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April 26, 2001

In October 1996, a jury convicted defendant, Paul Helton, offour counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 1994)). The trial court later sentenced him to anextended term of 50 years in prison on two counts, with thosesentences to run consecutively. On direct appeal, this courtaffirmed defendant's convictions and sentences. People v.Helton, No. 4-96-0997 (March 4, 1998) (unpublished order pursuantto Supreme Court Rule 23). In February 1999, the Supreme Courtof Illinois denied defendant's petition for leave to appeal. People v. Helton, 182 Ill. 2d 559, 707 N.E.2d 1242 (1999).

In March 1999, defendant filed a pro se petition forpostconviction relief. In January 2000, the State filed a motionto dismiss defendant's postconviction petition, which the trialcourt granted following a February 2000 hearing.

Defendant appeals, arguing that (1) the extended-termsentencing provision of section 5-5-3.2(b)(1) of the Unified Codeof Corrections (Unified Code) (730 ILCS 5/5-5-3.2(b)(1) (West1994) (effective July 1, 1995)) and the consecutive sentencingprovisions of sections 5-8-4(a) and (b) of the Unified Code (730ILCS 5/5-8-4(a), 5-8-4(b) (West 1994)) are unconstitutional underApprendi v. New Jersey, 530 U.S. ___, ___, 147 L. Ed. 2d 435,455, 120 S. Ct. 2348, 2362-63 (2000); and (2) he was deprived ofhis right to reasonable assistance of postconviction counsel. Weaffirm.

Defendant first argues that (1) the enhanced sentencingprovision of section 5-5-3.2(b)(1) of the Unified Code and (2)the consecutive sentencing provisions of sections 5-8-4(a) and(b) of the Unified Code are unconstitutional under Apprendi, 530U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

Before we consider the merits of defendant's constitutionalclaims, we must answer a threshold question presented by theprocedural posture of this case--namely, whether defendants whohave exhausted their direct appeal rights prior to the issuanceof the Apprendi decision may nonetheless seek to challenge theirsentences on the basis of that decision. For the followingreasons, we hold that they may not.

In People v. Flowers, 138 Ill. 2d 218, 237, 561 N.E.2d 674,682 (1990), the Supreme Court of Illinois adopted the test setforth by the United States Supreme Court in Teague v. Lane, 489U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), for determining the retroactivity of new constitutional rules on collateral review under the Post-Conviction Hearing Act (725 ILCS5/122-1 through 122-8 (West 1998)). As the court explained inFlowers, the Teague Court "held that decisions establishing newconstitutional rules of criminal procedure are not to be appliedretroactively to cases pending on collateral review unless thenew rule either (1) places certain kinds of primary, privateindividual conduct beyond the power of the criminal law makingauthority to proscribe, or (2) requires the observance of thoseprocedures that are implicit in the concept of ordered liberty." Flowers, 138 Ill. 2d at 237, 561 N.E.2d at 681-82, citing Teague,489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073. TheSupreme Court has clarified that for a rule to qualify under thesecond Teague exception it must both (1) improve the accuracy oftrial, and (2) "'"alter our understanding of the bedrock procedural elements"' essential to the fairness of a proceeding"(emphasis in original) (Sawyer v. Smith, 497 U.S. 227, 242, 111L. Ed. 2d 193, 211, 110 S. Ct. 2822, 2831 (1990), quoting Teague,489 U.S. at 311, 103 L. Ed. 2d at 357, 109 S. Ct. at 1076,quoting Mackey v. United States, 401 U.S. 667, 693, 28 L. Ed. 2d404, 421, 91 S. Ct. 1160, 1180 (1971)).

In Apprendi, the United States Supreme Court noted that"'under the [d]ue [p]rocess [c]lause of the [f]ifth [a]mendmentand the notice and jury trial guarantees of the [s]ixth[a]mendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in anindictment, submitted to a jury, and proven beyond a reasonabledoubt.'" Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 446, 120 S.Ct. at 2355, quoting Jones v. United States, 526 U.S. 227, 243n.6, 143 L. Ed. 2d 311, 326 n.6, 119 S. Ct. 1215, 1224 n.6(1999). Because the rule set forth in Apprendi does not addressprivate individual conduct, the first Teague exception does notapply. Therefore, at issue here is whether the Apprendi rulefalls within the second Teague exception.

The First District Appellate Court has thrice addressedwhether Apprendi should be applied retroactively on collateralreview. In People v. Beachem, 317 Ill. App. 3d 693, 706, 740N.E.2d 389, 397 (2000), a third division panel held that the ruleset forth in Apprendi fell under the second Teague exception andthus applied retroactively. In so holding, the court describedApprendi as rectifying a situation akin to a trial judge convicting a defendant of a charge never made and never heard by a juryon the preponderance of the evidence. Beachem, 317 Ill. App. 3dat 702, 740 N.E.2d at 394. According to the court, such aconviction would be "repugnant to our notions of fundamentalfairness." Beachem, 317 Ill. App. 3d at 702, 740 N.E.2d at 394-95. The Beachem court also relied, in part, on United States v.Murphy, 109 F. Supp. 2d 1059, 1064 (D. Minn. 2000), which heldthat the Apprendi rule satisfies the second Teague exceptionbecause it "compels a radical shift in criminal procedure."

Less than one month after the court filed its opinion inBeachem, a first division panel of the First District AppellateCourt decided that Apprendi should not be applied retroactivelyto cases on collateral review because the Apprendi rule did not"alter our understanding of the bedrock procedural elementsessential to a fair trial." People v. Kizer, 318 Ill. App. 3d238, 248, 252, 741 N.E.2d 1103, 1112, 1115 (2000).

The Kizer court began its Teague analysis by noting thatfederal courts hold differing views on the matter, citing bothMurphy, 109 F. Supp. 2d at 1064, and Jones v. Smith, 231 F.3d1227, 1238 (9th Cir. 2000) (in which the Ninth Circuit declinedto grant habeas corpus relief based on retroactive application ofApprendi under the second Teague exception). Kizer, 318 Ill.App. 3d at 248-49, 741 N.E.2d at 1112. The Kizer court thenexplained as follows: "As this is a matter of state law, and inlight of the conflicting authority at the federal level, we mustultimately take our direction from the Illinois Supreme Court andits view of the scope of the second Teague exception in Flowers." Kizer, 318 Ill. App. 3d at 249-50, 741 N.E.2d at 1113.

In Flowers, 138 Ill. 2d at 234-42, 561 N.E.2d at 680-84, thesupreme court considered whether the new rule set forth in People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141 (1988), appliedretroactively. In Reddick, 123 Ill. 2d at 197, 526 N.E.2d at146, the supreme court held as unconstitutional jury instructionswhich erroneously stated the burden of proof for voluntary-manslaughter-mitigating states of mind. In so holding, theReddick court reasoned that if a jury followed the Illinoispattern jury instructions regarding murder and voluntary manslaughter, it could not possibly convict a defendant of manslaughter instead of murder. Reddick, 123 Ill. 2d at 194-95, 526N.E.2d at 145. The Flowers court recognized that Reddick involved a "grave" jury instruction error of "'constitutionalmagnitude.'" Flowers, 138 Ill. 2d at 236, 561 N.E.2d at 681quoting Falconer v. Lane, 905 F.2d 1129, 1134 (7th Cir. 1990). Nevertheless, the Flowers court held that the Reddick rule didnot qualify under the second Teague exception, stating, inpertinent part, as follows: "This exception must be narrowlyconstrued[,] and we do not believe that the Reddick rule established such a component of basic due process so as to fall withinit." Flowers, 138 Ill. 2d at 242, 561 N.E.2d at 684.

The Kizer court thus was persuaded that the Supreme Court ofIllinois takes a narrow view of the second Teague exception,particularly in light of the following: (1) the Flowers court'srecognition that Reddick announced a rule of constitutionaldimension, and (2) federal habeas corpus courts had previouslyreached the opposite conclusion, retroactively applying new rulesaddressing erroneous jury instructions. Kizer, 318 Ill. App. 3dat 250-51, 741 N.E.2d at 1113-14. Accordingly, the Kizer courtconcluded that our supreme court would not find the Apprendi rulesufficiently fundamental to qualify under the second Teagueexception. Kizer, 318 Ill. App. 3d at 252, 741 N.E.2d at 1115. As the Kizer court explained, the "burden of proof problem inReddick exposed [the] defendants to the danger of deprivationsjust as unfair as any deriving from the Apprendi problem," andthe two cases are of "commensurate gravity." Kizer, 318 Ill.App. 3d at 252, 741 N.E.2d at 1114-15.

In People v. Scullark, No. 1-99-1722, slip op. at 29 (March13, 2001), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___, asecond division panel of the First District Appellate Courtfollowed Kizer and declined to follow Beachem.

We agree with Kizer's well-reasoned analysis and hold thatApprendi does not apply retroactively to cases on collateralreview.

Last, defendant argues that he did not receive reasonableassistance of postconviction counsel to which he is entitledunder People v. Flores, 153 Ill. 2d 264, 276, 606 N.E.2d 1078,1084 (1992). Specifically, he contends that his postconvictioncounsel did not read the record, as shown by counsel's failure toamend defendant's postconviction petition to allege that (1) histrial counsel was ineffective for failing to move to vacate twoof his aggravated criminal sexual assault convictions, and (2)his appellate counsel was ineffective for failing to raise theissue on direct appeal. We disagree.

In People v. Davis, 156 Ill. 2d 149, 163, 619 N.E.2d 750,758 (1993), the supreme court explained that a postconvictionpetitioner is not entitled to the advocacy of counsel for purposes of "exploration, investigation[,] and formulation ofpotential claims." Thus, postconviction counsel is not requiredto comb the record for issues not raised in the defendant's prose postconviction petition. Defendant did not raise the propriety of his multiple convictions in his postconviction petition. Accordingly, defendant was not deprived of his right to reasonable assistance of postconviction counsel when that counselfailed to raise the issue.

For the reasons stated, we affirm the trial court's dismissal of defendant's postconviction petition.

Affirmed.

KNECHT and COOK, JJ., concur.