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No. 2--01--0665

Defendant, Ian Beronich, appeals the circuit court's orderthat dismissed his second amended postconviction petition. Defendant contends his guilty plea to first-degree murder (Ill.Rev. Stat. 1989, ch. 38, par. 9--1(b)) was involuntary because thecourt admonished him that he was eligible for an extended-termsentence but the extended-term sentencing statute was laterrendered unconstitutional by Apprendi v. New Jersey, 530 U.S. 466,147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

On April 10, 1990, defendant was indicted for murder and otheroffenses in connection with the death of Thomas Cochrane. Represented by attorney F. Keith Brown, defendant entered anegotiated guilty plea on November 28, 1990. In exchange for theplea, the State agreed to recommend a 50-year prison sentence andnol-pros the remaining charges.

The trial court admonished defendant that the normalsentencing range for murder was 30 to 60 years. Later, the courtstated that the sentence could be between 20 and 60 years'imprisonment. The court also said, "Sometimes it can be extendedto 60 to 100 years based upon the nature of the event, whether itwas heinous or brutal or other factors." The prosecutorinterjected that defendant was eligible for a sentence of natural-life imprisonment because the victim was a potential witness in aprosecution. The court added that the life sentence would bewithout the possibility of parole. The court also told defendantthat he would serve 25 years or a little less of the 50-yearsentence, assuming his good behavior in prison.

The court advised defendant of the rights that he was givingup by pleading guilty. Defendant said that no one had forced himto plead guilty, that he had sufficient time to consult withcounsel, and that he had no complaints about his lawyer.

After hearing the factual basis, the court accepted the pleaas knowing and voluntary. The court concurred in the negotiateddisposition and sentenced defendant to 50 years' imprisonment.

Defendant did not file a direct appeal. On October 23, 1997,he filed a pro se petition pursuant to the Post-Conviction HearingAct (the Act) (725 ILCS 5/122--1 et seq. (West 1996)), allegingseveral grounds for relief. Defendant's affidavit and otherexhibits accompanied the petition. On April 16, 1998, the trialcourt dismissed some of the claims as frivolous and patentlywithout merit, but appointed the public defender to representdefendant on the remaining claims.

Attorney Donald Zuelke filed an amended petition whichincluded allegations that defendant had not been culpably negligentin filing the petition beyond the three-year time limit the Actallows (725 ILCS 5/122--1(c) (West 1996)). After a hearing, thecourt found that defendant was not culpably negligent for filingthe petition late, but denied the remaining claims on their merits.

On appeal, this court held that the trial court erred bysummarily dismissing any of the petition's claims because the courtinitially considered the petition beyond the Act's 90-day timelimit for summary action (725 ILCS 5/122--2.1(a) (West 1996)). People v. Beronich, No. 2--98--1377 (2000) (unpublished order under Supreme Court Rule 23).

Following remand, the trial court reappointed Zuelke, whofiled a second amended postconviction petition for defendant. Ata brief hearing, the court granted the State's motion for adirected finding on certain claims in the second amended petitionbut ordered a further hearing on defendant's claim that his counselwas ineffective for not moving to suppress his statements topolice.

Zuelke later filed an addendum to the second amended petitionarguing that during the plea colloquy the trial court had incorrectly advised defendant of the maximum sentence he facedbecause Apprendi rendered Illinois's extended-term sentencingstatutes unconstitutional. The court took the matter underadvisement and later issued an order denying the petition. Thecourt rejected the Apprendi claim, finding that even if Apprendiapplied defendant had waived the issue by pleading guilty withoutpreserving this claim. Moreover, had defendant timely raised theissue, the trial court might have afforded him the right to havethe jury determine the existence of the aggravating factors beyonda reasonable doubt. Defendant filed a timely notice of appeal.

On appeal, defendant argues only the Apprendi claim. Hecontends that his guilty plea was not knowing and voluntary becausethe trial court misadvised him about the maximum possible penalty. The trial court told him that he faced a maximum of 100 years or natural life in prison; however, Apprendi later made thosesentences unconstitutional. Defendant contends that had he knownthat he faced a maximum of only 60 years in prison, he would nothave agreed to accept a 50-year sentence, which was only 10 yearsless than the maximum.

Before proceeding to the merits of defendant's claim, we mustfirst address several preliminary matters in order to frame theissues properly. First, the parties devote much of their briefs toarguing whether Apprendi even applies to this case. Defendant wasconvicted of first-degree murder. The question whether Apprendiapplies to natural-life or extended-term sentences for murder inIllinois has divided the appellate court and even panels of thisdistrict. Some panels have taken the position that the enhancedsentences for first-degree murder are like any other extended-termsentences to which Apprendi applies. See People v. Swift, 322 Ill.App. 3d 127, 129 (2001); People v. Joyner, 317 Ill. App. 3d 93, 110(2000). Most recently, a majority of this court held that Apprendidoes apply to enhanced sentences for first-degree murder. Peoplev. Tenney, 329 Ill. App. 3d 430, 442 (2002). Because we dispose ofthis appeal on different grounds, we need not revisit this questionagain here, but will assume that Apprendi applies.

Second, assuming that Apprendi does apply, defendant'sargument reads that decision too broadly. In Apprendi, the courtheld, "Other than the fact of a prior conviction, any fact thatincreases the penalty for a crime beyond the prescribed statutorymaximum must be submitted to a jury, and proved beyond a reasonabledoubt." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S.Ct. at 2362-63. Although defendant correctly states Apprendi'sholding, his contentions are based on the assumption that Apprendirenders all extended-term sentencing statutes void. This isincorrect.

Apprendi does not hold that a State may never subject adefendant to a sentence beyond the usual statutory maximum, onlythat the facts justifying the enhancement (other than priorconvictions) must be proved to a jury beyond a reasonable doubt. The Illinois Supreme Court has held that the State's extended-termsentencing provisions are not void ab initio under Apprendi. Hillv. Cowan, No. 90229, slip op. at 4 (April 18, 2002). Accordingly, that court has upheld the extended-term sentences of defendants whowaived the issue by pleading guilty. Hill, slip op. at 3; Peoplev. Jackson, 199 Ill. 2d 286, 295-96 (2002). Moreover, this courthas held that Apprendi does not apply on collateral review, thusupholding extended-term sentences that were not timely challenged. See People v. McGee, 328 Ill. App. 3d 930, 936 (2002).

It is clear from these cases that Illinois's extended-termsentencing statutes are not void under Apprendi. This issignificant because it means that the trial court's admonishmenthere that defendant was eligible for extended-term sentences wasnot only true under the then-existing law but remains literallytrue today. The only changes wrought by Apprendi are that theState would have to allege the enhancing factors in the indictmentand prove them to a jury beyond a reasonable doubt, facts that thecourt's admonishments need not cover. See Jackson, 199 Ill. 2d at296-97. Defendant's argument thus reduces to one that, had heknown that he had the right to have a jury, rather than the trialcourt, decide whether his conduct was brutal and heinous, he wouldhave rejected the State's plea offer and insisted on going totrial.

Having said that, we must also reject the State's contentionsthat defendant cannot raise his argument because a guilty pleawaives Apprendi claims (Hill, slip op. at 3; Jackson, 199 Ill. 2dat 295-96), and because Apprendi does not apply to cases oncollateral review (McGee, 328 Ill. App. 3d at 936). Defendant'sargument is not an Apprendi claim per se because he did not receivean extended-term sentence. The 50-year sentence to which he agreedwas within the "normal" range for first-degree murder. Rather,defendant claims that his plea was not knowing and voluntarybecause the trial court improperly advised him of the maximumsentence for which he was eligible. A guilty plea does not waivea contention that the plea itself was involuntary because of faultyadmonishments. See People v. Gosier, 145 Ill. 2d 127, 141-42(1991). Moreover, such claims may be raised in a postconvictionpetition. See People v. Wendt, 283 Ill. App. 3d 947, 957 (1996).

We note, however, that defendant has waived his claim inanother way. Although defendant argued in the addendum to thesecond amended petition that his plea was involuntary because ofthe improper admonishments, defendant presented no evidence insupport of this claim. His affidavit incorporated from theoriginal petition does not address this claim and he presented nolive testimony on this issue.

A postconviction petition must include affidavits, records, orother evidence supporting its allegations or state why thesedocuments are unavailable. 725 ILCS 5/122--2 (West 2000). Here,defendant did file an affidavit but, as noted, it does not addressthe claim he now makes. Defendant acknowledges this omission, butcontends that the basis for the claim is "apparent from therecord." We disagree.

Before accepting defendant's plea, the trial court advised himthat he was eligible for a sentence of between 60 and 100 years inprison "based upon the nature of the event, whether it was heinousor brutal or other factors." See 730 ILCS 5/5--8--2(a)(1) (West2000). The State had considerable evidence against defendant,including his own confession in which he described in detailstabbing the victim numerous times and beating him with a dumbbell. It is not "apparent" that, had defendant known he had the right tohave a jury, rather than the trial judge, decide whether hisconduct was brutal and heinous, he would have rejected the pleaoffer and insisted on going to trial. However, providing incorrectadmonishments when accepting a guilty plea may be plain error. People v. Davis, 145 Ill. 2d 240, 250-51 (1991). Therefore, weaddress the issue.

Defendant contends that his plea was not knowing and voluntarybecause the trial court incorrectly advised him about the sentencehe could receive. Defendant observes that improper admonishmentsabout the sentences to which a defendant is subject may render aguilty plea unknowing. See Davis, 145 Ill. 2d at 250; UnitedStates v. Guerra, 94 F.3d 989, 994-95 (5th Cir. 1996) (plea invalidwhere court informed defendant he was eligible for twice the actualmaximum sentence available). However, in those cases, the courts'admonishments were wrong when the courts gave them.

In Brady v. United States, 397 U.S. 742, 25 L. Ed. 2d 747, 90S. Ct. 1463 (1970), the Supreme Court stated as follows:

"[A]bsent misrepresentation or other impermissible conduct bystate agents, [citation], a voluntary plea of guiltyintelligently made in the light of the then applicable lawdoes not become vulnerable because later judicial decisionsindicate that the plea rested on a faulty premise. A plea ofguilty triggered by the expectations of a competentlycounseled defendant that the State will have a strong caseagainst him is not subject to later attack because thedefendant's lawyer correctly advised him with respect to thethen existing law as to possible penalties but laterpronouncements of the courts, as in this case, hold that themaximum penalty for the crime in question was less than wasreasonably assumed at the time the plea was entered." Brady,397 U.S. at 757, 25 L. Ed. 2d at 761, 90 S. Ct. at 1473.

In other words, whether a guilty plea is intelligent andvoluntary is judged in light of the law that existed when the pleawas entered and a voluntary plea is not invalidated by laterchanges in the law. Recently, the United States Court of Appealsfor the Eleventh Circuit relied on Brady to reject an argumentnearly identical to that defendant makes here. The court held thatBrady foreclosed the argument that Apprendi, because it reduced themaximum sentence defendants faced, retroactively invalidated theirpleas. United States v. Sanchez, 269 F.3d 1250, 1285 (11th Cir.2001). We agree with this analysis and hold that defendant's pleawas voluntary.

Defendant has abandoned his contentions that his counselprovided ineffective representation. Therefore, we assume that hehad the advice of competent counsel. Defendant does not claim thathe was improperly coerced to plead guilty or that he was promisedanything other than the explicit terms of the plea agreement. Thetrial court correctly advised him of the then-existing sentencingoptions. As noted, it is far from clear that the court'sadmonitions were wrong even in light of Apprendi, but, evenassuming that they were misleading under that decision, they werecorrect at the time and we evaluate the plea's knowing andvoluntary character by the law at the time it was entered, not withhindsight.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

GROMETER and KAPALA, JJ., concur.