THIRD DIVISION

									December 24, 2002

No. 1-99-0852

THE PEOPLE OF THE STATE OF ILLINOIS,	)  APPEAL FROM THE 

								)  CIRCUIT COURT OF

	Plaintiff-Appellee,				)  COOK COUNTY.

								)

		v.						) 

								)

DIONNA BEACHEM,					)  HONORABLE

								)  COLLEEN McSWEENEY-MOORE,

	Defendant-Appellant.	 		)  JUDGE PRESIDING.

	JUSTICE WOLFSON delivered the opinion of the court:

	In Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the United States Supreme Court issued a decision that penetrates the constitutional foundation of this

State's extended sentencing procedures.  In this appeal from a

summary dismissal of her post-conviction petition, Dionna Beachem

(Beachem) challenges the constitutionality of the extended

sentence of 90 years she received for first degree murder.  The

threshold question before us is whether Apprendi reaches beyond a direct appeal to an appeal of the dismissal of a timely-filed

post-conviction petition.  We hold that it does.  We also hold

the defendant was properly sentenced.1

FACTS

	On December 5, 1994, Annie Jones (Jones), a 77 year-old woman living alone on Chicago's south side, was fatally beaten in her apartment.  That day, Beachem was arrested and subsequently

released on bond for attempting to use Jones' newly-issued credit

card at a suburban mall jewelry store.  Two days later, Jones' landlord discovered her body.

	Beachem was charged with and convicted of residential burglary, home invasion, robbery, and first degree murder.  Though the trial court found her eligible for the death penalty,

Beachem was sentenced to an extended term of 90 years'

imprisonment for the murder conviction, 30 years for the home

invasion conviction, 15 years for the residential burglary

conviction, and six years for the robbery conviction, all

sentences running concurrently.

	Beachem appealed her convictions and sentences.  We

affirmed.  People v. Beachem, No. 1-96-3260 (1998) (unpublished order under Supreme Court Rule 23).

	Beachem then filed a pro se post-conviction petition.  In a 23-page "MEMORANDUM OPINION AND ORDER," the trial court dismissed

Beachem's petition.  This appeal followed.

DECISION

	Beachem raises two issues in her initial brief.

	First, Beachem contends the trial court erred in summarily

dismissing the allegation in her post-conviction petition that

her trial attorney failed to advise her of a plea-bargain offer. 

Beachem's petition said: "After my sentencing, 8-26-96 my

attorney told my aunt *** and my mother *** that the state offered me 20 years and I turned it down.  This offer was never

brought to my attention.  If the state told me that they were

offering me 20 years, it was my attorney's job to discuss that

issue with me."

     The trial judge found Beachem failed to provide the gist of

a constitutional claim, which is all that is required at the

first stage of a post-conviction proceeding.  See People v. Frieberg, 305 Ill. App. 3d 840, 847, 713 N.E.2d 210 (1999).  The petition should be dismissed if it is frivolous and patently

without merit.  People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102 (1996).

	Here, Beachem's petition alleged her attorney should have

discussed with her any offer made by the prosecution.   directly to her.  Assuming

Beachem is contending her attorney failed to advise her, this

allegation lacks any record support.  Beachem relies on a sworn

February 5, 1999, handwritten statement from her mother.  But

this statement was addressed "To the Appellate Court" nearly a

month after the trial court dismissed Beachem's petition.  The

trial judge did not have it.

	In exercising our de novo review (People v. Mitchell, 189 Ill. 2d 312, 322, 727 N.E.2d 254 (2000)), we agree with the trial

court: Beachem's plea-bargain offer allegation was "frivolous or

*** patently without merit."  725 ILCS 5/122-2.1 (West 1996).  It

was pure unsupported conclusion.

	Second, Beachem contends the trial court erred in summarily dismissing her allegations of prosecutorial misconduct.  Because

Beachem's petition contained no such allegations, this claim is

waived.  725 ILCS 5/122-3 (West 1996).

	In a supplemental brief, Beachem raises another, more

substantial issue never addressed in the trial court.  Beachem

contends her extended term sentence was unconstitutional.

 	In Beachem's first appeal, we held the trial court did not abuse its discretion in imposing a 90-year extended term

sentence.  The court found two statutory aggravating factors,

"that the crime was exceptionally brutal and heinous, indicative

of wanton cruelty, and based on the fact that the victim was over

60 years of age."  These findings triggered the extended term

sentence provision of the Unified Code of Corrections.  See 730

ILCS 5/5-8-2(a)(1) (West 1996).

	After Beachem's direct appeal, and after the denial of her

post-conviction petition, the United States Supreme Court decided

Apprendi.

	Justice Stevens' opinion for a 5-4 majority of the Court framed the issue:

		"The question presented is whether the Due Process

Clause of the Fourteenth Amendment requires that a

factual determination authorizing an increase in the

maximum prison sentence for an offense *** be made by a

jury on the basis of proof beyond a reasonable doubt." 

Apprendi, 530 U.S. at 468, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351.

The Court then said:

		"Our answer to that question was foreshadowed by

our opinion in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999), construing a

federal statute.  We there noted 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.' [Citation.]  The Fourteenth

Amendment commands the same answer in this case

involving a state statute."  Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355.

	Noting the constitutional founders would have recognized no

distinction between an element of a felony offense and a so-

called "sentencing factor," the Court offered an historical

overview of the principle that a criminal defendant is entitled

to a jury determination of guilt beyond a reasonable doubt on

every element of the charged offense.  The Court assured,

however, "nothing in this history suggests that it is

impermissible for judges to exercise discretion--taking into

consideration various factors relating both to offense and

offender--in imposing a judgment within the range prescribed by statute."  (Emphasis in original.)  Apprendi, 530 U.S. at 481, 147 L. Ed. 2d at 449, 120 S. Ct. at 2358.

	The Court did not provide legislatures any leeway.  The fact

that the New Jersey legislature intended racial hatred to be an

enhanced sentencing provision, not part of the crime of

possessing weapons, was of no significance:

	" 'It is unconstitutional for a legislature to remove

from the jury the assessment of facts that increase the

prescribed range of penalties to which a criminal

defendant is exposed.  It is equally clear that such

facts must be established by proof beyond a reasonable

doubt.' "  Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2363 (quoting Jones, 526 U.S. at 252-53, 143 L. Ed. 2d at 311, 119 S. Ct. at 1215

(Stevens, J., concurring)).

	The Court said it again: "Other than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed 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 2362-63.

	Before proceeding to the merits of Beachem's Apprendi claim, we must answer a threshold question: does Apprendi apply to cases on collateral review?  We limit our consideration of this question to timely, first post-conviction petitions.  We make no comment on untimely or successive post-conviction petitions.2

	To determine whether Apprendi reaches back to a timely post- conviction petition, we have to weigh the public's interest in

the finality of criminal judgments against its interest in the

fairness and integrity of criminal trials.  This balance usually tips toward nonretroactivity.  See People v. Moore, 177 Ill. 2d 421, 430, 686 N.E.2d 587 (1997) ("Generally, decisions which

announce 'new rules' are not to be applied retroactively to cases

pending on collateral review").

 	But a plurality decision by the United States Supreme Court in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), adopted by the Illinois Supreme Court in People v. Flowers, 138 Ill. 2d 218, 237, 561 N.E.2d 674 (1990), established two exceptions to this general principle.

	First, "a new rule should be applied retroactively if it

places 'certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority to

proscribe.' "  Teague, 489 U.S. at 311, 103 L. Ed. 2d at 356, 109 S. Ct. at 1075.  Because Apprendi did not address primary, private behavior, this first exception does not apply. 

	Second, "a new rule should be applied retroactively if it requires the observance of 'those procedures that *** are

implicit in the concept of ordered liberty.' "  Teague, 489 U.S. at 311, 103 L. Ed. 2d at 356, 109 S. Ct. at 1076.

	How broad would this second exception be?  The Court:

	"[W]e believe *** concerns about the difficulty in

identifying both the existence and the value of

accuracy-enhancing procedural rules can be addressed by

limiting the scope of the second exception to those new

procedures without which the likelihood of an accurate

conviction is seriously diminished.

		Because we operate from the premise that such

procedures would be so central to an accurate

determination of innocence or guilt, we believe it

unlikely that many such components of basic due process

have yet to emerge."  Teague, 489 U.S. at 313, 103 L. Ed. 2d at 358, 109 S. Ct. at 1077.

In a subsequent case the Court explained:

	"It is *** not enough under Teague to say that a new rule is aimed at improving the accuracy of trial.  More

is required.  A rule that qualifies under this [second]

exception must not only improve accuracy, but also

'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).

	Much depends on how we describe the holding in Apprendi.  If we were to say Apprendi reaches only a portion of a noncapital sentence, not its underlying conviction, it would be difficult,

but not impossible, to make a case for the existence of

procedures that are implicit in the concept of ordered liberty,

per Teague and Flowers.3  But analysis by label or category-- sentence or conviction--is not a principled methodology.  The

question is how far a certain procedure reaches into the

constitutional fabric of a fundamentally fair trial and

conviction.  Does it reach "bedrock"?

	The rights affirmed in Apprendi are at the core of our criminal justice system.  Justice Stevens' majority opinion:

		"At stake in this case are constitutional

protections of surpassing importance: the proscription

of any deprivation of liberty without 'due process of law,' Amdt. 14, and the guarantee that 'in all criminal

prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury,' Amdt.

6.[]  Taken together, these rights indisputably entitle

a criminal defendant to 'a jury determination that [he]

is guilty of every element of the crime with which he

is charged, beyond a reasonable doubt.' [Citation.]"

Apprendi, 530 U.S. at 476-77, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355-56.

	The right to a jury trial, and particularly its companion

right to a jury verdict proved beyond a reasonable doubt, stand,

inviolable, for what the Apprendi Court termed "cogent reasons" related to accuracy:

	"Prosecution subjects the criminal defendant both to

'the possibility that he may lose his liberty upon

conviction and *** the certainty that he would be

stigmatized by the conviction.'  [Citation.]  We thus

require this [reasonable doubt standard], among other,

procedural protections in order to 'provide concrete

substance for the presumption of innocence,' and to reduce the risk of imposing such deprivations

erroneously.  [Citation.]  If a defendant faces punishment beyond that provided by statute when an

offense is committed under certain circumstances but

not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened;

it necessarily follows that the defendant should not--

at the moment the State is put to proof of those

circumstances--be deprived of protections that have,

until that point, unquestionably attached."  (Emphasis

added.)  Apprendi, 530 U.S. at 484, 147 L. Ed. 2d at 451, 120 S. Ct. at 2359.

	The argument for extending Apprendi to collateral proceedings relies on the conclusion that the operative fact--the

fact that leads to an enhanced sentence--becomes an element of

the offense.  The Supreme Court warned against a restrictive use

of labels when analyzing the two factors at issue in Apprendi's 

sentencing--unlawful possession of a weapon and selection of

victims to intimidate them because of their race: "Merely using

the label 'sentence enhancement' to describe the latter

[selecting victims according to race as a factor to exceed the

maximum sentence] surely does not provide a principled basis for

treating them differently."  Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355.  

	In a footnote, the Court observed an increase beyond the

maximum authorized statutory sentence "*** is the functional equivalent of an element of a greater offense than the one

covered by the jury's guilty verdict.  Indeed, it fits squarely

within the usual definition of an 'element' of the offense." 

Apprendi, 530 U.S. at 494 n.19, 147 L. Ed. 2d at 457 n.19, 120 S. Ct. at 2365 n.19; see also Apprendi, 530 U.S. at 521, 147 L. Ed. 2d at 473, 120 S. Ct. at 2379 (Thomas, J., concurring) ("If a

fact is by law the basis for imposing or increasing punishment--

for establishing or increasing the prosecution's entitlement--it

is an element [of the crime]").4  But the Court again cautioned against placing form over substance: "Despite what appears to us

the clear, 'elemental' nature of the factor here, the relevant

inquiry is one not of form, but of effect--does the required finding expose the defendant to a greater punishment than that

authorized by the jury's guilty verdict?"  (Emphasis added.)  Apprendi, 530 U.S. at 494, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365.

	We take Apprendi to mean that once the defendant serves the prescribed maximum sentence, he or she remains in prison on a

charge never made and never proved.  And if we acknowledge the

defendant remains in prison on a charge never made or proved, we

have impugned the integrity of our criminal justice system.  It

is as if the sentencing judge actually said to the defendant: "I

have convicted you of a charge never made against you and never heard by the jury, and I have done it based on the preponderance

of the evidence."  Such a conviction, and its concomitant

sentence, are repugnant to our notions of fundamental fairness.

	Since Teague, no United States Supreme Court or Illinois Supreme Court case has found a new rule qualifies for

retroactivity under the second Teague exception.5  But these decisions either do not involve fundamental rights or do not

directly implicate accuracy.  They are not "bedrock"

pronouncements. 

	For example, in Sawyer v. Smith, 497 U.S. 227, 111 L. Ed. 2d 193, 110 S. Ct. 2822 (1990), the Court held Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985), which prohibited a capital sentence if the prosecution

misled the jury to believe the ultimate sentencing decision

rested elsewhere, did not apply retroactively.  The Court

recognized the false information outlawed in Caldwell "might produce 'substantial unreliability as well as bias in favor of

death sentences' " (Sawyer, 497 U.S. at 233, 111 L. Ed. 2d at 205, 110 S. Ct. at 2827 (quoting Caldwell)), but the Court felt Caldwell provided merely "an additional measure against error" beyond that afforded by another case (Sawyer, 497 U.S. at 244, 111 L. Ed. 2d at 212, 110 S. Ct. at 2832).  That is,

	"The Caldwell rule was designed as an enhancement of the accuracy of capital sentencing, a protection of

systemic value for state and federal courts charged

with reviewing capital proceedings.  But given that it

was added to an existing guarantee of due process

protection against fundamental unfairness, we cannot

say this systemic rule enhancing reliability is an

'absolute prerequisite to fundamental fairness'

[citation], of the type that may come within Teague's second exception."  Sawyer, 497 U.S. at 244, 111 L. Ed. 2d at 212-13, 110 S. Ct. at 2832 (quoting Teague).

	Apprendi not only safeguards fundamental fairness; its reasonable doubt standard provides the only measure of accuracy

in extended sentencing.  Where a new rule secures both "the

accuracy of the truth-finding function" and "the fairness and the

constitutional integrity of a criminal proceeding," courts have

held it applies retroactively.  People v. Kubik, 214 Ill. App. 3d 649, 657, 573 N.E.2d 1337 (1991) (Cruz v. New York, 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714 (1987), holding a nontestifying

codefendant's interlocking confession inadmissible at a joint

trial, applied retroactively to a post-conviction proceeding);

accord Graham v. Hoke, 946 F.2d 982, 994 (2d Cir. 1991); see also People v. Ikerd, 47 Ill. 2d 211, 213, 265 N.E.2d 120 (1970) (adopting Roberts v. Russell, 392 U.S. 293, 20 L. Ed. 2d 1100, 88 S. Ct. 1921 (1968)--the holding that a nontestifying codefendant's confession is inadmissible at a joint trial applies

retroactively as required by "fundamental fairness").

	Prior to the applicability of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA),6 several Federal Circuit Court cases considered the retroactivity of Victor v. Nebraska, 511 U.S. 1, 127 L. Ed. 2d 583, 114 S. Ct. 1239 (1994); Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993); and Cage v. Louisiana, 498 U.S. 39, 112 L. Ed. 2d 339, 111 S. Ct. 328 (1990), which held jury instructions

diluting the reasonable doubt standard were unconstitutional.  These cases held Cage and its progeny fall within Teague's second exception because "[t]he reasonable doubt standard guards against

conviction of the innocent by ensuring the systemic accuracy of the criminal system" and "use of a lower standard of proof

frustrates the jury-trial guarantee."  (Emphasis in original.) 

Nutter v. White, 39 F.3d 1154, 1157-58 (11th Cir. 1994) (Cage applied retroactively); accord Gaines v. Kelley, 202 F.3d 598 (2d Cir. 2000) (Cage applied retroactively); Humphrey v. Cain, 138 F.3d 552 (5th Cir. 1998) (en banc), aff'g, 120 F.3d 526 (5th Cir. 1997) (Victor/Cage applied retroactively); Harmon v. Marshall, 69 F.3d 963 (9th Cir. 1995) (Sullivan applied retroactively); Adams v. Aiken, 41 F.3d 175 (4th Cir. 1994) (Sullivan applied retroactively); see also Nevius v. Sumner, 105 F.3d 453, 462 (9th Cir. 1996) (prima facie showing the Supreme Court made Cage retroactive to habeas corpus cases); cf. V. v. New York, 407 U.S. 203, 32 L. Ed. 2d 659, 92 S. Ct. 1951 (1972) (In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S.C Ct. 1068 (1970),  holding the

reasonable doubt standard governs juvenile delinquency

proceedings, applied retroactively).7

	Flowers can be distinguished.  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 that 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 Victor, Cage, Sullivan, or now 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 476, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355.  The reasonable doubt standard "*** reflects a profound judgment about the way in which law

should be enforced and justice administered."  Apprendi, 530 U.S. at 478, 147 L. Ed. 2d at 447-48, 120 S. Ct. at 2356 (quoting

Winship).  Our jury tradition is "an indispensable part of our criminal justice system."  Apprendi, 530 U.S. at 497, 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"?

	We view the gravity of an Apprendi violation within the narrow window of retroactivity established by the courts. 

Finding retroactivity never should be lightly done.  Can we say

the likelihood of an accurate conviction in this case is

seriously diminished?  If we conclude there is a certainty of

inaccurate conviction since Beachem was convicted of a crime

never charged or proved, it follows that Beachem's imprisonment

beyond the maximum sentence violates established principles of

fundamental fairness.

	We understand the implications of extending Apprendi to

collateral review.  But we do what we believe the law requires. 

Our constitutional history teaches us we best survive when we hew

to the line drawn by the rule of law.  Because, under Teague, we conclude Apprendi implicates procedures implicit in the concept of ordered liberty, we find Apprendi applies to a timely-filed post-conviction petition.

	Because Apprendi applies, we turn to the merits of Beachem's claim that her sentence is unconstitutional.8

	The State initially contends Beachem waived this issue when

she failed to include it in her post-conviction petition.  But

Apprendi was decided nearly 18 months after the trial court denied her petition.  Beachem instead raised Apprendi in a supplemental brief before this court shortly after it was

decided.  Beachem did not forfeit her right to review of her extended sentence in light of Apprendi.  People v. Lathon, 317 Ill. App. 3d 573, 740 N.E.2d 377 (2000); see People v. Wooters, 188 Ill. 2d 500, 510, 722 N.E.2d 1102 (1999) ("*** although

defendant neglected to raise this issue before the circuit court,

the constitutional dimension of the question permits this court

to address defendant's argument.")

	Post-Apprendi decisions of the Illinois Supreme Court support the State's claim that Beachem was properly sentenced.

	Here, as in People v. Ford, 198 Ill. 2d 68, 761 N.E.2d 735 (2001), the trial court, before sentence was imposed, found,

beyond a reasonable doubt, Beachem was eligible for the death

penalty.  That means her sentence of 90 years is not beyond the maximum prescribed by law.

	In addition, Beachem was charged with committing a robbery

on a victim over 60 years of age.  The issues instructions for

the robbery charge required the jury to find beyond a reasonable

doubt the victim was over 60 before it could convict.  Thus, the

jury's guilty verdict was a finding that the murdered victim of

the robbery was over 60.  That is sufficient to permit the trial

judge to sentence defendant to an extended term under the

statutory scheme established in 730 ILCS 5/5-5-3.2 (West 1994). 

People v. Hopkins, 201 Ill. 2d 26, 773 N.E.2d 633 (2002).  Apprendi was not violated in this case.

CONCLUSION

	We affirm the trial court's summary dismissal of the

defendant's post-conviction petition.

	Affirmed.

	WolfsoBurkaUEKREREKKE, and HALL, jjJJ., concur.