
SECOND DIVISION

          March 30, 2001	









No. 1-97-1299



THE PEOPLE OF THE STATE OF ILLINOIS,



Respondent-Appellee,



v.



ANTHONY JONES a/k/a Tonya Star,



Petitioner-Appellant.

)))))))))

Appeal from the

Circuit Court of

Cook County







Honorable

Thomas M. Davy,

Judge Presiding.





JUSTICE McBRIDE delivered the opinion of the court:

In April of 1987, petitioner Anthony Jones was found guilty by a jury of the murder of his 93-year-old great-grandmother Estella Small and the aggravated battery of Ms. Small's 61-year-old caregiver, Dorothy Hill. Jones was sentenced to an extended term of 80 years' imprisonment for the murder and a concurrent term of 5 years for the aggravated battery.  These judgments were affirmed on direct appeal by this court in an unpublished order.  
People v. Jones
, 187 Ill. App. 3d 1123 (1989).

Since that order was entered Jones has sought post conviction relief on more than one occasion pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 
et seq. 
(West 1998)).  

Two of Jones' post conviction challenges have been unsuccessful on appeal to this court, 
People v. Jones
, No. 1-95-0207 (1995) (unpublished order under Supreme Court Rule 23), and 
People v. Jones
, No. 1-96-2486 (1996) (unpublished order under Supreme Court Rule 23).  In one of those orders, No. 1-95-0207, this court found the previous petition untimely.

The current appeal stems from the dismissal of what Jones and the respondent (State) both agree is Jones' sixth post conviction petition.  The subject petition, dated January 7, 1997, was filed on January 29, 1997.  On January 31, 1997, the trial judge dismissed the petition on grounds that the circuit court lacked jurisdiction because one of petitioner's previous post conviction petitions was still pending on appeal at the time of the filing of the instant petition.

Neither Jones nor the State has specifically addressed the grounds upon which the trial judge dismissed the petition.  Instead both have proceeded under
 the theory that the petition was dismissed without an evidentiary hearing because it failed to allege the gist of a constitutional claim.

As noted earlier, the current petition represents Jones' sixth effort at post conviction relief.  The 
pro se
 petition alleges that numerous errors occurred during Jones' trial.  Jones also filed a memorandum of law in support of his claims.  We will discuss only those claims that are raised by Jones in this appeal.  
People v. Coleman
, 183 Ill. 2d 366, 378, 701 N.E.2d 1063, 1070 (1998).

Jones contends that the trial court improperly dismissed the petition without an evidentiary hearing. He argues that although his petition was untimely, and  successive, fundamental fairness requires an evidentiary hearing and appointment of counsel on this sixth petition because it stated the gist of a substantial constitutional claim.  More specifically, Jones claims that the trial court violated his constitutional rights when it failed to conduct a fitness hearing based upon his alleged ingestion of the psychotropic drug Haldol at or near the time of his trial and sentencing.  Jones also claims his appointed post conviction counsel was ineffective because the attorney never amended a previous petition to include the issue of fitness to stand trial based upon his ingestion of psychotropic medications.  Thus, Jones claims he was entitled to an evidentiary hearing. For this proposition he relies primarily on 
People v. Neal
, 179 Ill. 2d 541, 689 N.E.2d 1040 (1997).

The State cites numerous reasons for affirming the dismissal of the sixth petition, but does not discuss the reason given by the trial judge as the basis for the dismissal.  The State argues that the sixth petition is untimely and that Jones has not alleged facts demonstrating his lack of culpable negligence.  Citing 
People v. Whitehead
, 169 Ill. 2d 355 (1996), and 
People v. Coleman
, 168 Ill. 2d 509 (1995) the State additionally argues that principles of waiver and 
res judicata
 bar consideration of the issues because Jones could have raised the question of fitness with medication in the prior petitions.  The State further argues that Jones' allegations that he was taking Haldol at or near the time of trial or sentencing are not supported by the medical records he relies upon and that fundamental fairness does not dictate a relaxation of the waiver rule in this particular case given these particular facts.  Although neither Jones nor the State has addressed the trial court's reasons for dismissing the petition, we believe the trial court could have properly dismissed Jones' petition where a previous post conviction petition had not yet been resolved.  See 
People v. Lieberman
, 186 Ill. App. 3d 277, 281, 542 N.E.2d 894 (1989).  We note that the record before us does not indicate whether a previous petition was pending when Jones filed this current petition.  Additionally, because the parties have fully briefed the issues and both sides agree that the petition was dismissed without an evidentiary hearing, we will address the merits of this appeal.  

We agree with the State that Jones' claims are barred because the petition is untimely, that the fitness issue raised in this sixth petition is barred by principles of waiver and 
res judicata
, that Jones' claim he was taking psychotropic drugs at the time of his trial and sentencing is not supported by the record, and that fundamental fairness would not suggest a relaxation of those rules in this particular case so as to permit consideration of any of Jones' claims.  
People v. Flores
, 153 Ill. 2d 264, 606 N.E.2d 1028 (1992).  However, we also conclude that neither of the issues raised by Jones amounts to a cognizable constitutional claim.  Several recent decisions by our supreme court have resolved the fitness issue so we will address that question first.

In a series of decisions beginning with 
People v. Mitchell
, 189 Ill. 2d 312, 727 N.E.2d 254 (2000), the supreme court held that an allegation the trial court violated petitioner's due process rights when it failed to conduct a fitness hearing based upon petitioner's ingestion of psychotropic drugs is not a cognizable constitutional claim in a post conviction proceeding.  
Mitchell
, 189 Ill. 2d at 328-29.  In 
Mitchell
, our supreme court stated:

"Due process does not require that everyone taking 'psychotropic or other medication' under medical direction should be granted a fitness hearing.  Section 104-21(a)'s provision is merely a statutory right granted by the legislature -- a right that the legislature has now taken away.  See 725 ILCS 5/104-21(a) (West 1998).  Statutes do not confer constitutional rights, and the allegation of a deprivation of a statutory right is not a proper claim under the [Post-Conviction Hearing] Act."  
Mitchell
, 189 Ill. 2d at 329.

In 
People v. Jones
, 191 Ill. 2d 194, 730 N.E.2d 26 (2000), the court reiterated 
Mitchell
's holding that the trial court's failure to conduct a fitness hearing after an allegation of petitioner's ingestion of psychotropic drugs at the time of trial is not a cognizable constitutional deprivation for purposes of post conviction review.  
Jones
, 191 Ill. 2d at 199.  

In a subsequent case also entitled 
People v. Jones
, 191 Ill. 2d 354, 732 N.E.2d 573 (2000), the supreme court once again relied upon its reasoning in 
Mitchell
 and concluded that petitioner's claim he was denied due process because of the trial judge's failure to conduct a fitness hearing based upon petitioner's ingestion of psychotropic drugs at the time of his plea and sentencing was procedurally barred because such claim was not cognizable in post conviction proceedings.  
Jones
, 191 Ill. 2d at 359.

Accordingly, we find Jones has failed to present a constitutional-deprivation claim based upon his allegation that he did not receive a fitness hearing at the time of his trial and sentencing.  Although the failure to allege a constitutional deprivation was not the reason the trial court dismissed Jones' most recent petition, we may sustain the order on appeal for reasons other than those given by the trial court.  
People v. Lieberman
, 186 Ill. App. 3d at 282.

Jones next claims that he raised the gist of a constitutional claim because post conviction counsel failed to amend one of Jones' previous post conviction petitions to include the allegations of unfitness due to the ingestion of psychotropic medication at or near the time of trial and sentencing.  Although Jones concedes he is only entitled to a reasonable level of assistance of counsel at post conviction proceedings, he contends that his post conviction counsel's failure to amend the petition to allege unfitness was less than a reasonable level of representation and therefore created a constitutional claim.  We disagree and find that Jones has failed to allege a constitutional deprivation on this question as well.  Allegations by a petitioner of the failure of post conviction counsel to provide reasonable assistance at a prior post conviction proceeding do not present a constitutional basis upon which relief can be granted under the Post-Conviction Hearing Act.  See 
Flores
, 153 Ill. 2d at 276 (holding that the right to reasonable level of assistance at post conviction level is statutory and not derived from either federal or state constitution; thus, claims of ineffective assistance of post conviction counsel at a prior post conviction proceeding do not amount to a constitutional claim upon which relief may be granted under the Act).  
Flores
 also pointed out that the Act provides a forum to address claims of a constitutional magnitude which occurred in the proceeding which resulted in the petitioner's conviction.

"The Act, does not, however, provide a forum to test the propriety of conduct at an earlier post conviction proceeding.  Thus, where a petitioner files a second or subsequent post conviction petition wherein he claims ineffective assistance in his first post conviction proceeding, consideration of those claims is beyond the scope of the Act."  
Flores
, 153 Ill. 2d. at 277.

Therefore, we hold that Jones has failed to allege the gist of a constitutional claim by the allegation that his post conviction counsel was ineffective or, more precisely, did not provide the requisite reasonable level of assistance by failing to amend a previous petition to include the allegation of unfitness due to the ingestion of psychotropic drugs at or near the time of the trial and sentencing.  Morever, because such allegations did not occur in the proceedings which resulted in Jones' conviction, they are beyond the scope of the Act.  
Flores
, 153 Ill. 2d at 276-77.

Jones also asks the court to allow the appointment of counsel on his "untimely" and "successor" petition, on grounds of fundamental fairness.  Before considering the fundamental fairness question, we point out that this is by Jones' own admission his 
sixth
 post conviction petition and that the Post-Conviction Hearing Act contemplates the filing of only one petition.  
Flores
, 153 Ill. 2d at 273; 
People v. Free
, 122 Ill. 2d 367, 375, 522 N.E.2d 1184 (1988).

Section 122-3 of the Act provides that "[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived."  725 ILCS 5/122-3 (West 1998).  "Furthermore, a ruling on an initial post conviction petition has 
res judicata
 effect with respect to all claims that were raised or could have been raised in the initial petition.  [Citations.] As a consequence, a defendant faces a daunting procedural hurdle when bringing a successive post conviction petition."  
Jones
, 191 Ill. 2d at 198, 738 N.E.2d at 28.  

As the 
Flores
 court noted: 

"The filing of successive post conviction petitions sets up two competing interests.  On the one hand, there is the State's interest in providing a forum for the vindication of petitioner's constitutional rights.  On the other hand, the State has a legitimate interest in the finality of criminal litigation and judgments.  'Without finality, the criminal law is deprived of much of its deterrent effect.' (
Teague v. Lane
 (1989), 489 U.S. 288, 309, 103 L. Ed. 2d 334, 355, 109 S. Ct. 1060, 1074.)"  
Flores
, 153 Ill. 2d at 274, 606 N.E.2d at 1083. 

 	Although the procedural bars of waiver and 
res judicata
 generally contribute to the finality of criminal litigation, where fundamental fairness so requires, strict application of these procedural laws has been relaxed.  
Flores
, 153 Ill. 2d at 274.  Thus, 
the court has permitted defendants to file a successive petition when 
the proceedings on the initial petition are deficient in some fundamental way.  
People v. Holman
, 191 Ill. 2d 204, 730 N.E.2d 39 (2000).  Nonetheless, we do not have to consider whether fundamental fairness would allow relaxation of procedural bars where those claims are not cognizable constitutional deprivations.  See 
Jones
, 191 Ill. 2d at 359.

Moreover, because post conviction relief extends only to deprivations of constitutional rights that occurred at the proceedings which resulted in Jones' conviction and because Jones has not raised any constitutional claim in his latest post conviction petition, he cannot show that any of the previous post conviction proceedings were deficient in some fundamental way.  Accordingly, we hold that Jones is procedurally barred from bringing this petition on the fitness issue and the question of post conviction counsel's failure to amend a previous petition. 

While this appeal was pending the United States Supreme Court decided 
Apprendi v. New Jersey
, 530 U.S. ___, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  Jones then asked and was granted leave to cite 
Apprendi
 as supplemental authority, arguing that the decision should apply retroactively to his sixth post conviction petition. 

The United States Supreme Court in 
Apprendi
 held that "'under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, 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).

Jones contends that 
Apprendi
 renders his 80-year extended-term sentence unconstitutional.  In response the State argues that Jones' sentence is not unconstitutional under 
Apprendi
 and that 
Apprendi
 does not apply retroactively to cases on review from the dismissal of a post conviction petition.  

Since the 
Apprendi
 decision was handed down several divisions of the First District have considered whether 
Apprendi
 applies retroactively to cases on collateral review.  The third
 division of the First District in 
People v. Beachem
, 317 Ill. App. 3d 693 (2000), concluded that 
Apprendi
 applies retroactively to a timely filed post conviction petition.  
Beachem
, 317 Ill. App. 3d at 703-04.  In 
People v. Kizer
, 318 Ill. App. 3d 238 (2000) the first division of the First District held that 
Apprendi
 does not apply retroactively to cases on collateral review.  Both 
Kizer
 and 
Beachem
 reviewed the same question but came away with different conclusions.  Both opinions analyzed 
People v. Flowers
, 138 Ill. 2d 218, 561 N.E.2d 674 (1990).

In 
Flowers
, our supreme court determined the circumstances in which new constitutional rules could be retroactively applied to cases on collateral review.  Pointing out that petitions filed under our Post-Conviction Hearing Act are similar to 
habeas corpus
 proceedings, the court looked at 
Teague v. Lane
, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989).  
Teague
 pronounced the rule that decisions establishing new constitutional rules of criminal procedure are generally not applied retroactively to cases pending on collateral rule unless the new rule either places " 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe' [citation]" or "requires the observance of 'those procedures that ... are "implicit in the concept of ordered liberty" ' [citations]."  
Teague
, 489 U.S. at 311, 103 L. Ed.2d at 356, 109 S. Ct. at 1075-76. 

The question at issue in 
Flowers
 was whether the court's decision in 
People v. Reddick
, 123 Ill. 2d 184, 526 N.E.2d 141 (1988), should be applied retroactively to cases on collateral review.  The 
Reddick
 decision essentially changed the law with regard to the burden of proof and the elements of voluntary manslaughter.  After applying 
Teague
 to the court's previous decision in 
People v. Reddick
, the 
Flowers
 court declined to 
retroactively apply 
Reddick
 to cases on collateral review.  In reviewing 
Reddick
 under the constraints of 
Teague
, our supreme court concluded that the first exception to the general rule did not apply and the second
 exception would not permit the 
Reddick
 decision to be applied retroactively to cases on collateral review because 
Reddick
 did not establish such a basic component of due process so as to fall within the second 
Teague
 exception.  
Flowers
, 138 Ill. 2d at 242. 

Kizer
 reviewed the holding in 
Flowers
 while pointing out how narrowly our supreme court has interpreted the exceptions to the 
Teague
 decision.  The 
Kizer
 court then concluded that 
Apprendi
 does not retroactively apply to the review of post conviction petitions.  
Kizer
, 318 Ill.App.3d at 252.    

The 
Beachem
 court, in reaching a conclusion opposite to 
Kizer
, distinguished 
Flowers
 in the following way:

"In 
Flowers
, the Illinois Supreme Court held 
People v. Reddick
, 123 Ill. 2d 184, 526 N.E.2d 141 (1988), did not apply to cases on collateral review.  The 
Reddick
 court had found unconstitutional jury instructions which erroneously stated the burden of proof for voluntary manslaughter mitigating mental states.  The 
Flowers
 court recognized 
Reddick
 involved a 'grave' jury instruction error 'of constitutional dimension' (
Flowers
, 138 Ill. 2d at 236-37), but declined to place a 
Reddick
 error within 
Teague
's second exception: '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.

Reddick
 discussed the constitutional obligation of the jury to follow the trial judge's instructions (see 
People v. Jenkins
, 69 Ill. 2d 61, 66-67, 370 N.E.2d 532  (1977)), but, unlike *** 
Apprendi
, it did not implicate the right to a jury verdict beyond a reasonable doubt and, consequently, the fundamental fairness and accuracy concerns inherent in the second 
Teague
 exception.

Apprendi
 tells us we deal with 'constitutional protections of surpassing importance.'  
Apprendi
, 530 U.S. at ___, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355.  The reasonable doubt standard 'reflect[s] a profound judgment about the way in which law should be enforced and justice administered.'  
Apprendi
, 530 U.S. at ___, 147 L. Ed. 2d at 447-48, 120 S. Ct. at 2356, quoting [
In re Winship
, 397 U.S. 358, 361-62, 25 L. Ed. 2d 368, 374, 90 S. Ct. 1068, 1071 (1970).]  Our jury tradition is 'an indispensable part of our criminal justice system.'  
Apprendi
, 530 U.S. at ___, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366.  How, then, could we say we do not deal with procedures that are implicit in the concept of ordered liberty?  Have we not reached 'bedrock'?"  
Beachem
, 317 Ill. App. 3d at 704-06.

Relying on 
Kizer
, we recently held in 
People v. Scullark
, No. 1-99-1722, slip op. at 29 (March 13, 2001), that 
Apprendi
 claims are not cognizable on post conviction review.  Neither 
Beachem
, 
Kizer
, nor 
Scullark
 addressed whether 
Apprendi
 applies to an untimely successive post conviction petition since each of those decisions involved timely filed post conviction petitions.  We adopt the reasoning of 
Kizer
 and 
Scullark
 and conclude that 
Apprendi
 does not apply to an untimely, successive post conviction petition.  In the instant case we have found that Jones' sixth petition is procedurally barred for the reasons that we have outlined above.  We further hold that 
Apprendi
 cannot be used to resurrect an otherwise procedurally barred successive post conviction petition.

Accordingly, the judgment of the trial court dismissing Jones' post conviction is affirmed.

Affirmed.

McNULTY, P.J., and COUSINS, J., concur.

