Appeal from the Circuit Court of Marion County. No. 95-CF-126 Honorable Patrick J. Hitpas, Judge, presiding.
The opinion of the court was delivered by: Justice Welch
On November 9, 1995, a Marion County jury found Robert Rush (defendant) guilty of first-degree murder. On January 5, 1996, at defendant's sentencing hearing, the trial judge found the murder "exceptionally brutal and heinous *** indicative of wanton cruelty" and sentenced defendant to an extended-term sentence of 75 years in the Illinois Department of Corrections. On direct appeal, we affirmed defendant's conviction and sentence. People v. Rush, No. 5-96-0080 (1998) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)).
On November 9, 1998, defendant filed a pro se post-conviction petition. The petition alleged that defendant was deprived of his constitutional right to (1) due process of law when the trial court denied defendant an adequate opportunity to obtain private counsel, (2) due process of law when the trial court failed to suppress defendant's prior oral statements not disclosed in discovery, (3) due process of law when the trial court allowed prejudicial photographs to be shown to the jury, and (4) the effective assistance of appellate counsel when appellate counsel failed to raise the above three issues on direct appeal. On December 29, 1998, the trial court dismissed defendant's petition as "patently frivolous and without merit," and defendant appealed.
While defendant's appeal was pending in this court, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Apprendi called into question the constitutionality of the sentencing scheme upon which defendant's extended-term sentence was based. On September 21, 2000, defendant filed a motion for leave to file a supplemental brief challenging under Apprendi the constitutionality of his extended-term sentence. We granted defendant's motion and will address the issues raised in his supplemental brief. However, before turning to the issues raised by defendant's supplemental brief, we first address defendant's arguments that the trial court erred in dismissing as frivolous and patently without merit the issues raised in his pro se post-conviction petition. For reasons explained in the nonpublishable portion of this opinion, we affirm the trial court's dismissal of these issues.
[Nonpublishable material under Supreme Court Rule 23 omitted here.]
We now turn to defendant's supplemental brief, wherein defendant challenges for the first time the constitutionality of his extended-term sentence. In his supplemental brief, defendant argues that his extended-term prison sentence of 75 years is unconstitutional and must be vacated under the United States Supreme Court's decision in Apprendi. Defendant argues that under Apprendi, the imposition of his extended-term sentence was unconstitutional because it violated his rights to due process, fair notice, and trial by jury. Defendant also argues that Apprendi applies retroactively to collateral proceedings and that, therefore, we must vacate his extended-term sentence and remand his cause for a new sentence to be imposed within the proper statutory range.
In response, the State sets forth three arguments challenging defendant's contentions. First, the State argues that defendant has waived his challenge to the constitutionality of his extended-term sentence because he failed to raise this challenge in his original post-conviction petition filed in the trial court. Second, the State argues that the new rule announced in Apprendi does not apply retroactively to claims on collateral review and that because defendant's extended-term sentence was imposed under then-constitutional rules, defendant has no basis to challenge the constitutionality of his extended-term sentence. Finally, the State argues that even if we do find that Apprendi applies retroactively, defendant's extended-term sentence is constitutional under Apprendi.
In the instant case, defendant was indicted on one count of first-degree murder (720 ILCS 5/9-1(a)(2) (West 1994)). Although the indictment set forth the elements for first-degree murder, it did not allege that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Following the presentation of evidence, the jury was instructed as to the elements of first-degree murder. The jury was not instructed to make a finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. The jury returned a signed verdict form finding defendant guilty of first-degree murder as charged.
At defendant's sentencing hearing, the trial judge made a finding that the murder committed by defendant was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Nothing in the record indicates that the finding made by the trial judge was made beyond a reasonable doubt. The statute which allowed the trial judge to make this finding did not require that the finding be made beyond a reasonable doubt, or by any standard for that matter. However, based upon this "finding," defendant was sentenced to an extended-term sentence of 75 years in the Illinois Department of Corrections.
Under the Illinois statutory laws, the crime of first-degree murder carries a prison sentence of "not less than 20 years and not more than 60 years." 730 ILCS 5/5-8-1(a)(1)(a) (West 1994). However, a trial judge is permitted to sentence a defendant to an extended term beyond the 60 years if the trial judge finds that the offense was "accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." 730 ILCS 5/5-8-2(a)(1), 5-5-3.2(b) (West 1994). In the instant case, had the trial judge not made the finding that the murder was accompanied by brutal or heinous behavior indicative of wanton cruelty, the trial judge would have had no authority to sentence defendant beyond 60 years' imprisonment. However, based upon the trial judge's finding, defendant was sentenced to 75 years' imprisonment. Defendant contends that this statute, authorizing the procedure by which his sentence was extended 15 years beyond the 60-year maximum, is unconstitutional under Apprendi and that, therefore, his extended-term sentence must be vacated.
Before we can address defendant's challenge to the constitutionality of his extended-term sentence, we must first address two preliminary arguments raised by the State. Our agreement with either of these two arguments forecloses an examination of the constitutionality of defendant's extended-term sentence. Again, the first argument concerns whether defendant waived his claim by failing to raise it in his original post-conviction petition. The second argument concerns whether the rule announced in Apprendi applies retroactively to a post-conviction petition. We turn now to the first argument.
Generally, a claim that is not raised in an original or amended post-conviction petition is waived. 725 ILCS 5/122-3 (West 1998). The State argues that because defendant did not challenge the constitutionality of his extended-term sentence in his original post-conviction petition, it is waived. However, when a question raised by a defendant is of constitutional dimension, we can address the issue and relax the application of the waiver rule in the interest of fundamental fairness. People v. Wooters, 188 Ill. 2d 500, 510 (1999). The Illinois appellate court has already recognized that this precise issue raised by defendant is of constitutional dimension. People v. Beachem, 317 Ill. App. 3d 693 (1st Dist. 3d Div. 2000) (the court was faced with the identical question pertaining to the retroactive application of Apprendi to collateral proceedings and held that such question was of constitutional dimension and would be addressed); People v. Kizer, 318 Ill. App. 3d 238 (1st Dist. 1st Div. 2000). Accordingly, although this issue was not raised in defendant's original post-conviction petition, fundamental fairness requires that we examine defendant's claim. Wherefore, we reject the State's first argument that defendant's claim is waived for his failure to raise it in the original post-conviction petition.
We now turn to the State's second argument, which certainly is the most controversial and significant issue raised in this appeal: whether the rule announced in Apprendi applies retroactively to a defendant's timely filed post-conviction petition. However, before reaching our conclusion, it is helpful, if not imperative, to examine several cases that guide our decision. First, we must look at the United States Supreme Court's decision in Apprendi. Then, we must turn to the United States Supreme Court decision in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), where the Supreme Court, in a plurality decision, clarified when a new rule of law should apply retroactively to cases on collateral review. Next, we must turn to the Illinois Supreme Court decision in People v. Flowers, 138 Ill. 2d 218 (1990), where our supreme court adopted the reasoning in Teague in determining whether a new rule applied retroactively to a claim brought under the Illinois Post-Conviction Hearing Act. Finally, we turn to People v. Beachem, 317 Ill. App. 3d 693 (1st Dist. 3d Div. 2000), People v. Kizer, 318 Ill. App. 3d 238 (1st Dist. 1st Div. 2000), People v. Scullark, No. 1-99-1722 (1st Dist. 2d Div. March 13, 2001), and People v. Burns, No. 1-99-4030 (1st Dist. 4th Div. March 29, 2001), four cases decided by our brethren in the First District that have resolved the precise issue before us. However, the results of these four decisions vary. Beachem and Burns decided that Apprendi does apply retroactively to the review of a timely filed post-conviction petition, and Kizer and Scullark held that Apprendi does not apply retroactively to the review of a timely filed post-conviction petition. *fn1 After examining these cases, we shall explain our decision.
In Apprendi, Charles C. Apprendi, Jr., was arrested and charged with 23 counts of varying offenses, after firing several bullets into the home of an African-American family that had recently moved into the previously all-white neighborhood of Vineland, New Jersey. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351. Pursuant to a plea agreement, Apprendi pled guilty to three of the counts, and the State dismissed the remaining 20. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 442-43, 120 S. Ct. at 2352. One of the counts to which Apprendi pled guilty was second-degree possession of a firearm for an unlawful purpose. Apprendi, ...