Modified 04/04/02

No. 2--00--0789

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

__________________________________________________________________

THE PEOPLE OF THE STATE		)	Appeal from the Circuit Court

OF ILLINOIS,				)	of Du Page County.

						)

	Plaintiff-Appellee,		)

						)	

v.						)	No. 96--CF--498

						)

AUGUSTIN V. ACOSTA,			)	Honorable

						)	Michael J. Burke,

	Defendant-Appellant.	)	Judge, Presiding.

_________________________________________________________________

Modified Upon Denial of Rehearing

	JUSTICE BOWMAN delivered the opinion of the court:

	Following a bench trial, defendant, Augustin Acosta, was found

guilty of first-degree murder (720 ILCS 5/9--1(a)(1), (a)(2) (West

1996)) and subsequently sentenced to natural life imprisonment. 

Defendant appealed, and this court, on February 3, 1998 (People v. Acosta, 294 Ill. App. 3d 1112 (1998) (unpublished order under Supreme Court Rule 23)), affirmed defendant's conviction and

sentence.  On April 14, 1998, we denied defendant's petition for

rehearing.  On March 1, 2000, defendant filed a petition for

postconviction relief.  Following a hearing on the State's motion

to dismiss the petition, the trial court granted the motion and

denied defendant's petition.  This appeal ensued.

	Defendant appeals, contending that (1) section 122--1(c) of

the Post-Conviction Hearing Act (725 ILCS 5/122--1(c) (West 1998)),

which defines the limitations period for filing a postconviction petition, is unconstitutionally vague; (2) the trial court erred in

refusing to grant an evidentiary hearing on the ground that he was

coerced into testifying by his trial defense counsel; and (3) his

natural life sentence is unconstitutional under the holding in

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

	The following facts are substantially in the same form as they

appeared in our Rule 23 order affirming defendant's conviction and

sentence.  The victim, Tyler Lerma-Miller, lived with his mother

Anne Marie Lerma and defendant, Anne Marie's boyfriend.  Tyler was

born on January 23, 1994.  Beginning in February 1996, defendant

occasionally cared for Tyler during the day while Anne Marie

worked.  Over the next month Anne Marie began to notice cuts and

bruises on Tyler.  On the morning of March 8, 1996, Anne Marie left

Tyler with defendant while she was at work.  Before arriving at

work, she called home and defendant told her that Tyler had fainted

while defendant was bathing him.  

	The police officer who responded to the 911 call observed

bruises on Tyler's cheek, neck, chest, arms, and legs.  He also

noticed that Tyler's neck was red and swollen.  The officer

attempted resuscitation, but Tyler exhibited no vital signs.

	The pathologist who performed the autopsy noticed various

bruises on Tyler's body.  He found hemorrhaging around the lungs,

a laceration of the liver, and fractured ribs.  He believed that

the internal injuries were consistent with repeatedly being struck

with a hand or fist.  He considered the cause of death to be

multiple injuries due to multiple blunt force trauma.  

	Defendant, who was 31 years old at the time of trial, admitted

that he struck Tyler in the bathtub that morning but that he did

not intend to hurt him.  He also hit him twice with a plastic

pitcher that was used to rinse Tyler's hair.  Defendant pulled

Tyler out of the tub by his neck but did not choke him.  He carried

Tyler to the couch.  When he came to dress him, he noticed that

Tyler had stopped breathing.

	At the conclusion of the trial, the court found defendant

guilty of first-degree murder.  

	In his first contention, defendant does not dispute that his

postconviction petition was untimely filed but argues that section

122--1(c) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-

-1(c) (West 1998)), which sets forth the limitations period for

filing a postconviction petition, is unconstitutionally vague and,

therefore, the trial court's dismissal of his petition based on its

untimeliness should be reversed.  Defendant admitted in the trial

court that the statutorily prescribed time for the filing of his

postconviction petition had expired at the time his petition was

filed but maintained that the delay in filing was not due to his

culpable negligence.  In this court defendant does not challenge

the trial court's finding regarding the lack of culpable negligence

in timely filing his petition but, instead, for the first time,

challenges the constitutionality of the statute that establishes

the time limitations within which to file a petition. Defendant

acknowledges that he failed to raise this constitutionality claim

in the trial court but correctly asserts that the constitutionality

of a criminal statute may be challenged at any time.  People v. Wright, 194 Ill. 2d 1, 23 (2000).  The constitutionality of a statute is a question of law, which we review de novo.  People v. McClanahan, 191 Ill. 2d 127, 132 (2000).  

	Statutes are presumed to be constitutional, and the party

challenging the constitutionality of a statute has the burden of

establishing that it is invalid. Wright, 194 Ill. 2d at 24.  Due process requires that a statute must not be "so vague" that persons

of common intelligence must necessarily guess at its meaning or

application.  People v. Warren, 173 Ill. 2d 348, 356 (1996).  However, mathematical certainty in language is not required. 

Warren, 173 Ill. 2d at 356.  Further, acts of the legislature must be construed so as to uphold their constitutionality and validity

if it can be reasonably done and, if their construction is

doubtful, the doubt will be resolved in favor of the validity of

the challenged law.  People v. Fisher, 184 Ill. 2d 441, 448 (1998).

	Section 122--1(c) of the Post-Conviction Hearing Act states as

follows:

	"No proceedings under this Article shall be commenced

more than 6 months after the denial of a petition for leave to

appeal or the date for filing such a petition if none is filed

or more than 45 days after the defendant files his or her

brief in the appeal of the sentence before the Illinois

Supreme Court (or more than 45 days after the deadline for the

filing of the defendant's brief with the Illinois Supreme

Court if no brief is filed) or 3 years from the date of

conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his or her

culpable negligence."  725 ILCS 5/122--1(c) (West 1998).

	Defendant contends that this statute is vague and uncertain

and that any person of ordinary intelligence must necessarily guess

at its meaning and differ as to its application.  While we agree

that, given the length of the single sentence formulating section

122--1(c), the provision may not be easy reading, we do not agree

that it is "so vague" that an individual of ordinary intelligence

would be compelled to guess at its meaning or application.

	We pointed out in People v. Hager, 314 Ill. App. 3d 951 (2000), that the limitations periods applicable to the filing of

petitions for postconviction relief are tied to one of the three

specific events set forth in section 122--1(c): (1) the filing or

possible filing of a petition for leave to appeal, (2) the filing

of a brief in an appeal of the sentence to our supreme court, or

(3) the date of conviction.  Hager, 314 Ill. App. 3d at 953.  Each of these events is distinguished from the others in the provision

through the legislature's use of the disjunctive conjunction "or." 

Clearly, any person of ordinary intelligence would recognize that

the use of "or" in section 122--1(c) means that more than one

possibility exists for the timing of the filing of a postconviction

petition.  Furthermore, section 122--1(c) makes it clear that

different time periods exist as to each event, i.e., within 6 months of the denial of a petition for leave to appeal or the due

date of such a petition if none is filed, within 45 days from the

filing of the defendant's brief where the appeal is taken by our

supreme court (or the due date of the brief if none is timely filed), or 3 years from the defendant's conviction.  The provision

further dictates, in stating "whichever is sooner," that it is the

earliest of the three specified events to occur that constitutes

the "triggering" date for the running date of the applicable time

period and determines whether a petition is timely.  See Hager, 314 Ill. App. 3d at 954-55.

	Although defendant maintains that setting forth a "myriad of

filing deadlines" in section 122--1(c) has created a complex and

ambiguous statute, we believe, conversely, that in wording the

statute as it has the legislature has not created a complex and

ambiguous provision.  Rather, it has addressed every possible

postconviction means of appeal that a defendant might elect to

follow, including the decision not to appeal, and set forth the

specific time period that applies in each instance.  As the

reviewing court in People v. Reed, 302 Ill. App. 3d 1007 (1999), recognized, a "logical relationship" exists among the three

limitation periods provided in the statute:

"The six-month limitation applies when there has been an

appeal to the appellate court, which triggers 'a denial of a

[petition for leave to appeal] or the date for filing such.' 

The 45-day period applies to cases going directly to our

supreme court (e.g., a capital case) or in cases where a [petition for leave to appeal] is granted.  Finally, the

provision limiting postconviction petitions to within three

years of the date of conviction applies to all other cases,

i.e., such as the instant matter where no appeal was taken.  Thus, each possible postconviction avenue of appeal (including the decision not to appeal) is provided for under the Act with

its own discrete and specific time limit for a postconviction

petition."  Reed, 302 Ill. App. 3d at 1009.

	Defendant maintains that, because this court in Hager construed the limitations periods in section 122--1(c) differently

than the Appellate Court, Fourth District, did in People v. Ivy, 313 Ill. App. 3d 1011 (2000), we must conclude that the statute is

unconstitutionally vague.  We disagree.  In Ivy, the defendant filed his postconviction petition within six months of the

appellate court's decision affirming the denial of his motion for

reconsideration of his sentence but more than three years after his

conviction.  The Fourth District determined that defendant's

petition was timely because he was not required to file the

petition until his direct appeal was resolved, even if the direct

appeal process extended more than three years past the date of

conviction.  Ivy, 313 Ill.  App. 3d at 1016.  In Hager we disagreed with this conclusion, pointing out that "[s]uch a conclusion is

contrary to the plain language of the Act" and that, if the

legislature had intended this conclusion, it would have provided

that it was the last of the specified events to occur that triggers

the running of the limitations period rather than the earliest. 

Hager, 314 Ill. App. 3d at 954.

	The Fourth District's interpretation of section 122--1(c) in Ivy does not establish that the provision is ambiguous but, rather, as the State points out, evinces the reviewing court's

understanding of the scope and purpose of the Act.  An action for

postconviction relief is a collateral proceeding rather than an appeal from the underlying conviction and sentence.  People v. Edwards, 195 Ill. 2d 142, 155 (2001).  The Act contains no provision barring a trial court from considering a postconviction

petition while a defendant's direct appeal is pending.  People v. Williams, 308 Ill. App. 3d 567, 570 (1999).  However, the court's conclusion in Ivy would imply just the opposite.  We agree with the State that the difference in our interpretation of section 122--

1(c) in Hager and that of the Fourth District in Ivy does not evidence that the provision is unconstitutionally vague but only

that the Fourth District in reaching its determination misconceived

the purpose of the Act.  

	We note that defendant complains that the applicable

triggering date set forth in section 122--1(c) can be discerned

only by referring to the supreme court rules pertaining to the

deadlines for the filing of petitions for leave to appeal and

briefs and that section 122--1(c) fails to direct the reader to the

specific citation for these rules.  However, it is well established

that a defendant is presumed to know the law and that ignorance of

it is no excuse (People v. Terneus, 239 Ill. App. 3d 669, 672 (1992)), and we are in accord with the State's position that this

same principle should be equally applicable to the supreme court

rules.

	We conclude that section 122--1(c) is not unconstitutionally

vague.  We find, therefore, that the trial court's dismissal of

defendant's postconviction petition based on its untimeliness was

proper.  Defendant's appeal was decided on February 3, 1998.  His

subsequent petition for rehearing was denied on April 14, 1998.  He had 21 days from the denial of his petition for rehearing, or until May 4, 1998, to file a petition for leave to appeal with the

supreme court, which he did not file.  He then had six months from

that date, or until November 4, 1998, to file his petition for

postconviction relief.  However, defendant did not file his

petition until March 1, 2000, well beyond the applicable

limitations period set forth in section 122--1(c) and, thus, it was

untimely filed.  

	Because of our determination that the defendant's petition was

untimely, we need not reach his issue regarding whether this cause

should be remanded for an evidentiary hearing.  Instead, we proceed

directly to consideration of defendant's last issue.

	In his last contention defendant argues that, under the United

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

sentence, imposed pursuant to section 5--8--1(a)(1)(b) of the

Unified Code of Corrections (Code) (730 ILCS 5/5--8--1(a)(1)(b)

(West 1996)), was unconstitutional.  In Illinois the statutory

maximum prison sentence for first-degree murder is 60 years.  730

ILCS 5/5--8--1(a)(1)(a) (West 1996).  In imposing the natural life

sentence, the trial court relied in part on its finding that the

murder was accompanied by exceptionally brutal and heinous behavior

indicative of wanton cruelty.  Defendant asserts that under

Apprendi any fact that increases a sentence beyond the prescribed statutory maximum for an offense must be submitted to a jury and

proved beyond a reasonable doubt.  Because such was not the

situation here, defendant maintains that he was denied due process of law and that, therefore, his sentence should be modified to 60

years' imprisonment, the maximum allowable for his murder

conviction.  

	The State initially responds that defendant has waived any

challenge under Apprendi to his natural life sentence because he failed to raise the issue in his postconviction petition.  However,

the constitutional dimension of defendant's issue allows us to

relax the waiver rule and address it.  People v. Wooters, 188 Ill. 2d 500, 510 (1999).  Accordingly, we reject the State's waiver

argument.

	Additionally, the State contends that the rule announced in

Apprendi does not apply retroactively to permit a collateral attack on a conviction and sentence that were final before Apprendi was decided.  This issue has been previously addressed by the appellate

court with varying results.  See, e.g., People v. Rush, 322 Ill. App. 3d 1014, 1027 (2001); People v. Beachem, 317 Ill. App. 3d 693, 706 (2000) (Apprendi does apply retroactively to the review of a timely postconviction petition); People v. Helton, 321 Ill. App. 3d 420, 422 (2001); People v. Kizer, 318 Ill. App. 3d 238, 252 (2000) (Apprendi does not apply retroactively to the review of a timely postconviction petition).  However, none of the foregoing cases

addressed whether Apprendi applies to an untimely petition, and here, as determined above, we are dealing with an untimely

petition.  In People v. Jones, 321 Ill. App. 3d 515 (2001), the reviewing court determined that Apprendi did not apply to an untimely, successive petition.  Jones, 321 Ill. App. 3d at 523.  The court held that Apprendi cannot be used to resurrect an otherwise procedurally barred postconviction petition.  Although

the defendant's postconviction petition in Jones was his sixth petition, we believe the court's rationale still applies here,

where defendant's petition was untimely.  We find, therefore, that

where it has been determined that a postconviction petition is

procedurally barred because of its untimeliness, Apprendi does not apply.  

	Moreover, in instances where a defendant’s postconviction

petition is both untimely and its tardiness is not excused, we

believe Apprendi should not apply.  Here, defendant's petition was untimely filed and the trial court determined that defendant failed

to show that he was not culpably negligent for its tardiness. 

Accordingly, we find that Apprendi does not apply retroactively to defendant's untimely filed postconviction petition.  We find

support for our determination in this court’s very recent decision

in People v. McGee, No. 2--01-0299 (_________ __April 8, 2002).  In McGee we found that Apprendi does not apply retroactively to cases on collateral review.  McGee, slip op. at ____11.   Therefore, whether defendant’s petition was untimely or timely filed, Apprendi did not apply to the petition.   Consequently, under both our conclusion

here and that reached by this court in McGee, we need not address whether the holding in Apprendi rendered unconstitutional defendant’s natural life sentence entered pursuant to section 5--8-

-1(a)(1)(b) of the Code.

	Defendant also argues, however, that, even if he is not

entitled to Apprendi relief due to the untimeliness of his postconviction petition, the portion of his sentence in excess of 60 years, i.e., the extended term, was void, as it was based on a crime, “an aggravated crime of murder,” that did not exist. 

Defendant asserts that, because a void sentence may be challenged

at any time, the timing of his petition is irrelevant.

	A void judgment is one entered by a court that lacks

jurisdiction over the parties or the subject matter, or that lacks

the inherent power to enter the order.  People v. Wade, 116 Ill. 2d 1, 5 (1987).  At the time defendant was sentenced, the sentencing

guidelines allowed the trial court to sentence a person to an

extended term if the court determined the offense was accompanied

by exceptionally brutal or heinous behavior indicative of wanton

cruelty.  730 ILCS 5/5--5--3.2 (b)(2) (West 1996).  In imposing a

sentence of natural life imprisonment on defendant, the court made

such a determination.  Thus, in sentencing defendant to an

extended-term sentence, the court was not basing the sentence on a

crime that did not exist, as defendant claims, but was acting

within the authority allowed by the sentencing guidelines.

Defendant’s sentence, therefore, was not void.	

	Based on the reasons set forth above, we affirm the judgment

of the circuit court of Du Page County dismissing defendant's

postconviction petition.

	Affirmed.

	HUTCHINSON, P.J., and GEIGER, J., concur.