Appeal from the Circuit Court of Jefferson County. No. 85-CF-7 Honorable Terry H. Gamber, Judge, presiding.
The opinion of the court was delivered by: Justice Kuehn
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 final effort to overturn his convictions, through the pursuit of post-conviction proceedings, failed in 1991. During the ensuing nine years, Johnston served his time without hope of relief from a lengthy imprisonment that constituted the measure of his punishment. No doubt, he had 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 that rekindled Johnston's hopes of an earlier release.
By now, Johnston has satisfied his punishment for armed robbery and aggravated kidnapping. However, he still serves the extended-term portion of a 40-year prison term imposed for the attempted murder. This enhanced punishment is 10 years in excess of the maximum penalty that the law allowed in the absence of a judicial finding of fact. The judge who sentenced Johnston in 1985 found that Johnston's endeavor to take human life was an attempted murder companion to brutal behavior indicative of wanton cruelty. Having reached this finding, the judge imposed the 10 additional years of imprisonment that Johnston 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 community when it was handed down. Everyone understood that numerous state legislatures had enacted sentencing machinery not unlike the extended-term sentencing statute employed in this case. Those statutes commissioned judges, rather than juries, to make additional factual findings during sentencing hearings that enhanced the range of penalties available for imposition as punishment. Uneasy questions arose. Among them was a question of whether the rule enunciated in Apprendi was so fundamental as to provide a remedy to prisoners like Johnston whose sentences were long since deemed secure. Johnston wasted little time in an effort to test the question. He filed a new post-conviction petition, in which he claimed the following:
"My constitutional right to a fair sentencing was denied because I was not charged with, [sic] and no jury ever passed upon the question of whether the offense of 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 court had addressed the Apprendi ruling or its ramifications. The judge summarily dismissed the petition, finding that the claim set forth therein was frivolous and patently without merit. Johnston appeals from that decision.
The dismissal of a post-conviction petition without the conduct of an evidentiary hearing receives plenary review. People v. Coleman, 183 Ill. 2d 366, 388-89, 701 N.E.2d 1063, 1075 (1998).
We have already determined that the constitutionally based rule announced in Apprendi 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. 3d at 1028, 757 N.E.2d at 100; accord People v. Beachem, 317 Ill. App. 3d 693, 740 N.E.2d 389 (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 of the rule announced in Apprendi are matters that remain unsettled among members of our court, we have considered and ruled upon both. There is nothing new in the State's arguments to warrant a departure from the precedent established in this district. We adhere to the well-reasoned opinion of Justice Welch in Rush. Hence, we have already decided those issues that frame the question of whether Johnston's petition states the gist of a constitutional claim for relief. Since Johnston's sentence was imposed in violation of basic constitutional guarantees and since Johnston can raise the violation retroactively, the petition passes the standard by which claims survive this stage of post-conviction proceedings.
The State maintains that even if Johnston's petition states the gist of a constitutional claim, the judge's summary dismissal can be affirmed because of the petition's obvious belated filing date. The petition was filed far beyond the statutory time constraints imposed by our legislature as a limitation on post-conviction 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 Court held that because time is not an inherent element of the right to bring a post-conviction petition, noncompliance with the Post-Conviction Hearing Act's time constraints is not a jurisdictional impediment to further proceedings. Wright, 189 Ill. 2d at 10, 723 N.E.2d at 236. The supreme court felt that the time limitations set forth in the Post-Conviction Hearing Act should be treated as an affirmative defense. Wright, 189 Ill. 2d at 7-10, 723 ...