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    "judges": [
      "HARTMAN, EJ., and HOFFMAN, J., concur."
    ],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRENCE BURNS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE SOUTH\ndelivered the opinion of the court:\nIn 1995, following a jury trial, defendant was found guilty of first degree murder and attempted armed robbery and was sentenced to a term of 40 years on the murder conviction and a consecutive 10-year term on the attempted armed robbery conviction. These convictions were affirmed on direct appeal. People v. Burns, 304 Ill. App. 3d 1, 709 N.E.2d 672 (1999).\nDefendant then challenged his convictions under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122 \u2014 1 et seq. (West 1998)). The trial court reviewed the petition and dismissed it without an evidentiary hearing as frivolous and patently without merit. 725 ILCS 5/122 \u2014 2.1(a)(2) (West 1998).\nIn this appeal from the dismissal of his petition, defendant argues that the trial court\u2019s order should be vacated or, in the alternative, he should be allowed to amend his petition for two reasons. First, he argues that one of the issues raised under his allegations of ineffective assistance of counsel, which was not addressed on direct appeal, should not be subject to waiver or res judicata. Second, defendant argues that pursuant to the United States Supreme Court ruling in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and this court\u2019s ruling in People v. Clifton, 321 Ill. App. 3d 707 (2000), which held section 5 \u2014 8 \u2014 4(a) of the Unified Code of Corrections (730 ILCS 5/5 \u2014 8 \u2014 4(a) (West 1998)) unconstitutional, his consecutive sentencing is void and should be modified to run concurrently.\nA postconviction proceeding is not an appeal of the underlying judgment but, rather, a collateral proceeding where the defendant may challenge a conviction or sentence for violations of constitutional rights. People v. Johnson, 183 Ill. 2d 176, 186, 700 N.E.2d 996, 1001 (1998). Any claim of substantial denial of constitutional rights that was not raised in the original or in an amended petition is waived. 725 ILCS 5/122 \u2014 3 (West 1998). In addition, the court\u2019s ruling on a post-conviction petition has res judicata effect as to all claims raised in the petition as well as those that could have been raised. People v. Flores, 153 Ill. 2d 264, 274, 606 N.E.2d 1078 (1992). The same principles apply to those issues that were or could have been raised on direct appeal. Johnson, 183 Ill. 2d at 186, 700 N.E.2d at 1001. The operation of waiver and res judicata has generally contributed to the finality of criminal litigation. Finally, where a defendant has previously taken a direct appeal from a judgment of conviction, the judgment of the reviewing court is res judicata as to all issues actually decided by the court, and any other claims that could have been presented to the reviewing court, if not presented, are waived. People v. Neal, 142 Ill. 2d 140, 146, 568 N.E.2d 808, 811 (1990).\nOur review of a trial court\u2019s dismissal of defendant\u2019s postconviction petition without an evidentiary hearing is de novo. People v. Coleman, 183 Ill. 2d 366, 389, 701 N.E.2d 1063, 1075 (1998).\nDefendant\u2019s first argument is that one of the issues raised under his allegations of ineffective assistance of counsel, which was not addressed on direct appeal, should not be subject to waiver or res judicata. On direct appeal, defendant argued that his trial counsel was ineffective for failing to present evidence that one of his accomplices was possibly in jail at the time of the crime. Due to an oversight, we determined that this allegation was based on matters beyond the record on appeal and, as such, should be raised in a postconviction petition. Burns, 304 Ill. App. 3d at 11-12, 709 N.E.2d at 680. However, these matters were contained in the record. Defendant now urges that since the trial court summarily dismissed his allegation of ineffective assistance of counsel pursuant to the doctrine of res judicata, that dismissal should be vacated or, in the alternative, he should be allowed to amend his petition.\nThe State argues that, even if this issue is not barred by res judicata, it is, nevertheless, waived because defendant failed to include this argument in his postconviction petition.\nIn our opinion on direct appeal, we stated that, since the disposition of this allegation of ineffective assistance of counsel concerned matters outside the record, defendant should address this issue in his postconviction petition, and we declined to address it. Burns, 304 Ill. App. 3d at 11-12, 709 N.E.2d at 680. As such, res judicata does not apply here. Neal, 142 Ill. 2d at 146, 808 N.E.2d at 811 (the judgment of the reviewing court is res judicata as to all issues actually decided by the court).\nWe do find, however, that pursuant to section 122 \u2014 3, this issue has been waived and does not fall under any of the exceptions recognized by the Illinois Supreme Court. See People v. Erickson, 183 Ill. 2d 213, 223, 700 N.E.2d 1027, 1032 (1998) (this court has held that a defendant\u2019s failure to raise a claim of ineffective assistance of appellate counsel in his initial postconviction petition will not operate as a waiver if the defendant was represented by the same attorney on direct appeal and in his initial postconviction proceeding); People v. Steidl, 177 Ill. 2d 239, 250, 685 N.E.2d 1335 (1997) (the waiver rule will be relaxed if either the evidentiary basis for the claim of ineffectiveness is not contained within the original trial court record and, therefore, could not be considered by a reviewing court on direct appeal or if the facts relating to the competency of trial counsel are newly discovered).\nAlthough we failed to address this issue on direct appeal, we did state that \u201cit is more appropriate that the defendant\u2019s contentions be addressed in a proceeding for postconviction relief.\u201d Burns, 304 Ill. App. 3d at 11, 709 N.E.2d at 680. However, defendant failed to do so. Section 122 \u2014 3 of the Act specifically states: \u201cAny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.\u201d 725 ILCS 5/122 \u2014 3 (West 1998).\nDefense counsel\u2019s additional contention that defendant\u2019s failure to raise this issue in his pro se postconviction petition was due to his scant educational background is not persuasive. Based upon the common law record, defendant was fully competent to stand trial and his competency or lack thereof has never been raised as an issue. Furthermore, defendant\u2019s petition for postconviction relief was well presented and exhibited a full understanding of his case and his legal rights. Therefore, the waiver doctrine applies.\nDefendant\u2019s second argument is that his consecutive sentences under section 5 \u2014 8 \u2014 4(a) (730 ILCS 5/5 \u2014 8 \u2014 4(a) (West 1998)) are void pursuant to the recent United States Supreme Court case, Apprendi v. New Jersey and, therefore, should be modified to run concurrently.\nIn Apprendi, the United States Supreme Court ruled that a New Jersey statutory sentencing scheme violated defendant\u2019s due process rights. The Court held that, \u201c[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 submitted to a jury, and proved beyond a reasonable doubt.\u201d Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. The Supreme Court reasoned that \u201c \u2018it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. *** [S]uch facts must be established by proof beyond a reasonable doubt.\u2019 [Citations.]\u201d Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2363.\nThe State maintains that Apprendi constitutes a new rule of constitutional law and, therefore, does not apply retroactively to collateral proceedings, such as the one in this case.\nBased upon the Illinois Supreme Court\u2019s recent ruling in People v. Wagener, 196 Ill. 2d 269 (2001), that consecutive sentencing does not raise Apprendi concerns, we find that the trial court\u2019s sentencing was proper and deny defendant\u2019s request to modify his sentence to run concurrently.\nBased upon the foregoing analysis, the judgment of the circuit court is affirmed.\nJudgment affirmed.\nHARTMAN, EJ., and HOFFMAN, J., concur.",
        "type": "majority",
        "author": "JUSTICE SOUTH"
      }
    ],
    "attorneys": [
      "Michael J. Pelletier and Donna Finch, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.",
      "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Georgia A. Buglass, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRENCE BURNS, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1 \u2014 99 \u2014 4030\nOpinion filed June 28, 2001.\nMichael J. Pelletier and Donna Finch, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Georgia A. Buglass, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0189-01",
  "first_page_order": 207,
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