The opinion of the court was delivered by: Justice Fitzgerald
Docket No. 89313-Agenda 8-March 2001.
Following a jury trial in the McHenry County circuit court, the defendant, William Rogers, was convicted of two counts of criminal sexual assault, six counts of aggravated criminal sexual abuse, and six counts of child pornography for videotaping his sexual activities with two teenage boys who lived in his neighborhood. The trial judge imposed 15-year sentences on each of the two criminal sexual assault counts, to run concurrently with 7-year sentences on each of the six aggravated criminal sexual abuse counts. The trial judge also imposed concurrent 10-year sentences on each of the six child pornography counts. The judge ordered consecutive sentences under section 5-8-4(b) of the Unified Code of Corrections. 730 ILCS 5/5-8-4(b) (West 1998). The defendant first would serve 15 years for the criminal sexual assault and aggravated criminal sexual abuse convictions against the older boy. The defendant next would serve 15 years for the criminal sexual assault and the aggravated criminal sexual abuse convictions against the younger boy. The defendant finally would serve 10 years for the child pornography convictions. The defendant's three consecutive sentences totaled 40 years' imprisonment. The judge also ordered the defendant to pay restitution.
After sentencing, the defendant obtained a new attorney, who filed a motion to reduce the defendant's sentence. Another judge heard and denied the defendant's motion, and the appellate court affirmed the defendant's conviction and sentence. People v. Rogers, No. 2-95-0542 (1997) (unpublished order under Supreme Court Rule 23). We denied the defendant's first petition for leave to 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 as patently without merit. The appellate court affirmed the dismissal in part, but remanded the cause for further proceedings on the defendant's claim that his appellate attorney was ineffective for failing to raise the issue that certain counts of the indictment were based on a single act. *fn1 No. 2-98-0725 (unpublished order under Supreme Court Rule 23). We granted the defendant's second petition for leave to appeal. People v. Rogers, 189 Ill. 2d 675 (2000); see 177 Ill. 2d R. 315(a). We now affirm.
The defendant raises three issues in his appeal. We focus initially on his first two contentions: whether the trial court erred in summarily dismissing ineffective assistance of counsel claims against his trial attorney and his appellate attorney. The defendant asserts that his trial attorney was ineffective in failing to advise, prior to the defendant's decision to reject the State's guilty plea offer, that he could receive consecutive sentences totaling 40 years. The defendant also asserts that his appellate attorney was ineffective in failing to raise a meritorious issue on direct appeal: namely, that the defendant was denied a meaningful hearing on his motion to reduce sentence because the trial judge hearing the motion gave deference to the sentencing judge. *fn2
The Illinois Post-Conviction Hearing Act provides a procedural mechanism through which a criminal defendant can assert "that in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both." 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 or guilt, but instead examines constitutional issues which escaped earlier review. See People v. Evans, 186 Ill. 2d 83, 89 (1999). A post-conviction petition is a collateral attack upon a prior conviction and sentence, not a substitute for or an addendum to a direct appeal. People v. West, 187 Ill. 2d 418, 425 (1999). Consequently, any issues which were decided on direct appeal are barred by res judicata; any issues which could have been raised on direct appeal are forfeited. West, 187 Ill. 2d at 425.
The petition must enunciate clearly "the respects in which petitioner'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 ILCS 5/122-2 (West 1998). The Act further provides: "If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision." 725 ILCS 5/122-2.1(a)(2) (West 1998).
We turn to the allegations of the defendant's petition.
The defendant's post-conviction petition did not claim that his trial attorney was ineffective for failing to advise him of the sentencing range for the charged offenses. Instead, the defendant alleged that he was penalized for exercising his right to a jury trial when he received a sentence 28 years longer than the State's plea offer. The defendant attached to his petition a letter from the McHenry County State's Attorney's office, which offered to recommend a 12-year sentence in return for the defendant's guilty plea.
In an affidavit attached to his post-conviction petition, however, ...