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               Docket No. 92922–Agenda 1–September 2004.

RUDOLPH LUCIEN, Appellee, v. KENNETH R. BRILEY,  
Warden, Appellant.

Opinion filed December 2, 2004.
 

       JUSTICE GARMAN delivered the opinion of the court:

       Plaintiff, Rudolph Lucien, sought an order of habeas corpus,naming Kenneth R. Briley, warden of the Stateville CorrectionalFacility, as defendant. See 735 ILCS 5/10–101 et seq. (West 2000).Plaintiff alleged his extended-term sentence was unconstitutionalunder Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120S. Ct. 2348 (2000), and he was therefore entitled to immediate releasebecause he had served the maximum nonextended term to which hecould have been sentenced. The circuit court of Will County held thestatute authorizing Lucien’s extended-term sentence unconstitutionalunder Apprendi and issued the habeas corpus order. Defendantappealed directly to this court pursuant to Rule 302(a) (134 Ill. 2d R.302(a)).

BACKGROUND
 

       In 1980 plaintiff was sentenced to concurrent extended terms of60 years each for armed robbery and armed violence. On directappeal, plaintiff’s arguments included a challenge to the extended-termsentences, on the ground that the sentencing judge did not find any ofthe aggravating factors listed in the statute. The appellate courtrejected that argument, reasoning that the sentencing judge was notrequired to recite the facts relied upon, and that imposing theextended term was not an abuse of discretion because the recordsupported an extended term under the factor that “ ‘the offense wasaccompanied by exceptionally brutal or heinous behavior indicative ofwanton cruelty.’ ” People v. Lucien, 109 Ill. App. 3d 412, 419-20(1982), quoting Ill. Rev. Stat. 1979, ch. 38, par. 1005–5–3.2(b)(2),now codified as 730 ILCS 5/5–5–3.2(b)(2) (West 2002). Theappellate court noted the record showed plaintiff had repeatedlythreatened the female victim’s life with a knife and severely beat hereven though she told him she was pregnant. Lucien, 109 Ill. App. 3dat 420.
 

       In 2001, plaintiff sought a habeas corpus order, arguing hisextended-term sentences were invalid under Apprendi. See 735 ILCS5/10–101 et seq. (West 2000). The circuit court denied defendant’smotion to dismiss, but certified for interlocutory appeal the questionwhether an Apprendi claim is cognizable in a habeas corpusproceeding. 155 Ill. 2d R. 308. The appellate court declined to reviewthe question. The circuit court found that the statute authorizing theextended-term sentence was unconstitutional under Apprendi andgranted habeas corpus relief. The court denied defendant’s motion fora stay of enforcement of the order pending appeal, as did this court.Accordingly, the Department of Corrections discharged plaintiff onDecember 18, 2001. This appeal followed.
 

ANALYSIS

       We must decide whether the circuit court erred by applyingApprendi retroactively to a case in which the direct appeal processhad long been concluded. Whether Apprendi applies retroactively isa question of law, which we review de novo. See Schmidt v.Ameritech Illinois, 329 Ill. App. 3d 1020, 1027 (2002) (reviewing thecircuit court’s postjudgment application of an appellate court decisionrecognizing a new tort).
 

       This court has adopted the test announced by the United StatesSupreme Court in Teague v. Lane to determine the retroactivity ofnew constitutional rules. People v. De La Paz, 204 Ill. 2d 426, 433-34(2003), citing Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109S. Ct. 1060 (1989) (plurality op.). Applying Teague, we held in De LaPaz that Apprendi does not apply retroactively because it is aprocedural rule, and it is not among “ ‘those procedures that areimplicit in the concept of ordered liberty.’ ” De La Paz, 204 Ill. 2d at434, quoting People v. Flowers, 138 Ill. 2d 218, 237 (1990), citingTeague, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073(plurality op.). In this case, plaintiff’s direct appeal concluded in 1985,some 15 years before Apprendi was decided. Plaintiff argues onseveral grounds that De La Paz does not control. We address eachargument in turn.
 

       First, plaintiff argues Apprendi rendered the statute authorizinghis extended-term sentence void ab initio. Plaintiff cites People v.Gersch, 135 Ill. 2d 384, 397-98 (1990), for the proposition that whena judicial decision renders a statute void ab initio, due processrequires the decision must be applied retroactively.
 

       A statute is void ab initio under a new constitutional rule, suchas Apprendi, only if the new rule renders the statute faciallyunconstitutional. People v. Jackson, 199 Ill. 2d 286, 300 (2002). Astatute is facially unconstitutional if there are no circumstances inwhich it could be validly applied. People v. Thurow, 203 Ill. 2d 352,367 (2003). Apprendi held a criminal defendant has the right to insistthat any fact, other than the fact of a prior conviction, that increaseshis punishment beyond the statutory maximum “must be submitted toa jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S.at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2363. The statute underwhich plaintiff received his extended-term sentences allowed anApprendi violation; it did not give plaintiff the right to insist on proofto a jury beyond a reasonable doubt. However, nothing in the statuteprohibited compliance with Apprendi. In Thurow we said, with respectto another sentencing statute, that the finding that was the basis forthe defendant’s extended term
 

“could be made by a preponderance of the evidence.However, it also could be made based upon proof beyond areasonable doubt. Under Apprendi, a finding, based on apreponderance of the evidence, that [the aggravating factexists] could not form the basis for an enhanced sentence.*** However, there is no violation if this determination ismade beyond a reasonable doubt. Because this latter,constitutionally correct procedure is allowed by [the statute],it cannot be said that there is no set of circumstances underwhich the statute would be valid. [Citation.] [The statute] isnot unconstitutional on its face. Accordingly, we rejectdefendant’s contention that [it] is void ab initio.” Thurow,203 Ill. 2d at 368.
 

In other words, a statute that permits Apprendi violations, but alsopermits Apprendi compliance, is not facially unconstitutional and thusis not void ab initio. Indeed, the statute authorizing an extended termbased on a judge’s finding that the crime was committed in a brutal orheinous fashion has been applied in compliance with Apprendi andthus is not void ab initio. Jackson, 199 Ill. 2d at 300-01, citing Peoplev. Ford, 198 Ill. 2d 68 (2001). It follows that the statute authorizingplaintiff’s extended terms was not facially unconstitutional and hencenot void ab initio.
 

       Plaintiff responds by suggesting Thurow and all similarly reasonedcases have been overruled by Blakely v. Washington, 542 U.S. ___,159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004). He argues that, contraryto this court’s reasoning in Thurow, Blakely struck down a sentencingstatute because it did not mandate Apprendi compliance. We disagree.
 

       Blakely involved the State of Washington’s sentencing guidelines.The defendant pled guilty to second degree kidnapping involvingdomestic violence and the use of a firearm. In Washington, seconddegree kidnapping is a Class B felony and the maximum penalty for aClass B felony is 10 years’ incarceration. However, underWashington’s sentencing guidelines the conduct admitted as part ofthe guilty plea carries a maximum of only 53 months. The trial judgesentenced the defendant to 90 months, based on his finding the crimewas committed with deliberate cruelty. The question presented waswhether the maximum, for purposes of applying Apprendi, was 10years, the maximum for a Class B felony, or 53 months. See Blakely,542 U.S. at ___, 159 L. Ed. 2d at 413, 124 S. Ct. at 2537. The Courtheld 53 months is the relevant maximum, because that is the maximumsentence the judge could have imposed without finding any factsbeyond those admitted in the guilty plea. Blakely, 542 U.S. at ___,159 L. Ed. 2d at 414, 124 S. Ct. at 2537-38. The Court concludedthat, “[b]ecause the State’s sentencing procedure did not comply withthe Sixth Amendment, plaintiff’s sentence is invalid.” Blakely, 542U.S. at ___, 159 L. Ed. 2d at 415, 124 S. Ct. at 2538. Contrary toplaintiff’s suggestion, Blakely does not hold a statute’s failure torequire Apprendi compliance renders it facially invalid.
 

       This court’s opinion in Gersch does not aid plaintiff either. InGersch, the State exercised a statutory right to insist on a jury trial.While direct appeal was pending, we held in another case that theIllinois Constitution grants the right to a jury trial exclusively todefendants. People ex rel. Daley v. Joyce, 126 Ill. 2d 209, 222 (1988).Then in Gersch we applied Joyce “retroactively,” because to dootherwise “would ignore the ab initio rule of statutory invalidation.”Gersch, 135 Ill. 2d at 401. Gersch, however, is distinguishable fromthe case at bar because Gersch was a direct appeal. Moreover, therewere no possible circumstances in which the statute at issue in Gerschcould be validly applied. The statute gave the State the right to a jurytrial in certain cases. According to Joyce, the Illinois Constitutiongave that right exclusively to defendants. Thus, every application ofthe statute would violate Joyce. Gersch’s conclusion that the statutewas void ab initio is consistent with the principle, from Thurow andJackson, that only statutes lacking any possible valid application arefacially invalid and void ab initio. We conclude plaintiff’s claim thatthe statute authorizing his extended terms was void ab initio iswithout merit.
 

       Second, plaintiff argues De La Paz is inapplicable to his case,because he raised the equivalent of an Apprendi claim on directappeal. Plaintiff argued on direct appeal that his extended-termsentence was invalid because the sentencing judge failed to make therequisite finding that an aggravating factor was present. To claim thejudge never found an aggravating factor is not equivalent to anApprendi claim. The gravamen of an Apprendi claim is that anaggravating factor was found, but not by a jury beyond a reasonabledoubt. We conclude plaintiff did not raise an Apprendi claim on directappeal.
 

       Furthermore, we fail to see how the claim that plaintiff argued ondirect appeal could affect whether De La Paz applies to this case. DeLa Paz applied the test from Teague to conclude that Apprendi doesnot apply retroactively. De La Paz, 204 Ill. 2d at 439. Under Teague,retroactivity depends on whether failure to apply a new proceduralrule would “undermine the fundamental fairness that must underlie aconviction or seriously diminish the likelihood of obtaining an accurateconviction.” Teague, 489 U.S at 315, 103 L. Ed. 2d at 359, 109 S. Ct.at 1078. De La Paz reasoned that Apprendi does not applyretroactively because an Apprendi violation does not necessarilyrender any particular trial unfair. De La Paz, 204 Ill. 2d at 438-39.Whether this particular plaintiff raised an Apprendi claim on appeal isfundamentally different from the question whether the absence of theprocedures required by Apprendi necessarily amounts to unfairness orinaccuracy at trial or sentencing.
 

       Third, plaintiff argues a statement in Blakely implies Apprendi’sholding is not a procedural rule. Therefore, plaintiff argues, De La Pazwas incorrectly decided and should be overruled. Blakely states thatthe sixth amendment right to trial by jury, which Apprendi interprets,is “no mere procedural formality, but a fundamental reservation ofpower in our constitutional structure. Just as suffrage ensures thepeople’s ultimate control in the legislative and executive branches,jury trial is meant to ensure their control in the judiciary.” Blakely,542 U.S. at ___, 159 L. Ed. 2d at 415, 124 S. Ct. at 2538-39. This isa general philosophical statement about the importance of juries as acheck on the power of the judicial branch of government. It hasnothing to do with the specific legal question whether Apprendi isprocedural, as opposed to substantive, for purposes of retroactivity.Retroactivity was not at issue in Blakely.
 

       In Schriro v. Summerlin, decided the same day as Blakely,retroactivity was at issue. Schriro v. Summerlin, 542 U.S. ___, 159 L.Ed. 2d 442, 124 S. Ct. 2519 (2004). Summerlin concerned whetherRing v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428(2002), applies retroactively. Ring had held that Apprendi did notpermit a judge, sitting without a jury, to find an aggravatingcircumstance necessary for imposition of the death penalty. Ring, 536U.S. at 609, 153 L. Ed. 2d at 576-77, 122 S. Ct. at 2443. Summerlinfirst held Ring’s jury requirement is not a substantive rule because itdoes not affect the range of conduct that may be punished by death;Ring only affects who decides whether such conduct occurred.Summerlin, 542 U.S. at ___, 159 L. Ed. 2d at 449, 124 S. Ct. at2523. Secondly, Summerlin held Ring is not so essential to fairnessand accuracy to require retroactive application. Summerlin, 542 U.S.at ____, 159 L. Ed. 2d at 451, 124 S. Ct. at 2525. Because Ring issimply an application of Apprendi, the conclusion that Ring is notretroactive applies to Apprendi as well. Thus, contrary to plaintiff’ssuggestion, De La Paz was correctly decided.
 

       In sum, De La Paz controls this case. The circuit court’s ordergranting habeas corpus relief was erroneous and must be reversed.Because of our disposition, we need not address defendant’salternative argument that an Apprendi claim is not cognizable in ahabeas corpus proceeding.
 

       Because we reverse the order that released plaintiff, this casepresents questions regarding the remainder of plaintiff’s sentence.Plaintiff alleges that his conduct while at liberty establishes that he isrehabilitated. He notes the Illinois Constitution requires that criminalpenalties take into account “the objective of restoring the offender touseful citizenship.” Ill. Const. 1970, art. I, §11. He argues thisconstitutional provision requires that he not be reincarcerated. He alsosuggests public policy forbids reincarcerating a rehabilitated person atfurther public expense. Plaintiff acknowledges the record is silentregarding his allegation that he is rehabilitated. He requests that weremand the cause to the circuit court with instructions to hold ahearing to determine whether he is rehabilitated.
 

       The parties have addressed plaintiff’s claim, but it is clear therecord is insufficiently developed to resolve it, even if it has legalmerit. We therefore choose not to address it, and we express noopinion about its merit. Instead, we remand this cause to the circuitcourt for further proceedings.

CONCLUSION
 

       The new procedural rule announced in Apprendi does not applyretroactively to cases in which the direct appeal process hadconcluded when Apprendi was decided. Therefore, the circuit courterred when it granted plaintiff habeas corpus relief, and its order isreversed and the cause is remanded to the circuit court for furtherproceedings.

Reversed and remanded.

 

       JUSTICE KILBRIDE, dissenting:
 

       For the reasons set forth in my dissent in People v. De La Paz,204 Ill. 2d 426, 454-55 (2003) (Kilbride, J., dissenting), and mydissent in People v. Lee, 207 Ill. 2d 1, 6-7 (2003) (Kilbride, J.,dissenting), I disagree with the majority’s conclusion that the UnitedStates Supreme Court holding in Apprendi does not applyretroactively to cases where the direct appeal process had concludedwhen Apprendi was announced. Slip op. at 7. I do not disputedefendant’s underlying guilt of the offenses of armed robbery andarmed violence. Rather, I simply disagree with the enhancement ofdefendant’s sentence based on a sentencing factor that was not provedto the jury beyond a reasonable doubt. It is axiomatic that all essentialelements of guilt must be submitted to the trier of fact, for proofbeyond a reasonable doubt. See De La Paz, 204 Ill. 2d at 455(Kilbride, J., dissenting), citing In re Winship, 397 U.S. 358, 361, 25L. Ed. 2d 368, 373-74, 90 S. Ct. 1068, 1071 (1970) (the “beyond areasonable doubt” standard is the accepted “ ‘measure of persuasionby which the prosecution must [prove] all the essential elements ofguilt,’ ” quoting C. McCormick, Evidence §321, at 681-82 (1954)).I continue to believe that the failure to comply with this basic tenet ofconstitutional law is an error so injurious to fundamental civil libertythat no sentence imposed in violation of Apprendi should be upheld.See People v. Swift, 202 Ill. 2d 378, 392 (2002) (an extended-termsentence based on the trial judge’s factual finding that defendant’scrime was brutal and heinous violated Apprendi and could not stand);People v. Thurow, 203 Ill. 2d 352, 375-78 (2003) (Kilbride, J.,dissenting); People v. Crespo, 203 Ill. 2d 335, 349-51 (2001)(Kilbride, J., dissenting). Here, the circuit court of Will Countyappropriately recognized the applicability of Apprendi, and its rulingholding the statute authorizing Lucien’s extended-term sentenceunconstitutional should be upheld. Accordingly, I respectfully dissent.