
NO. 4-00-0168



IN THE APPELLATE COURT



OF ILLINOIS



FOURTH DISTRICT







THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

PAUL HELTON,

Defendant-Appellant.



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Appeal from

Circuit Court of

Logan County

No. 95CF174



Honorable

David L. Coogan,

Judge Presiding.





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PRESIDING JUSTICE STEIGMANN delivered the opinion of the court:

In October 1996, a jury convicted defendant, Paul Helton, of four counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 1994)).  The trial court later sentenced him to an extended term of 50 years in prison on two counts, with those sentences to run consecutively.  On direct appeal, this court affirmed defendant's convictions and sentences.  
People v. Helton
, No. 4-96-0997 (March 4, 1998) (unpublished order pursuant to Supreme Court Rule 23).  In February 1999, the Supreme Court of Illinois denied defendant's petition for leave to appeal.  
People v. Helton
, 182 Ill. 2d 559, 707 N.E.2d 1242 (1999).

In March 1999, defendant filed a 
pro
 
se
 petition for postconviction relief.  In January 2000, the State filed a motion to dismiss defendant's postconviction petition, which the trial court granted following a February 2000 hearing.

Defendant appeals, arguing that (1) the extended-term sentencing provision of section 5-5-3.2(b)(1) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3.2(b)(1) (West 1994) (effective July 1, 1995)) and the consecutive sentencing provisions of sections 5-8-4(a) and (b) of the Unified Code (730 ILCS 5/5-8-4(a), 5-8-4(b) (West 1994)) are unconstitutional under 
Apprendi v. New Jersey
, 530 U.S. ___, ___, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000); and (2) he was deprived of his right to reasonable assistance of postconviction counsel.  We affirm.

I. APPRENDI ISSUES

Defendant first argues that (1) the enhanced sentencing provision of section 5-5-3.2(b)(1) of the Unified Code and (2) the consecutive sentencing provisions of sections 5-8-4(a) and (b) of the Unified Code are unconstitutional under 
Apprendi
, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.  

Before we consider the merits of defendant's constitutional claims, we must answer a threshold question presented by the procedural posture of this case--namely, whether defendants who have exhausted their direct appeal rights prior to the issuance of the 
Apprendi
 decision may nonetheless seek to challenge their sentences on the basis of that decision.  For the following reasons, we hold that they may not. 

In 
People v. Flowers
, 138 Ill. 2d 218, 237, 561 N.E.2d 674, 682 (1990), the Supreme Court of Illinois adopted the test set forth by the United States Supreme Court in 
Teague v. Lane
, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), for determining the retroactivity of new constitutional rules on collateral review under the Post-Conviction Hearing Act (725 ILCS 5/122-1
 through 122-8 (West 1998)).  As the court explained in 
Flowers
, the 
Teague
 Court "held that decisions establishing new constitutional rules of criminal procedure are not to be applied retroactively to cases pending on collateral review unless 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."  
Flowers
, 138 Ill. 2d at 237, 561 N.E.2d at 681-82, citing 
Teague
, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073.  The Supreme Court has clarified that for a rule to qualify under the second 
Teague
 exception it must both (1) improve the accuracy of trial, and (2) "'"alter our understanding of the 
bedrock
 
procedural
 
elements
"' essential to the fairness of a proceeding" (emphasis in original) (
Sawyer v. Smith
, 497 U.S. 227, 242, 111 L. Ed. 2d 193, 211, 110 S. Ct. 2822, 2831 (1990), quoting 
Teague
, 489 U.S. at 311, 103 L. Ed. 2d at 357, 109 S. Ct. at 1076, quoting 
Mackey v. United States
, 401 U.S. 667, 693, 28 L. Ed. 2d 404, 421, 91 S. Ct. 1160, 1180 (1971)).  

In 
Apprendi
, the United States Supreme Court noted that "'under the [d]ue [p]rocess [c]lause of the [f]ifth [a]mendment and the notice and jury trial guarantees of the [s]ixth [a]mendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.'"  
Apprendi
, 530 U.S. at ___, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355, quoting 
Jones v. United States
, 526 U.S. 227, 243 n.6, 143 L. Ed. 2d 311, 326 n.6, 119 S. Ct. 1215, 1224 n.6 (1999).  Because the rule set forth in 
Apprendi
 does not address private individual conduct, the first 
Teague
 exception does not apply.  Therefore, at issue here is whether the 
Apprendi
 rule falls within the second 
Teague
 exception.

The First District Appellate Court has thrice addressed whether 
Apprendi
 should be applied retroactively on collateral review.  In 
People v. Beachem
, 317 Ill. App. 3d 693, 706, 740 N.E.2d 389, 397 (2000), a third division panel held that the rule set forth in 
Apprendi
 fell under the second 
Teague
 exception and thus applied retroactively
.  In so holding, the court described 
Apprendi
 as rectifying a situation akin to a trial judge convicting a defendant of a charge never made and never heard by a jury on the preponderance of the evidence.  
Beachem
, 317 Ill. App. 3d at 702, 740 N.E.2d at 394.  According to the court, such a conviction would be "repugnant to our notions of fundamental fairness."  
Beachem
, 317 Ill. App. 3d at 702, 740 N.E.2d at 394-95.  The 
Beachem
 court also relied, in part, on 
United States v. Murphy
, 109 F. Supp. 2d 1059, 1064 (D. Minn. 2000), which
 held that the 
Apprendi
 rule satisfies the second 
Teague
 exception because it "compels a radical shift in criminal procedure." 

Less than one month after the court filed its opinion in 
Beachem
, a first division panel of the First District Appellate Court decided 
that 
Apprendi
 should not be applied retroactively to cases on collateral review because the 
Apprendi
 rule did not "alter our understanding of the bedrock procedural elements essential to a fair trial."  
People v. Kizer
, 318 Ill. App. 3d 238, 248, 252, 741 N.E.2d 1103, 1112, 1115 (2000).

The 
Kizer
 court began its 
Teague
 analysis by noting that federal courts hold differing views on the matter, citing both 
Murphy
, 109 F. Supp. 2d at 1064, and 
Jones v. Smith
, 231 F.3d 1227, 1238 (9th Cir. 2000) (in which the Ninth Circuit declined to grant 
habeas
 
corpus
 relief based on retroactive application of 
Apprendi
 under the second 
Teague
 exception
).  
Kizer
, 318 Ill. App. 3d at 248-49, 741 N.E.2d at 1112.  The 
Kizer
 court then explained as follows:  "As this is a matter of state law, and in light of the conflicting authority at the federal level, we must ultimately take our direction from the Illinois Supreme Court and its view of the scope of the second 
Teague
 exception in 
Flowers
."  
Kizer
, 318 Ill. App. 3d at 249-50, 741 N.E.2d at 1113.    

In 
Flowers
, 138 Ill. 2d at 234-42, 561 N.E.2d at 680-84, the supreme court considered whether the new rule set forth in 
People  v. Reddick
, 123 Ill. 2d 184, 526 N.E.2d 141 (1988), applied retroactively.  In 
Reddick
, 123 Ill. 2d at 197, 526 N.E.2d at 146, the supreme court held as unconstitutional jury instructions which erroneously stated the burden of proof for voluntary-manslaughter-mitigating states of mind.  In so holding, the 
Reddick
 court reasoned that if a jury followed the Illinois pattern jury instructions regarding murder and voluntary manslaughter, it could not possibly convict a defendant of manslaughter instead of murder.  
Reddick
, 123 Ill. 2d at 194-95, 526 N.E.2d at 145.  The 
Flowers
 court recognized that 
Reddick
 involved a "grave" jury instruction error of "'constitutional magnitude.'"  
Flowers
, 138 Ill. 2d at 236, 561 N.E.2d at 681 quoting 
Falconer v. Lane
, 905 F.2d 1129, 1134 (7th Cir. 1990).  Nevertheless, the 
Flowers
 court held that the 
Reddick
 rule did not qualify under the second 
Teague
 exception, stating, in pertinent part, as follows:  "This exception must be narrowly construed[,] and we do not believe that the 
Reddick
 rule established such a component of basic due process so as to fall within it."  
Flowers
, 138 Ill. 2d at 242, 561 N.E.2d at 684.  

The 
Kizer
 court thus was persuaded that the Supreme Court of Illinois takes a narrow view of the second 
Teague
 exception, particularly in light of the following: (1) the 
Flowers
 court's recognition that 
Reddick
 announced a rule of constitutional dimension, and (2) federal 
habeas
 
corpus
 courts had previously reached the opposite conclusion, retroactively applying new rules addressing erroneous jury instructions.  
Kizer
, 318 Ill. App. 3d at 250-51, 741 N.E.2d at 1113-14.  Accordingly, the 
Kizer
 court concluded that our supreme court would not find the 
Apprendi
 rule sufficiently fundamental to qualify under the second 
Teague
 exception.  
Kizer
, 318 Ill. App. 3d at 252, 741 N.E.2d at 1115.  As the 
Kizer
 court explained, the "burden of proof problem in 
Reddick
 exposed [the] defendants to the danger of deprivations just as unfair as any deriving from the 
Apprendi
 problem," 
and the two cases are of "commensurate gravity."  
Kizer
, 318 Ill. App. 3d at 252, 741 N.E.2d at 1114-15.

In 
People v. Scullark
, No. 1-99-1722, slip op. at 29 (March 13, 2001), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___, a second division panel of the First District Appellate Court followed 
Kizer
 and declined to follow 
Beachem
. 

We agree with 
Kizer
's well-reasoned analysis and hold that 
Apprendi
 does not apply retroactively to cases on collateral review.

II. UNREASONABLE ASSISTANCE OF POSTCONVICTION COUNSEL

Last, defendant argues that he did not receive reasonable assistance of postconviction counsel to which he is entitled under 
People v. Flores
, 153 Ill. 2d 264, 276, 606 N.E.2d 1078, 1084 (1992).  Specifically, he contends that his postconviction counsel did not read the record, as shown by counsel's failure to amend defendant's postconviction petition to allege that (1) his trial counsel was ineffective for failing to move to vacate two of his aggravated criminal sexual assault convictions, and (2) his appellate counsel was ineffective for failing to raise the issue on direct appeal.  We disagree.

In 
People v. Davis
, 156 Ill. 2d 149, 163, 619 N.E.2d 750, 758 (1993), the supreme court explained that a postconviction petitioner is not entitled to the advocacy of counsel for purposes of "exploration, investigation[,] and formulation of potential claims."  Thus, postconviction counsel is not required to comb the record for issues not raised in the defendant's 
pro
 
se
 postconviction petition.  Defendant did not raise the propriety of his multiple convictions in his postconviction petition.  Accordingly, defendant was not deprived of his right to reasonable assistance of postconviction counsel when that counsel failed to raise the issue.  

III. CONCLUSION

For the reasons stated, we affirm the trial court's dismissal of defendant's postconviction petition.

Affirmed.

KNECHT and COOK, JJ., concur.

