
	Docket No. 92922–Agenda 1–September 2004.

RUDOLPH LUCIEN, Appellee, v. KENNETH R. BRILEY,							Warden, Appellant.

Opinion filed December 2, 2004.

JUSTICE GARMAN delivered the opinion of the court:

Plaintiff, Rudolph Lucien, sought an order of 
habeas corpus
, naming Kenneth R. Briley, warden of the Stateville Correctional Facility, as defendant. See 735 ILCS 5/10–101 
et seq.
 (West 2000). Plaintiff alleged his extended-term sentence was unconstitutional under 
Apprendi v. New Jersey
, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and he was therefore entitled to immediate release because he had served the maximum nonextended term to which he could have been sentenced. The circuit court of Will County held the statute authorizing Lucien’s extended-term sentence unconstitutional under 
Apprendi
 and issued the 
habeas corpus 
order. Defendant appealed directly to this court pursuant to Rule 302(a) (134 Ill. 2d R. 302(a)).



BACKGROUND

In 1980 plaintiff was sentenced to concurrent extended terms of 60 years each for armed robbery and armed violence. On direct appeal, plaintiff’s arguments included a challenge to the extended-term sentences, on the ground that the sentencing judge did not find any of the aggravating factors listed in the statute. The appellate court rejected that argument, reasoning that the sentencing judge was not required to recite the facts relied upon, and that imposing the extended term was not an abuse of discretion because the record supported an extended term under the factor that “ ‘the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.’ ” 
People v. Lucien
, 109 Ill. App. 3d 412, 419-20 (1982), quoting Ill. Rev. Stat. 1979, ch. 38, par. 1005–5–3.2(b)(2), now codified as 730 ILCS 5/5–5–3.2(b)(2) (West 2002). The appellate court noted the record showed plaintiff had repeatedly threatened the female victim’s life with a knife and severely beat her even though she told him she was pregnant. 
Lucien
, 109 Ill. App. 3d at 420.

In 2001, plaintiff sought a 
habeas corpus 
order, arguing his extended-term sentences were invalid under 
Apprendi
. See 735 ILCS 5/10–101 
et seq
. (West 2000). The circuit court denied defendant’s motion to dismiss, but certified for interlocutory appeal the question whether an 
Apprendi
 claim is cognizable in a 
habeas corpus 
proceeding. 155 Ill. 2d R. 308. The appellate court declined to review the question. The circuit court found that the statute authorizing the extended-term sentence was unconstitutional under 
Apprendi
 and granted 
habeas corpus 
relief. The court denied defendant’s motion for a stay of enforcement of the order pending appeal, as did this court. Accordingly, the Department of Corrections discharged plaintiff on December 18, 2001. This appeal followed.



ANALYSIS

We must decide whether the circuit court erred by applying 
Apprendi
 retroactively to a case in which the direct appeal process had long been concluded. Whether 
Apprendi
 applies retroactively is a question of law, which we review 
de novo
. See 
Schmidt v. Ameritech Illinois
, 329 Ill. App. 3d 1020, 1027 (2002) (reviewing the circuit court’s postjudgment application of an appellate court decision recognizing a new tort).

This court has adopted the test announced by the United States Supreme Court in 
Teague v. Lane 
to determine the retroactivity of new constitutional rules. 
People v. De La Paz
, 204 Ill. 2d 426, 433-34 (2003), citing 
Teague v. Lane
, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989) (plurality op.). Applying 
Teague
, we held in
 De La Paz 
that 
Apprendi
 does not apply retroactively because it is a procedural rule, and it is not among “ ‘those procedures that are implicit in the concept of ordered liberty.’ ” 
De La Paz
, 204 Ill. 2d at 434, quoting 
People v. Flowers
, 138 Ill. 2d 218, 237 (1990), citing 
Teague
, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073 (plurality op.). In this case, plaintiff’s direct appeal concluded in 1985, some 15 years before 
Apprendi
 was decided. Plaintiff argues on several grounds that 
De La Paz
 does not control. We address each argument in turn.

First, plaintiff argues 
Apprendi
 rendered the statute authorizing his extended-term sentence void 
ab initio
. Plaintiff cites 
People v. Gersch
, 135 Ill. 2d 384, 397-98 (1990), for the proposition that when a judicial decision renders a statute void 
ab initio
, due process requires the decision must be applied retroactively.

A statute is void 
ab initio 
under a new constitutional rule, such as 
Apprendi
, only if the new rule renders the statute facially unconstitutional. 
People v. Jackson
, 199 Ill. 2d 286, 300 (2002). A statute is facially unconstitutional if there are no circumstances in which it could be validly applied. 
People v. Thurow
, 203 Ill. 2d 352, 367 (2003). 
Apprendi
 held a criminal defendant has the right to insist that any fact, other than the fact of a prior conviction, that increases his punishment beyond the 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 2363. The statute under which plaintiff received his extended-term sentences allowed an 
Apprendi
 violation; it did not give plaintiff the right to insist on proof to a jury beyond a reasonable doubt. However, nothing in the statute prohibited compliance with 
Apprendi
. In 
Thurow
 we said, with respect to another sentencing statute, that the finding that was the basis for the defendant’s extended term

“could be made by a preponderance of the evidence. However, it also could be made based upon proof beyond a reasonable doubt. Under 
Apprendi
, a finding, based on a preponderance of the evidence, that [the aggravating fact exists] could not form the basis for an enhanced sentence. *** However, there is no violation if this determination is made beyond a reasonable doubt. Because this latter, constitutionally correct procedure is allowed by [the statute], it cannot be said that there is no set of circumstances under which the statute would be valid. [Citation.] [The statute] is not unconstitutional on its face. Accordingly, we reject defendant’s contention that [it] is void 
ab initio
.” 
Thurow
, 203 Ill. 2d at 368.

In other words, a statute that permits 
Apprendi
 violations, but also permits 
Apprendi
 compliance, is not facially unconstitutional and thus is not void 
ab initio
. Indeed, the statute authorizing an extended term based on a judge’s finding that the crime was committed in a brutal or heinous fashion has been applied in compliance with 
Apprendi
 and thus is not void 
ab initio
. 
Jackson
, 199 Ill. 2d at 300-01, citing 
People v. Ford
, 198 Ill. 2d 68 (2001). It follows that the statute authorizing plaintiff’s extended terms was not facially unconstitutional and hence not void 
ab initio
.

Plaintiff responds by suggesting 
Thurow 
and all similarly reasoned cases have been overruled by 
Blakely v. Washington
, 542 U.S. ___, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004). He argues that, contrary to this court’s reasoning in 
Thurow
, 
Blakely
 struck down a sentencing statute because it did not mandate 
Apprendi 
compliance. We disagree.

Blakely 
involved the State of Washington’s sentencing guidelines. The defendant pled guilty to second degree kidnapping involving domestic violence and the use of a firearm. In Washington, second degree kidnapping is a Class B felony and the maximum penalty for a Class B felony is 10 years’ incarceration. However, under Washington’s sentencing guidelines the conduct admitted as part of the guilty plea carries a maximum of only 53 months. The trial judge sentenced the defendant to 90 months, based on his finding the crime was committed with deliberate cruelty. The question presented was whether the maximum, for purposes of applying 
Apprendi
, was 10 years, the maximum for a Class B felony, or 53 months. See 
Blakely
, 542 U.S. at ___, 159 L. Ed. 2d at 413, 124 S. Ct. at 2537. The Court held 53 months is the relevant maximum, because that is the maximum sentence the judge could have imposed without finding any facts beyond those admitted in the guilty plea. 
Blakely
, 542 U.S. at ___, 159 L. Ed. 2d at 414, 124 S. Ct. at 2537-38. The Court concluded that, “[b]ecause the State’s sentencing procedure did not comply with the Sixth Amendment, plaintiff’s sentence is invalid.” 
Blakely
, 542 U.S. at ___, 159 L. Ed. 2d at 415, 124 S. Ct. at 2538. Contrary to plaintiff’s suggestion, 
Blakely
 does not hold a statute’s failure to require 
Apprendi
 compliance renders it facially invalid.

This court’s opinion in 
Gersch 
does not aid plaintiff either. In 
Gersch
, the State exercised a statutory right to insist on a jury trial. While direct appeal was pending, we held in another case that the Illinois Constitution grants the right to a jury trial exclusively to defendants. 
People ex rel. Daley v. Joyce
, 126 Ill. 2d 209, 222 (1988). Then in 
Gersch
 we applied 
Joyce
 “retroactively,” because to do otherwise “would ignore the 
ab initio 
rule of statutory invalidation.” 
Gersch
, 135 Ill. 2d at 401. 
Gersch
, however, is distinguishable from the case at bar because 
Gersch 
was a direct appeal. Moreover, there were no possible circumstances in which the statute at issue in 
Gersch
 could be validly applied. The statute gave the State the right to a jury trial in certain cases. According to 
Joyce
, the Illinois Constitution gave that right exclusively to defendants. Thus, every application of the statute would violate 
Joyce
. 
Gersch
’s conclusion that the statute was void 
ab initio 
is consistent with the principle, from 
Thurow
 and 
Jackson
, that only statutes lacking any possible valid application are facially invalid and void 
ab initio
. We conclude plaintiff’s claim that the statute authorizing his extended terms was void 
ab initio
 is without merit.

Second, plaintiff argues 
De La Paz 
is inapplicable to his case, because he raised the equivalent of an 
Apprendi 
claim on direct appeal. Plaintiff argued on direct appeal that his extended-term sentence was invalid because the sentencing judge failed to make the requisite finding that an aggravating factor was present. To claim the judge never found an aggravating factor is not equivalent to an 
Apprendi
 claim. The gravamen of an 
Apprendi 
claim is that an aggravating factor 
was 
found, but not by a jury beyond a reasonable doubt. We conclude plaintiff did not raise an 
Apprendi
 claim on direct appeal.

Furthermore, we fail to see how the claim that plaintiff argued on direct appeal could affect whether 
De La Paz
 applies to this case. 
De La Paz 
applied the test from 
Teague
 to conclude that 
Apprendi 
does not apply retroactively. 
De La Paz
, 204 Ill. 2d at 439. Under 
Teague
, retroactivity depends on whether failure to apply a new procedural rule would “undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction.” 
Teague
, 489 U.S at 315, 103 L. Ed. 2d at 359, 109 S. Ct. at 1078. 
De La Paz 
reasoned that 
Apprendi
 does not apply retroactively because an 
Apprendi
 violation does not necessarily render any particular trial unfair. 
De La Paz
, 204 Ill. 2d at 438-39. Whether this particular plaintiff raised an 
Apprendi 
claim on appeal is fundamentally different from the question whether the absence of the procedures required by 
Apprendi
 necessarily amounts to unfairness or inaccuracy at trial or sentencing.

Third, plaintiff argues a statement in 
Blakely 
implies 
Apprendi
’s holding is not a procedural rule. Therefore, plaintiff argues, 
De La Paz 
was incorrectly decided and should be overruled. 
Blakely 
states that the sixth amendment right to trial by jury, which 
Apprendi 
interprets, is “no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” 
Blakely
, 542 U.S. at ___, 159 L. Ed. 2d at 415, 124 S. Ct. at 2538-39. This is a general philosophical statement about the importance of juries as a check on the power of the judicial branch of government. It has nothing to do with the specific legal question whether 
Apprendi 
is procedural, as opposed to substantive, for purposes of retroactivity. Retroactivity was not at issue in 
Blakely
.

In 
Schriro v. Summerlin
, decided the same day as 
Blakely
, retroactivity was at issue. 
Schriro v. Summerlin
, 542 U.S. ___, 159 L. Ed. 2d 442, 124 S. Ct. 2519 (2004). 
Summerlin 
concerned whether 
Ring v. Arizona
, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002), applies retroactively. 
Ring
 had held that 
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. 
Summerlin
 first held 
Ring
’s jury requirement is not a substantive rule because it does not affect the range of conduct that may be punished by death; 
Ring 
only affects who decides whether such conduct occurred. 
Summerlin
, 542 U.S. at ___, 159 L. Ed. 2d at 449, 124 S. Ct. at 2523. Secondly, 
Summerlin
 held 
Ring
 is not so essential to fairness and accuracy to require retroactive application. 
Summerlin
, 542 U.S. at ____, 159 L. Ed. 2d at 451, 124 S. Ct. at 2525. Because 
Ring
 is simply an application of 
Apprendi
, the conclusion that 
Ring
 is not retroactive applies to 
Apprendi
 as well. Thus, contrary to plaintiff’s suggestion, 
De La Paz
 was correctly decided.

In sum, 
De La Paz 
controls this case. The circuit court’s order granting 
habeas corpus
 relief was erroneous and must be reversed. Because of our disposition, we need not address defendant’s alternative argument that an 
Apprendi
 claim is not cognizable in a 
habeas corpus 
proceeding.

Because we reverse the order that released plaintiff, this case presents questions regarding the remainder of plaintiff’s sentence. Plaintiff alleges that his conduct while at liberty establishes that he is rehabilitated. He notes the Illinois Constitution requires that criminal penalties take into account “the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, §11. He argues this constitutional provision requires that he not be reincarcerated. He also suggests public policy forbids reincarcerating a rehabilitated person at further public expense. Plaintiff acknowledges the record is silent regarding his allegation that he is rehabilitated. He requests that we remand the cause to the circuit court with instructions to hold a hearing to determine whether he is rehabilitated.

The parties have addressed plaintiff’s claim, but it is clear the record is insufficiently developed to resolve it, even if it has legal merit. We therefore choose not to address it, and we express no opinion about its merit. Instead, we remand this cause to the circuit court for further proceedings.



CONCLUSION

The new procedural rule announced in 
Apprendi 
does not apply retroactively to cases in which the direct appeal process had concluded when 
Apprendi
 was decided. Therefore, the circuit court erred when it granted plaintiff 
habeas corpus 
relief, and its order is reversed and the cause is remanded to the circuit court for further proceedings.



Reversed and remanded
.



JUSTICE KILBRIDE, dissenting:

For the reasons set forth in my dissent in 
People v. De La Paz
, 204 Ill. 2d 426, 454-55 (2003) (Kilbride, J., dissenting), and my dissent in 
People v. Lee
, 207 Ill. 2d 1, 6-7 (2003) (Kilbride, J., dissenting), I disagree with the majority’s conclusion that the United States Supreme Court holding in 
Apprendi
 does not apply retroactively to cases where the direct appeal process had concluded when 
Apprendi
 was announced. Slip op. at 7. I do not dispute defendant’s underlying guilt of the offenses of armed robbery and armed violence. Rather, I simply disagree with the enhancement of defendant’s sentence based on a sentencing factor that was not proved to the jury beyond a reasonable doubt. It is axiomatic that all essential elements of guilt must be submitted to the trier of fact, for proof beyond a reasonable doubt. See 
De La Paz
, 204 Ill. 2d at 455 (Kilbride, J., dissenting), citing 
In re Winship
, 397 U.S. 358, 361, 25 L. Ed. 2d 368, 373-74, 90 S. Ct. 1068, 1071 (1970) (the “beyond a reasonable doubt” standard is the accepted “ ‘measure of persuasion by which the prosecution must [prove] all the essential elements of guilt,’ ” quoting C. McCormick, Evidence §321, at 681-82 (1954)). I continue to believe that the failure to comply with this basic tenet of constitutional law is an error so injurious to fundamental civil liberty that no sentence imposed in violation of 
Apprendi
 should be upheld. See 
People v. Swift
, 202 Ill. 2d 378, 392 (2002) (an extended-term sentence based on the trial judge’s factual finding that defendant’s crime was brutal and heinous violated 
Apprendi
 and could not stand); 
People v. Thurow
, 203 Ill. 2d 352, 375-78 (2003) (Kilbride, J., dissenting); 
People v. Crespo
, 203 Ill. 2d 335, 349-51 (2001) (Kilbride, J., dissenting). Here, the circuit court of Will County appropriately recognized the applicability of 
Apprendi
, and its ruling holding the statute authorizing Lucien’s extended-term sentence unconstitutional should be upheld. Accordingly, I respectfully dissent.

