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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 ofcriminal sexual assault, six counts of aggravated criminal sexualabuse, and six counts of child pornography for videotaping hissexual activities with two teenage boys who lived in hisneighborhood. The trial judge imposed 15-year sentences on eachof the two criminal sexual assault counts, to run concurrently with7-year sentences on each of the six aggravated criminal sexualabuse counts. The trial judge also imposed concurrent 10-yearsentences on each of the six child pornography counts. The judgeordered consecutive sentences under section 5-8-4(b) of theUnified Code of Corrections. 730 ILCS 5/5-8-4(b) (West 1998).The defendant first would serve 15 years for the criminal sexualassault and aggravated criminal sexual abuse convictions againstthe older boy. The defendant next would serve 15 years for thecriminal sexual assault and the aggravated criminal sexual abuseconvictions against the younger boy. The defendant finally wouldserve 10 years for the child pornography convictions. Thedefendant's three consecutive sentences totaled 40 years'imprisonment. The judge also ordered the defendant to payrestitution.

After sentencing, the defendant obtained a new attorney, whofiled a motion to reduce the defendant's sentence. Another judgeheard and denied the defendant's motion, and the appellate courtaffirmed the defendant's conviction and sentence. People v.Rogers, No. 2-95-0542 (1997) (unpublished order under SupremeCourt Rule 23). We denied the defendant's first petition for leaveto 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 aspatently without merit. The appellate court affirmed the dismissalin part, but remanded the cause for further proceedings on thedefendant's claim that his appellate attorney was ineffective forfailing to raise the issue that certain counts of the indictment werebased on a single act.⁽¹⁾ No. 2-98-0725 (unpublished order underSupreme Court Rule 23). We granted the defendant's secondpetition 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 focusinitially on his first two contentions: whether the trial court erredin summarily dismissing ineffective assistance of counsel claimsagainst his trial attorney and his appellate attorney. The defendantasserts that his trial attorney was ineffective in failing to advise,prior to the defendant's decision to reject the State's guilty pleaoffer, that he could receive consecutive sentences totaling 40years. The defendant also asserts that his appellate attorney wasineffective in failing to raise a meritorious issue on direct appeal:namely, that the defendant was denied a meaningful hearing on hismotion to reduce sentence because the trial judge hearing themotion gave deference to the sentencing judge.⁽²⁾

The Illinois Post-Conviction Hearing Act provides aprocedural mechanism through which a criminal defendant canassert "that in the proceedings which resulted in his or herconviction there was a substantial denial of his or her rights underthe Constitution of the United States or of the State of Illinois orboth." 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 orguilt, but instead examines constitutional issues which escapedearlier review. See People v. Evans, 186 Ill. 2d 83, 89 (1999). Apost-conviction petition is a collateral attack upon a priorconviction and sentence, not a substitute for or an addendum to adirect appeal. People v. West, 187 Ill. 2d 418, 425 (1999).Consequently, any issues which were decided on direct appeal arebarred by res judicata; any issues which could have been raised ondirect appeal are forfeited. West, 187 Ill. 2d at 425.

The petition must enunciate clearly "the respects in whichpetitioner'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 ILCS5/122-2 (West 1998). The Act further provides: "If the petitioneris sentenced to imprisonment and the court determines the petitionis frivolous or is patently without merit, it shall dismiss thepetition in a written order, specifying the findings of fact andconclusions of law it made in reaching its decision." 725 ILCS5/122-2.1(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 thathis trial attorney was ineffective for failing to advise him of thesentencing range for the charged offenses. Instead, the defendantalleged that he was penalized for exercising his right to a jury trialwhen he received a sentence 28 years longer than the State's pleaoffer. The defendant attached to his petition a letter from theMcHenry County State's Attorney's office, which offered torecommend a 12-year sentence in return for the defendant's guiltyplea.

In an affidavit attached to his post-conviction petition,however, the defendant stated:

"I was never properly admonished as to the ultimatepossible length of my sentence.

*** I was never properly admonished or instructed as tohow the indictments could be calculated other than theminimus [sic] and maximus [sic] of each offense.

*** Until I was actually sentenced, I was led to believeby both the prosecution and defense attorneys, that themaximum 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 ofpossible consecutive sentences, he was deprived of his right to befully informed before rejecting the plea offer extended to him" bythe State.

However, the record belies the defendant's claim he wasnever advised of the possible length of his sentence. In the hearingon the defendant's presentencing motion to reinstate bond, thedefendant's attorney stated:

"[The defendant] understands that those sentences couldbe from forty years to sixty years or whatever. Heunderstood that when he came to my office for the firsttime way back when we sat down, and I gave him all ofthe options, and I told him that the sentence could beextended based on certain circumstances. So this isnothing new to him. He just didn't learn about thesentence after he was convicted. He's known what thesentence could be all along."

We have consistently upheld the dismissal of a post-conviction petition when the record from the original trialproceedings contradicts the defendant's allegations. Coleman, 183Ill. 2d at 382; accord People v. Jones, 66 Ill. 2d 152, 157 (1977)("A court may also properly dismiss a post-conviction petition ifthe record of proceedings at trial shows the petition to benonmeritorious").

The trial court correctly dismissed this claim.

Appellate Counsel

The defendant's post-conviction petition claimed his appellateattorney was ineffective for failing to raise unspecifiednonsentencing issues. The defendant also alleged he was

"denied his statutory right to a Motion to ReduceSentence, when the judge in denying the motion to reducethe sentence of incarceration, stated that the sentencingjudge was within the statutory sentencing parameters andthere was not abuse of discretion. *** By applying anappellate standard for review of sentence, instead ofentertaining arguments to reduce for any reason, thatjudge frustrated the purpose of the statute and therebydenied defendant his constitutional right to due process oflaw ***."

The two-pronged Strickland v. Washington, 466 U.S. 668, 80L. Ed. 2d 674, 104 S. Ct. 2052 (1984), test applies to claims ofineffective appellate counsel. People v. Caballero, 126 Ill. 2d 248,269-70 (1989). A defendant who claims that appellate counsel wasineffective for failing to raise an issue on appeal must allege factsdemonstrating such failure was objectively unreasonable and thatcounsel's decision prejudiced defendant. Enis, 194 Ill. 2d at 377.If the underlying issue is nonmeritorious, the defendant hassuffered no prejudice. Enis, 194 Ill. 2d at 377. Normally, appellatecounsel's choices concerning which issues to pursue are entitledto substantial deference. People v. Mack, 167 Ill. 2d 525, 532-33(1995).

Section 5-8-1(c) of the Unified Code of Corrections providesfor a motion to reduce a sentence. See 730 ILCS 5/5-8-1(c) (West1998). Such a motion allows the trial court "the opportunity toreview a defendant's contention of sentencing error and save thedelay and expense inherent in appeal if they are meritorious."People v. Reed, 177 Ill. 2d 389, 394 (1997). However, sentencedeterminations rest within the sentencing judge's discretion, anda reviewing court may not substitute its judgment absent an abuseof 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 trialcourt has discretion to, but need not, hear additional evidence ona 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'mhearing this motion, I will find that the Judge was within thesentencing parameters of the statute, and second, the Court cannotfind an abuse of discretion." We have found no authorityindicating this judge was required to exercise plenary review overthe defendant's sentence. Accordingly, the defendant's appellateattorney 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 issuenever previously addressed in this case. The defendant contendsthat his consecutive sentences under section 5-8-4(b) violatedApprendi 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 section5-8-4(b) do not violate Apprendi. See also People v. Carney, No.90549 (June 21, 2001) (holding that consecutive sentences undersection 5-8-4(a) do not violate Apprendi). We, therefore, rejectthe defendant's contention.⁽³⁾

CONCLUSION

For the reasons we have discussed, we affirm the judgmentof the appellate court.

Affirmed.

1. ¹The propriety of the appellate court's ruling on the single-act issueis not before us.

2. ²In his initial brief, the defendant asserted that his appellate attorneywas ineffective for failing to raise a double-enhancement issue. In hisreply brief, the defendant "withdraws" this contention.

3. ³The defendant cannot raise this nonmeritorious constitutional issuein a post-conviction context. See 725 ILCS 5/122-1 (West 1998). Wedo not decide, however, whether a meritorious Apprendi issue iscognizable in a post-conviction proceeding, i.e., whether Apprendiapplies retroactively to cases on collateral review.