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Docket No. 93208-Agenda 3-January 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 
PAUL A. DE LA PAZ, Appellant.

Opinion filed May 8, 2003.

JUSTICE FREEMAN delivered the opinion of the court:

Petitioner, Paul De La Paz, is currently serving an extended-term sentence for an armed robbery conviction. He has exhaustedhis direct appeals and is now before this court on appeal from thedismissal of his petition for postconviction relief. He argues thathe received ineffective assistance of counsel in thepostconviction proceedings and also argues that his extended-term sentence should be reversed because the proceduresfollowed by the circuit court did not comply with the SupremeCourt's mandate in Apprendi v. New Jersey, 530 U.S. 466, 147L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm, findingspecifically with respect to the latter claim that Apprendi doesnot apply retroactively to causes in which the direct appealprocess had concluded at the time that Apprendi was decided.

BACKGROUND

In 1985, a jury in the circuit court of Cook County convictedpetitioner of armed robbery, armed violence, home invasion andaggravated battery. A detailed recitation of the circumstances ofthe crime is not necessary for our analysis, but the facts adducedat trial established that petitioner entered the home of the 77-year-old victim brandishing a hammer and demanding thevictim's wallet. After the victim produced his wallet, petitionerhit him on the head with the hammer and began to ransack hishome. Petitioner later also hit the victim with a gun, knockinghim unconscious. The circuit court sentenced petitioner to a 55-year extended sentence on the armed robbery conviction and aconcurrent 5-year sentence for the aggravated battery conviction.The appellate court affirmed petitioner's convictions on directappeal. People v. De La Paz, No. 1-85-3293 (1989)(unpublished order under Supreme Court Rule 23).

Petitioner first petitioned for postconviction relief inSeptember 1986, while his direct appeal was still pending.Appointed counsel filed an amended petition in October 1999,and petitioner followed with a supplemental pro se petition.Because the arguments raised on appeal do not involve thearguments raised in the various petitions, we will not recountthem in detail. We do note that in petitioner's supplemental prose petition, he stated that he had "spoken with the AssistantPublic Defender Ingrid Gill, [p]rior to her filing thisSupplemental Petition for Post Conviction relief, whereas shehad said in a telephone conversation that she was only going toraise One Issue and that issue being the one she now raised in"the October petition. (Emphasis in original.) Petitionercontinued: "Petitioner not only argued with her about this onlyissue [sic], he filed a complaint with the ARDC AttorneyRegistration Disciplinary Commission of the Illinois SupremeCourt." Petitioner stated that according to his review of theauthorities-specifically citing People v. Britz, 174 Ill. 2d 163(1996)-the issue counsel raised in the amended petition was"worthless."

The State moved to dismiss, and the court granted theState's motion in March 2000. Petitioner appealed, and theappellate court affirmed the dismissal. No. 1-00-0976(unpublished order under Supreme Court Rule 23).

During the unusual length of time that the petition remainedpending in the circuit court, petitioner composed numerousdocuments complaining of the circumstances that had resulted inhis conviction. These included a complaint with the AttorneyRegistration and Disciplinary Committee (ARDC) against histrial attorney; a letter to the circuit court of Cook County thatindicated that he was planning to file a lawsuit against the trialjudge, his trial attorney, and the State's Attorney; and a secondletter to a deputy clerk of the circuit court of Cook Countyreiterating that the assistant State's Attorney and petitioner's trialjudge were prejudiced against him.

Also, after petitioner filed his postconviction petition, hefiled a "motion for leave to file an original petition for writ ofmandamus" and a "petition for writ of mandamus," requestingthat his postconviction petition be heard in another county. Thisrequest was based on petitioner's contention that Judge Gillis,who had presided over petitioner's original trial, was prejudicedagainst him to such an extent that petitioner could not receive afair hearing on his postconviction proceeding before Judge Gillisor any other judge in the circuit court of Cook County. Themotion was denied. Later, petitioner filed motions for extensionsof time to file a "supplemental brief," contending that theassistant public defender assigned to his case was indifferent tohis claims. As a result of these allegations, the assistant publicdefender was permitted to withdraw as counsel in 1987, andpetitioner proceeded pro se. However, no further activityoccurred in the case until the court granted a motion to reinstatethe petition in June 1993, with the matter reassigned to adifferent judge. In July 1997 petitioner filed a motion forsupervisory order, naming as respondents the judge before whomhis petition was pending, the public defender, and two assistantpublic defenders. In that motion petitioner complained that noprogress was being made in his case.

A new assistant public defender, Ingrid Gill, filed anappearance in the case in May 1999. Soon thereafter, petitionerfiled a complaint against her with the ARDC, which the ARDCfound to be "unfounded."

The matter was set for hearing in March 2000. At that time,counsel filed a certificate of compliance with Rule 651(c).Counsel then summarized for the court's benefit the course ofproceedings until that point, including the fact that in addition tothe filings above, petitioner had also filed lawsuits in federalcourt against the police and Cermak Hospital, which had beendismissed. The court dismissed the postconviction petition, theappellate court affirmed, and we granted petitioner leave toappeal. 177 Ill. 2d R. 315(a).

ANALYSIS

Before this court, petitioner raises two issues. He contendsthat (1) his sentence should be reversed because the circuit courtdid not comply with the procedures required by Apprendi insentencing him, and (2) his postconviction counsel wasineffective in failing to request a hearing on petitioner'scompetency to participate in postconviction proceedings.

I. Apprendi

We first address petitioner's argument that his 55-yearsentence for armed robbery must be vacated and the causeremanded for resentencing because the circuit court entered thatsentence without following the procedures required by theSupreme Court in Apprendi.

Initially, we note that petitioner failed to present thisargument in his postconviction petition. A petition under thePost-Conviction Hearing Act must, inter alia, "clearly set forththe respects in which petitioner's constitutional rights wereviolated." 725 ILCS 5/122-2 (West 1994). Just as the legislaturehas set forth what must be contained in a petition, it has specifiedthe consequences of omitting a claim: "[a]ny claim of substantialdenial of constitutional rights not raised in the original or anamended petition is waived." 725 ILCS 5/122-3 (West 1994)."Waiver" is a well-established term of art in the legal field. Thiscourt has long recognized that we may, in appropriate cases,reach issues notwithstanding their waiver. At least as long ago as1957, this court had held that

"the general rule is that where a question is not raisedor reserved in the trial court, or where, though raised inthe lower court, it is not urged or argued on appeal, itwill not be considered and will be deemed to have beenwaived. However, this is a rule of administration and notof jurisdiction or power, and it will not operate todeprive an accused of his constitutional rights of dueprocess. 'The court may, as a matter of grace, in a caseinvolving deprivation of life or liberty, take notice oferrors appearing upon the record which deprived theaccused of substantial means of enjoying a fair andimpartial trial, although no exceptions were preserved orthe question is imperfectly presented.' " People v.Burson, 11 Ill. 2d 360, 370-71 (1957), quoting 3 Am.Jur. Appeal & Error