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THIRD DIVISION
SEPTEMBER 30, 2004

JUSTICE HARTMAN delivered the opinion of the court:

Petitioner, Michael Schrader, appeals from the circuit court's denial of his pro se petition forrelief from judgment filed pursuant to section 2-1401 of the Illinois Code of Civil Procedure. 735ILCS 5/2-1401 (West 2002) (section 2-1401). On appeal, petitioner contends that (1) the court waswithout authority to summarily dismiss his section 2-1401 petition, (2) his extended-term sentenceof 70 years for murder violates Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 435, 122 S. Ct. 2428(2002) (Ring), and (3) his convictions for armed robbery and armed violence are prohibited by theone-act, one-crime doctrine. This court affirmed the circuit court's denial in a Rule 23 disposition,now withdrawn by separate order. The original issues petitioner raised on appeal, and thoseadditionally set forth in his petition for rehearing, will be addressed in this opinion.

Following a jury trial in 1983, petitioner was convicted of murder, armed robbery, and armedviolence for his involvement in a 1982 store robbery. He was found eligible for the death penalty, butwas sentenced to an extended prison term of 70 years for murder, and to two concurrent 30-yearterms for armed robbery and armed violence. No direct appeal was taken.

Petitioner filed his initial post-conviction petition in 1993, in which he alleged his trial counselwas ineffective for failing to perfect his direct appeal. The circuit court summarily dismissed thepetition, finding petitioner elected to pursue a clemency petition in lieu of a direct appeal. The CookCounty Public Defender's Office filed a motion pursuant to Pennsylvania v. Finley, 481 U.S. 551, 555,95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), which the appellate court granted, affirming the circuitcourt's first-stage summary dismissal. People v. Schrader, No. 1-93-2255 (1994) (unpublished underSupreme Court Rule 23).

In September of 2000, petitioner filed a second, successive post-conviction petition, allegingonly that his extended-term sentence was in violation of Apprendi v. New Jersey, 530 U.S. 466, 147L. Ed. 2d 435, 120 S. Ct. 2348 (2000) (Apprendi). In November of 2000, the circuit court summarilydismissed the petition without prejudice, expressly permitting petitioner to re-file his petition in theevent Apprendi were to become applicable to successive post-conviction petitions. Petitioner soughtleave to file a late notice of appeal, which the circuit court denied.

Petitioner filed the instant section 2-1401 petition for relief from judgment in March of 2002,again arguing that his extended-term sentence, based upon the brutal and heinous behavior, wasimposed in contravention of Apprendi. On April 23, 2002, the circuit court summarily dismissed thepetition, finding it was barred by the statute of limitations and by non-conformity with the pleadingrequirements of section 2-1401. Petitioner timely appeals.

Petitioner initially contends the circuit court lacked the statutory authority to summarilydismiss his section 2-1401 petition. Section 2-1401 provides a comprehensive statutory procedureby which final orders, judgments, and decrees may be challenged more than 30 days after their entry. People v. Pinkonsly, 207 Ill. 2d 555, 562, 802 N.E.2d 236 (2003). Section 2-1401 provides remedialpowers to criminal cases. People v. Harvey, 196 Ill. 2d 444, 447, 753 N.E.2d 293 (2001). A section2-1401 petition requires the circuit court to determine whether facts exist that were unknown to thecourt at the time of trial, and would have prevented entry of the judgment. Pinkonsly, 207 Ill. 2d at566. The dismissal of a section 2-1401 petition is reviewed under an abuse of discretion standard. Pinkonsly, 207 Ill. 2d at 562.

As recognized recently by the first district appellate court in People v. Taylor, No. 1-03-1996,slip op. at 2 (June 24, 2004) (Taylor), there is "a dispute among the districts of this court concerningwhether a [circuit] court may summarily dismiss [] defendant's section 2-1401 petition sua sponte." The second district appellate court has held that a circuit court commits reversible error by dismissinga section 2-1401 petition without giving petitioner notice and an opportunity to respond to thedismissal, and a reviewing court may not look beyond this error to assess the merits of the petition. See People v. Mescall, 347 Ill. App. 3d 995, 808 N.E.2d 1101 (2d Dist. 2004); People v. Pearson,345 Ill. App. 3d 191, 802 N.E.2d 386 (2d Dist. 2003), appeal allowed, 208 Ill. 2d 535 (2004)(Pearson); People v. Gaines, 335 Ill. App. 3d 292, 295-97, 780 N.E.2d 822 (2d Dist. 2002); see alsoPeople v. Winfrey, 347 Ill. App. 3d 987, 988-91, 808 N.E.2d 589 (2d Dist. 2004) (summary dismissalof habeas corpus petition improper); People v. Shellstrom, 345 Ill. App. 3d 175, 176-79, 802 N.E.2d381 (2nd Dist. 2003), appeal allowed, 208 Ill. 2d 538 (2004) (summary dismissal of mandamuspetition improper).
In contrast, the fourth district has reached the opposite conclusion, holding that a circuit courtpossesses the inherent authority to strike a section 2-1401 petition sua sponte if it finds the petitionto be frivolous and without merit. See People v. Bramlett, 347 Ill. App. 3d 468, 472-73, 806 N.E.2d1251 (4th Dist. 2004); see also Mason v. Snyder, 332 Ill. App. 3d 834, 839-43, 774 N.E.2d 457 (4thDist. 2002) (summary dismissal of mandamus petition proper).

In Taylor, slip op. at 4, the first district expressly declined to follow the second district'sholding in Pearson, where the court rejected the State's argument that the summary dismissal couldbe affirmed on grounds that the petition lacked merit and defendant sustained no prejudice. ThePearson court reasoned that the "proceedings by which defendant's petition was dismissed were toofar removed from those to which he was entitled for us to hold that he suffered no prejudice." Pearson, 345 Ill. App. 3d at 195. In Taylor, however, the court decided that it "may look beyond anyalleged procedural defect *** where defendant's petition raised a pure question of law, was frivolousand completely without merit and no prejudice resulted from the [circuit] court's dismissal." Taylor,slip. op. at 4; see also Owens v. Snyder, No. 1-02-3765 (1st Dist. June 1, 2004) (summary dismissalof mandamus petition proper where found to be frivolous and no prejudice incurred by defendant).

In the case sub judice, the relevant holdings and reasoning of the first and fourth district caseswill be applied. Petitioner's section 2-1401 petition raised only a pure question of law - whether hisextended-term sentence was in violation of Apprendi. At the time of the summary dismissal, on April23, 2002, People v. De La Paz, 204 Ill. 2d 426, 439, 791 N.E.2d 489, (May 8, 2003) (De La Paz),was the controlling and dispositive authority on this issue. De La Paz held that Apprendi does notapply retroactively to cases on collateral review. De La Paz, 204 Ill. 2d 439. Therefore, the circuitcourt applied the law properly in reaching its conclusion that petitioner's Apprendi challenge wasfrivolous and without merit. "[E]ven if [petitioner] had been given notice and an opportunity to beheard before the court dismissed his petition, he could not have cured its inherent defects" becausehe could not allege "any facts in his petition that would circumvent De La Paz and make his extended-term sentence subject to Apprendi." Taylor, slip. op. at 5.

On the same day Taylor was decided, the United States Supreme Court decided Schriro v.Summerlin, ___ U.S. ___, 124 S. Ct. 2519, 2526, 159 L. Ed. 2d 442 (June 24, 2004) (Schriro), andBlakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (June 24, 2004) (Blakely). In his petition for rehearing, petitioner relies on both Schriro and Blakely, maintaining that hisextended-term sentence is unconstitutional. As these cases concern the constitutionality of sentencingenhancements, they create an additional component to petitioner's specific challenge, therebydifferentiating the instant case from Taylor despite the indistinguishable nature of the claims. Part IIof this opinion addresses petitioner's sentencing challenge in light of these decisions.

The indictment in this case charged petitioner with first degree murder, making no mentionof his "brutal and heinous" behavior. The jury found petitioner guilty of murder; the judge found hisbehavior to be "brutal and heinous," thereby authorizing the imposition of an extended-term sentence. Under the statutory guidelines in place at the time of petitioner's sentencing, the term of imprisonmentfor first degree murder was 20 to 40 years' imprisonment (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(1)(a)); however, since the offense was accompanied by exceptionally brutal and heinous behaviorindicative of wanton cruelty (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2(b)), the circuit court wasauthorized to impose an extended-term sentence within the range of 40 to 80 years. Ill. Rev. Stat.1981, ch. 38, par. 1005-8-2. Petitioner was sentenced to 70 years.

Petitioner insists that the extended-term portion of his sentence, that which is in excess of thestatutory maximum of 40 years, must be vacated since this "enhanced" offense was not charged inthe indictment.

A

Petitioner's initial argument is premised on Ring, where the United States Supreme Courtapplied the principle set forth in Apprendi⁽¹⁾ to a death sentence imposed under the Arizona sentencingscheme. The Supreme Court held that because Arizona's law authorized the death penalty only if anaggravating factor was present, Apprendi required the existence of such a factor to be proved to ajury rather than to a judge. Ring, 536 U.S. at 603-09. In both his original and reply briefs, petitionerargued, based on the Ninth Circuit's holding in Summerlin v. Stewart, 341 F. 3d 1082 (9th Cir. 2003)(Summerlin), that Ring embodied a substantive change in the law and was to be applied retroactively. Since the filing of petitioner's reply brief, however, the Supreme Court overturned Summerlin,holding that "Ring announced a new procedural rule that does not apply retroactively to cases alreadyfinal on direct review." Schriro, 124 S. Ct. at 2526. In his petition for rehearing, petitioner insiststhat when Schriro is applied to Illinois law, as opposed to Arizona law, Schriro requires theretroactive application of Ring.

In persisting with this argument, petitioner neglects to recognize that Schriro's holding - thatRing is procedural and not retroactive - does not apply solely in the context of Arizona law in whichit was rendered, but applies uniformly across the states. "The Supreme Court of the United Stateshas appellate jurisdiction over federal questions arising either in state or federal proceedings, and byreason of the supremacy clause the decisions of that court on national law have binding effect on alllower courts whether state or federal." People v. Battiste, 133 Ill. App. 2d 62, 65, 272 N.E.2d 808(1971), quoting United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075 (7th Cir. 1970). Notwithstanding the merits of petitioner's attempt to distinguish Arizona's sentencing scheme fromthat of Illinois, this court is not empowered to apply Ring retroactively in the context of Illinois law. Such an endeavor runs afoul of the mandate of Schriro and the Supremacy Clause. U.S. Const., art.VI, cl. 2. Whereas it was the Illinois Supreme Court, in De La Paz, which determined Apprendiwould not be applied retroactively in Illinois, here, it is the United States Supreme Court, in Schriro,which has held that Ring may not be applied retroactively in Illinois or in any other jurisdiction. Petitioner's sentencing challenge premised on Ring, therefore, is rejected.

Also raised in his petition for rehearing is petitioner's sentencing challenge premised onBlakely, under which the standard statutory maximum "is the maximum sentence a judge may imposesolely on the basis of facts reflected in the jury verdict or admitted by the defendant." Blakely, 124S. Ct. at 2537. "In other words, the relevant 'statutory maximum' is not the maximum sentence ajudge may impose after finding additional facts, but the maximum he may impose without anyadditional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, thejury has not found all the facts 'which the law makes essential to the punishment,' [citation] and thejudge exceeds his proper authority." Blakely, 124 S. Ct. at 2537.

Although Blakely potentially "calls into doubt the constitutionality of such enhancements"(United States v. Ward, Nos. 03-2998, 03-2999 (7th Cir., July 23, 2004)), "[t]he Supreme Court hasnot made the Blakely rule applicable to cases on collateral review ***." Simpson v. United States,No. 04-2700 (7th Cir., July 16, 2004). "Blakely itself did not announce that it was applicableretroactively -- and indeed the same-day decision in Schriro [citation] teaches the strong unlikelihoodthat Blakely will hereafter be given retroactive effect." United States v. Traeger, No. 04 C 2685(N.D. Ill., July 8, 2004); see also United States v. Malone, No. 04 C 50327 (N.D. Ill., August 3,2004); United States v. Lowe, No. 04 C 50019 (N.D. Ill., August 6, 2004). Absent any bindingauthority compelling the retroactive application of Blakely to cases on collateral review, petitioner'srequest that this court do so here is declined. This conclusion takes into consideration our supremecourt's ruling, under analogous circumstances, in De La Paz, where the court rejected the retroactiveapplication of Apprendi.

Petitioner's remaining claim on appeal is that the circuit court's entry of convictions for botharmed robbery and armed violence are forbidden by the one-act, one-crime doctrine. Notably,petitioner failed to raise this issue in his section 2-1401 petition before the circuit court, and it is nowbeing raised for the first time in this appeal. Recently, the supreme court held that "an alleged one-act, one-crime violation and the potential for a surplus conviction and sentence affects the integrityof the judicial process, thus satisfying the second prong of the plain error rule," which allows thereview of a waived error if either of the two prongs are satisfied. People v. Harvey, No. 89106,89760, 90278 cons., slip op. at 15-16 (June 24, 2004)). A reviewing court may invoke the plainerror rule to review alleged errors not properly preserved when (1) the evidence in a criminal caseis closely balanced or (2) the error is so fundamental and of such magnitude that the accused is deniedthe right to a fair trial and remedying the error is necessary to preserve the integrity of the judicialprocess. People v. Lindsey, 201 Ill. 2d 45, 54, 772 N.E.2d 1268; 134 Ill. 2d R. 615(a). Since thesecond prong of the plain error rule is satisfied, petitioner's argument will be addressed on its merits. See Harvey, slip op. at 16.

In this case, petitioner and another man burst into a store. Petitioner, who was armed witha shotgun, fired at, and killed Wanda Ortiz. The men then announced a "stick-up" and told everyoneto lie down on the floor. Petitioner put his foot on the back of the store's owner, Yung Joo, as theother man went to the cash register and grabbed Joo's wife, ordering her to give him money and foodstamps from the register. When Joo lifted up his head, petitioner stomped on Joo's back with his foot,forcing his face to the floor, injuring his eyes and lacerating his nose.

Petitioner was charged with, and the jury instructed on, armed robbery in that (1) petitionertook currency and food stamps from Joo, that (2) he did so by the use of force or by threatening theimminent use of force, and (3) was armed with a dangerous weapon. Petitioner also was chargedwith, and the jury instructed on, armed violence in that he, (1) while armed with a dangerous weapon,(2) committed the felony of aggravated battery by committing a battery on Joo in that he intentionallyand knowingly, without legal justification, caused great bodily harm to Joo by kicking him about thebody.

In People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977), the Illinois Supreme Court held thata defendant may not be convicted of multiple offenses when those offenses all are based on preciselythe same physical act. King, 66 Ill. 2d at 566. This holding was reaffirmed and clarified in Peoplev. Rodriguez, 169 Ill. 2d 183, 661 N.E.2d 305 (1996), where it was noted that an analysis under Kingrequires a two-step examination. Rodriguez, 169 Ill. 2d at 186. First, a court must ascertain whetherdefendant's conduct consisted of a single physical act or separate acts; "[m]ultiple convictions areimproper if they are based on precisely the same physical act." Rodriguez, 169 Ill. 2d at 186. An"act" is defined as "any overt or outward manifestation which will support a different offense." King,66 Ill. 2d at 566. If defendant committed multiple acts, the court then proceeds to the second stepto determine whether any of the other offenses are lesser-included offenses; if they are, multipleconvictions are improper; however, if they are not, multiple convictions may be entered properly. Rodriguez, 169 Ill. 2d at 186.

Armed robbery is the commission of robbery while armed with a dangerous weapon. Ill. Rev.Stat. 1981, ch. 38, par. 18 - 2. Robbery is the taking of property from the person or presence ofanother by the use of force or by threatening the imminent use of force. Ill. Rev. Stat. 1981, ch. 38,par. 18 -1. A person commits armed violence when, while armed with a dangerous weapon, hecommits any felony defined by Illinois law, except, inter alia, armed robbery. Ill. Rev. Stat. 1981, ch.38, par. 33A - 2. A person commits aggravated battery, a felony, when, in committing a battery, heintentionally or knowingly causes great bodily harm, or permanent disability or disfigurement. Ill. RevStat. 1981, ch. 38, par. 12 - 4(a).

The primary inquiry is whether there are separate acts. The indictment must indicate that theState intends to treat defendant's conduct as separate acts. See People v. Crespo, 203 Ill. 2d 335,345, 342, 788 N.E.2d 1117 (2001). In Crespo, defendant stabbed the victim three times, but theState did not differentiate between the acts in the charging instrument. The State argued, for the firsttime on appeal, that each stab was a separate act. The supreme court noted that each stab "couldhave" supported a separate charge and the State "could have argued the case to the jury that way"but chose not to do so. Crespo, 203 Ill. 2d at 342-44. The court found that to apportion the crimesamong the three stabs for the first time on appeal would be unfair and concluded that multipleconvictions could not be sustained. Crespo, 203 Ill. 2d at 343, 345.

In Rodriguez, the supreme court emphasized that a person can be guilty of two offenses whena common act is part of both offenses. Rodriguez, 169 Ill. 2d at 188. There, defendant was chargedwith the offenses of aggravated criminal sexual assault and home invasion. The aggravated criminalsexual assault count alleged that defendant committed an act of sexual penetration and displayed, orthreatened, the victim with a gun. The home invasion count alleged that defendant unlawfully enteredthe victim's dwelling and threatened her with imminent use of force while armed with a gun. Thecourt found that although these offenses shared in common the act of defendant threatening the victimwith a gun, the offenses were predicated on separate physical acts. As long as there are multiple acts,as defined in King, their interrelationship does not preclude multiple convictions. Rodriguez, 169 Ill.2d at 189.

Here, petitioner's actions satisfy the elements of armed robbery; he threatened force and tookthe property of another while armed with a dangerous weapon when he entered the store armed witha shotgun, announced a "stick-up," and took money and food stamps from Joo's cash register. Other,different acts by petitioner satisfy the elements of armed violence; he committed a felony, aggravatedbattery, while armed with a dangerous weapon when he kicked Joo in the back while holding ashotgun. In this way, petitioner committed two separate and distinct acts. Although the two offenses have in common the act of petitioner wielding a gun, as long as there are multiple acts, theirinterrelationship does not preclude multiple convictions. Rodriguez, 169 Ill. 2d at 189. The fact thatthe armed violence occurred during the armed robbery also is inconsequential since "[t]wo separateacts do not become one solely because of proximity in time." People v. Pearson, 331 Ill. App. 3d312, 322, 770 N.E.2d 1183 ( 2002) (Pearson), citing People v. Myers, 85 Ill. 2d 281, 287-88, 426N.E.2d 535 (1981).

Having found the existence of multiple acts, the question becomes whether either offense isa lesser-included offense of the other. It should be noted that it is impermissible to base a convictionfor armed violence on armed robbery (People v. Cummings, 1-02-3290, slip op. at 10-11, (June 21,2004)); however, that impropriety is not presented in the case at bar since petitioner's conviction forarmed violence was predicated on aggravated battery, not armed robbery. To qualify as an includedoffense, the instrument charging the greater offense must, at a minimum, set out the main outline ofthe lesser offense. People v. McLaurin, 184 Ill. 2d 58, 104-05, 703 N.E.2d 11 (1998); People v.Kolton, 347 Ill. App. 3d 142, 149, 806 N.E.2d 1175 (2004).

The indictment here charged petitioner with armed robbery "in that he, by the use of force andby threatening the imminent use of force while armed with a dangerous weapon, took United Statescurrency from the person and presence of Yung Joo." This charge does not include an essentialelement of armed violence, i.e., the commission of "any felony defined by Illinois law, except ***armed robbery." The indictment also charged petitioner with armed violence "in that he, while armedwith a dangerous weapon, to wit: a gun, committed a felony defined by Illinois Law, to wit:aggravated battery, in that he, in committing a battery on Yung Joo, intentionally and knowinglywithout legal justification caused great bodily harm to said Yung Joo by kicking him about the bodywith his feet." This charge does not include an essential element of armed robbery, i.e., the takingof property from the person or presence of another. Neither offense is a lesser-included offense ofthe other. See e.g., People v. White, 311 Ill. App. 3d 374, 386-87 (2000); Pearson, 331 Ill. App. 3dat 322-23.

Therefore, in this case, where the State brought separate charges, each of which wouldsupport a separate conviction and were not lesser-included offenses of the other, petitioner'sconvictions for armed robbery and armed violence were proper and must stand.

For the reasons set forth above, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

GREIMAN and THEIS, J.J., concur.

1. Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000),holds that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for acrime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyonda reasonable doubt."