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THIRD DIVISION
December 24, 2002

In Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,120 S. Ct. 2348 (2000), the United States Supreme Court issued adecision that penetrates the constitutional foundation of thisState's extended sentencing procedures. In this appeal from asummary dismissal of her post-conviction petition, Dionna Beachem(Beachem) challenges the constitutionality of the extendedsentence of 90 years she received for first degree murder. Thethreshold question before us is whether Apprendi reaches beyond adirect appeal to an appeal of the dismissal of a timely-filedpost-conviction petition. We hold that it does. We also holdthe defendant was properly sentenced.⁽¹⁾

FACTS

On December 5, 1994, Annie Jones (Jones), a 77 year-oldwoman living alone on Chicago's south side, was fatally beaten inher apartment. That day, Beachem was arrested and subsequentlyreleased on bond for attempting to use Jones' newly-issued creditcard at a suburban mall jewelry store. Two days later, Jones'landlord discovered her body.

Beachem was charged with and convicted of residentialburglary, home invasion, robbery, and first degree murder. Though the trial court found her eligible for the death penalty,Beachem was sentenced to an extended term of 90 years'imprisonment for the murder conviction, 30 years for the homeinvasion conviction, 15 years for the residential burglaryconviction, and six years for the robbery conviction, allsentences running concurrently.

Beachem appealed her convictions and sentences. Weaffirmed. People v. Beachem, No. 1-96-3260 (1998) (unpublishedorder under Supreme Court Rule 23).

Beachem then filed a pro se post-conviction petition. In a23-page "MEMORANDUM OPINION AND ORDER," the trial court dismissedBeachem's petition. This appeal followed.

DECISION

Beachem raises two issues in her initial brief.

First, Beachem contends the trial court erred in summarilydismissing the allegation in her post-conviction petition thather trial attorney failed to advise her of a plea-bargain offer. Beachem's petition said: "After my sentencing, 8-26-96 myattorney told my aunt *** and my mother *** that the stateoffered me 20 years and I turned it down. This offer was neverbrought to my attention. If the state told me that they wereoffering me 20 years, it was my attorney's job to discuss thatissue with me."

The trial judge found Beachem failed to provide the gist ofa constitutional claim, which is all that is required at thefirst stage of a post-conviction proceeding. See People v.Frieberg, 305 Ill. App. 3d 840, 847, 713 N.E.2d 210 (1999). Thepetition should be dismissed if it is frivolous and patentlywithout merit. People v. Gaultney, 174 Ill. 2d 410, 418, 675N.E.2d 102 (1996).

Here, Beachem's petition alleged her attorney should havediscussed with her any offer made by the prosecution. AssumingBeachem is contending her attorney failed to advise her, thisallegation lacks any record support. Beachem relies on a swornFebruary 5, 1999, handwritten statement from her mother. Butthis statement was addressed "To the Appellate Court" nearly amonth after the trial court dismissed Beachem's petition. Thetrial judge did not have it.

In exercising our de novo review (People v. Mitchell, 189Ill. 2d 312, 322, 727 N.E.2d 254 (2000)), we agree with the trialcourt: Beachem's plea-bargain offer allegation was "frivolous or*** patently without merit." 725 ILCS 5/122-2.1 (West 1996). Itwas pure unsupported conclusion.

Second, Beachem contends the trial court erred in summarilydismissing her allegations of prosecutorial misconduct. BecauseBeachem's petition contained no such allegations, this claim iswaived. 725 ILCS 5/122-3 (West 1996).

In a supplemental brief, Beachem raises another, moresubstantial issue never addressed in the trial court. Beachem contends her extended term sentence was unconstitutional.

In Beachem's first appeal, we held the trial court did notabuse its discretion in imposing a 90-year extended termsentence. The court found two statutory aggravating factors,"that the crime was exceptionally brutal and heinous, indicativeof wanton cruelty, and based on the fact that the victim was over60 years of age." These findings triggered the extended termsentence provision of the Unified Code of Corrections. See 730ILCS 5/5-8-2(a)(1) (West 1996).

After Beachem's direct appeal, and after the denial of herpost-conviction petition, the United States Supreme Court decidedApprendi.

Justice Stevens' opinion for a 5-4 majority of the Courtframed the issue:

"The question presented is whether the Due ProcessClause of the Fourteenth Amendment requires that afactual determination authorizing an increase in themaximum prison sentence for an offense *** be made by ajury on the basis of proof beyond a reasonable doubt." Apprendi, 530 U.S. at 468, 147 L. Ed. 2d at 442, 120 S.Ct. at 2351.

The Court then said:

"Our answer to that question was foreshadowed byour opinion in Jones v. United States, 526 U.S. 227,143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999), construing afederal statute. We there noted that 'under the DueProcess Clause of the Fifth Amendment and the noticeand jury trial guarantees of the Sixth Amendment, anyfact (other than prior conviction) that increases themaximum penalty for a crime must be charged in anindictment, submitted to a jury, and proven beyond areasonable doubt.' [Citation.] The FourteenthAmendment commands the same answer in this caseinvolving a state statute." Apprendi, 530 U.S. at 476,147 L. Ed. 2d at 446, 120 S. Ct. at 2355.

Noting the constitutional founders would have recognized nodistinction between an element of a felony offense and a so-called "sentencing factor," the Court offered an historicaloverview of the principle that a criminal defendant is entitledto a jury determination of guilt beyond a reasonable doubt onevery element of the charged offense. The Court assured,however, "nothing in this history suggests that it isimpermissible for judges to exercise discretion--taking intoconsideration various factors relating both to offense andoffender--in imposing a judgment within the range prescribed bystatute." (Emphasis in original.) Apprendi, 530 U.S. at 481,147 L. Ed. 2d at 449, 120 S. Ct. at 2358.

The Court did not provide legislatures any leeway. The factthat the New Jersey legislature intended racial hatred to be anenhanced sentencing provision, not part of the crime ofpossessing weapons, was of no significance:

" 'It is unconstitutional for a legislature to removefrom the jury the assessment of facts that increase theprescribed range of penalties to which a criminaldefendant is exposed. It is equally clear that suchfacts must be established by proof beyond a reasonabledoubt.' " Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at455, 120 S. Ct. at 2363 (quoting Jones, 526 U.S. at252-53, 143 L. Ed. 2d at 311, 119 S. Ct. at 1215(Stevens, J., concurring)).

The Court said it again: "Other than the fact of a priorconviction, any fact that increases the penalty for a crimebeyond the prescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt." Apprendi, 530 U.S.at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

Before proceeding to the merits of Beachem's Apprendi claim,we must answer a threshold question: does Apprendi apply to caseson collateral review? We limit our consideration of thisquestion to timely, first post-conviction petitions. We make nocomment on untimely or successive post-conviction petitions.⁽²⁾

To determine whether Apprendi reaches back to a timely post-conviction petition, we have to weigh the public's interest inthe finality of criminal judgments against its interest in thefairness and integrity of criminal trials. This balance usuallytips toward nonretroactivity. See People v. Moore, 177 Ill. 2d421, 430, 686 N.E.2d 587 (1997) ("Generally, decisions whichannounce 'new rules' are not to be applied retroactively to casespending on collateral review").

But a plurality decision by the United States Supreme Courtin Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct.1060 (1989), adopted by the Illinois Supreme Court in People v.Flowers, 138 Ill. 2d 218, 237, 561 N.E.2d 674 (1990), establishedtwo exceptions to this general principle.

First, "a new rule should be applied retroactively if itplaces 'certain kinds of primary, private individual conductbeyond the power of the criminal law-making authority toproscribe.' " Teague, 489 U.S. at 311, 103 L. Ed. 2d at 356, 109S. Ct. at 1075. Because Apprendi did not address primary,private behavior, this first exception does not apply.

Second, "a new rule should be applied retroactively if itrequires the observance of 'those procedures that *** areimplicit in the concept of ordered liberty.' " Teague, 489 U.S.at 311, 103 L. Ed. 2d at 356, 109 S. Ct. at 1076.

How broad would this second exception be? The Court:

"[W]e believe *** concerns about the difficulty inidentifying both the existence and the value ofaccuracy-enhancing procedural rules can be addressed bylimiting the scope of the second exception to those newprocedures without which the likelihood of an accurateconviction is seriously diminished.

Because we operate from the premise that suchprocedures would be so central to an accuratedetermination of innocence or guilt, we believe itunlikely that many such components of basic due processhave yet to emerge." Teague, 489 U.S. at 313, 103 L.Ed. 2d at 358, 109 S. Ct. at 1077.

In a subsequent case the Court explained:

"It is *** not enough under Teague to say that a newrule is aimed at improving the accuracy of trial. Moreis required. A rule that qualifies under this [second]exception must not only improve accuracy, but also'alter our understanding of the bedrock proceduralelements' essential to the fairness of a proceeding." (Emphasis in original.) Sawyer v. Smith, 497 U.S. 227,242, 111 L. Ed. 2d 193, 211, 110 S. Ct. 2822, 2831(1990) (quoting Teague).

Much depends on how we describe the holding in Apprendi. Ifwe were to say Apprendi reaches only a portion of a noncapitalsentence, not its underlying conviction, it would be difficult,but not impossible, to make a case for the existence ofprocedures that are implicit in the concept of ordered liberty,per Teague and Flowers.⁽³⁾ But analysis by label or category--sentence or conviction--is not a principled methodology. Thequestion is how far a certain procedure reaches into theconstitutional fabric of a fundamentally fair trial andconviction. Does it reach "bedrock"?

The rights affirmed in Apprendi are at the core of ourcriminal justice system. Justice Stevens' majority opinion:

"At stake in this case are constitutionalprotections of surpassing importance: the proscriptionof any deprivation of liberty without 'due process oflaw,' Amdt. 14, and the guarantee that 'in all criminalprosecutions, the accused shall enjoy the right to aspeedy and public trial, by an impartial jury,' Amdt.6.[] Taken together, these rights indisputably entitlea criminal defendant to 'a jury determination that [he]is guilty of every element of the crime with which heis charged, beyond a reasonable doubt.' [Citation.]"Apprendi, 530 U.S. at 476-77, 147 L. Ed. 2d at 447, 120S. Ct. at 2355-56.

The right to a jury trial, and particularly its companionright to a jury verdict proved beyond a reasonable doubt, stand,inviolable, for what the Apprendi Court termed "cogent reasons"related to accuracy:

"Prosecution subjects the criminal defendant both to'the possibility that he may lose his liberty uponconviction and *** the certainty that he would bestigmatized by the conviction.' [Citation.] We thusrequire this [reasonable doubt standard], among other,procedural protections in order to 'provide concretesubstance for the presumption of innocence,' and toreduce the risk of imposing such deprivationserroneously. [Citation.] If a defendant facespunishment beyond that provided by statute when anoffense is committed under certain circumstances butnot others, it is obvious that both the loss of libertyand the stigma attaching to the offense are heightened;it necessarily follows that the defendant should not--at the moment the State is put to proof of thosecircumstances--be deprived of protections that have,until that point, unquestionably attached." (Emphasisadded.) Apprendi, 530 U.S. at 484, 147 L. Ed. 2d at451, 120 S. Ct. at 2359.

The argument for extending Apprendi to collateralproceedings relies on the conclusion that the operative fact--the fact that leads to an enhanced sentence--becomes an element ofthe offense. The Supreme Court warned against a restrictive useof labels when analyzing the two factors at issue in Apprendi's sentencing--unlawful possession of a weapon and selection ofvictims to intimidate them because of their race: 

"Merely using the label 'sentence enhancement' to describe the latter [selecting victims according to race as a factor to exceed themaximum sentence] surely does not provide a principled basis for treating them differently." Apprendi, 530 U.S. at 476, 147 L.Ed. 2d at 447, 120 S. Ct. at 2355.

In a footnote, the Court observed an increase beyond themaximum authorized statutory sentence "*** is the functionalequivalent of an element of a greater offense than the onecovered by the jury's guilty verdict. Indeed, it fits squarelywithin the usual definition of an 'element' of the offense." Apprendi, 530 U.S. at 494 n.19, 147 L. Ed. 2d at 457 n.19, 120 S.Ct. at 2365 n.19; see also Apprendi, 530 U.S. at 521, 147 L. Ed.2d at 473, 120 S. Ct. at 2379 (Thomas, J., concurring) ("If afact is by law the basis for imposing or increasing punishment--for establishing or increasing the prosecution's entitlement--itis an element [of the crime]").⁽⁴⁾ But the Court again cautionedagainst placing form over substance: "Despite what appears to usthe clear, 'elemental' nature of the factor here, the relevantinquiry is one not of form, but of effect--does the requiredfinding expose the defendant to a greater punishment than thatauthorized by the jury's guilty verdict?" (Emphasis added.) Apprendi, 530 U.S. at 494, 147 L. Ed. 2d at 457, 120 S. Ct. at2365.

We take Apprendi to mean that once the defendant serves theprescribed maximum sentence, he or she remains in prison on acharge never made and never proved. And if we acknowledge thedefendant remains in prison on a charge never made or proved, wehave impugned the integrity of our criminal justice system. Itis as if the sentencing judge actually said to the defendant: "Ihave convicted you of a charge never made against you and neverheard by the jury, and I have done it based on the preponderanceof the evidence." Such a conviction, and its concomitantsentence, are repugnant to our notions of fundamental fairness.

Since Teague, no United States Supreme Court or IllinoisSupreme Court case has found a new rule qualifies forretroactivity under the second Teague exception.⁽⁵⁾ But thesedecisions either do not involve fundamental rights or do notdirectly implicate accuracy. They are not "bedrock"pronouncements.

For example, in Sawyer v. Smith, 497 U.S. 227, 111 L. Ed. 2d193, 110 S. Ct. 2822 (1990), the Court held Caldwell v.Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633(1985), which prohibited a capital sentence if the prosecutionmisled the jury to believe the ultimate sentencing decisionrested elsewhere, did not apply retroactively. The Courtrecognized the false information outlawed in Caldwell "mightproduce 'substantial unreliability as well as bias in favor ofdeath sentences' " (Sawyer, 497 U.S. at 233, 111 L. Ed. 2d at205, 110 S. Ct. at 2827 (quoting Caldwell)), but the Court feltCaldwell provided merely "an additional measure against error"beyond that afforded by another case (Sawyer, 497 U.S. at 244,111 L. Ed. 2d at 212, 110 S. Ct. at 2832). That is,

"The Caldwell rule was designed as an enhancement ofthe accuracy of capital sentencing, a protection ofsystemic value for state and federal courts chargedwith reviewing capital proceedings. But given that itwas added to an existing guarantee of due processprotection against fundamental unfairness, we cannotsay this systemic rule enhancing reliability is an'absolute prerequisite to fundamental fairness'[citation], of the type that may come within Teague'ssecond exception." Sawyer, 497 U.S. at 244, 111 L. Ed.2d at 212-13, 110 S. Ct. at 2832 (quoting Teague).

Apprendi not only safeguards fundamental fairness; itsreasonable doubt standard provides the only measure of accuracyin extended sentencing. Where a new rule secures both "theaccuracy of the truth-finding function" and "the fairness and theconstitutional integrity of a criminal proceeding," courts haveheld it applies retroactively. People v. Kubik, 214 Ill. App. 3d649, 657, 573 N.E.2d 1337 (1991) (Cruz v. New York, 481 U.S. 186,95 L. Ed. 2d 162, 107 S. Ct. 1714 (1987), holding a nontestifyingcodefendant's interlocking confession inadmissible at a jointtrial, applied retroactively to a post-conviction proceeding);accord Graham v. Hoke, 946 F.2d 982, 994 (2d Cir. 1991); see alsoPeople v. Ikerd, 47 Ill. 2d 211, 213, 265 N.E.2d 120 (1970)(adopting Roberts v. Russell, 392 U.S. 293, 20 L. Ed. 2d 1100, 88S. Ct. 1921 (1968)--the holding that a nontestifyingcodefendant's confession is inadmissible at a joint trial appliesretroactively as required by "fundamental fairness").

Prior to the applicability of the Antiterrorism andEffective Death Penalty Act of 1996 (AEDPA),⁽⁶⁾ several FederalCircuit Court cases considered the retroactivity of Victor v.Nebraska, 511 U.S. 1, 127 L. Ed. 2d 583, 114 S. Ct. 1239 (1994);Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182, 113 S.Ct. 2078 (1993); and Cage v. Louisiana, 498 U.S. 39, 112 L. Ed.2d 339, 111 S. Ct. 328 (1990), which held jury instructionsdiluting the reasonable doubt standard were unconstitutional. These cases held Cage and its progeny fall within Teague's secondexception because "[t]he reasonable doubt standard guards againstconviction of the innocent by ensuring the systemic accuracy ofthe criminal system" and "use of a lower standard of prooffrustrates the jury-trial guarantee." (Emphasis in original.) Nutter v. White, 39 F.3d 1154, 1157-58 (11th Cir. 1994) (Cageapplied retroactively); accord Gaines v. Kelley, 202 F.3d 598 (2dCir. 2000) (Cage applied retroactively); Humphrey v. Cain, 138F.3d 552 (5th Cir. 1998) (en banc), aff'g, 120 F.3d 526 (5th Cir.1997) (Victor/Cage applied retroactively); Harmon v. Marshall, 69F.3d 963 (9th Cir. 1995) (Sullivan applied retroactively); Adamsv. Aiken, 41 F.3d 175 (4th Cir. 1994) (Sullivan appliedretroactively); see also Nevius v. Sumner, 105 F.3d 453, 462 (9thCir. 1996) (prima facie showing the Supreme Court made Cageretroactive to habeas corpus cases); cf. V. v. New York, 407 U.S.203, 32 L. Ed. 2d 659, 92 S. Ct. 1951 (1972) (In re Winship, 397U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), holding thereasonable doubt standard governs juvenile delinquencyproceedings, applied retroactively).⁽⁷⁾

Flowers can be distinguished. In Flowers, the IllinoisSupreme Court held People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d141 (1988), did not apply to cases on collateral review. TheReddick court had found unconstitutional jury instructions thaterroneously stated the burden of proof for voluntary manslaughtermitigating mental states. The Flowers court recognized Reddickinvolved a "grave" jury instruction error "of constitutionaldimension" (Flowers, 138 Ill. 2d at 236-37), but declined toplace a Reddick error within Teague's second exception: "Thisexception must be narrowly construed and we do not believe thatthe Reddick rule established such a component of basic dueprocess so as to fall within it." Flowers, 138 Ill. 2d at 242.

Reddick discussed the constitutional obligation of the juryto follow the trial judge's instructions (see People v. Jenkins,69 Ill. 2d 61, 66-67, 370 N.E.2d 532 (1977)), but, unlike Victor,Cage, Sullivan, or now Apprendi, it did not implicate the rightto a jury verdict beyond a reasonable doubt, and, consequently,the fundamental fairness and accuracy concerns inherent in thesecond Teague exception.

Apprendi tells us we deal with "constitutional protectionsof surpassing importance." Apprendi, 530 U.S. at 476, 147 L. Ed.2d at 447, 120 S. Ct. at 2355. The reasonable doubt standard"*** reflects a profound judgment about the way in which lawshould be enforced and justice administered." Apprendi, 530 U.S.at 478, 147 L. Ed. 2d at 447-48, 120 S. Ct. at 2356 (quotingWinship). Our jury tradition is "an indispensable part of ourcriminal justice system." Apprendi, 530 U.S. at 497, 147 L. Ed.2d at 459, 120 S. Ct. at 2366. How, then, could we say we do notdeal with procedures that are implicit in the concept of orderedliberty? Have we not reached "bedrock"?

We view the gravity of an Apprendi violation within thenarrow window of retroactivity established by the courts. Finding retroactivity never should be lightly done. Can we saythe likelihood of an accurate conviction in this case isseriously diminished? If we conclude there is a certainty ofinaccurate conviction since Beachem was convicted of a crimenever charged or proved, it follows that Beachem's imprisonmentbeyond the maximum sentence violates established principles offundamental fairness.

We understand the implications of extending Apprendi to collateral review. But we do what we believe the law requires. Our constitutional history teaches us we best survive when we hewto the line drawn by the rule of law. Because, under Teague, weconclude Apprendi implicates procedures implicit in the conceptof ordered liberty, we find Apprendi applies to a timely-filedpost-conviction petition.

Because Apprendi applies, we turn to the merits of Beachem'sclaim that her sentence is unconstitutional.⁽⁸⁾

The State initially contends Beachem waived this issue whenshe failed to include it in her post-conviction petition. ButApprendi was decided nearly 18 months after the trial courtdenied her petition. Beachem instead raised Apprendi in asupplemental brief before this court shortly after it wasdecided. Beachem did not forfeit her right to review of herextended sentence in light of Apprendi. People v. Lathon, 317Ill. App. 3d 573, 740 N.E.2d 377 (2000); see People v. Wooters,188 Ill. 2d 500, 510, 722 N.E.2d 1102 (1999) ("*** althoughdefendant neglected to raise this issue before the circuit court,the constitutional dimension of the question permits this courtto address defendant's argument.")

Post-Apprendi decisions of the Illinois Supreme Courtsupport the State's claim that Beachem was properly sentenced.

Here, as in People v. Ford, 198 Ill. 2d 68, 761 N.E.2d 735(2001), the trial court, before sentence was imposed, found,beyond a reasonable doubt, Beachem was eligible for the deathpenalty. That means her sentence of 90 years is not beyond themaximum prescribed by law.

In addition, Beachem was charged with committing a robberyon a victim over 60 years of age. The issues instructions forthe robbery charge required the jury to find beyond a reasonabledoubt the victim was over 60 before it could convict. Thus, thejury's guilty verdict was a finding that the murdered victim ofthe robbery was over 60. That is sufficient to permit the trialjudge to sentence defendant to an extended term under thestatutory scheme established in 730 ILCS 5/5-5-3.2 (West 1994). People v. Hopkins, 201 Ill. 2d 26, 773 N.E.2d 633 (2002). Apprendi was not violated in this case.

CONCLUSION

We affirm the trial court's summary dismissal of thedefendant's post-conviction petition.

Affirmed.

BURKE, and HALL, JJ., concur.

1. The Illinois Supreme Court denied the State's Petitionfor Leave to Appeal in this case, but directed us to vacate andreconsider the judgment we entered on December 6, 2000. We havedone so.

2. Several Federal Circuit Courts have addressed the relatedquestion whether Apprendi applies to a second collateral reviewpetition under 28 U.S.C.A.