite

Appellant	102, P.O. Box 5750, Springfield, IL 62705-5750

___________________________________________________________________________

Attorneys	Hon. Robert Haida, State's Attorney, St. Clair County, 10 Public

for	Square, Belleville, IL 62220; Norbert J. Goetten, Director, Stephen

Appellee	E. Norris, Deputy Director, +Kendra S. Peterson, Staff Attorney, 

	Office of the State's Attorneys Appellate Prosecutor, Route 15

	East, P.O. Box 2249, Mt. Vernon, IL 62864

___________________________________________________________________________