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As a general proposition, the United States Constitution neither mandates nor prohibitsthe retroactive application of new constitutional rules on collateral review. Linkletter v. Walker,381 U.S. 618, 629, 14 L. Ed. 2d 601, 608, 85 S. Ct. 1731, 1737 (1965). The United StatesSupreme Court spoke to the issue of retroactive application of new constitutional rules oncollateral review in Teague v. Lane. Prior to Teague, the Court used a decidedly ad hocapproach to retroactivity, evaluating in each case "(a) the purpose to be served by the newstandards, (b) the extent of the reliance by law enforcement authorities on the old standards,and (c) the effect on the administration of justice of a retroactive application of the newstandards." Stovall v. Denno, 388 U.S. 293, 297, 18 L. Ed. 2d 1199, 1203, 87 S. Ct. 1967,1970 (1967). In a series of dissents, Justice Harlan criticized this approach as inequitable inapplication and insensitive to the Court's institutional role. He suggested instead an approachthat focused on the procedural posture of the case. Justice Harlan recommended that a newconstitutional rule should always be applied retroactively to cases on direct review, but shouldnever be applied retroactively on habeas corpus review, barring exceptional circumstances. TheTeague plurality expressly adopted Justice Harlan's views on this subject. Teague, 489 U.S. at310, 103 L. Ed. 2d at 356, 109 S. Ct. at 1075.

Justice Harlan formulated the basic policy adopted by Teague after a careful balancingof competing interests in light of the Court's adjudicatory role and the purpose of thepostconviction proceeding. See Mackey v. Unites States, 401 U.S. 667, 688-89, 28 L. Ed. 2d404, 418, 91 S. Ct. 1160, 1178 (1971) (Harlan, J., dissenting in part and concurring in part). The purpose of collateral proceedings such as habeas corpus, Justice Harlan reasoned, is toensure that state courts "toe the constitutional mark" and in good faith attempt to conform toconstitutional standards as understood. Teague, 489 U.S. at 306-07, 103 L. Ed. 2d at 353,109 S. Ct. at 1073. Overturning cases based on law announced at a later date would do nothingto further that purpose. "'In order to perform this deterrence function, . . . the habeas courtneed only apply the constitutional standards that prevailed at the time the original proceedingstook place.'" Teague, 489 U.S. at 306, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073, quoting Desistv. United States, 394 U.S. 244, 262-63, 22 L. Ed. 2d 248, 263, 89 S. Ct. 1030, 1041 (1969)(Harlan, J., dissenting).

Justice Harlan recognized that the body responsible for defining the scope of apostconviction remedy had some leeway in striking the balance among the relevant interestswhen it made its decision on a retroactivity rule.

"'The interest in leaving concluded litigation in a state of repose, that is, reducingthe controversy to a final judgment not subject to further judicial revision, mayquite legitimately be found by those responsible for defining the scope of the writto outweigh in some, many, or most instances the competing interest inreadjudicating convictions according to all legal standards in effect when ahabeas petition is filed.'" Teague, 489 U.S. at 306, 103 L. Ed. 2d at 353, 109 S.Ct. at 1073, quoting Mackey, 401 U.S. at 683, 28 L. Ed. 2d at 415, 91 S. Ct. at1175 (Harlan, J., dissenting in part and concurring in part).

Teague concerned federal habeas corpus proceedings and not state postconvictionproceedings. The decision concerning retroactivity in the latter context is for the government ofthe relevant state, which has the ultimate responsibility to balance--in the context of its ownpostconviction proceeding law--the policies and concerns identified by Justice Harlan in thecontext of habeas corpus. See, e.g., Daniels v. State, 561 N.E.2d 487, 489 (Ind. 1990).

Teague sets out a three-step process for deciding the applicability of a new rule oncollateral review. O'Dell v. Netherland, 521 U.S. 151, 156, 138 L. Ed. 2d 351, 358, 117 S. Ct.1969, 1973 (1997). First, the court determines the date upon which the defendant's convictionbecame final. "A state conviction and sentence become final for purposes of retroactivityanalysis when the availability of direct appeal to the state courts has been exhausted and thetime for filing a petition for a writ of certiorari has elapsed or a timely filed petition has beenfinally denied." Caspari v. Bohlen, 510 U.S. 383, 390, 127 L. Ed. 2d 236, 246, 114 S. Ct. 948,953 (1994).

Second, the court determines whether the constitutional rule sought by the defendantexisted when the conviction became final. O'Dell, 521 U.S. at 156, 138 L. Ed. 2d at 358, 117S. Ct. at 1973. If the rule existed at the time the defendant's conviction became final, it is not anew rule. In that case the rule is applied on collateral review, since it is the law that shouldhave been utilized in the first place. If the rule sought by the defendant is new, however, it isgenerally not to be applied on collateral review. According to the Teague plurality, "a caseannounces a new rule if the result was not dictated by precedent existing at the time thedefendant's conviction became final." (Emphasis in original.) Teague, 489 U.S. at 301, 103 L.Ed. 2d at 349, 109 S. Ct. at 1070. This is a very broad conception of a new rule, as JusticeBrennan noted in his Teague dissent:

"Few decisions on appeal or collateral review are 'dictated' by what came before. Most such cases involve a question of law that is at least debatable, permitting arational judge to resolve the case in more than one way. Virtually no case thatprompts a dissent on the relevant legal point, for example, could be said to be'dictated' by prior decisions." (Emphasis in original.) Teague, 489 U.S. at 333,103 L. Ed. 2d at 371, 109 S. Ct. at 1088 (Brennan, J., dissenting, joined byMarshall, J.).

In another case, the Court indicated that a rule could be considered new if there had been asignificant difference of opinion on the issue in the lower courts before the rule was established. Butler v. McKellar, 494 U.S. 407, 415, 108 L. Ed. 2d 347, 356-57, 110 S. Ct. 1212, 1217-18(1990).

Third, Teague directs that if the rule is new, the court must determine whether it fallswithin one of two narrow exceptions to the Teague doctrine. O'Dell, 521 U.S. at 156-57, 138 L.Ed. 2d at 358, 117 S. Ct. at 1973. Unless one of the exceptions applies, the new rule shouldnot be utilized on collateral review.

The first of these narrow exceptions applies if the rule in question places an entirecategory of primary conduct beyond the reach of the criminal law. Sawyer v. Smith, 497 U.S.227, 241, 111 L. Ed. 2d 193, 211, 110 S. Ct. 2822, 2831 (1990). The second, even morecircumscribed exception applies if the new rule requires the observance of those procedures thatare implicit in the concept of ordered liberty. O'Dell, 521 U.S. at 157, 138 L. Ed. 2d at 358,117 S. Ct. at 1973. This exception involves "watershed" rules of criminal procedure that arenecessary to the fundamental fairness of a criminal proceeding. Sawyer, 497 U.S. at 241-42,111 L. Ed. 2d at 211, 110 S. Ct. at 2831. To qualify for retroactive application under thisexception, a rule must be aimed at improving the accuracy of trial and be of such importancethat it alters our understanding of the bedrock procedural elements essential to a fair trial.Sawyer, 497 U.S. at 242, 111 L. Ed. 2d at 211, 110 S. Ct. at 2831.

Teague's analysis applies to retroactivity in federal habeas corpus proceedings. Retroactivity under the Illinois Post-Conviction Hearing Act is a matter of state law, for whichIllinois may fashion its own standard within broad constraints. See People v. Flowers, 138 Ill.2d 218, 237 (1990); M. Hutton, Retroactivity in the States: The Impact of Teague v. Lane onState Postconviction Remedies, 44 Ala. L. Rev. 421 (1993). However, in People v. Flowers,138 Ill. 2d at 237, the Illinois Supreme Court decided to adopt as the standard for retroactivityof new rules under the Post-Conviction Hearing Act the same standard as that annunciated inTeague for retroactivity in habeas corpus proceedings. Accordingly, we now apply the Teagueanalysis to the instant case.

Step One: The defendant's convictions became final in 1997. Apprendi was decided in2000.

Step Two: We believe that the rule of Apprendi was not dictated by prior precedent. Apprendi was decided over a strong dissent. Moreover, before the Court decided Apprendi,lower courts certainly had not agreed that an Apprendi-like rule was the law. Thus, wemaintain Apprendi is a new rule for the purposes of retroactivity analysis.

Step Three: The first Teague exception is not relevant in this case, because Apprendidid not place the actions for which the defendant was sentenced beyond the reach of thecriminal law. The state's authority to punish the defendant for attempted murder is beyondquestion. Jones v. Smith, No. 99-56405, slip op. at 9 (9th Cir. November 7, 2000).

The defendant urges, however, that the rule of Apprendi qualifies for retroactiveapplication on collateral review under the second Teague exception.

Indeed the retroactivity of Apprendi does turn on the interpretation of this exception. As the Supreme Court has acknowledged, the precise contours of the second Teague exceptionmay be difficult to delimit. Saffle v. Parks, 494 U.S. 484, 495, 108 L. Ed. 2d 415, 429, 110 S.Ct. 1257, 1264 (1990). Nevertheless, "[t]he scope of the Teague exceptions must be consistentwith the recognition that '[a]pplication of constitutional rules not in existence at the time aconviction became final seriously undermines the principle of finality which is essential to theoperation of our criminal justice system.'" Sawyer, 497 U.S. at 242, 111 L. Ed. 2d at 211, 110S. Ct. at 2381, quoting Teague, 489 U.S. at 309, 103 L. Ed. 2d at 355, 109 S. Ct. at 1074.

It is clear the rule in Apprendi was aimed at improving the accuracy of the criminalproceeding, as required by the second exception. Further, it cannot be disputed that themajority in Apprendi (as well as the dissenters) saw the rule being announced as important. "At stake in this case are constitutional protections of surpassing importance: the proscriptionof any deprivation of liberty without 'due process of law,' Amdt. 14, and the guarantee that '[i]nall criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by animpartial jury,' Amdt. 6." Apprendi, 530 U.S. at __, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355. Yet the crucial question remains to be answered. Did Apprendi alter our understanding of thebedrock procedural elements essential to a fair trial?

Federal cases have taken differing views on whether the Apprendi rule is sufficientlyfundamental to be retroactively applicable in habeas corpus proceedings under the secondTeague exception. In United States v. Murphy, 109 F. Supp. 2d 1059 (D. Minn. 2000), adistrict court found Apprendi could be retroactively applied under that exception. Thedefendant in Murphy was convicted of possession of and conspiracy to distribute crack cocaine,along with related offenses. Based upon a finding by the trial judge as to the type and quantityof narcotics possessed by the defendant, the judge imposed sentences totaling 30 years'imprisonment followed by 10 years' supervised release, in accord with the mandatory minimumsentences established by Congress. Without such a finding the defendant would have beensentenced under a "catch-all" sentencing provision for narcotics crimes. Under that provisionthere is no mandatory minimum and the maximum sentence is 20 years' imprisonment and 3years' supervised release. Murphy, 109 F.2d at 1061.

On habeas corpus review, the court found that Apprendi mandated that if theprosecution sought to subject a drug offender to an enhanced sentence, it would have to submitthe questions of type and quantity of narcotics to the jury for a finding beyond a reasonabledoubt. The court further found that this new rule was "so grounded in fundamental fairnessthat it may be considered of watershed importance" and thus came under the second Teagueexception. Murphy, 109 F.2d at 1064.

In Jones v. Smith, No. 99-56405 (9th Cir. November 7, 2000), the Ninth Circuitdeclined to give Apprendi retroactive application for habeas corpus under the second Teagueexception. A jury convicted the defendant in Jones of attempted murder with premeditation,and he was sentenced to life in prison. However, premeditation was not alleged in the charginginstrument. The element of premeditation made a great difference in the range of potentialsentences. The court noted that this error might violate Apprendi. Jones, slip op. at 7-8. According to Apprendi, the fourteenth amendment commands that "any fact (other than priorconviction) that increases the maximum penalty for a crime must be charged in an indictment,submitted to a jury, and proven beyond a reasonable doubt." (Emphasis added.) Apprendi,530 U.S. at __, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355. See also United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000); United States v. Cavender, 228 F.3d 792, 804(7th Cir. 2000). The Jones court found that this new constitutional rule was not an absoluteprerequisite to a fair trial and that the second exception therefore did not apply. Jones, slip op.at 9.

While an attempt to limit Jones to its facts could be made by pointing out that in Jonesthe defendant, regardless of the allegedly defective charging instrument, had actual notice ofthe nature of the accusation against him and the range of possible sentences (Jones, slip op. at9), under Teague, such an exercise is beside the point. Teague represents a rejection of thecase-by-case approach to retroactivity. "Teague forces courts to choose between completeretroactivity and non-retroactivity; there is no room for a selective approach that would onlybenefit defendants whose trials were probably inaccurate." E. Boshkoff, Resolving RetroactivityAfter Teague v. Lane, 65 Ind. L. J. 651, 658 (1990). Retroactivity of a proposed rule is athreshold question that must be decided before the merits of a defendant's claim. Teague, 489U.S. at 300, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070. The Jones court had to decide theretroactivity of the new constitutional rule in Apprendi before it could consider whether thedefendant's specific situation represented a violation of that rule.

As noted above, Flowers adopts Teague. But as can be easily ascertained from thecatalogue of cases cited above, Teague, especially the second exception, is susceptible todivergent interpretations. Ultimately, however, we believe that it is the second Teagueexception as understood by the court in Flowers that controls. As this is a matter of state law,and in light of the conflicting authority at the federal level, we must ultimately take ourdirection from the Illinois Supreme Court and its view of the scope of the second Teagueexception in Flowers.

First, we note that Flowers cautions that Illinois courts are to construe the secondexception narrowly. Flowers, 138 Ill. 2d at 242.

Now we examine how Flowers applied the second exception to the facts before it. Flowers found that a new constitutional rule of criminal procedure, set out in People v.Reddick, 123 Ill. 2d 184 (1988), did not qualify for retroactive application under the secondexception. Flowers, 138 Ill. 2d at 242. Although Reddick was decided on state law grounds,Flowers held that the error identified in Reddick was of constitutional dimension. Flowers, 138Ill. 2d at 237; accord Falconer v. Lane, 905 F.2d 1129, 1134 (7th Cir. 1990).

In People v. Reddick, 123 Ill. 2d 184 (1988), the court was presented with consolidatedappeals from two murder convictions. At trial, each of the defendants admitted that he hadkilled the victim, but argued (unsuccessfully) that he was guilty of manslaughter rather thanmurder due to some mitigating mental state. On appeal, the defendants contended thatimproper jury instructions regarding the elements of murder and manslaughter compelledreversal of their convictions.

The Reddick court held that the instructions, when given together, misallocated theappropriate burdens of proof. Reddick, 123 Ill. 2d at 194; People v. Shields, 143 Ill. 2d 435,442 (1991). The instructions placed the responsibility of proving the mitigating circumstancesthat would reduce murder to manslaughter on the State. Of course, it is unlikely that the Statewould attempt to prove that a defendant was guilty only of manslaughter rather than murder ifit charged the defendant with murder.

In a later case the Illinois Supreme Court described the Reddick holding as follows:

"In Reddick, this court held that the Illinois pattern jury instructions regardingmurder and voluntary manslaughter, used by the trial court at the Reddickdefendants' trials, incorrectly advised the jury that it was the State's burden toprove one of the mitigating mental states that would reduce murder to voluntarymanslaughter. This court determined that the instructions should have told thejury that it was the State's burden to disprove the pertinent mitigating mentalstates." (Emphasis in original.) People v. Salazar, 162 Ill. 2d 513, 518 (1994).

Reddick held that the prosecution should be required to disprove the mitigating mental statesbeyond a reasonable doubt once the defendant had presented sufficient evidence to raise theissue. Reddick, 123 Ill. 2d at 197.

We disagree with our colleagues' conclusion in Beachem that Reddick, "did not implicatethe right to a jury verdict beyond a reasonable doubt and, consequently, the fundamentalfairness and accuracy concerns inherent in the second Teague exception." Beachem, slip op. at19. Reddick found that the instructions did nothing less than "essentially assure that, if thejury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter[instead of murder]." Reddick, 123 Ill. 2d at 194-95.

Flowers held that Reddick announced a rule of constitutional dimension, involving theright to have the jury adequately apprised of the relevant law. Flowers, 138 Ill. 2d at 237. Instructions that do not adequately apprise the jury of the law may be more or less harmfuldepending on the nature of the misinformation. The nature of the misinformation involved inthe Reddick instructions, that court concluded, was that "the jury was not apprised of thePeople's burden of proof." Reddick, 123 Ill. 2d at 198. The court observed that it had previouslyheld that "certain instructions, such as the burden of proof and elements of the offense, areessential to a fair trial." (Emphasis added.) Reddick, 123 Ill. 2d at 198. And though Reddickwas decided on state law grounds, the United States Supreme Court has emphatically madeclear that instructions misstating the burden of proof in a criminal trial may violate due processand even the right to trial by jury. Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182,113 S. Ct. 2078 (1993). Accordingly, we think that Reddick did implicate the right to a juryverdict beyond a reasonable doubt.

Reddick cannot be distinguished from cases such as Sullivan on the basis that it dealtwith whether the defendant's offense was murder or manslaughter instead of whether thedefendant was guilty of anything at all. "[C]riminal law 'is concerned not only with guilt orinnocence in the abstract, but also with the degree of criminal culpability' assessed." Apprendi,530 U.S. at __, 147 L. Ed. 2d at 452, 120 S. Ct. at 2360, quoting Mullaney v. Wilbur, 421U.S. 684, 697-98, 44 L. Ed. 2d 508, 519, 95 S. Ct. 1881, 1889 (1975). The distinctionbetween murder and manslaughter may be of greater importance than the difference betweenguilt or innocence for many lesser crimes. Mullaney, 421 U.S. at 698, 44 L. Ed. 2d at 519, 95S. Ct. at 1889.

Federal habeas corpus courts have, under the second Teague exception, givenretroactive application to Sullivan and related cases that held that erroneous instructions incriminal trials violated the constitution. See, e.g., Harmon v. Marshall, 69 F.3d 963 (9th Cir.1995); Adams v. Aiken, 41 F.3d 175 (4th Cir. 1994); Gaines v. Kelley, 202 F.3d 598 (2d Cir.2000). This merely serves to underscore how narrowly Flowers, which declined to makeretroactive a similar holding, understood the second exception.

The burden of proof problem in Reddick exposed defendants to the danger ofdeprivations just as unfair as any deriving from the Apprendi problem. In Apprendi the Courtwas concerned that the defendant was being sentenced to what amounted to a greater crimerather than a lesser on the basis of a factor found by merely a preponderance of the evidencerather than beyond a reasonable doubt. Apprendi, 530 U.S. at __, 147 L. Ed. 2d at 451, 120S. Ct. at 2359. In Reddick, however, the court found that the instructions made it not just lesslikely, as the lower standard of proof made it in Apprendi, but impossible for a finder of factfollowing the burden of proof instructions to find the defendant guilty of the lesser crime ratherthan the greater. Reddick, 123 Ill. 2d at 194-95.

We do not mean to suggest that the very same situation was presented in Apprendi as inReddick. But clearly Reddick and Apprendi deal with similar concerns, and concerns that, inour view, are of commensurate gravity. Yet the Illinois Supreme Court found that the Reddickrule was not sufficiently fundamental to qualify under the second Teague exception.

Thus, since the Illinois Supreme Court in adopting Teague balanced the policy concernsin such a way that the second exception did not apply to Reddick, we believe that the exceptionalso does not apply to Apprendi. Because we hold that Apprendi should not be retroactivelyapplied under the Post-Conviction Hearing Act, the defendant's sentence was notunconstitutional at the time that it was entered, regardless of whether it would beunconstitutional if entered now. Since we find that Apprendi does not apply retroactively tocases on collateral review, we need not further address the merits of the defendant's claim as tothe sentence for the attempted murder of Kevin Richardson. The 10-year consecutive sentencefor the attempted murder of William Richardson is hereby modified to run concurrently withthe other sentences.

Affirmed as modified.

McNULTY, P.J., and O'MARA FROSSARD, J., concur.