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FOURTH DIVISION
June 28, 2001

No. 1-99-4030

MODIFIED UPON DENIAL OF REHEARING

JUSTICE SOUTH delivered the opinion of the court:

In 1995, following a jury trial, defendant was found guilty of first degree murder andattempted armed robbery and was sentenced to a term of 40 years on the murder conviction and aconsecutive 10-year term on the attempted armed robbery conviction. These convictions wereaffirmed on direct appeal. People v. Burns, 304 Ill. App. 3d 1, 709 N.E.2d 672 (1999).

Defendant then challenged his convictions under the Post-Conviction Hearing Act (theAct) (725 ILCS 5/122-1 et seq. (West 1998)). The trial court reviewed the petition and dismissedit without an evidentiary hearing as frivolous and patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 1998).

In this appeal from the dismissal of his petition, defendant argues that the trial court'sorder should be vacated or, in the alternative, he should be allowed to amend his petition for tworeasons. First, he argues that one of the issues raised under his allegations of ineffectiveassistance of counsel, which was not addressed on direct appeal, should not be subject to waiveror res judicata. Second, defendant argues that pursuant to the United States Supreme Courtruling in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), andthis court's ruling in People v. Clifton, Nos. 1-98-2126, 1-98-2384 cons. (September 29, 2000),which held section 5-8-4(a) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a) (West1998)) unconstitutional, his consecutive sentencing is void and should be modified to runconcurrently.

A post-conviction proceeding is not an appeal of the underlying judgment but, rather, acollateral proceeding where the defendant may challenge a conviction or sentence for violationsof constitutional rights. People v. Johnson, 183 Ill. 2d 176, 186, 700 N.E.2d 996, 1001 (1998). Any claim of substantial denial of constitutional rights that was not raised in the original or in anamended petition is waived. 725 ILCS 5/122-3 (West 1998). In addition, the court's ruling on apost-conviction petition has res judicata effect as to all claims raised in the petition as wellas those that could have been raised. People v. Flores, 153 Ill. 2d 264, 274, 606 N.E.2d 1078(1992). The same principles apply to those issues that were or could have been raised on directappeal. Johnson, 183 Ill. 2d at 186, 700 N.E.2d at 1001. The operation of waiver and resjudicata has generally contributed to the finality of criminal litigation. Finally, where adefendant has previously taken a direct appeal from a judgment of conviction, the judgment ofthe reviewing court is res judicata as to all issues actually decided by the court, and any otherclaims that could have been presented to the reviewing court, if not presented, are waived. People v. Neal, 142 Ill. 2d 140, 146, 568 N.E.2d 808, 811 (1990).

Our review of a trial court's dismissal of defendant's post-conviction petition without anevidentiary hearing is de novo. People v. Coleman, 183 Ill. 2d 366, 389, 701 N.E.2d 1063, 1075(1998).

Defendant's first argument is that one of the issues raised under his allegations ofineffective assistance of counsel, which was not addressed on direct appeal, should not be subjectto waiver or res judicata. On direct appeal, defendant argued that his trial counsel wasineffective for failing to present evidence that one of his accomplices was possibly in jail at thetime of the crime. Due to an oversight, we determined that this allegation was based on mattersbeyond the record on appeal and, as such, should be raised in a post-conviction petition. Burns,304 Ill. App. 3d at 11-12, 709 N.E.2d at 680. However, these matters were contained in therecord. Defendant now urges that since the trial court summarily dismissed his allegation ofineffective assistance of counsel pursuant to the doctrine of res judicata, that dismissal should bevacated or, in the alternative, he should be allowed to amend his petition.

The State argues that even if this issue is not barred by res judicata, it is, nevertheless,waived because defendant failed to include this argument in his post-conviction petition.

In our opinion on direct appeal, we stated that, since the disposition of this allegation ofineffective assistance of counsel concerned matters outside the record, defendant should addressthis issue in his post-conviction petition, and we declined to address it. Burns, 304 Ill. App. 3d at11-12, 709 N.E.2d at 680. As such, res judicata does not apply here. Neal, 142 Ill. 2d at 146,808 N.E.2d at 811 (the judgment of the reviewing court is res judicata as to all issues actuallydecided by the court).

We do find, however, that pursuant to section 122-3, this issue has been waived and doesnot fall under any of the exceptions recognized by the Illinois Supreme Court. See People v.Erickson, 183 Ill. 2d 213, 223, 700 N.E.2d 1027, 1032 (1998) (this court has held that adefendant's failure to raise a claim of ineffective assistance of appellate counsel in his initialpost-conviction petition will not operate as a waiver if the defendant was represented by thesame attorney on direct appeal and in his initial post-conviction proceeding); People v. Steidl,177 Ill. 2d 239, 250, 685 N.E.2d 1335 (1997) (the waiver rule will be relaxed if either theevidentiary basis for the claim of ineffectiveness is not contained within the original trial courtrecord and, therefore, could not be considered by a reviewing court on direct appeal or if the factsrelating to the competency of trial counsel are newly discovered).

Although we failed to address this issue on direct appeal, we did state that "it is moreappropriate that the defendant's contentions be addressed in a proceeding for post-convictionrelief." Burns, 304 Ill. App. 3d at 11, 709 N.E.2d at 680. However, defendant failed to do so. Section 122-3 of the Act specifically states: "Any claim of substantial denial of constitutionalrights not raised in the original or an amended petition is waived." 725 ILCS 5/122-3 (West1998).

Defense counsel's additional contention that defendant's failure to raise this issue in his prose post-conviction petition was due to his scant educational background is not persuasive. Basedupon the common law record, defendant was fully competent to stand trial and his competency orlack thereof has never been raised as an issue. Furthermore, defendant's petition for post-conviction relief was well presented and exhibited a full understanding of his case and his legalrights. Therefore, the waiver doctrine applies.

Defendant's second argument is that his consecutive sentences under section 5-8-4(a) (730ILCS 5/5-8-4(a) (West 1998)) are void pursuant to the recent United States Supreme Court case,Apprendi v. New Jersey and, therefore, should be modified to run concurrently.

In Apprendi, the United States Supreme Court ruled that a New Jersey statutory sentencingscheme violated defendant's due process rights. The Court held that, "[o]ther than the fact of aprior conviction, any fact that increases the penalty for a crime beyond the prescribed statutorymaximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. The Supreme Court reasoned that "it isunconstitutional for a legislature to remove from the jury the assessment of facts that increase theprescribed range of penalties to which a criminal defendant is exposed. *** [S]uch facts must beestablished by proof beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at455, 120 S.Ct. at 2363.

The State maintains that Apprendi constitutes a new rule of constitutional law and,therefore, does not apply retroactively to collateral proceedings, such as the one in this case.

Based upon the Illinois Supreme Court's recent ruling in People v.Wagener, No.88-843(June 1, 2001), that consecutive sentencing does not raise Apprendi concerns, we find that thetrial court's sentencing was proper and deny plaintiff's request to modify his sentence to runconcurrently.

Based upon the foregoing analysis, the judgment of the circuit court is affirmed.

Judgment affirmed.

HARTMAN, P.J., and HOFFMAN, J., concur.