                                                                      SIXTH DIVISION
                                                                      JUNE 23, 2006



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THE PEOPLE OF THE STATE OF ILLINOIS,                  )       Appeal from the
                                                      )       Circuit Court of
               Plaintiff-Appellee,                    )       Cook County.
                                                      )
       v.                                             )       No. 80 C 3999 & 83 C 11761
                                                      )
ANDRE KELLEY,                                         )
                                                      )       Honorable
               Defendant-Appellant.                   )       Eddie A. Stephens,
                                                      )       Judge Presiding



       JUSTICE TULLY delivered the opinion of the court:

       Defendant, Andre Kelley appeals the second-stage dismissal of his postconviction

petition in which he alleged that his life sentence is void in light of the United States Supreme

Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.Ct. 2348

(2000). Plaintiff, the People of the State of Illinois (the State), moved for dismissal of

defendant's petition and on August 6, 2004, the circuit court granted the State's motion to

dismiss. On appeal, defendant argues that the circuit court erred in dismissing his post-

conviction petition because Apprendi applies retroactively to defendant's petition. For the

reasons below, we affirm.

                                              FACTS

       At defendant's jury trial, the State presented evidence confirming that at approximately

2:30 a.m. on June 3, 1980, defendant entered the backseat of a taxi driven by Charles Lawson

(the victim). Defendant instructed the victim to drive the taxi into an alley, at which time
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defendant placed a gun to the back of the victim's head and stated, "this is a stickup." Defendant

observed another car blinking its headlights at the victim's taxi and he instructed the victim to

drive the taxi farther into the alley. After the victim drove the taxi to the end of the alley,

defendant instructed him to turn left. When the victim refused to turn left, defendant shot him in

the back of his head. The victim died as a result of the gunshot wound he sustained to the back

of his head. A jury found defendant guilty of murder and attempted armed robbery, and the

circuit court sentenced defendant to a term of natural life imprisonment.

          Defendant appealed his conviction and argued, inter alia, that he was prejudiced when the

trial judge stated to potential jurors that he believed the evidence at trial would show that

defendant killed and attempted to rob the victim. On this basis, this court reversed defendant's

convictions and remanded the case for a new trial. People v. Kelley, 113 Ill. App. 3d 761

(1983).

          A second jury trial commenced and defendant was again found guilty of murder and

attempted armed robbery. The circuit court found that defendant qualified for a sentence of life

imprisonment under both section 5--8--1 of the Unified Code of Corrections (Ill. Rev. Stat. 1983,

ch. 38, par. 1005--8--1(a)(1)), which permits a life sentence if the murder was accompanied by

exceptionally brutal or heinous behavior indicative of wanton cruelty, and section 9--1(b)(6) of

the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9--1(b)(6)), which permits a

sentence of death if the murder was committed in the course of another felony. As such, the

circuit court sentenced defendant to life imprisonment for the murder and to a concurrent term of

14 years for the attempted armed robbery.



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       Defendant filed a direct appeal of this conviction. On December 10, 1986, we affirmed

defendant's convictions and sentence. People v. Kelley, 1--85--2571 (1986) (unpublished order

under Supreme Court Rule 23).

       On December 31, 1991, defendant filed a postconviction petition alleging that he was

deprived of his sixth amendment right to effective assistance of counsel. The circuit court

concluded that defendant's petition was frivolous and without merit and denied his post-

conviction petition. On January 23, 1994, we affirmed the circuit court's dismissal of defendant's

postconviction petition. People v. Kelley, 1--92--0897 (1994) (unpublished order under

Supreme Court Rule 23).

       On October 4, defendant filed a "Supplemental Petition for Post-Conviction Relief." In

his petition, defendant argued that his life sentence violated the United State Supreme Court's

decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.Ct. 2348 (2000).

On January 10, 2003, the counsel appointed to represent defendant filed a "Second Supplemental

Petition for Post-Conviction Relief," in which he expanded defendant's Apprendi arguments. On

February 7, 2003, the State filed an amended motion to dismiss, and on August 6, 2004, the trial

court granted to State's motion to dismiss. The dismissal of this "Second Supplemental Petition

for Post-Conviction Relief" is the subject of defendant's timely appeal.

                                          DISCUSSION

       On appeal, defendant argues that his sentence of life imprisonment is unlawful under

Apprendi v. New Jersey 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.Ct. 2348 (2000) because the

sentence was based on factors that were not proven to a jury beyond a reasonable doubt.



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Defendant asserts that his sentence should be reduced to the maximum penalty authorized by the

jury's verdict, which was 40 years. The State asserts that Apprendi does not apply retroactively

to convictions that were final prior to the issuance of Apprendi by the United States Supreme

Court. We agree with the State.

       At defendant's 1985 jury trial, the jury returned a general guilty verdict for first degree

murder and found defendant guilty of attempted armed robbery. At the time of the offense,

Illinois law provided that an offender could be sentenced for first degree murder to a term of

imprisonment of not less than 20 years but not more than 40 years (Ill. Rev. Stat. 1983, ch. 38,

par. 1005 --8--1 (a)(1)), and the State did not seek imposition of the death penalty.

       The jury's verdict authorized a maximum penalty of 40 years' imprisonment. The judge,

relying on both section 5--8--1 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38,

par. 1005--8--1(a)(1)), which permits a life sentence if the murder was accompanied by

exceptionally brutal or heinous behavior indicative of wanton cruelty, and section 9--1(b)(6) of

the Criminal Code (Ill. Rev. Stat. 1983, ch. 38, par. 9--1(b)(6)), which permits a sentence of

death if the murder was committed in the course of another felony, sentenced defendant to life

imprisonment for the murder and sentenced defendant to a concurrent term of 14 years'

imprisonment for the attempted armed robbery.

       On appeal, the State does not challenge defendant's contention that the death penalty

could not be the prescribed statutory maximum sentence because the case was not a capital case

and the trial judge did not make a valid death-eligibility finding under section 9--1(b)(6) of the

Criminal Code. Ill. Rev. Stat. 1983, ch. 38, par. 9--1(b)(6). Therefore, the only issue on appeal is



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whether Apprendi should apply retroactively to defendant's case because the aggravating factors

considered by the judge in concluding defendant was eligible for enhanced sentencing were not

submitted to the jury and proved beyond a reasonable doubt.

       As stated, defendant asserts that his extended-term sentence violated the United States

Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120

S.Ct. At 2362-63.. In Apprendi, the United States Supreme Court held that the constitutional

due-process and jury-trial guarantees required that "[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 147 L.

Ed. 2d at 455, 120 S. Ct. at 2362-63. Defendant asserts that the aggravating factors upon which

his extended-term sentence was based were not proven beyond a reasonable doubt in violation of

Apprendi.

       In assessing defendant's argument that his extended-term sentence violated Apprendi, we

must first addresses whether Apprendi applies retroactively to defendant, whose direct appeals

had been exhausted well before the United States Supreme Court decided Apprendi in June

2000. The Illinois Supreme Court has adopted the United States Supreme Court's decision in

Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989) (plurality op.) as the

appropriate test for determining when a new rule should apply retroactively. See People v.

Flowers, 138 Ill. 2d 218 (1990). According to Teague, in general, new rules do not apply

retroactively to cases on collateral review. Flowers, 138 Ill. 2d at 239. As an exception to the

general rule barring retroactive application, retroactivity is appropriate when:



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       " 'the new rule either (1) places certain kinds of primary, private individual conduct

       beyond the power of the criminal law making authority to proscribe, or (2) requires the

       observance of those procedures that are implicit in the concept of ordered liberty.' "

       People v. De La Paz, 204 Ill. 2d 426, 434 (2003), quoting Flowers, 138 Ill. 2d at 237,

       citing Teague, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073 (plurality op.).

       In People v. De La Paz, 204 Ill. 2d 426, our supreme court applied Teague and assessed

whether Apprendi applies retroactively. While defendant acknowledges that De La Paz was

correctly decided, defendant contends that De La Paz is distinguishable and, as such, does not

serve as a barrier to retroactive application of Apprendi in his case. We disagree.

       In De La Paz, the defendant was convicted of armed robbery, armed violence, home

invasion, and aggravated battery. De La Paz, 204 Ill. 2d at 429. The defendant was sentenced to

a 55-year extended sentence for armed robbery and a concurrent 5-year sentence for aggravated

battery. De La Paz, 204 Ill. 2d at 429. The defendant argued that his extended sentence should

have been reversed because the trial court did not comply with Apprendi in sentencing him. De

La Paz, 204 Ill. 2d at 431. As in defendant's present appeal, the issue before our supreme court

was whether Apprendi applied retroactively to criminal cases in which direct appeals were

exhausted before Apprendi was decided. De la Paz, 204 Ill. 2d at 433.

       Applying the test for retroactivity provided by the United States Supreme Court in

Teague, our supreme court held that Apprendi does not apply retroactively to criminal cases in

which direct appeals were exhausted before Apprendi was decided. De La Paz, 204 Ill. 2d at

439.



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In reaching its decision in De La Paz, our supreme court stated that the defendant did not argue

that retroactive application of Apprendi was appropriate under the first Teague exception and

noted that such an argument would not be persuasive if made. De La Paz, 204 Ill. 2d at 434.

Our supreme court reasoned that retroactive application of Apprendi was not appropriate under

the first Teague exception because "Apprendi did not 'decriminalize' [citation] any conduct." De

La Paz, 204 Ill. 2d at 434. In an effort to clarify that the first Teague exception did not apply to

cases in which appeals had been exhausted prior to the date on which Apprendi was decided, our

supreme court stated that "if Apprendi is to be applied retroactively, it can only be because the

rule announced in that case falls within the second Teague exception." De La Paz, 204 Ill. 2d at

434.

       After confirming that Apprendi should not be applied retroactively pursuant to the first

Teague exception, our supreme court then discussed whether Apprendi should be applied

retroactively pursuant to the second Teague exception. De La Paz, 204 Ill. 2d at 434. Our

supreme court concluded that, like the first Teague exception, the second Teague exception does

not warrant retroactive application of Apprendi because an Apprendi violation does not involve

"such constitutional 'bedrock' as to require retroactive application, [since] such error is

potentially harmless." De La Paz, 204 Ill. 2d at 437.

       Defendant contends that De La Paz is distinguishable because our supreme court's

holding in that case was limited to the conclusion that Apprendi does not apply retroactively

pursuant to the second Teague exception in that Apprendi did not represent a procedure that was

" 'implicit in the concept of ordered liberty.' " De La Paz, 204 Ill. 2d at 434, quoting Flowers, 138



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Ill. 2d at 237, citing Teague, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073 (plurality

op.). Hence, defendant asserts that De La Paz did not address whether the first Teague exception

should operate to provide retroactive application of Apprendi to cases such as defendant's.

Contrary to defendant's contention that the holding in De La Paz was limited only to a

conclusion that retroactive application of Apprendi was not appropriate under the second Teague

exception, our supreme court's opinion in De La Paz stated that the broad issue before the court

was "whether Apprendi should be applied retroactively to criminal cases in which direct appeals

were exhausted before Apprendi was decided." De La Paz, 204 Ill. 2d at 433. The court

concluded that "Apprendi should not be taken outside the general rule barring retroactivity." De

La Paz, 204 Ill. 2d at 434. Furthermore, the court specifically stated that "if Apprendi is to be

applied retroactively, it can only be because the rule announced in that case falls within the

second Teague exception." De La Paz, 204 Ill. 2d at 434. In light of our supreme court's opinion

in De La Paz, we cannot agree with defendant's contention that the holding in that case was

limited to a conclusion that Apprendi does not apply retroactively pursuant exclusively to

Teague's second exception. On the contrary, we believe that our supreme court's decision in De

La Paz stands for the proposition that Apprendi should not be applied retroactively to any

criminal cases in which direct appeals were exhausted before Apprendi was decided.

       In addition to defendant's efforts to distinguish his case from our supreme court's decision

in De La Paz, defendant also asserts that retroactive application of Apprendi to his case is

appropriate pursuant to the United States Supreme Court's decision in Schriro v. Summerlin, 542

U.S. 348, 159 L. Ed. 2d 442, 124 S.Ct. 2519. (2004). Specifically, defendant asserts that while



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the United States Supreme Court held in Summerlin that Apprendi's effect on Arizona's capital

sentencing scheme was procedural, and therefore not subject to retroactive application of

Apprendi, the fact that Illinois's aggravating factors did not need to be proven beyond a

reasonable doubt at the time Apprendi was decided makes the effect on Illinois law substantive,

and therefore subject to retroactive application of Apprendi. We disagree.

        The United States Supreme Court in Summerlin was faced with the issue of whether its

interpretation of Apprendi in its decision in Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556,

122 S. Ct. 2428 (2002), should apply retroactively to cases in which a defendant's conviction and

sentence had become final on direct review before Apprendi was decided. Summerlin, 542 U.S.

at 351, 159 L. Ed. 2d at 448, 124 S. Ct. at 2522. In Ring, the Court had decided Apprendi did

not permit a judge, sitting without a jury, to find an aggravating circumstance necessary for

imposition of the death penalty. Ring, 536 U.S. at 609, 153 L. Ed. 2d at 576-77, 122 S. Ct. at

2443.

        The Court in Summerlin held that its interpretation of Apprendi in Ring should not be

given retroactive effect to criminal cases in which direct appeals had been exhausted before Ring

was decided. Summerlin, 542 U.S. at 358, 159 L. Ed. 2d at 453, 124 S. Ct. at 2526. In so doing,

the Court reasoned that the fact that the judge, rather than the jury, had found the existence of

aggravating factors beyond a reasonable doubt such that the death penalty was appropriate was

not a situation in which there was an alteration of the range of conduct Arizona law subjected to

the death penalty. Summerlin, 542 U.S. at 354, 159 L. Ed. 2d at 450, 124 S. Ct. at 2524. Rather,

the Court opined that having the judge rather than the jury assess the aggravating factors merely



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altered the range of permissible methods for determining whether a defendant's conduct was

punishable by death. Summerlin, 542 U.S. at 355-56, 159 L. Ed. 2d at 451, 124 S. Ct. at 2525.

The Court stated that the issue was "whether judicial factfinding so 'seriously diminishe[s]'

accuracy that there is an ' "impermissibly large risk" ' of punishing conduct the law does not

reach." (Emphasis in original.) Summerlin, 542 U.S. at 355-56, 159 L. Ed. 2d at 451, 124 S. Ct.

at 2525, quoting Teague, 489 U.S. at 312-13, 103 L. Ed. 2d at 357, 109 S. Ct. at 1076 quoting

Desist v. United States, 394 U.S. 244, 262, 22 L. Ed. 2d 248, 263, 89 S. Ct. 1030, 1041(1969)

(Harlan, J., dissenting). The Court held that there was legitimate disagreement over whether

juries were better fact finders than judges and, therefore, the Court could not confidently state

that judicial fact finding seriously diminished accuracy such that retroactive application of

Apprendi was appropriate. Summerlin, 542 U.S. at 355-58, 159 L. Ed. 2d at 451, 124 S. Ct. at

2525.

        Here, defendant argues that while the United States Supreme Court's decision in

Summerlin held that Apprendi's effect on Arizona's capital sentencing scheme was procedural

and, therefore, not subject to retroactive application of Apprendi under Teague, the effect of

Apprendi on Illinois's sentencing scheme was substantive and, therefore, Apprendi should apply

retroactively to defendant's case. Specifically, defendant emphasizes that under Arizona's

sentencing scheme, the judge had to decide that the defendant was eligible for the death penalty

by finding that the aggravating factors were present by a standard of "beyond a reasonable

doubt," while in Illinois, defendant contends that the judge could enter an extended-term

sentence if he found the existence of aggravating factors by a finding less than "beyond a



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reasonable doubt." We cannot agree with defendant's assertion that Summerlin calls for

retroactive application of Apprendi to defendant's case.

       First, we note that the actual holding of Summerlin was that Apprendi and Ring

announced new procedural rules that do "not apply retroactively to cases already final on direct

review." Summerlin, 542 U.S. at 358, 159 L. Ed. 2d at 453, 124 S. Ct. at 2526. Also, we note

that the holding in Summerlin was reached by addressing the constitutionality of Arizona's

sentencing scheme and assessing whether Apprendi should apply retroactively to cases in which

a judge rather than a jury made a decision regarding the existence of aggravating factors, the

existence of which determined whether a defendant was eligible for the death penalty.

Summerlin, 542 U.S. at 350, 159 L. Ed. 2d at 447, 124 S. Ct. at 2521. In his efforts to adapt the

Summerlin opinion to the facts of his case, defendant fails to recognize that nothing in the

Summerlin opinion suggests that the United States Supreme Court would have decided that case

differently if the Arizona sentencing statute called for the judge to find the existence of the

aggravating factors by some standard less than "beyond a reasonable doubt." In the absence of

some suggestion in the Court's Summerlin opinion that the outcome would have been different if

the statute at issue in that case had called for a finding of the aggravating factors by a standard

less than "beyond a reasonable doubt," we are left only with our supreme court's opinion in De

La Paz to guide our efforts to address defendant's petition for retroactive application of

Apprendi.

       Second, our conclusion that De La Paz controls this case is strengthened by our supreme

court's decision in Lucien v. Briley, 213 Ill.2d 340 (2004), which was decided after Summerlin



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and in which our supreme court clearly stated that Apprendi was a procedural rule that "does not

apply retroactively to cases in which the direct appeal process had concluded when Apprendi

was decided." Lucien, 213 Ill.2d at 349. In light of both De La Paz and Lucien, we cannot

accept defendant's argument that the United States Supreme Court's holding in Summerlin

warrants retroactive application of Apprendi to Illinois's extended-sentencing scheme.

       In sum, we confirm that the rule in Illinois is that "Apprendi does not apply retroactively

to cases in which the direct appeal process had concluded when Apprendi was decided." Lucien,

213 Ill. 2d at 349, see also De La Paz, 204 Ill. 2d 426. In this case, defendant's direct appeals

were exhausted before Apprendi was decided and, therefore, Apprendi does not apply

retroactively to defendant's case. Accordingly, we affirm the circuit court's dismissal of

defendant's postconviction petition.

       McNULTY, P.J., and FITZGERALD SMITH, J., concur.




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