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SIXTH DIVISION
December 28, 2001

Defendant Phillip Rovito and codefendant Nicholas Kuhn were charged with two counts ofaggravated criminal sexual assault, two counts of attempted aggravated criminal sexual assault, andone count each of criminal sexual assault, aggravated kidnapping, kidnapping, and unlawful restraint. Following separate but simultaneous bench trials, defendant was convicted of criminal sexual assaultand unlawful restraint. The trial court sentenced defendant to six years in prison for criminal sexualassault consecutive to a six-year sentence defendant previously received in an unrelated case fordelivery of a controlled substance. Codefendant Kuhn was convicted of attempted criminal sexualassault, criminal sexual assault, and unlawful restraint and was sentenced to prison for concurrentterms of eight and five years.

Defendant filed a petition for post-conviction relief, which the trial court dismissed after afull evidentiary hearing. On appeal, defendant contends that: (1) his petition should not have beendismissed because he established by a preponderance of the evidence that his trial attorney wasineffective for failing to file a notice of appeal, thereby precluding his direct appeal; (2) his sentenceis unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348(2000); and (3) the simultaneous, severed bench trials denied him his right to a fair trial.

Defendant's conviction arose from an incident on May 30, 1991, during which the 14-year-old victim was sexually assaulted by defendant and codefendant in Franklin Park, Illinois. Defendant's trial commenced on September 11, 1997, and concluded on September 12, 1997. Trialcounsel filed a motion for new trial and arrest of judgment on September 22, 1997. On October 17,1997, the trial court denied defendant's motion for a new trial and arrest of judgment and imposedsentence.

In his post-conviction petition, which was prepared by retained counsel, defendant allegedthat his trial counsel was ineffective for failing to file a notice of appeal. Defendant asserted in hisaffidavit that he had informed his trial lawyer that he wished to appeal and that his lawyer hadadvised and assured him that he "would take care of appealing [the] case." At the hearing on thepetition, defendant testified that on October 17, 1997, just after he had been sentenced, he told hislawyer to file an appeal. According to defendant, his exact words were, "I'd like for appeal, by theway." Defendant testified that his lawyer said nothing in response.

Defendant's trial lawyer testified that on September 22, 1997, after defendant was foundguilty, he and the defendant spoke about the possible range of sentences defendant might receive. He testified that he and defendant had discussed the possibility of an appeal on and off, but defendantwas already serving a six-year sentence and opted not to appeal. Defense counsel further testifiedthat defendant told him he did not want to appeal if he received a sentence of six years because sixyears was the sentence he would have received pursuant to a plea agreement that was discussed ina conference that took place during the previous year and was declined. Various family membersand defendant's girlfriend testified during the hearing. They testified that defendant's trial lawyertold them he would handle defendant's appeal. Defendant's trial lawyer testified that he never tolddefendant or members of his family that he would file a notice of appeal on defendant's behalf.

The post-conviction court denied defendant's petition. The court determined that thedefendant and witnesses did not provide reliable or credible evidence that defendant asked his triallawyer to file a notice of appeal. The court concluded that defense counsel "was never requested toperfect the defendant's right to appeal the finding of guilty and sentence of this Court." The post-conviction court found that defendant's lawyer was not ineffective. Defendant's petition seeking tofile late notice of appeal was denied.

The Post-Conviction Hearing Act (Act) allows a defendant to collaterally challenge hisconviction or sentence for violations of federal or state constitutional rights. 725 ILCS 5/122-1 etseq. (West 1998); People v. Montgomery, 192 Ill. 2d 642, 653-54 (2000). The Act establishes athree-stage process for adjudicating a petition for post-conviction relief. 725 ILCS 5/122-1 et seq.(West 1998). At the first stage, the court is required to independently review the post-convictionpetition within 90 days of its filing and determine whether "the petition is frivolous or is patentlywithout merit." 725 ILCS 5/122-2.1(a)(2) (West 1998). Whether the petition and any accompanyingdocuments make a substantial showing of a constitutional violation is a second-stage inquiry. Peoplev. Edwards, 197 Ill. 2d 239, 245-46 (2001). If at the second stage a substantial showing of aconstitutional violation is set forth, the petition is advanced to the third stage for an evidentiaryhearing. 725 ILCS 5/122-6 (West 1998); People v. Gaultney, 174 Ill. 2d 410, 418 (1996).

This case was before the trial court at the third stage of the post-conviction process. Post-conviction relief at the third stage of the post-conviction process is justified only where a defendantdemonstrates by a preponderance of the evidence that his conviction or sentence resulted from asubstantial deprivation of federal or state constitutional rights. Montgomery, 192 Ill. 2d at 654. Dismissal of the petition by the post-conviction court following an evidentiary hearing on thepetition will be reversed only if dismissal is manifestly erroneous. Montgomery, 192 Ill. 2d at 654;People v. Coleman, 183 Ill. 2d 366, 384-85 (1998).

The right to appeal a criminal conviction is fundamental and is guaranteed by the IllinoisConstitution. Ill. Const. 1970, art. VI,