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No. 2--01--0299

Following a jury trial in the circuit court of Lake County,defendant, Rickey McGee, was found guilty of attempted murder,armed violence, and aggravated battery. The trial court sentenceddefendant to concurrent, extended-term sentences of 40 years'imprisonment on the attempted murder and armed violenceconvictions. On appeal, this court vacated defendant's convictionfor armed violence but affirmed defendant's conviction and sentencefor attempted murder. People v. McGee, 121 Ill. App. 3d 1086(1984). On more than one occasion, defendant has sought reliefpursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2000)). The present appeal follows the dismissalof defendant's most recent postconviction petition. Defendantclaims that the trial court erred in dismissing his postconvictionpetition because it raised a valid claim that his extended-termsentence is unconstitutional pursuant to Apprendi v. New Jersey,530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For thereasons that follow, we affirm.

I. BACKGROUND

On February 17, 1983, defendant was charged by informationwith attempted murder (Ill. Rev. Stat. 1981, ch. 38, pars. 8--4(a),9--1(a)(1)), armed violence (Ill. Rev. Stat. 1981, ch. 38, par.33A--2), and aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par.12--4(a)). Prior to trial, the court informed defendant of thesentencing range for each offense as well as the possibility ofextended-term sentences. Notably, the trial court adviseddefendant that a conviction of either attempted murder or armedviolence could result in an enhanced sentence of up to 60 years'imprisonment if the court determined that the crimes were committed"with wanton cruelty[] or heinousness."

The cause proceeded to a jury trial. On April 12, 1983, thejury returned a verdict finding defendant guilty of all threeoffenses. The court entered judgment only on the attempted murderand armed violence convictions. On May 13, 1983, following thedenial of defendant's posttrial motion, the trial court sentenceddefendant to concurrent, extended-term sentences of 40 years'imprisonment on the attempted murder and armed violenceconvictions. The court imposed extended-term sentences on thebasis that defendant's actions were "exceptionally brutal andheineous [sic], and indicative of wanton cruelty." See Ill. Rev.Stat. 1981, ch. 38, par. 1005--5--3.2(b)(2) (now 730 ILCS 5/5--5--3.2(b)(2) (West 2000)). On February 22, 1984, this court vacateddefendant's armed violence conviction but affirmed the judgment ofconviction of and sentence for attempted murder. McGee, 121 Ill.App. 3d at 1091. On October 2, 1984, the supreme court denieddefendant's petition for leave to appeal.

In February 1988, defendant filed a pro se motion that wascaptioned as a motion for reduction of sentence. In the motion,defendant argued that his sentence was "totally excessive." Thetrial court denied defendant's motion, noting that it "raise[d] noconstitutional issues" and that "to the extent that [the motionwas] to be construed as a motion for reduction of sentence, [itwas] untimely."

In August 1991, defendant filed pro se a petition forpostconviction relief. Defendant raised various allegations ofineffective assistance of trial counsel. Defendant also challengedthe propriety of his extended-term sentence. The trial courtappointed counsel to represent defendant. Counsel consulted withdefendant and opted not to make any changes or amendments todefendant's petition. The State then filed a motion to dismiss thepetition. The State argued that defendant had not shown thatcounsel was ineffective and that the sentencing issue was arguedand decided on direct appeal. The trial court granted the State'smotion and dismissed defendant's postconviction petition. Thiscourt affirmed. People v. McGee, No. 2--92--0181 (1993)(unpublished order under Supreme Court Rule 23).

Subsequently, on June 26, 2000, the Supreme Court decidedApprendi. Apprendi held that under the due process clause and thejury trial guarantees of the United States Constitution, "[o]therthan the fact of a prior conviction, any fact that increases thepenalty for a crime beyond the prescribed statutory maximum must besubmitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at2362-63.

Following the release of Apprendi, defendant filed a secondpro se postconviction petition. The petition, dated December 15,2000, is file stamped December 26, 2000. In the petition,defendant claimed that his extended-term sentence wasunconstitutional under the holding in Apprendi. On February 16,2001, the trial court summarily dismissed defendant's petition. Inits dismissal order, the court found that "[a]ll points in thepetition were or could have been raised on appeal." The court alsonoted that the petition was successive and untimely. On themerits, the court ruled that Apprendi does not apply retroactivelyto postconviction proceedings. Consequently, the court concludedthat defendant's petition was frivolous and patently without merit. This appeal followed.

II. ANALYSIS

In this appeal, defendant asserts that the trial court erred in dismissing his second postconviction petition because it raiseda valid constitutional claim that had not been litigated and couldnot have been anticipated prior to the Supreme Court's Apprendidecision. According to defendant, the imposition of an extended-term sentence in this case violated Apprendi because the basis usedto enhance the sentence was not submitted to the jury and provedbeyond a reasonable doubt. Defendant urges us to hold thatApprendi applies retroactively to postconviction proceedings. TheState responds that the trial court correctly dismissed defendant'spetition as successive and untimely. On the merits, the Stateclaims that Apprendi does not apply retroactively to collateralproceedings.

As a preliminary matter, we note that defendant presents somevery persuasive reasons why we should address the merits of hispostconviction petition despite the fact that the petition at issuewas successive and untimely. The State does not respond to thesearguments in its brief. Because we decide this case on an issueother than those discussed above, we affirm the judgment of thetrial court. Nevertheless, we caution the State that in the futureit would be prudent to address with thoughtful analysis the issuesraised by the appellant or risk the possibility of waiver. SeeOfficial Reports Advance Sheet No. 21 (October 17, 2001), Rs.341(e)(7), (f), eff. October 1, 2001; see also People v.Montgomery, 18 Ill. App. 3d 828, 833 (1974) (noting that appellee'sfailure to raise issue in brief results in waiver).

Turning to the merits, we note that the districts of thisstate's appellate court are divided regarding whether Apprendiapplies retroactively to collateral proceedings. The thirddivision of the First District as well as the Third and FifthDistricts hold that Apprendi applies retroactively topostconviction proceedings. See, e.g., People v. Kidd, No. 1--00--1492 (1st Dist., 3d Div. February 20, 2002); People v. Fields, No.1--00--0287 (1st Dist., 3d Div. January 30, 2002); People v.Johnston, 327 Ill. App. 3d 385, ___ (5th Dist. 2002); People v.Lee, 326 Ill. App. 3d 882, 888 (3d Dist. 2001); People v. Rush, 322Ill. App. 3d 1014, 1028 (5th Dist. 2001); People v. Beachem, 317Ill. App. 3d 693, 698, 706 (1st Dist., 3d Div. 2000). The FourthDistrict and the remaining divisions of the First District thathave addressed the issue hold that Apprendi does not applyretroactively to postconviction proceedings. See, e.g., People v.Montgomery, 327 Ill. App. 3d 180, ___ (1st Dist., 6th Div. 2001);People v. Rovito, 327 Ill. App. 3d 164, 178 (1st Dist., 6th Div.2001); People v. Stewart, 326 Ill. App. 3d 933, 939 (1st Dist., 2dDiv. 2001); People v. Scullark, 325 Ill. App. 3d 876, 889 (1st.Dist., 2d Div. 2001); People v. Helton, 321 Ill. App. 3d 420, 424(4th Dist. 2001); People v. Kizer, 318 Ill. App. 3d 238, 252 (1stDist., 1st Div. 2000). Until now, this district has not squarelyaddressed whether Apprendi applies retroactively to postconvictionproceedings.

A review of the previously cited cases indicates that thecourts are in accordance that the retroactivity of Apprendi dependsupon the application of the plurality decision in Teague v. Lane,489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989). UnderTeague, a new constitutional rule of criminal procedure is notapplied retroactively to cases that are final before the new ruleis announced. Teague, 489 U.S. at 310, 103 L. Ed. 2d at 356, 109S. Ct. at 1075. However, there are two exceptions. A newconstitutional rule should be applied retroactively to casespending on collateral review if the new rule either (1) places " 'certain kinds of primary, private individual conduct beyond thepower of the criminal law-making authority to proscribe' " (Teague,489 U.S. at 311, 103 L. Ed. 2d at 356, 109 S. Ct. at 1075, quotingMackey v. United States, 401 U.S. 667, 692, 28 L. Ed. 2d 404, 420,91 S. Ct. 1160, 1180 (1971) (Harlan, J., concurring in part anddissenting in part)), or (2) "requires observance of 'thoseprocedures that . . . are "implicit in the concept of orderedliberty" ' [citation]" (Teague, 489 U.S. at 311, 103 L. Ed. 2d at356, 109 S. Ct. at 1076). To qualify for retroactive applicationunder the second Teague exception, a rule must be aimed atimproving the accuracy of the trial and be of such importance thatit alters our understanding of the bedrock procedural elementsessential to a fair trial. Kizer, 318 Ill. App. 3d at 247, citingSawyer v. Smith, 497 U.S. 227, 242, 111 L. Ed. 2d 193, 211, 110 S.Ct. 2822, 2831 (1990). Teague was adopted by our supreme court inPeople v. Flowers, 138 Ill. 2d 218, 237 (1990).

The courts further agree that Apprendi does not fall withinthe first Teague exception and that the second Teague exception isto be narrowly construed. See, e.g., Kizer, 318 Ill. App. 3d at250; Beachem, 317 Ill. App. 3d at 706. The purpose of narrowlyconstruing the second exception is to promote finality in criminalproceedings. Rush, 322 Ill. App. 3d at 1022, quoting Teague, 489U.S. at 309, 103 L. Ed. 2d at 355, 109 S. Ct. at 1074. Indeed, theBeachem court points out that neither the United States SupremeCourt nor the Illinois Supreme Court has ever found that a new rulequalifies for retroactivity under the second Teague exception. Beachem, 317 Ill. App. 3d at 702 n.4 (listing cases rejectingretroactivity under second Teague exception). Nevertheless, it isat precisely this point that the panels diverge.

Beachem was the first reported case in Illinois to hold thatApprendi falls within the second Teague exception and thus appliesretroactively to postconviction proceedings. Beachem, 317 Ill.App. 3d at 706. The court reasoned that the rights at issue inApprendi are "at the core of our criminal justice system." Beachem, 317 Ill. App. 3d at 700. The court noted that, when adefendant is sentenced to an extended term, the facts that lead toan enhanced sentence become elements of the offense. Beachem, 317Ill. App. 3d at 701. Consequently, where the factors enhancing asentence are not charged in the indictment, submitted to the jury,and proved beyond a reasonable doubt, a defendant sentenced to anextended term serves the prescribed statutory maximum sentence but"remains in prison on a charge never made and never proved." Beachem, 317 Ill. App. 3d at 702. Under such circumstances, thesentence violates the procedures implicit in the concept of orderedliberty. Beachem, 317 Ill. App. 3d at 706.

Kizer was the first reported decision in this state to holdthat Apprendi does not fall within the second Teague exception andthus does not apply retroactively to postconviction proceedings. Kizer, 318 Ill. App. 3d at 252. The Kizer court relied on thesupreme court's decision in Flowers. In Flowers, the supreme courtheld that the new constitutional rule of criminal procedureannounced in People v. Reddick, 123 Ill. 2d 184 (1988), did notfall within the second Teague exception. Flowers, 138 Ill. 2d at242. In Reddick, the supreme court concluded that, when they wereread together, the murder and voluntary manslaughter instructionstendered to the jury incorrectly required the State to prove theexistence of one of the mitigating mental states necessary toreduce the offense from murder to manslaughter. Reddick, 123 Ill.2d at 194. The court held that the instructions should haveprovided that, once the defendant presents sufficient evidence toraise issues that would reduce the charge from murder to voluntarymanslaughter, the State must prove the statutory elements of murderbeyond a reasonable doubt and disprove the mitigating mental statesbeyond a reasonable doubt. Reddick, 123 Ill. 2d at 197.

In Flowers, the court confronted the issue of whether theholding in Reddick applied retroactively to a case on collateralreview. The court began its analysis by noting that the Reddickcourt did announce a new constitutional rule of criminal procedure. Flowers, 138 Ill. 2d at 240. The court then concluded that theReddick rule would not be applied retroactively because it did notfall within either of the two Teague exceptions. Flowers, 138 Ill.2d at 241-42. Relevant here is the court's reasoning that theReddick rule did not establish such a component of basic dueprocess as to fall with the second Teague exception. Flowers, 138Ill. 2d at 242.

The Kizer court concluded that the Reddick decision implicatedthe right to a jury verdict beyond a reasonable doubt because theinstructions tendered to the jury misstated the appropriate burdenof proof. Kizer, 318 Ill. App. 3d at 251. The court explained:

"The burden of proof problem in Reddick exposeddefendants to the danger of deprivations just as unfair as anyderiving from the Apprendi problem. In Apprendi the Court wasconcerned that the defendant was being sentenced to whatamounted to a greater crime rather than a lesser one on thebasis of a factor found by merely a preponderance of theevidence rather than beyond a reasonable doubt. [Citation.] In Reddick, however, the court found that the instructionsmade it not just less likely, as the lower standard of proofmade it in Apprendi, but impossible for a finder of factfollowing the burden of proof instructions to find thedefendant guilty of the lesser crime rather than the greatercrime. [Citation.]" (Emphasis in original.) Kizer, 318 Ill.App. 3d at 252.

The court then noted that the Flowers court held that the Reddickrule was not sufficiently fundamental to fall within the secondTeague exception. Kizer, 318 Ill. App. 3d at 252. Given thesimilarities between the concerns in Reddick and Apprendi, theKizer court opined that Apprendi did not fall within the secondTeague exception. Kizer, 318 Ill. App. 3d at 252. In other words,since the rules announced in both Reddick and Apprendi involved theright to a jury verdict beyond a reasonable doubt, and since thesupreme court determined that the Reddick rule did not fall withinthe second Teague exception, the rule announced in Apprendi did notfall within the second Teague exception.

The Beachem court chose not to follow Flowers on the basisthat the concerns in Reddick did not implicate the right to a juryverdict beyond a reasonable doubt. Beachem, 317 Ill. App. 3d at705; see also Rush, 322 Ill. App. 3d at 1027 (concluding that,while the constitutional issue in Apprendi "goes straight to theheart of the determination of guilt or innocence," the issue inReddick did not). We disagree with the Beachem court's attempt todistinguish Flowers. As the Kizer court observed, in Reddick oursupreme court expressly found that the jury received instructionsthat misinformed it as to the appropriate burden of proof (Reddick,123 Ill. 2d at 198-99) and that certain instructions, such as theburden of proof, are essential to a fair trial (Reddick, 123 Ill.2d at 198). Thus, the Kizer court concluded that Reddick didimplicate the right to a jury verdict beyond a reasonable doubt. Kizer, 318 Ill. App. 3d at 251.

We agree with the reasoning in Kizer and its progeny and holdthat Apprendi does not apply retroactively to cases on collateralreview. As a result, a determination of whether defendant'spetition was successive and/or untimely is moot. Accordingly, thetrial court properly dismissed defendant's postconviction petition.

III. CONCLUSION

Based on the foregoing, we affirm the judgment of the circuitcourt of Lake County.

Affirmed.

O'MALLEY and KAPALA, JJ., concur.