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William Harold Johnston was convicted of armed robbery, aggravated kidnapping,and attempted murder in May of 1985. He exhausted all of his appeals years ago. A finaleffort to overturn his convictions, through the pursuit of postconviction proceedings, failedin 1991. During the ensuing nine years, Johnston served his time without hope of relieffrom a lengthy imprisonment that constituted the measure of his punishment. No doubt, hehad resigned himself to a distant out-date, fixed by the sentences imposed and reviewed,sentences seemingly beyond any further legal attack.

Then, the United States Supreme Court handed down a decision in June of 2000 thatrekindled Johnston's hopes of an earlier release.

By now, Johnston has satisfied his punishment for armed robbery and aggravatedkidnapping. However, he still serves the extended-term portion of a 40-year prison termimposed for the attempted murder. This enhanced punishment is 10 years in excess of themaximum penalty that the law allowed in the absence of a judicial finding of fact. Thejudge who sentenced Johnston in 1985 found that Johnston's endeavor to take human lifewas an attempted murder companion to brutal behavior indicative of wanton cruelty. Having reached this finding, the judge imposed the 10 additional years of imprisonment thatJohnston now serves.

Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000),a decision that no longer needs introduction, sent shock waves across the legal communitywhen it was handed down. Everyone understood that numerous state legislatures hadenacted sentencing machinery not unlike the extended-term sentencing statute employed inthis case. Those statutes commissioned judges, rather than juries, to make additional factualfindings during sentencing hearings that enhanced the range of penalties available forimposition as punishment. Uneasy questions arose. Among them was a question of whetherthe rule enunciated in Apprendi was so fundamental as to provide a remedy to prisoners likeJohnston whose sentences were long since deemed secure. Johnston wasted little time in aneffort to test the question. He filed a new postconviction petition, in which he claimed thefollowing:

"My constitutional right to a fair sentencing was denied because I was notcharged with, [sic] and no jury ever passed upon the question of whether the offenseof attempt murder was brutal and heinous as per Apprendi, 120 S. Ct. 2345 (2000).

I sincerely apologize for this being so late but it is not my fault."

On October 16, 2000, a judge reviewed the petition. At that time, no Illinois courthad addressed the Apprendi ruling or its ramifications. The judge summarily dismissed thepetition, finding that the claim set forth therein was frivolous and patently without merit. Johnston appeals from that decision.

The dismissal of a postconviction petition without the conduct of an evidentiaryhearing receives plenary review. People v. Coleman, 183 Ill. 2d 366, 388-89, 701 N.E.2d1063, 1075 (1998).

We have already determined that the constitutionally based rule announced inApprendi invalidates the statutory provision under which Johnston was sentenced to extended imprisonment. People v. Rush, 322 Ill. App. 3d 1014, 1028, 757 N.E.2d 88, 100(2001). We have also determined that the rule applies retroactively. Rush, 322 Ill. App. 3dat 1028, 757 N.E.2d at 100; accord People v. Beachem, 317 Ill. App. 3d 693, 740 N.E.2d389 (2000). Contra People v. Kizer, 318 Ill. App. 3d 238, 741 N.E.2d 1103 (2000). Thus,the rule affords a means to collaterally attack final judgments.

While the invalidity of the extended-term sentencing statute and the retroactivity ofthe rule announced in Apprendi are matters that remain unsettled among members of ourcourt, we have considered and ruled upon both. There is nothing new in the State'sarguments to warrant a departure from the precedent established in this district. We adhereto the well-reasoned opinion of Justice Welch in Rush. Hence, we have already decidedthose issues that frame the question of whether Johnston's petition states the gist of aconstitutional claim for relief. Since Johnston's sentence was imposed in violation of basicconstitutional guarantees and since Johnston can raise the violation retroactively, the petitionpasses the standard by which claims survive this stage of postconviction proceedings.

The State maintains that even if Johnston's petition states the gist of a constitutionalclaim, the judge's summary dismissal can be affirmed because of the petition's obviousbelated filing date. The petition was filed far beyond the statutory time constraints imposedby our legislature as a limitation on postconviction relief. See 725 ILCS 5/122-1 et seq.(West 1998).

In People v. Wright, 189 Ill. 2d 1, 723 N.E.2d 230 (1999), the Illinois Supreme Courtheld that because time is not an inherent element of the right to bring a postconvictionpetition, noncompliance with the Post-Conviction Hearing Act's time constraints is not ajurisdictional impediment to further proceedings. Wright, 189 Ill. 2d at 10, 723 N.E.2d at236. The supreme court felt that the time limitations set forth in the Post-ConvictionHearing Act should be treated as an affirmative defense. Wright, 189 Ill. 2d at 7-10, 723N.E.2d at 234-36. The statute of limitations can be waived if not raised by the State. Wright, 189 Ill. 2d at 10-11, 723 N.E.2d at 236-37.

In People v. Johnson, 312 Ill. App. 3d 532, 727 N.E.2d 1058 (2000), appeal allowed,189 Ill. 2d 694, 734 N.E.2d 896 (2000), we commented on how the State's ability to waivethe limitations period conferred a power to correct rare miscarriages of justice, long after aprocedural time limit had run.

"Affording the State a review of an untimely filed petition is essential to thesingular adversarial role that a prosecutor assumes in the administration of justice. The State's Attorney represents the people of the State of Illinois and therefore, ratheruniquely, represents certain interests of those prisoners whom he or she worked toimprison. If an untimely filed petition has obvious substantive merit-that is, if itclearly demonstrates that a prisoner suffered a deprivation of constitutionalmagnitude-a dutiful prosecutor should waive the procedural defect.

*** As rare as the latter situation might be, a knowing waiver of a proceduraldefect in the face of an obvious constitutional deprivation would be entirelyconsistent with a State's Attorney's oath of office and duty as a public servant.

Since the Post-Conviction Hearing Act's time constraints are procedural ratherthan jurisdictional, the State's Attorneys of this State possess the power to correct anymonumental and obvious injustice. They can do so even where a prisoner's plea forjustice arises in an untimely manner. It is a power that courts should not preempt bysummary dismissal of untimely but potentially meritorious petitions." Johnson, 312Ill. App. 3d at 534-35, 727 N.E.2d at 1060-61.

We adhere to the position that judges should refrain from the use of summarydismissal based solely upon the question of a petition's timeliness. If an unseasonablepetition states the gist of a constitutional claim, the matter should progress to the next stageand await a responsive pleading from the State.

We return this case to whence it came with a reminder of Justice Welch's words inRush. In addressing the rights that underlie the Apprendi decision and the reasons why theyshould be afforded retroactively, he wrote:

"We believe that depriving an accused of such rights shatters the core of our criminaljustice system and undermines the fundamental fairness that must underlie aconviction. We cannot ignore the strong language used by the Supreme Court inApprendi that described such rights as 'of surpassing importance' and that describedsuch a sentencing procedure which violates Apprendi as 'an unacceptable departurefrom the jury tradition that is an indispensable part of our criminal justice system.' " Rush, 322 Ill. App. 3d at 1028, 757 N.E.2d at 100 (quoting Apprendi, 530 U.S. at474-77, 495-97, 147 L. Ed. 2d at 447, 459, 120 S. Ct. at 2355, 2366).

Our holding that the rule pronounced in Apprendi has retroactive application impliesthat those who have suffered its violation have a means to remedy it. We trust that, uponremand, appointed counsel will amend the petition to adequately set forth the reasons whythe pro se petitioner was not culpably negligent in filing the petition in August of 2000rather than at a time within the constraints set forth in the Post-Conviction Hearing Act. Moreover, if Johnston has served the maximum sentence to which he could be sentencedabsent the constitutionally infirm extension and he has served the three-year, mandatorysupervised-release term while in prison, we would expect that his discharge will be soughtby way of a writ of habeas corpus.

For the reasons stated, the summary dismissal order of the circuit court is reversed,and this matter is remanded for further proceedings consistent with this opinion.

Reversed; cause remanded with directions.

CHAPMAN, MELISSA, and GOLDENHERSH, JJ., concur.