The opinion of the court was delivered by: Chief Justice McMORROW
Docket Nos. 93221, 93363 cons. -Agenda 1-March 2003.
The principal question presented in these consolidated appeals is whether a post-conviction petitioner may raise a claim based on Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), in a successive post-conviction petition. In light of our recent decision in People v. De La Paz, 204 Ill. 2d 426 (2003), we answer this question in the negative.
On January 27, 1988, the defendant, Christopher Lee, was found guilty of first degree murder by a jury in the circuit court of Tazewell County. At defendant's sentencing hearing, the circuit court found that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. See Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(b)(2). Based on this finding, defendant was sentenced to an extended-term sentence of 80 years' imprisonment. See Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-2(a)(1). Defendant's conviction and sentence were affirmed on direct appeal. People v. Lee, No. 3-89-0145 (1990) (unpublished order under Supreme Court Rule 23).
On September 12, 1994, defendant filed his first petition for post-conviction relief. The State filed a motion to dismiss the petition as untimely, which was granted by the circuit court. On appeal, the appellate court affirmed the dismissal. People v. Lee, 292 Ill. App. 3d 941 (1997).
On August 10, 2000, defendant filed a second post-conviction petition. In this petition, which is the subject of the instant appeal, defendant argued that his extended-term sentence was unconstitutional under Apprendi because the aggravating factor on which the extended term sentence was based, i.e., exceptionally brutal and heinous behavior, was not found beyond a reasonable doubt by a jury. The circuit court summarily dismissed the petition.
The appellate court reversed the dismissal. 326 Ill. App. 3d 882. The appellate court initially concluded that, although defendant's Apprendi claim was raised in a successive post-conviction petition, the claim was neither untimely nor procedurally barred by waiver and res judicata because defendant could not have presented the claim in any earlier proceeding. The court also concluded that Apprendi applied retroactively to cases on collateral review and, further, that defendant's extended-term sentence violated the constitutional requirements of Apprendi. Finally, relying on the authority provided by Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)), the appellate court reduced defendant's sentence to the maximum nonextended term of 60 years' imprisonment.
Defendant filed a petition for leave to appeal from that part of the appellate court's judgment which modified defendant's sentence to a term of 60 years' imprisonment. 177 Ill. 2d R. 315. The petition was allowed and the case was docketed in this court as cause No. 93221. The State filed a petition for leave to appeal from that portion of the appellate court's judgment which reversed the circuit court's dismissal of defendant's post-conviction petition. The State's petition for leave to appeal was also allowed and the case was docketed as cause No. 93363. The two cases were consolidated for review.
In cause No. 93221, defendant contends that the appellate court erred in reducing his sentence to the maximum nonextended term available. According to defendant, once the appellate court concluded that his Apprendi claim was meritorious, the court should have remanded the cause to the circuit court for resentencing. In cause No. 93363, the State contends that the appellate court erred in reversing the circuit court's dismissal of defendant's post-conviction petition. In the view of the State, defendant's Apprendi claim is procedurally barred from consideration on the merits and, therefore, defendant's petition was properly dismissed.
A decision in favor of the State in its appeal would necessarily render defendant's appeal moot. Accordingly, we first consider the appeal in cause No. 93363.
The Post-Conviction Hearing Act prohibits the filing of successive post-conviction petitions. 725 ILCS 5/122-3 (West 1994). See People v. Flores, 153 Ill. 2d 264, 273 (1992) ("The Post-Conviction Hearing Act contemplates the filing of only one post-conviction petition"), citing People v. Free, 122 Ill. 2d 367, 375 (1988). However, the statutory bar to a successive post-conviction petition will be relaxed when fundamental fairness so requires. Flores, 153 Ill. 2d at 274. To establish that fundamental fairness requires that a successive post-conviction petition be considered on the merits, the defendant must show both cause and prejudice with respect to each claim presented. See People v. Pitsonbarger, 205 Ill. 2d 444 (2002). "For purposes of this test, `cause' is further defined as some objective factor external to the defense that impeded counsel's efforts to raise the claim in an earlier proceeding, and `prejudice' is defined as an error which so ...