NO. 5-99-0631

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

PRESIDING JUSTICE CHAPMAN delivered the opinion of the court:

Phillip O'Neil (defendant) was found guilty of first-degree murder and sentenced to 30 years' imprisonment. On directappeal, this court affirmed both the conviction and the sentence. People v. O'Neil, 294 Ill. App. 3d 1131, 721 N.E.2d 865(1998) (unpublished order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23)). Defendant filed a petition of rehearing,which this court denied, and a petition for leave to appeal, which the Illinois Supreme Court denied (People v. O'Neil, 178Ill. 2d 590, 699 N.E.2d 1035 (1998)).

Defendant filed a postconviction petition alleging ineffective trial counsel, and after an evidentiary hearing, the trial courtdenied the petition. The trial court found that defendant was not prevented from taking the stand, that counsel's advice thathe not take the stand was not incompetent, and that counsel's performance and preparation exceeded the requirements ofStrickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)). Defendant's motion to reconsider was denied. Defendant filed this timely appeal.

The only issue raised on this appeal is whether the denial of postconviction relief was manifestly erroneous. See People v.Coleman, 183 Ill. 2d 366, 385, 701 N.E.2d 1063, 1974 (1998). We conclude that it was not, and we affirm the trial court'sdenial of postconviction relief.

Defendant testified at the postconviction petition hearing that he had told trial counsel that he wished to testify on his ownbehalf and counsel assured him that he could do so. Midtrial, however, counsel explained to defendant that self-defensewas not a viable theory in this case and that by exercising his right to testify, it would hurt the case. Defendant tookcounsel's advice and decided not to testify.

The Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 1998)) allows criminal defendants a remedy when substantialviolations of their constitutional rights occurred at the trial. People v. Moore, 177 Ill. 2d 421, 427, 686 N.E.2d 587, 591(1997). Such proceedings are collateral attacks on a final judgment. Moore, 177 Ill. 2d at 427, 686 N.E.2d at 591. Thescope of the review is therefore limited to issues that neither have been, nor could have been, previously adjudicated. Moore, 177 Ill. 2d at 427, 686 N.E.2d at 591. The determinations of the reviewing court on the prior direct appeal are resjudicata as to those issues actually decided, and any issues that could have been presented on direct appeal, but were not,are waived. Moore, 177 Ill. 2d at 427, 686 N.E.2d at 591.

Defendant argued on direct appeal to this court the ineffectiveness of trial counsel for failing to advance a theory of self-defense, for failing to put two specific witnesses on the stand, and for not allowing defendant to testify on his own behalf. We concluded at that time that self-defense was not a viable defense in the case and that counsel was not ineffective.

Defendant argues that courts have found the application of the doctrine of res judicata to be a rule of administrativeconvenience and that it may be relaxed when required by "fundamental fairness." See Moore, 177 Ill. 2d at 427-28, 686N.E.2d at 591. Despite this fact, defendant has raised the same issues in this postconviction petition as he did on directappeal. A defendant cannot avoid the bar of res judicata by merely rephrasing issues previously raised on direct appeal. People v. Simms, 192 Ill. 2d 348, 360, 736 N.E.2d 1092, 1105 (2000). Therefore, we conclude that these issues are barredby the doctrine of res judicata, and the trial court properly denied defendant's petition for postconviction relief.

Affirmed.

HOPKINS and GOLDENHERSH, JJ., concur.