Find Legal Information

This court's earlier order on the direct appeal adequately summarized the factual background ofthis case, and we will set forth only those facts relevant to the contentions raised in this appeal. Atdefendant's trial, the victim, an 11-year-old girl, testified that defendant had committed acts of a sexualnature against her on at least two different occasions. The victim's babysitter, Kerry Bibens, testified that,on June 15, 1992, she observed the victim, wearing only a T-shirt, lying on her back on her bed with herknees up and spread apart. Bibens also observed defendant standing next to the bed, facing the victim,with his pants down to his knees. The victim's sister, E.B., testified that, on another occasion, shewitnessed defendant lying on top of the victim on a couch and that his "bottom" was moving. E.B. testifiedthat neither defendant nor the victim was wearing pants. A jury convicted defendant of two counts ofaggravated criminal sexual assault. 720 ILCS 5/12--14(b)(1) (West 1992).

In his postconviction petition, defendant alleged, inter alia, four different constitutional violations. First, defendant alleged that he was deprived of a fair trial when the trial court permitted the victim and E.B.to testify without first conducting a competency hearing. Defendant alleged that both the victim and E.B.suffered from mental impairments and were taking psychotropic medication at the time of their trialtestimony. Second, defendant alleged that both his trial and appellate counsel were ineffective because theyfailed to raise the issue of the victim's and E.B.'s competency to testify. Third, defendant alleged that histrial counsel was ineffective for failing to introduce evidence that allegedly indicated that defendant did notsuffer from the sexually transmitted disease known as chlamydia. Because the victim did suffer fromchlamydia, defendant alleged that the evidence would have supported his claim of innocence. Fourth,defendant alleged that his right to a fair trial was violated when the State was permitted to introduceevidence of other, uncharged acts of sexual contact between defendant and the victim. In his supplementalpetition, defendant alleged that his extended-term sentences violated Apprendi because they werepredicated upon the trial court's conclusion that defendant's conduct resulted in serious harm to the victimand that extended terms were necessary to protect the public and deter others from committing similarconduct. Defendant argued that, under Apprendi, this enhancing factor had to be proved to a jury beyonda reasonable doubt.

On July 27, 2001, the trial court entered a written order disposing entirely of defendant'spostconviction petition. First, the trial court dismissed the four non-Apprendi allegations contained indefendant's petition. The trial court found that the mere ingestion of psychotropic medication, in and ofitself, did not render a witness incompetent to testify. The trial court explained that the issue of thecompetency of a witness did not present the gist of a meritorious constitutional claim that could form thebasis for postconviction relief. The trial court further found that trial and appellate counsel were notineffective for failing to raise the competency issue because the report of proceedings from the victim's andE.B.'s testimony did not create a bona fide doubt as to their competency. Regarding the issues surroundingdefendant's medical records and chlamydia, the trial court noted that this court had previously held on directappeal that defendant had not proved that he was prejudiced by his trial counsel's failure to introduceevidence that defendant allegedly did not have chlamydia. See Fikara, slip op. at 19. Similarly, the trialcourt noted that this court had also found no abuse of discretion in the admission of the other-crimesevidence. Fikara, slip op. at 8.

As to the Apprendi issue raised in defendant's supplemental petition, the trial court found that defendant's extended-term sentence was predicated in part upon factors, besides his criminal history, thatwere not determined by a jury beyond a reasonable doubt. Therefore, the trial court ruled that fundamentalfairness required that defendant's petition be granted in part and that his sentence should be vacated and"a new sentencing hearing held in accordance with the standards of Apprendi addressing only non-Apprendi factors." As noted above, following a new sentencing hearing, the trial court resentenceddefendant to two consecutive, extended-term sentences of 40 years. The extended-term sentences werepredicated upon defendant's prior Class X felony conviction for armed robbery in 1979. Following thedenial of defendant's postsentencing motions, defendant filed a pro se notice of appeal challenging the trialcourt's new sentencing order and the trial court's previous order disposing of his postconviction petition.

On appeal, defendant contends that (1) the trial court erred in denying his request for a new trialon the basis of "newly discovered chlamydia" evidence that completely exonerates him of the chargedoffenses; (2) the trial court erred in its determination that trial counsel was not ineffective; (3) the trial courterred in resentencing him to an extended term without first granting a new trial as mandated by section 5--5--4 of the Unified Code of Corrections (the Code) (730 ILCS 5/5--5--4 (West 2002)); and (4) theprovisions of the Code under which the trial court imposed consecutive sentences and extended terms. (730 ILCS 5/5--5--3.2(b)(1), 5--8--4(a) (West 2000)) violate the state and federal constitutionalguarantees against double jeopardy, ex post facto laws, and the separation of powers.

Prior to addressing the merits, we first consider the State's assertion that this court lacksjurisdiction to consider defendant's first two contentions. These two contentions address the propriety ofthe trial court's July 27, 2001, order dismissing all of the issues raised in defendant's postconviction petitionwith the exception of the Apprendi issue. The State argues that, had defendant wished to appeal thisdismissal order, he was required by Supreme Court Rule 606(b) (188 Ill. 2d R. 606(b)) to file a notice ofappeal within 30 days after entry of the July 27, 2001, order or within 30 days after entry of an orderdisposing of a timely filed motion directed against the judgment. Because defendant did not file his noticeof appeal until February 27, 2002, which was the day the trial court entered its resentencing order, theState argues that this notice was not effective to preserve review of the July 27, 2001, order dismissing thenon-Apprendi contentions in defendant's postconviction petition.

Section 122--7 of the Act provides that any "final judgment" entered upon a postconviction petition"shall be reviewed in a manner pursuant to the rules of the Supreme Court." 725 ILCS 5/122--7 (West2000). Illinois courts have held that an order that disposes entirely of a postconviction petition isimmediately appealable, even if the order does not ultimately dispose of the criminal proceedings againstthe defendant. See People v. Scott, 194 Ill. 2d 268, 278-79 (2000) (noting that trial court's dispositionof the defendant's postconviction petition was immediately appealable even though trial court determinedthat the defendant should receive a new sentencing hearing); People v. Joyce, 1 Ill. 2d 225, 227 (1953)(holding that an order disposing of postconviction petition was immediately appealable by either the Stateor the defendant even though the trial court determined that the defendant should receive a new trial). Suchan order, while not necessarily disposing of the criminal proceeding, nonetheless is a final disposition of thepetition under the Act. Joyce, 1 Ill. 2d at 227. As correctly noted by the State, to preserve review of anorder entirely disposing of a postconviction proceeding, Supreme Court Rules 651(d) and 606(b) requirethe party seeking review to file a notice of appeal within 30 days of the entry of the final order disposingof the petition or within 30 days of the entry of the order disposing of a timely filed motion attacking thejudgment. 134 Ill. 2d R. 651(d); 188 Ill. 2d R. 606(b).

Here, the trial court's July 27, 2001, order disposed of defendant's postconviction petition entirely. After finding that defendant's extended-term sentences violated Apprendi, the trial court granted thepostconviction petition in part, vacated defendant's sentence, and scheduled a new sentencing hearing. Pursuant to the State's motion, the trial court dismissed defendant's remaining allegations in the petition. The entry of this order resolved all issues raised in the postconviction petition and was a final dispositionof the petition under the Act. As such, the order was immediately appealable, and Rule 606(b) requiredthat a notice of appeal be filed within 30 days by any party seeking review of the order or within 30 daysof the disposition of a timely filed motion attacking the judgment. See Joyce, 1 Ill. 2d at 227. Defendantfailed to file either a notice of appeal or a motion directed against the order within 30 days of the entry ofthe July 27, 2001, order. As noted above, defendant did not file a notice of appeal until February 27,2002, and his notice of appeal made no mention of the postconviction proceedings or the July 27, 2001,order. Defendant's failure to timely file a notice of appeal deprives this court of jurisdiction to considerthose issues relating to the dismissed allegations of his postconviction petition. Additionally, we note thatdefendant did not seek leave to file a late notice of appeal or argue that his trial counsel's failure to file atimely notice of appeal constituted the ineffective assistance of counsel. See 188 Ill. 2d R. 606(c). Accordingly, we lack jurisdiction to consider the first two contentions raised by defendant on appeal.

Defendant's third contention on appeal is that, following the grant of postconviction relief, the trialcourt abused its discretion in resentencing him to an extended term without first granting him a new trial asmandated by section 5--5--4 of the Code (730 ILCS 5/5--5--4 (West 2002)). Defendant argues thatsection 5--5--4 required the trial court to grant him a new trial following the vacating of his sentence dueto an Apprendi violation and upon the State's notice of its intent to again seek an extended-term sentence. Therefore, defendant requests that we vacate his sentence and remand the case for further proceedings incompliance with section 5--5--4 of the Code.

In Apprendi, the United States Supreme Court held that, "[o]ther than the fact of a prior conviction,any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submittedto a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120S. Ct. at 2362-63. In response to Apprendi, our legislature amended section

5--5--4 of the Code. See People v. Askew, 341 Ill. App. 3d 548, 578-79 (2003). That section provides,in relevant part, as follows:

"If a sentence is vacated on appeal or on collateral attack due to the failure of the trier of fact attrial to determine beyond a reasonable doubt the existence of a fact (other than a prior conviction)necessary to increase the punishment for the offense beyond the statutory maximum otherwiseapplicable, either the defendant may be re-sentenced to a term within the range otherwise providedor, if the State files notice of its intention to again seek the extended sentence, the defendant shallbe afforded a new trial." 730 ILCS 5/5--5--4 (West 2002).

As defendant correctly notes, the cardinal rule of statutory construction is to ascertain and give effect tothe intent and meaning of the legislature. People v. Patterson, 308 Ill. App. 3d 943, 947 (1999). Thelanguage used in the statute is the primary source of legislative intent. People v. Juris, 189 Ill. App. 3d 934,935 (1989). Where the statutory language is clear and unambiguous, the function of the court is to enforcethe statute as enacted. Patterson, 308 Ill. App. 3d at 948. Any ambiguities in a penal statute, especiallyin the case of enhancement provisions, must be resolved in the defendant's favor. Juris, 189 Ill. App. 3dat 935.

We agree with defendant that the statutory language of section 5--5--4 unambiguously requires thata defendant be afforded a new trial in an instance where his sentence has been vacated on a collateralattack due to an Apprendi violation and where the State indicates its intent to again seek an extended-termsentence. 730 ILCS 5/5--5--4 (West 2002). Here, the trial court vacated defendant's sentence oncollateral attack because the trial court had previously imposed an extended- term sentence predicated inpart upon factors that were not found by a jury beyond a reasonable doubt. According to section 5--5--4of the Code, defendant would therefore be entitled to a new trial in the event that the State filed a noticeof its intent to again seek an extended-term sentence.

As noted above, the State did file a notice of its intent to again seek an extended-term sentence. However, the State's notice indicated that it would seek the imposition of an extended term only on thebasis of defendant's past felony conviction, rather than the other enhancing factors relied upon by the trialcourt in imposing the original extended-term sentence. Because the use of a defendant's past criminalhistory as an enhancing factor is a specific exception to the rule established in Apprendi, we believe thatthis case falls outside section 5--5--4's requirement that defendant be granted a new trial. Apprendi doesnot require that a defendant's past criminal history be found by a jury beyond a reasonable doubt beforesuch history can be the basis for a sentencing enhancement. See People v. Watson, 322 Ill. App. 3d 164,167-69 (2001). Therefore, no purpose would be served in conducting a new trial, and such an exerciseis not constitutionally required. See Watson, 322 Ill. App. 3d at 168-69.

We therefore read section 5--5--4's requirement of a new trial to apply only in those instanceswhere the State files a notice of its intent to seek an extended-term sentence based on enhancing factorsother than a defendant's prior conviction. While we recognize that the plain language of the statute doesnot specifically exempt from its new trial requirement instances where the State intends to seek an extendedterm based solely on a defendant's prior conviction, we believe that this was nonetheless the legislature'sintent based on a reading of the statute in its entirety. The initial portion of section 5--5--4's statutorylanguage states that the statute applies to sentences that are vacated on collateral attack due to the failureof the jury "to determine beyond a reasonable doubt the existence of a fact (other than a prior conviction)necessary to increase the punishment for the offense beyond the statutory maximum." (Emphasis added.) 730 ILCS 5/5--5--4 (West 2002). Using such language, the legislature stated its intention that the statuteapply only to those cases where the sentencing enhancement was based on a factor other than a priorconviction. Such language parallels the United States Supreme Court's language in Apprendi, which isquoted above. We therefore do not believe that the legislature intended to grant a defendant the right toa new trial in instances where the State seeks an extended-term sentence based solely upon a defendant'sprior convictions. See Askew, 341 Ill. App. 3d at 580-81 (noting that the legislature's amendments to theCode following Apprendi were intended in part to codify Apprendi's exemption of prior convictions fromthe category of facts that must be charged in an indictment, submitted to the jury, and proved beyond areasonable doubt).

Statutes are to be construed as a whole and significance and effect should be given everyparagraph, sentence, phrase, and word of a statute. People v. Brown, 157 Ill. App. 3d 61, 64 (1987). A statute should be construed so that no sentence, clause, or word is rendered superfluous or meaningless. Brown, 157 Ill. App. 3d at 64. Additionally, although criminal statutes are to be construed in favor of theaccused, such construction must not be so rigid as to defeat the intent of the legislature. Askew, 341 Ill.App. 3d at 580. After viewing the statutory language in its entirety, and giving consideration to the fact thatthe statutory language was adopted in response to Apprendi, we conclude that section 5--5--4 of the Codedoes not require the trial court to conduct a new trial in instances where the State intends to seek anextended-term sentence based solely on the existence of a defendant's prior conviction. This interpretationharmonizes with the constitutional principles articulated in Apprendi and the other Illinois authorities notedabove. See Askew, 341 Ill. App. 3d at 580. We therefore hold that the trial court did not abuse itsdiscretion or err as a matter of law when it resentenced defendant to an extended term based on his priorcriminal convictions without first granting a new trial.

Defendant's final contention on appeal is that the consecutive sentence and extended-termprovisions of the Code under which he was sentenced following the grant of postconviction relief (730ILCS 5/5--5--3.2(b)(1), 5--8--4(a) (West 2000)) violate the constitutional guarantees against doublejeopardy, ex post facto laws, and the separation of powers. Although defendant's contention is confusingand unfocused, he appears to argue that he cannot constitutionally be sentenced to consecutive extendedterms of imprisonment based on his previous felony conviction. We find that each of the constitutionalarguments raised by defendant in his final contention lacks merit. We will briefly address each of thesepoints below.

Defendant first argues that the trial court's imposition of consecutive sentences under section 5--8--4(a) of the Code violated his due process rights under Apprendi as it permitted the trial court, rather thana jury, to determine the factors warranting the imposition of a consecutive sentence. This argument wasrejected in People v. Carney, 196 Ill. 2d 518, 536 (2001), wherein our supreme court held thatconsecutive sentences imposed under section 5--8--4(a) do not violate due process and that Apprendidoes not apply to the imposition of consecutive sentences.

Defendant next argues that the trial court erred in receiving evidence at the resentencing hearingbeyond the evidence of his prior felony conviction. Defendant claims that, under Apprendi, the trial courtcould not consider any evidence aside from his prior conviction. However, defendant cites no authorityin support of his proposition that Apprendi limits the type of evidence that may be introduced during asentencing hearing. As the State notes, the ordinary rules of evidence that apply during the guilt phase ofa trial are not applicable during a sentencing hearing. People v. Bilski, 333 Ill. App. 3d 808, 818 (2002). Rather, the decision to admit particular types and sources of evidence during a sentencing hearing is withinthe discretion of the sentencing judge. Bilski, 333 Ill. App. 3d at 818. Here, although the trial court mayhave received evidence at sentencing relating to the commission of the crimes alleged to have beencommitted by defendant in this case, the record demonstrates that the trial court considered only the factof defendant's prior felony conviction in making its decision to impose an extended-term sentence. Therefore, we find no violation of Apprendi.

Defendant also argues that his extended-term sentence violated the state and federal constitutionalguarantees against double jeopardy and ex post facto laws. Defendant contends that his extended-termsentences imposed under section 5--5--3.2(b)(1) constitute additional punishment for his prior 1979 felonyconviction, which sentence he has already served. Defendant's argument misses the mark. An ex postfacto law is one that is retrospective, affects substantial rights, and disadvantages the defendant. Miller v.Florida, 482 U.S. 423, 430, 96 L. Ed. 2d 351, 360, 107 S. Ct. 2446, 2451 (1987). Defendant has notargued that the extended-term sentencing provisions of section 5--5--3.2(b)(1) were not in effect at thetime of the crimes charged in this case. Therefore, defendant has not presented a true ex post factoargument, i.e., that he was not resentenced according to the law in the effect at the time of the offense. SeePeople v. O'Quinn, 339 Ill. App. 3d 347, 361-62 (2003). However, even if defendant had shown thata new sentencing law had been retroactively applied to his case, Illinois courts have previously held thatlegislative amendments to the provisions governing extended-term sentences merely affect a mode ofprocedure and do not violate constitutional ex post facto principles. See O'Quinn, 339 Ill. App. 3d at 362;People v. McClain, No. 1--01--1936 (September 18, 2003).

Additionally, defendant has not presented a meritorious double jeopardy argument. That defendanthas received an extended-term sentence in this case because of his prior conviction does not supportdefendant's assertion that he has been tried and sentenced a second time for his 1979 conviction. Rather,as noted by the State, defendant's sentences for his two aggravated criminal sexual assault convictions inthis case were extended because he is a recidivist. The aim of recidivist statutes is to impose harshersentences on offenders whose repeated convictions have shown their resistance to correction. People v.Lemons, 191 Ill. 2d 155, 160 (2000). Defendant has not provided a single authority holding that the Stateis constitutionally prohibited from considering a defendant's criminal history as a sentencing enhancement. Rather, as noted above, the Apprendi Court recognized recidivism as an exception to the requirement thatthe State must establish beyond a reasonable doubt every fact used to increase a defendant's sentencebeyond the maximum term. Here, defendant does not deny the existence of his prior felony conviction orthat the prior conviction was entered in a fair proceeding in which he was afforded due process. For allof these reasons, we conclude that defendant's extended-term sentences did not violate his constitutionalguarantee against double jeopardy.

Defendant next argues that "the sentencing scheme excluded the judiciary from the sentencingfunction and violate[d] the separation of powers." However, defendant fails to recognize that the legislaturehas the authority to set the nature and extent of criminal penalties, and the courts are without authority tointerfere with such legislation unless the challenged penalty is clearly in excess of the broad and generalconstitutional limitations. People v. Thomas, 171 Ill. 2d 207, 221 (1996). Finally, defendant argues thatthe statutes under which he was sentenced did not require the State to provide notice in the charginginstrument of the facts allegedly qualifying him for an enhanced sentence. As noted above, when the Stateintends to rely on a prior conviction in seeking the imposition of an extended-term sentence, the State isnot obligated to allege the prior conviction in the charging instrument and prove the conviction to a jurybeyond a reasonable doubt. See Askew, 341 Ill. App. 3d at 581. For all of these reasons, we rejectdefendant's broad constitutional challenges to sections 5--5--3.2(b)(1) and 5--8--4(a) of the Code.

For the foregoing reasons, we affirm the judgment of the circuit court of Lee County.

Affirmed.

GROMETER and KAPALA, JJ., concur.

Supplemental Opinion Upon Denial of Rehearing

PRESIDING JUSTICE HUTCHINSON delivered the opinion of the court:

In his petition for rehearing, defendant concedes that the trial court's July 27, 2001, order was finaland immediately appealable. However, defendant asserts that the trial court failed to order the clerk of thecircuit court to provide him with immediate notice of the July 27, 2001, adverse judgment as required bySupreme Court Rule 651(b) (134 Ill. 2d R. 651(b)). Defendant therefore contends that he was neveradmonished as to the necessity of filing a timely notice of appeal from the July 27, 2001, order, and thathis failure to do so should be excused. Defendant requests that we address the merits of his first twocontentions on appeal.

Supreme Court Rule 651(b) requires that, upon the entry of a judgment adverse to a defendantin a postconviction proceeding, the clerk of the trial court "shall at once mail or deliver" to the defendanta notice advising him of the entry of the order and advising him of his right to appeal. 134 Ill. 2d R. 651(b). Rule 651(b) provides the form that the notice should take and requires that the defendant be advised of thesteps necessary to preserve his right to appeal. 134 Ill. 2d R. 651(b). After a thorough review of therecord, we agree with defendant that the clerk of the trial court failed to provide him with the requirednotice of adverse judgment. The record also reveals that the trial court failed to admonish defendant of thefinality of the July 27, 2001, order and of the need to file a notice of appeal within 30 days to preserve hisright to appeal.

In instances where the requirements of Rule 651(b) have not been satisfied, the reviewing courtmust treat a defendant's untimely notice of appeal as a petition for leave to file a late notice of appeal withinthe contemplation of Supreme Court Rule 606(c) (188 Ill. 2d R. 606(c)). People v. Allen, 7 Ill. App. 3d249, 251-52 (1972). The reviewing court must then grant the petition and consider the merits raised in thedefendant's appeal. Allen, 7 Ill. App. 3d at 252. The reviewing court must allow the filing of a late noticeof appeal even when the six-month period for seeking leave to file a late notice of appeal provided in Rule606(c) has already expired. See People v. Meeks, 31 Ill. App. 3d 396, 400 (1975) (noting that areviewing court has jurisdiction to entertain a late notice of appeal in instances where the defendant receivednotice of the adverse judgment after the six months provided by Rule 606(c)).

As a result of the trial court's failure to ensure compliance with Rule 651(b) in this case, we musttreat defendant's untimely notice of appeal from the July 27, 2001, order as a petition to file a late noticeof appeal and consider defendant's contentions of error relating to the dismissal of portions of hispostconviction petition. See Allen, 7 Ill. App. 3d at 252. Although we acknowledge that defendant wasrepresented by counsel and present in court at the time the trial court made its ruling disposing of thepostconviction petition in its entirety, the trial court's failure to comply with Rule 651(b) meant thatdefendant never received the admonitions required by law, and fundamental fairness requires that weconsider the contentions raised by defendant. See People v. Foster, 171 Ill. 2d 469, 473 (1996) (holdingthat reviewing court should entertain appeal where a trial court has failed to admonish the defendant howto preserve his right to appeal, even in instances where the defendant was represented by counsel andcounsel was aware of necessary steps to preserve appeal). We thus turn to a consideration of defendant'scontentions of error relating to the trial court's dismissal of portions of his postconviction petition.

As detailed in our initial opinion, defendant contends that the trial court erred in dismissing thatportion of his postconviction petition alleging the existence of "newly discovered chlamydia" evidence thatpurportedly exonerates him of the charged offenses. Defendant also contends that the trial court erred indismissing that portion of his postconviction petition alleging that he was denied the effective assistance oftrial counsel. We will consider each of these contentions in turn.

The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West 1998)) providesa mechanism by which defendants under criminal sentences in this state can assert that their convictionswere the result of a substantial denial of their rights under the United States Constitution or the IllinoisConstitution or both. People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). A petition for postconvictionrelief is not an appeal of the underlying judgment; rather, it is a collateral proceeding. People v. Johnson,206 Ill. 2d 348, 356 (2002). As such, a postconviction proceeding allows an inquiry only intoconstitutional issues that were not, and could not have been, adjudicated on direct appeal. Johnson, 206Ill. 2d at 356. Issues that were raised and decided on direct appeal are barred from consideration by thedoctrine of res judicata; issues that could have been raised, but were not, are considered waived. Johnson,206 Ill. 2d at 356. The trial court may dismiss a postconviction petition without a full evidentiary hearingwhere the petition fails to sufficiently demonstrate a constitutional infirmity that would necessitate relief underthe Act. Coleman, 183 Ill. 2d at 380. We review de novo the dismissal of a postconviction petition. Coleman, 183 Ill. 2d at 388-89.

We first consider defendant's assertion that he is entitled to a new trial because the medicalevidence demonstrated that he did not have chlamydia. On direct appeal, defendant similarly argued thathe could not be guilty of the charged sex offenses because the trial evidence established that the 11-year-old victim had tested positive for chlamydia and that he tested negative for the disease. We rejected thisargument, explaining:

"The defendant testified that he had been tested and found not to have any sexually transmitteddiseases. However, there was also testimony that a specific test for chlamydia is required in orderto detect it. During deliberations, the jury sent a note to the trial court asking if there was anymedical proof that the defendant did or did not have chlamydia. The defense counsel offered noobjection to the trial court's response that the jury must determine if there was such medical proof. Clearly, it was a question for the jury to determine based upon the evidence before it." People v.Fikara, No. 2--95--1463, slip op. at 17 (unpublished order under Supreme Court Rule 23).

To the extent that defendant's allegations in his postconviction petition raise similar questions regarding thetrial evidence, these allegations are barred under the doctrine of res judicata. People v. Enis, 194 Ill. 2d361, 375 (2000).

In his brief, defendant asserts that his postconviction petition contained "newly discovered evidence"that exonerated him of the charged sex offenses. However, our review of defendant's petition and itsattachments reveals no new medical evidence resolving the question of whether defendant suffered fromchlamydia. Although defendant attaches the results from several blood tests taken during the yearsfollowing his conviction, none of these results specifically reference a test for the presence of chlamydia orindicate whether defendant had the disease. Neither the contents of defendant's petition and affidavits norhis exhibits support his claim on appeal that he "tested negative for the disease showing that he never hadit and couldn't possibly be the person who infected the victim." Accordingly, we hold that the trial courtcorrectly dismissed these allegations of the postconviction petition because defendant failed to establish thathis constitutional rights were violated.

Within defendant's discussion of the chlamydia evidence, he also asserts that the victim and hersister were incompetent to testify at trial due to their alleged use of psychotropic medications. We agreewith the State that this argument could have been raised on direct appeal and that defendant's failure to doso waives the issue for purposes of this postconviction proceeding. Johnson, 206 Ill. 2d at 356. Accordingly, we decline defendant's request to consider the issue on appeal.

Defendant's second contention of error concerning the postconviction proceedings is that the trialcourt erred in dismissing that portion of the petition seeking a new trial on the basis of his allegations thathis trial counsel was ineffective. Specifically, defendant argues that his trial counsel was ineffective because(1) counsel failed to establish that he never had chlamydia and therefore could not have transmitted thedisease to the victim; (2) counsel failed to object to the State's conduct of carving multiple charges "out ofa single offense"; (3) counsel failed to investigate the mental histories of the victim and her sister and tochallenge their competence to testify; (4) counsel failed to impeach the victim and her sister with priorinconsistent statements; and (5) counsel failed to object to the use of "tainted evidence." These issues werenot raised on direct appeal, and defendant's failure to do so waives their consideration for purposes of thispostconviction proceeding. See Johnson, 206 Ill. 2d at 356. However, defendant has also alleged thathis appellate counsel was ineffective for failing to raise these issues on direct appeal. The waiver doctrineis inapplicable in instances where the alleged waiver of an issue stems from ineffective assistance ofappellate counsel. People v. Haynes, 192 Ill. 2d 437, 476 (2000). We will therefore consider defendant'sallegations in the context of ineffective assistance of appellate counsel.

To establish that appellate counsel was ineffective for failing to raise an issue on direct appeal, adefendant must show that (1) his appellate counsel's failure to raise the issue was objectively unreasonable,and (2) counsel's decision prejudiced the defendant. People v. Easley, 192 Ill. 2d 307, 328-29 (2000). The sixth amendment right to effective assistance of counsel does not mandate that appellate counsel raiseevery conceivable argument that could be made. People v. Richardson, 189 Ill. 2d 401, 412 (2000). Counsel's assessment of which issues to raise and argue will not be questioned unless it was patently wrong. Richardson, 189 Ill. 2d at 412. Therefore, unless the underlying issues are meritorious, a defendant hassuffered no prejudice from counsel's failure to raise them on appeal. Easley, 192 Ill. 2d at 329.

Initially, we note that appellate counsel did argue on direct appeal that defendant was denied theeffective assistance of trial counsel. See Fikara, slip op. at 18-22. Appellate counsel's argument consistedof 10 instances of trial counsel's alleged ineffectiveness, including trial counsel's failure to introduce medicalrecords that purportedly established that defendant did not have chlamydia. In rejecting defendant's requestfor a new trial based upon trial counsel's alleged ineffectiveness, this court concluded that defendant couldnot establish that, but for his trial counsel's failures, the jury would have acquitted him of the chargedoffenses. We explained that the evidence presented in the case was not closely balanced and that ourreview of the record satisfied us "that defendant's conviction on the charges in this case was not the resultof any failure on the part of *** defense counsel in his representation of the defendant." Fikara, slip op.at 21. With this background, we address the allegations of ineffective assistance of counsel contained indefendant's postconviction petition.

Defendant's first allegation of ineffectiveness is that trial counsel was ineffective for failing toestablish that defendant did not have chlamydia. On direct appeal, we held that defendant was not deniedthe effective assistance of trial counsel as a result of counsel's failure to introduce a medical report thatindicated the results of a test for chlamydia. In so holding, we stated that, "even assuming that the documentin question established that the defendant did not suffer from the disease, there was more than sufficientother evidence of the defendant's guilt in the case." Fikara, slip op. at 19. In light of our priordetermination, we conclude that an appellate argument predicated upon trial counsel's ineffectiveness forfailing to prove that defendant did not have chlamydia would be without merit.

Defendant's second allegation of ineffectiveness is that trial counsel failed to argue that theindictment carved multiple charges "out of a single offense." However, defendant did not make thisallegation in his postconviction petition; therefore, we deem it waived. People v. Rovito, 327 Ill. App. 3d164, 178-79 (2001). We thus decline to consider whether appellate counsel was ineffective for failing toraise this issue on direct appeal.

Defendant's third allegation of ineffectiveness is that trial counsel failed to challenge the competencyof the victim and her sister based on their alleged use of psychotropic medication. As noted by the trialcourt, the ingestion of psychotropic medication does not give rise to a bona fide doubt as to a witness'scompetency. See People v. Mitchell, 189 Ill. 2d 312, 331 (2000). Defendant offers no evidence, otherthan his own assertions, that these witnesses were incompetent to testify. Our review of the record revealsno indication that these witnesses had mental conditions that affected their ability to perceive, record,recollect, or narrate. See People v. Sykes, 341 Ill. App. 3d 950, 973 (2003). Additionally, as noted bythis court on direct appeal, the other evidence admitted at trial corroborated the testimony of thesewitnesses as to defendant's sexual abuse. Fikara, slip. op. at 9-10. The children's babysitter testified thatshe observed defendant standing in front of the victim, who was naked, with his pants and underwear athis knees. The victim's mother and a police officer testified that the victim told them of the sexual actsdefendant committed against her. Finally, medical testimony established that the victim had prior sexualcontact. In light of this corroborative evidence, a challenge to the competency of the victim and her sisterwould not have resulted in defendant's acquittal on the charges. Therefore, we hold that appellate counselwas not ineffective for failing to raise this issue on direct appeal.

Defendant's final two allegations of ineffectiveness are that trial counsel failed to impeach the victimand her sister with their prior inconsistent statements or to object to the use of "tainted evidence." Weconclude that these contentions have been waived on appeal as a result of defendant's failure to supportthem with coherent argument and authority. See 177 Ill. 2d R. 341(e)(7). Defendant's arguments onappeal here consist of short conclusory statements, devoid of any reference to the record on appeal orexplanation specifying the facts underlying the claims. This court is entitled to a well-reasoned argument,along with citation of relevant authority. People v. Williams, 267 Ill. App. 3d 82, 86 (1994). Defendant'sfailure to do so waives these issues on appeal. For all of the foregoing reasons, we agree with the trialcourt that defendant's postconviction petition fails to establish that he was denied the effective assistanceof appellate counsel. Accordingly, we hold that the trial court correctly determined that these allegationsfailed to sufficiently demonstrate a constitutional infirmity and properly dismissed these allegations ofdefendant's postconviction petition.

We affirm the judgment of the circuit court of Lee County disposing of defendant's postconvictionpetition. Defendant's petition for rehearing is denied.

Affirmed.

GROMETER and KAPALA, JJ., concur.