Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois No. 88-CF-235 Honorable Michael E. Brandt Judge, Presiding
The opinion of the court was delivered by: Justice Holdridge
The defendant, Christopher A. Lee, was convicted of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9--1(a)(1)). He filed a successive post-conviction petition that was dismissed as frivolous. On appeal from the denial of his petition, the defendant argues that: (1) section 122--2.1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--2.1 (West 2000)) is unconstitutional; and (2) his 80-year extended term sentence violates the constitutional rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We hold that Apprendi applies retroactively to the defendant's appeal and that the defendant's sentence is unconstitutional. Accordingly, we vacate the trial court's summary dismissal and modify the defendant's sentence to the maximum nonextended term of 60 years.
On January 27, 1989, a jury found the defendant guilty of first degree murder. In imposing sentence, the trial court found that the defendant had committed an exceptionally brutal and heinous crime indicative of wanton cruelty. The defendant was sentenced to an extended term of 80 years' imprisonment.
The defendant's sentence was affirmed on appeal. People v. Lee, No. 3--89--0145 (1990) (unpublished order under Supreme Court Rule 23). He filed his first post-conviction petition in September 1994, which was dismissed by the trial court as untimely. This court affirmed that ruling in People v. Lee, 292 Ill. App. 3d 941, 688 N.E.2d 673 (1997).
On August 10, 2000, the defendant filed a second request for post-conviction relief, arguing that he was unconstitutionally sentenced to an extended term sentence under Apprendi, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348. The trial court dismissed the successive petition as untimely and frivolous and patently without merit.
First, we address the defendant's argument that the summary dismissal of his petition was improper because Public Act 83--942 (Pub. Act 83--942, eff. November 23, 1983), which enacted legislation authorizing the first-stage dismissal of a post-conviction petition, violates the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)).
The defendant's claim must fail in light of People v. Sharpe, 321 Ill. App. 3d 994, 749 N.E.2d 432 (2001). In Sharpe, this court held that Public Act 83--942 did not violate the single subject clause. Sharpe, 321 Ill. App. 3d 994, 749 N.E.2d 432. Other courts have reached the same conclusion. See People v. Roberts, 318 Ill. App. 3d 719, 743 N.E.2d 1025 (2000); People v. Jones, 318 Ill. App. 3d 1189, 744 N.E.2d 344 (2001); People v. Dorris, 319 Ill. App. 3d 579, 746 N.E.2d 303 (2001); People v. Vilces, 321 Ill. App. 3d 937, 748 N.E.2d 1219 (2001). Accordingly, we find no reason to depart from our earlier holding.
Next, the defendant agues that his post-conviction petition should not have been summarily dismissed because it raised the gist of a meritorious claim. Specifically, the defendant claims that his 80-year extended term sentence is ...