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March 11, 1997


Appeal from the Circuit Court of Cook County. Honorable Daniel M. Locallo, Judge Presiding.

Released for Publication April 24, 1997.

The Honorable Justice Tully delivered the opinion of the court. Rakowski and McNULTY, JJ., concur.

The opinion of the court was delivered by: Tully

JUSTICE TULLY delivered the opinion of the court:

Defendant, Chuck Maury, was indicted for numerous counts of possession of a controlled substance with intent to deliver and one count of criminal drug conspiracy (720 ILCS 570/405.1 (West 1994)). Defendant pled guilty to the criminal drug conspiracy count and the State agreed to nolle prosequi the remaining indictments. The gist of the allegations made against defendant was that he controlled and supervised a cocaine distribution operation from a liquor store he owned at 6758 South Halsted Street in Chicago. The trial court accepted defendant's guilty plea, entered a judgment of conviction upon it, and sentenced defendant to 13 years' imprisonment. Subsequently, pursuant to section 122-1 of the Code of Criminal Procedure (725 ILCS 5/122-1 (West 1994)), defendant filed a post-conviction petition seeking to vacate the judgment of conviction entered against him, which the circuit court denied. It is from the order denying his post-conviction petition that defendant now appeals to this court pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603).

Defendant submits that the circuit court erred in dismissing his post-conviction petition as his constitutional right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution (U.S. Const., amends. VI, XIV) was denied. Defendant makes no claim of a violation of his constitutional right to effective assistance of counsel under the 1970 Illinois Constitution.

The Post-Conviction Hearing Act permits a criminal petitioner the opportunity to challenge his conviction when there has been a substantial denial of his constitutional rights. 725 ILCS 5/122-1 et seq. (West 1994). A post-conviction action is a collateral attack on the prior judgment of conviction, but not an appeal, per se, from the underlying conviction or sentence. People v. Hampton, 165 Ill. 2d 472, 477, 209 Ill. Dec. 189, 651 N.E.2d 117 (1995); People v. Eddmonds, 143 Ill. 2d 501, 510, 161 Ill. Dec. 306, 578 N.E.2d 952 (1991). Accordingly, a petitioner cannot merely allege that error occurred at trial, but must establish a substantial deprivation of his constitutional rights which produced the judgment under attack. People v. Guest, 166 Ill. 2d 381, 389, 211 Ill. Dec. 490, 655 N.E.2d 873 (1995); People v. Ruiz, 132 Ill. 2d 1, 9, 138 Ill. Dec. 201, 547 N.E.2d 170 (1989).

Moreover, a post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right. Guest, 166 Ill. 2d at 389. The petitioner is entitled to such a hearing only if he has made a substantial showing, based on the record and supporting affidavits, that his constitutional rights were violated. Guest, 166 Ill. 2d at 389. Unsupported conclusory allegations in the petition or in the petitioner's affidavit are not sufficient to require a hearing. People v. Jackson, 213 Ill. App. 3d 806, 811, 157 Ill. Dec. 406, 572 N.E.2d 475 (1991).

If the circuit court finds that the post-conviction petition raises frivolous issues that are "patently without merit," the court may summarily dismiss the petition without an evidentiary hearing. 725 ILCS 5/122-2.1(a)(2) (West 1994). The circuit court's summary dismissal of a post-conviction will not be disturbed by a reviewing court unless manifestly erroneous. Guest, 166 Ill. 2d at 389.

Specifically, defendant assigns error to his trial counsel's allegedly incorrectly informing that he was eligible for certain programs offering early release from prison. According to defendant, trial counsel told defendant that he could receive additional "good time" credit for participation in various programs offered by the Illinois Department of Corrections. Thus, if defendant was engaged in a correctional industry assignment and satisfactorily completed it, then he would receive 1 1/2 days of good time credit per day rather that the customary 1-day credit. However, as defendant pled guilty to criminal drug conspiracy, a class X felony, he is ineligible to participate in said programs under section 3-6-3(a)(4) of the Unified Code of Corrections (730 ILCS 5/3-3-3(a)(4) (West 1994)). Defendant contends that had trial counsel not tendered the foregoing erroneous advise, he would have gone to trial and would not have entered a guilty plea. In addition, defendant argues that trial counsel failed to raise a ground for dismissal, double jeopardy, which was viable at the time the guilty plea was entered.

The supreme court of Illinois in People v. Albanese, 125 Ill. 2d 100, 125 Ill. Dec. 838, 531 N.E.2d 17 (1988), adopted the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), for determining whether an accused was denied effective assistance of counsel under the Federal and State constitutions. The supreme court in Albanese summarized the two-prong Strickland standard as the following:

"Strickland advances a two-component standard. The first component is to prove that counsel's representation fell below an objective standard of reasonableness such that the trial results were unreliable. Under the second component, the defendant must prove that he was prejudiced by the unprofessional conduct; that is, he must show, but for the attorney's unprofessional errors, the results of the trial would have been different." Albanese, 125 Ill. 2d at 106 citing Strickland, 466 U.S. at 687.

In ascertaining whether counsel's representation fell below an objective standard of reasonableness, "the proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688. In making this assessment, "judicial scrutiny must be highly deferential[,]" a court must resist the temptation to second-guess counsel's actions and avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689.

In assessing whether there was prejudice by counsel's unprofessional conduct, a defendant bears the burden of proving that there exists "a probability sufficient to undermine confidence in the outcome" and that, absent counsel's errors, "the fact finder would have had a ...

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