FIFTH DIVISION

								          April 19, 2002 

1-00-4065

THE PEOPLE OF THE STATE OF ILLINOIS,	) Appeal from the

								) Circuit Court of

		Plaintiff-Appellee,			) Cook County.	

								)

			v.					)

								)

ANTHONY TOMASELLO,					) Honorable

								) Thomas R. Sumner,

		Defendant-Appellant.		) Judge Presiding.

	JUSTICE QUINN delivered the opinion of the court:

	Following a bench trial, defendant Anthony Tomasello was

convicted of three counts of aggravated criminal sexual assault

and was sentenced to three consecutive 15-year prison terms.  His

convictions and sentence were affirmed on direct appeal.  People v. Tomasello, No. 1-98-4211 (2000) (unpublished summary order under Supreme Court Rule 23).  Defendant subsequently filed a pro se petition for relief under the Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 et seq. (West 2000)), which was summarily dismissed by the trial court.  Defendant

appeals, contending that his pro se petition set forth the gist of a meritorious claim based upon Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  For the

reasons set forth below, we affirm the judgment of the trial court.

BACKGROUND

	Defendant was convicted of three counts of aggravated

criminal sexual assault under section 12-14(b)(ii) of the

Illinois Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-

14(b)(ii) (West 1996)).  Defendant had sexually assaulted the

victim, a 10-year-old boy, while the child was in his backyard. 

In our January 14, 2000, summary order affirming defendant's

conviction and sentence, we rejected his claim that his sentence

was excessive given his age, background and the circumstances

surrounding commission of the crimes.  

	On August 8, 2000, defendant's pro se petition for postconviction relief was filed with the circuit court.  In his

petition, defendant stated that he was sentenced to consecutive

sentences on his aggravated criminal sexual assault convictions

based upon the sentencing court's finding that the crimes were

committed as part of a single course of conduct during which

there was no substantial change in the nature of the criminal

objective.  He likened his consecutive sentences to an enhanced

sentence and claimed that section 5-8-4(a) of the Illinois

Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5-

8-4(a) (West 1996)), the section under which he was sentenced,

was unconstitutional based upon the Supreme Court's Apprendi decision.  

	Quoting some select phrases from his sentencing hearing, defendant further alleged that although he did not receive an

extended-term sentence, the sentencing court found that he was

eligible for a 120-year term based upon the victim's age.1  Again relying on Apprendi, defendant asserted that the sentencing court was without authority to impose an enhanced sentence based upon a

determination as to the victim's age, where that basis was not

pleaded in the indictment, submitted to the jury or proved beyond

a reasonable doubt at trial. 

	His third basis for relief in his petition was that his due

process rights were violated when Joe Pence, a fellow detainee at

the Audy Home, was allowed to testify at defendant's sentencing

hearing.  According to defendant's petition, Pence testified that

he had heard defendant proposition a resident at the Audy Home

for sex and that defendant had attempted to sexually assault

Pence.  Attached to defendant's petition was the affidavit of

Steven Hunter, defendant's attorney at trial, who averred that he

had inadequate information relating to the alleged sexual assault

on Pence to enable him to subpoena police reports relating to the

incident.  Hunter further averred that he was surprised by Pence's testimony and that, because Pence was himself a detainee-

at the Audy Home, Hunter was unable to interview him.

	In a written order, the trial court summarily dismissed

defendant's petition.  As relevant to this appeal, the trial

court held that the Apprendi decision was not applicable in a postconviction proceeding.  The trial court also held that

pursuant to section 5-5-3.2(c) of the Code of Corrections (730

ILCS 5/5-5-3.2(c) (West 1996)), defendant was indeed eligible for

an extended-term sentence premised upon the victim's age.  The

trial court then held that defendant's claim that the judge "was

mistaken when he stated that [defendant] was eligible for an

extended term sentence" was waived.  Citing People v. French, 210 Ill. App. 3d 681, 688-89 (1991), the trial court stated that the

propriety of defendant's sentence was premised upon the record at

the sentencing hearing and, thus, defendant's failure to raise

the issue on direct appeal precluded consideration of it in a

postconviction petition.  Defendant now appeals.

ANALYSIS    

	Defendant's sole contention on appeal is that the trial

court erred when it summarily dismissed his postconviction

petition wherein he alleged the gist of a meritorious claim based

upon the sentencing court's finding that he was subject to an

extended-term sentence due to the victim's age.  Because this

claim is premised upon Apprendi, defendant argues that the trial court erred when it found the issue could have been brought on direct appeal.  This is because this court decided his appeal

some six months before the Supreme Court rendered its decision in Apprendi. 

	The Post-Conviction Act provides a remedy for a criminal

defendant who can establish a substantial deprivation of his

constitutional rights at trial.  People v. Brisbon, 164 Ill. 2d 236, 242 (1995).  A court may summarily dismiss the petition

without appointing counsel if it determines that the petition is

frivolous or patently without merit.  725 ILCS 5/122-2.1 (West

2000).  In determining whether the summary dismissal was correct,

we review the allegations in the petition de novo.  People v. Coleman, 183 Ill. 2d 366, 388-89 (1998). 

	On appeal, defense counsel concedes that our supreme court

has held that the holding in Apprendi is not violated by the imposition of consecutive sentences, where each separate sentence

is within the applicable statutory limit for the particular

offense.  See People v. Wagener, 196 Ill. 2d 269, 287-88 (2001).  Defense counsel also concedes that defendant's 15-year sentence

on each count of aggravated criminal sexual assault is within the

applicable statutory limit for that offense.  

	Defense counsel bases his appeal on several cases where this

court has held that a defendant must be resentenced where the

record shows that the trial court erroneously thought the

defendant was eligible for an extended term sentence, even in

those instances where the trial court did not impose an extended- term sentence.  People v. Ruiz, 312 Ill. App. 3d 49, 58 (2000); People v. Hausman, 287 Ill. App. 3d 1069, 1072 (1997); People v. Sims, 265 Ill. App. 3d 352, 365-66 (1994).

	We first note that the sentencing court's alleged statement

that defendant could be sentenced to up to 120 years'

imprisonment was correct.  Aggravated criminal sexual assault is

a Class X felony (720 ILCS 5/12-14(d)(West 1996)), which allows

for a prison term of not less than 6 years and not more than 30

years (730 ILCS 5/5-8-1(a)(3)(West 1996)).  Based upon the

victim's age, an extended term for defendant's Class X felony

convictions is not less than 30 years and not more than 60 years

(730 ILCS 5/5-8-2(b)(2) (West 1996)).  Having determined

defendant's three offenses were committed as part of a single

course of conduct, consecutive sentences on the three counts were

mandatory pursuant to section 5-8-4(a) (730 ILCS 5/5-8-4(a) (West

1996)).  See People v. Curry, 178 Ill. 2d 509, 538 (1997).  Defendant's consecutive sentences implicated section 5-8-4(c)(2)

of the Code of Corrections, which , at the time he commiteted the

offenses, provided:provides: 

		"t[T]he aggregate maximum of consecutive sentences

imposed for offenses that were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective shall not exceed the sum of the maximum terms

authorized under Section 5-8-2 for the 2 most

serious felonies involved."  730 ILCS 5/5-8-

4(c)(2) (West 1996).

Thus, as defendant could be sentenced to consecutive 60-year prison terms for two of the convictions, defendant could have

been sentenced to up to 120 years in prison.  See People v. Pullen, 192 Ill. 2d 36, 42 (2000).  

	We note that all of the cases cited by the defense involved

instances where the trial court's admonishments were erroneous. 

Here, the admonishments were correct.  Further, all of

defendant's cases predate the holding in Apprendi and our supreme court's holding in Wagener.  Consequently, we find defendant's cases to be inapplicable.  Our supreme court has also rejected

challenges to consecutive sentences based on Apprendi in People v. Carney, 196 Ill. 2d 518 (2001), and People v. Rogers, 197 Ill. 2d 216 (2001).  In Rogers, the court affirmed consecutive sentences upon convictions of criminal sexual assault.  In

Carney, the court affirmed consecutive sentences under section 5- 8-4(a) of the Code of Corrections, the same statutory subsection

relied upon by the trial court in this case.

	We reject defendant's argument that the assertion in his

postconviction petition that the sentencing court's admonishment

that he was eligible for an extended term of up to 120 years

under section 5-8-4(c)(2) constitutes a separate basis upon which

we may grant relief.  As our supreme court has held that the

holding in Apprendi is not violated by the imposition of consecutive sentences where each separate sentence is within the

applicable statutory limit for that offense, and where the

sentences in this case are clearly within that limit, our analysis ends.  In the factually similar case of Rogers, our supreme court rejected the defendant's argument that his

consecutive sentences violated Apprendi, citing the holdings in Wagener and Carney.  The court continued: "The defendant cannot raise this nonmeritorious constitutional issue in a post-

conviction context.  See 725 ILCS 5/122-1 (West 1998).  We do not

decide, however, whether a meritorious Apprendi issue is cognizable in a post-conviction proceeding, i.e., whether Apprendi applies retroactively to cases on collateral review."  Rogers, 197 Ill. 2d at 224 n.3.

	We also reject defendant's argument that the indictment in

this case was violative of Apprendi for failure to charge that the victim was under 12 years of age.  This rejection is based on

the holding of our supreme court in People v. Ford, 198 Ill. 2d 68 (2001), where it stated:

		"Defendant also suggests that, under

Apprendi, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be charged in the indictment. 

However, the Court in Apprendi specifically declined to address the indictment question,

noting that (1) Apprendi did not assert a

constitutional claim based upon the

indictment's failure to charge the

extended-term sentencing factors, and (2) the due process clause of the fourteenth

amendment, upon which Apprendi exclusively relied, has never been construed to make the

fifth amendment right to "'presentment of a

Grand Jury'" applicable to the states. 

Apprendi, 350 U.S. at 477 n.3, 147 L. Ed. 2d at 447 n.3, 120 S. Ct. at 2355 n.3."  Ford, 198 Ill. 2d at 72 n.1.  

	Our holding is also supported by the holding in People v. Davis, No. 89704 (February 22, 2001).  There, our supreme court rejected the defendant's argument that under Apprendi, his indictment was flawed because it did not set forth all of the

elements of the crime.  Specifically, the supreme court stated:

		" 'When an indictment or information is

attacked for the first time on appeal, it is

sufficient that the indictment or information 

'apprised the accused of the precise offense

charged with sufficient specificity to

prepare his defense and allow pleading a

resulting conviction as a bar to future

prosecution arising out of the same

conduct.'' People v. Thingvold, 145 Ill. 2d 441, 448 (1991), quoting People v. Gilmore, 63 Ill. 2d 23, 29 (1976).  In other words,

the question on appeal is 'whether the defect in the information or indictment prejudiced

the defendant in preparing his defense.' 

Thingvold, 145 Ill. 2d at 448.

			In the present case, defendant did not

challenge the indictment at trial or in his

first direct appeal.  Thus, unless he

demonstrates that he was prejudiced in

preparing his defense, this issue is waived. 

Defendant makes no claim of prejudice,

however.  Instead, he packages his challenge

to the indictment in Apprendi wrapping and raises it as a constitutional claim that was

not available to him at the time of his first

appeal.

			Defendant's attempt to create an

Apprendi issue is unavailing because the Supreme Court, in Apprendi, specifically excluded capital sentencing schemes in which

eligibility for the death penalty must be

proven to a jury beyond a reasonable doubt

from its scope ***."  Davis, No. 89704, slip op. at 21-22 (February 22, 2002). 

	The holdings in Rogers, Ford and Davis make clear that in those categories of cases where Apprendi does not apply (e.g. those involving nonextended consecutive sentences and capital cases), the mere invocation of the holding in Apprendi does not require the trial courts or this court to disregard decades of

well-settled precedent addressing issues concerning charging and

sentencing in criminal cases.

	For all of the above reasons, we find that the trial court

did not err in summarily dismissing defendant's pro se postconviction petition. 

	Accordingly, the judgment of the circuit court of Cook

County is affirmed. 

	Affirmed. 

	CAMPBELL, P.J., and REID, J., concur.