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FIFTH DIVISION
April 19, 2002

Following a bench trial, defendant Anthony Tomasello wasconvicted of three counts of aggravated criminal sexual assaultand was sentenced to three consecutive 15-year prison terms. Hisconvictions and sentence were affirmed on direct appeal. Peoplev. Tomasello, No. 1-98-4211 (2000) (unpublished summary orderunder Supreme Court Rule 23). Defendant subsequently filed a prose petition for relief under the Post-Conviction Hearing Act(Post-Conviction Act) (725 ILCS 5/122-1 et seq. (West 2000)),which was summarily dismissed by the trial court. Defendantappeals, contending that his pro se petition set forth the gistof a meritorious claim based upon Apprendi v. New Jersey, 530U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For thereasons set forth below, we affirm the judgment of the trialcourt.

BACKGROUND

Defendant was convicted of three counts of aggravatedcriminal sexual assault under section 12-14(b)(ii) of theIllinois Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-14(b)(ii) (West 1996)). Defendant had sexually assaulted thevictim, a 10-year-old boy, while the child was in his backyard. In our January 14, 2000, summary order affirming defendant'sconviction and sentence, we rejected his claim that his sentencewas excessive given his age, background and the circumstancessurrounding commission of the crimes.

On August 8, 2000, defendant's pro se petition forpostconviction relief was filed with the circuit court. In hispetition, defendant stated that he was sentenced to consecutivesentences on his aggravated criminal sexual assault convictionsbased upon the sentencing court's finding that the crimes werecommitted as part of a single course of conduct during whichthere was no substantial change in the nature of the criminalobjective. He likened his consecutive sentences to an enhancedsentence and claimed that section 5-8-4(a) of the IllinoisUnified Code of Corrections (Code of Corrections) (730 ILCS 5/5-8-4(a) (West 1996)), the section under which he was sentenced,was unconstitutional based upon the Supreme Court's Apprendidecision.

Quoting some select phrases from his sentencing hearing,defendant further alleged that although he did not receive anextended-term sentence, the sentencing court found that he waseligible for a 120-year term based upon the victim's age.⁽¹⁾ Againrelying on Apprendi, defendant asserted that the sentencing courtwas without authority to impose an enhanced sentence based upon adetermination as to the victim's age, where that basis was notpleaded in the indictment, submitted to the jury or proved beyonda reasonable doubt at trial.

His third basis for relief in his petition was that his dueprocess rights were violated when Joe Pence, a fellow detainee atthe Audy Home, was allowed to testify at defendant's sentencinghearing. According to defendant's petition, Pence testified thathe had heard defendant proposition a resident at the Audy Homefor sex and that defendant had attempted to sexually assaultPence. Attached to defendant's petition was the affidavit ofSteven Hunter, defendant's attorney at trial, who averred that hehad inadequate information relating to the alleged sexual assaulton Pence to enable him to subpoena police reports relating to theincident. Hunter further averred that he was surprised byPence's testimony and that, because Pence was himself a detainee at the Audy Home, Hunter was unable to interview him.

In a written order, the trial court summarily dismisseddefendant's petition. As relevant to this appeal, the trialcourt held that the Apprendi decision was not applicable in apostconviction proceeding. The trial court also held thatpursuant to section 5-5-3.2(c) of the Code of Corrections (730ILCS 5/5-5-3.2(c) (West 1996)), defendant was indeed eligible foran extended-term sentence premised upon the victim's age. Thetrial court then held that defendant's claim that the judge "wasmistaken when he stated that [defendant] was eligible for anextended term sentence" was waived. Citing People v. French, 210Ill. App. 3d 681, 688-89 (1991), the trial court stated that thepropriety of defendant's sentence was premised upon the record atthe sentencing hearing and, thus, defendant's failure to raisethe issue on direct appeal precluded consideration of it in apostconviction petition. Defendant now appeals.

ANALYSIS

Defendant's sole contention on appeal is that the trialcourt erred when it summarily dismissed his postconvictionpetition wherein he alleged the gist of a meritorious claim basedupon the sentencing court's finding that he was subject to anextended-term sentence due to the victim's age. Because thisclaim is premised upon Apprendi, defendant argues that the trialcourt erred when it found the issue could have been brought ondirect appeal. This is because this court decided his appealsome six months before the Supreme Court rendered its decision inApprendi.

The Post-Conviction Act provides a remedy for a criminaldefendant who can establish a substantial deprivation of hisconstitutional rights at trial. People v. Brisbon, 164 Ill. 2d236, 242 (1995). A court may summarily dismiss the petitionwithout appointing counsel if it determines that the petition isfrivolous or patently without merit. 725 ILCS 5/122-2.1 (West2000). In determining whether the summary dismissal was correct,we review the allegations in the petition de novo. People v.Coleman, 183 Ill. 2d 366, 388-89 (1998).

On appeal, defense counsel concedes that our supreme courthas held that the holding in Apprendi is not violated by theimposition of consecutive sentences, where each separate sentenceis within the applicable statutory limit for the particularoffense. See People v. Wagener, 196 Ill. 2d 269, 287-88 (2001). Defense counsel also concedes that defendant's 15-year sentenceon each count of aggravated criminal sexual assault is within theapplicable statutory limit for that offense.

Defense counsel bases his appeal on several cases where thiscourt has held that a defendant must be resentenced where therecord shows that the trial court erroneously thought thedefendant was eligible for an extended term sentence, even inthose instances where the trial court did not impose an extended-term sentence. People v. Ruiz, 312 Ill. App. 3d 49, 58 (2000);People v. Hausman, 287 Ill. App. 3d 1069, 1072 (1997); People v.Sims, 265 Ill. App. 3d 352, 365-66 (1994).

We first note that the sentencing court's alleged statementthat defendant could be sentenced to up to 120 years'imprisonment was correct. Aggravated criminal sexual assault isa Class X felony (720 ILCS 5/12-14(d)(West 1996)), which allowsfor a prison term of not less than 6 years and not more than 30years (730 ILCS 5/5-8-1(a)(3)(West 1996)). Based upon thevictim's age, an extended term for defendant's Class X felonyconvictions is not less than 30 years and not more than 60 years(730 ILCS 5/5-8-2(b)(2) (West 1996)). Having determineddefendant's three offenses were committed as part of a singlecourse of conduct, consecutive sentences on the three counts weremandatory pursuant to section 5-8-4(a) (730 ILCS 5/5-8-4(a) (West1996)). See People v. Curry, 178 Ill. 2d 509, 538 (1997). Defendant's consecutive sentences implicated section 5-8-4(c)(2)of the Code of Corrections, which, at the time he committed theoffenses, provided:

"[T]he aggregate of consecutive sentencesshall not exceed the sum of the maximum termsauthorized under Section 5-8-2 for the 2 mostserious felonies involved." 730 ILCS 5/5-8-4(c)(2) (West 1996).

Thus, as defendant could be sentenced to consecutive 60-yearprison terms for two of the convictions, defendant could havebeen sentenced to up to 120 years in prison. See People v.Pullen, 192 Ill. 2d 36, 42 (2000).

We note that all of the cases cited by the defense involvedinstances where the trial court's admonishments were erroneous. Here, the admonishments were correct. Further, all ofdefendant's cases predate the holding in Apprendi and our supremecourt's holding in Wagener. Consequently, we find defendant'scases to be inapplicable. Our supreme court has also rejectedchallenges to consecutive sentences based on Apprendi in Peoplev. Carney, 196 Ill. 2d 518 (2001), and People v. Rogers, 197 Ill.2d 216 (2001). In Rogers, the court affirmed consecutivesentences upon convictions of criminal sexual assault. InCarney, the court affirmed consecutive sentences under section 5-8-4(a) of the Code of Corrections, the same statutory subsectionrelied upon by the trial court in this case.

We reject defendant's argument that the assertion in hispostconviction petition that the sentencing court's admonishmentthat he was eligible for an extended term of up to 120 yearsunder section 5-8-4(c)(2) constitutes a separate basis upon whichwe may grant relief. As our supreme court has held that theholding in Apprendi is not violated by the imposition ofconsecutive sentences where each separate sentence is within theapplicable statutory limit for that offense, and where thesentences in this case are clearly within that limit, ouranalysis ends. In the factually similar case of Rogers, oursupreme court rejected the defendant's argument that hisconsecutive sentences violated Apprendi, citing the holdings inWagener and Carney. The court continued: "The defendant cannotraise this nonmeritorious constitutional issue in a post-conviction context. See 725 ILCS 5/122-1 (West 1998). We do notdecide, however, whether a meritorious Apprendi issue iscognizable in a post-conviction proceeding, i.e., whetherApprendi applies retroactively to cases on collateral review." Rogers, 197 Ill. 2d at 224 n.3.

We also reject defendant's argument that the indictment inthis case was violative of Apprendi for failure to charge thatthe victim was under 12 years of age. This rejection is based onthe holding of our supreme court in People v. Ford, 198 Ill. 2d68 (2001), where it stated:

"Defendant also suggests that, underApprendi, any fact that increases the penaltyfor a crime beyond the prescribed statutorymaximum must be charged in the indictment. However, the Court in Apprendi specificallydeclined to address the indictment question,noting that (1) Apprendi did not assert aconstitutional claim based upon theindictment's failure to charge theextended-term sentencing factors, and (2) thedue process clause of the fourteenthamendment, upon which Apprendi exclusivelyrelied, has never been construed to make thefifth amendment right to "'presentment of aGrand Jury'" applicable to the states. Apprendi, 350 U.S. at 477 n.3, 147 L. Ed. 2dat 447 n.3, 120 S. Ct. at 2355 n.3." Ford,198 Ill. 2d at 72 n.1.

Our holding is also supported by the holding in People v.Davis, No. 89704 (February 22, 2001). There, our supreme courtrejected the defendant's argument that under Apprendi, hisindictment was flawed because it did not set forth all of theelements of the crime. Specifically, the supreme court stated:

" 'When an indictment or information isattacked for the first time on appeal, it issufficient that the indictment or information 'apprised the accused of the precise offensecharged with sufficient specificity toprepare his defense and allow pleading aresulting conviction as a bar to futureprosecution arising out of the sameconduct.'' People v. Thingvold, 145 Ill. 2d441, 448 (1991), quoting People v. Gilmore,63 Ill. 2d 23, 29 (1976). In other words,the question on appeal is 'whether the defectin the information or indictment prejudicedthe defendant in preparing his defense.' Thingvold, 145 Ill. 2d at 448.

In the present case, defendant did notchallenge the indictment at trial or in hisfirst direct appeal. Thus, unless hedemonstrates that he was prejudiced inpreparing his defense, this issue is waived. Defendant makes no claim of prejudice,however. Instead, he packages his challengeto the indictment in Apprendi wrapping andraises it as a constitutional claim that wasnot available to him at the time of his firstappeal.

Defendant's attempt to create anApprendi issue is unavailing because theSupreme Court, in Apprendi, specificallyexcluded capital sentencing schemes in whicheligibility for the death penalty must beproven to a jury beyond a reasonable doubtfrom its scope ***." Davis, No. 89704, slipop. at 21-22 (February 22, 2002).

The holdings in Rogers, Ford and Davis make clear that inthose categories of cases where Apprendi does not apply (e.g.those involving nonextended consecutive sentences and capitalcases), the mere invocation of the holding in Apprendi does notrequire the trial courts or this court to disregard decades ofwell-settled precedent addressing issues concerning charging andsentencing in criminal cases.

For all of the above reasons, we find that the trial courtdid not err in summarily dismissing defendant's pro sepostconviction petition.

Accordingly, the judgment of the circuit court of CookCounty is affirmed.

Affirmed.

CAMPBELL, P.J., and REID, J., concur.

1. At the time of these offenses, Code of Corrections section5-5-3.2(b)(4)(i) provided that, under section 5-8-2, the courtmay consider as a reason for imposing an extended-term sentencethe fact that the victim was "under 12 years of age at the timeof the offense." 730 ILCS 5/5-5-3.2(b)(4)(i) (West 1996). Codeof Corrections section 5-5-3.2(c) provided that "[t]he court mayimpose an extended term sentence under Section 5-8-2 upon anyoffender who was convicted of aggravated criminal sexual assaultwhere the victim was under 18 years of age at the time of thecommission of the offense." 730 ILCS 5/5-5-3.2(c) (West 1996).