THIRD DIVISION

								JUNE 12, 2002		 						

No. 1-99-4230

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

								)	Circuit Court of

		Plaintiff-Appellee,			)	Cook County.

								)

	v.							)

								)

TOMMY THOMPSON,					)	Honorable

								)	Michael B. Bolan,

		Defendant-Appellant.		)	Judge Presiding.

	JUSTICE CERDA delivered the opinion of the court:

	Defendant, Tommy Thompson, whose convictions and sentences for first degree murder and armed robbery were affirmed by this

court on direct appeal, appeals the order of the circuit court

summarily dismissing his second petition for relief under the

Post Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)) as procedurally barred.  In his second petition, defendant

asserts a speedy trial violation as well as various claims of

ineffective assistance of trial counsel and assertions of

evidentiary errors committed by the circuit court during the

course of his trial proceedings.  Defendant abandons those claims

on appeal and, instead, challenges for the first time (1) the

validity of Public Act 83-942, which effectively amended the Act

to provide for, inter alia, summary dismissals of postconviction petitions after an initial review by the circuit court, (2) the

propriety of the circuit court's order directing that his

sentences for murder and armed robbery run consecutively, and (3)

the constitutionality of his sentences as violative of his

constitutional rights guaranteed under the fourteenth amendment

of the federal constitution (U.S. Const., amend. XIV).  Defendant

has also filed a pro se supplemental brief on appeal, raising additional arguments concerning the effectiveness of his trial

counsel and the fairness of both his trial and sentencing

proceedings.

	For the following reasons, we affirm.

	BACKGROUND

	Following a jury trial in mid-1995, defendant was convicted

of three counts of first-degree murder (720 ILCS 5/9-1(a)(1),

(a)(2), (a)(3) (West 1994)), and two counts of armed robbery (720

ILCS 5/18-2 (West 1994), in connection with the shooting death of

Chicago cab driver James Dryer.  The evidence introduced at trial

established that in the early morning hours of July 22, 1992,

defendant and his accomplice, Amir Richardson,1 devised a plan to either rob someone or steal a car.  Richardson, whom defendant

knew was armed with a handgun, eventually flagged down a cab

being driven by Dryer.  Defendant and Richardson entered the

vehicle and instructed Dryer to drive to an address near 119th and Lowe streets in Chicago.

	Upon arriving at the foregoing address, Richardson shot

Dryer once in the back of the head.  Defendant then exited the

vehicle, opened the driver's side door, and took $23 from Dryer's

front pocket.

	For his role in the incident, defendant was sentenced to

extended terms of 70 years' imprisonment for murder and 35 years'

imprisonment for armed robbery, the enhancement of each sentence

being predicated upon the elderly age of the victim.  Defendant

was further ordered to serve his sentences consecutively to one

another.

	On direct appeal, we affirmed defendant's convictions but

vacated the judgments on two of the murder counts and on one of

the armed robbery counts.  We further vacated defendant's

sentence for armed robbery and imposed a term of 30 years'

imprisonment.  People v. Thompson, No. 1-95-4424 (March 12, 1998) (unpublished order pursuant to Supreme Court Rule 23). 

Defendant's leave for appeal with our supreme court was

thereafter denied on September 12, 1998.

	On December 4, 1998, defendant filed pro se for postconviction relief under the Act, alleging various claims of

ineffective assistance of both trial and appellate counsel. 

Finding defendant's postconviction allegations to be frivolous

and patently meritless, the circuit court dismissed defendant's

petition on January 28, 1999.  While he initially sought review with this court in February 1999, defendant voluntarily abandoned

his appeal on September 21, 1999.

	While his original appeal was pending, defendant filed a

second postconviction petition, again asserting ineffective

assistance on the part of his trial attorney as well claims that

he was denied his constitutional right to a speedy trial and that

he was deprived of a fair trial by the introduction of improper

and highly inflammatory evidence.  Finding defendant's

postconviction claims procedurally barred, the circuit court

dismissed defendant's second petition as frivolous on September

20, 1999.  Defendant's timely appealed followed.

	ANALYSIS

	I.

	We initially address the State's motion to strike

defendant's supplemental pro se brief, which was ordered taken with the case.  Defendant is presently represented by the State

Appellate Defender, which has submitted opening and reply briefs

on defendant's behalf raising and briefing several assertions of

error which purportedly entitle defendant to relief.  By his

pro se brief, defendant raises points that are not presented and argued by his appointed counsel.

	As the State observes, a defendant has no right to both

self-representation and the assistance of counsel.  People v. McDonald, 168 Ill. 2d 420, 435, 660 N.E.2d 832, 838 (1995); People v. Lighthall, 175 Ill. App. 3d 700, 704-05, 530 N.E.2d 81, 84 (1988).  If a defendant is represented by appellate counsel,

whether appointed or privately retained, he has no right to a

"hybrid appeal" in which he alternates between being represented

by counsel and proceeding pro se through the filing of a supplemental pro se brief.  People v. Woods, 292 Ill. App. 3d 172, 179, 684 N.E.2d 1053, 1058 (1997).  Defendant, therefore,

has no right to present his pro se arguments to this court (see McDonald, 168 Ill. 2d at 435, 660 N.E.2d at 838; Woods, 292 Ill. App. 3d at 179, 684 N.E.2d at 1053; Lighthall, 175 Ill. App. 3d at 705, 530 N.E.2d at 81), and accordingly we grant the State's

motion and strike defendant's supplemental pro se brief.

	II.

	A claim for postconviction relief under the Act is not an

appeal from the underlying trial proceedings but, rather,

represents a collateral attack on the earlier judgment of

conviction or sentence in which the defendant seeks to establish

federal or state constitutional violations that escaped earlier

review.  People v. Henderson, 171 Ill. 2d 124, 131, 662 N.E.2d 1287, 1292 (1996).

	As noted, defendant appeals from the dismissal of his

second postconviction petition.  As such, defendant faces a daunting procedural hurdle in seeking relief.  People v. Jones, 191 Ill. 2d 354, 358, 732 N.E.2d 573, 575 (2000).  That is

because the Act contemplates the filing of only one

postconviction petition.  People v. Flores, 153 Ill. 2d 264, 273, 606 N.E.2d 1078, 1082 (1992).

	The scope of postconviction relief is limited, through

considerations of waiver and res judicata, "to constitutional matters that neither have been, nor could have been, previously

adjudicated."  People v. Hudson, 195 Ill. 2d 117, 122, 745 N.E.2d 1246, 1250 (2001).  All issues that were actually decided on

direct appeal are res judicata (People v. Orange, 195 Ill. 2d 437, 456, 749 N.E.2d 932, 938 (2001); People v. Mahaffey, 194 Ill. 2d 154, 170, 742 N.E.2d 251, 261 (2000)), and those issues

that could have been raised on review, but were not, are deemed

waived.  People v. Owens, 129 Ill. 2d 303, 315, 544 N.E.2d 276, 281 (1989); Flores, 153 Ill. 2d at 274, 606 N.E.2d at 1083.  Further, issues raised in an original or amended postconviction

petition and decided by the circuit court have res judicata effect, precluding reconsideration of those points in a

subsequent postconviction proceeding.  Orange, 195 Ill. 2d at 449, 749 N.E.2d at 939.  Similarly, any claims not raised in the

original or amended petition are deemed waived. 725 ILCS 5/122-3

(1996); Jones, 191 Ill. 2d at 358, 732 N.E.2d at 575.

	On appeal, defendant argues: certain legislation that

amended the Act, P.A. 83-942, violates the single subject rule of

Article IV, section 8 of the Illinois Constitution (Ill.

Const.1870, art. IV, § 8); the circuit court had no basis upon

which to order his sentences to run consecutively; and his

extended term and consecutive sentences, if properly imposed, offend the constitutional mandates expressed in Apprendi.  These issues are not presented in the postconviction petition subject

to this appeal and were neither raised on direct appeal nor in

defendant's original postconviction petition.

	As recently explained by our supreme court, the

determination of claims raised in a successive postconviction

petition that are barred by waiver and res judicata are to be considered in terms of cause-and-prejudice.  People v. Pitsonbarger, No. 89368, slip op. at 10 (May 23, 2002).  Where no claim is made that the petitioner suffers from a miscarriage of

justice, i.e. actual innocence, is asserted, the petitioner must show good cause for failing to raise his successive-petition claims in the initial

postconviction proceeding and actual prejudice resulting from the

claimed errors.  Pitsonbarger, slip op. at 13; Jones, 191 Ill. 2d at 358, 732 N.E.2d at 575-76.  "Cause," in this contextthe context of

successive postconviction petitions, "refers

to any objective factors, external to the defense, which impeded

the petitioner's ability to raise a specific claim in the initial

post-conviction proceeding."  Pitsonbarger, slip op. at 13.  That is, the petitioner "must show how the deficiency in the first

proceeding affected his ability to raise each specific claim." 

Pitsonbarger, slip op. at 14.

	At no point does defendant here ever attempt to explain how

he was precluded from raising his claims during his initial

postconviction proceeding.  This is not surprising since

defendant never addresses the principles regarding the filing of successive postconviction petitions.  Defendant's failure to

demonstrate cause for not raising his postconviction claims

earlier justifies affirmance of the circuit court's judgment. 

This procedural default aside, we will nonetheless address the

merits of defendant's claims.

	A.

	Defendant initially contends P.A. 83-942, which, as noted,

amended the Act to allow for the summary dismissal of postconviction petitions following initial review by the circuit

court, was enacted in violation of the single subject rule.  As

defendant concedes, this contention has been considered and

expressly rejected by this court in People v. Roberts, 318 Ill. App. 3d 719, 743 N.E.2d 1025 (2000), as well as by all other

courts that have confronted this issue.  See People v. Stewart, 326 Ill. App. 3d 933, 939, 762 N.E.2d 604, 609 (2001); People v. Vicles, 321 Ill. App. 3d 937, 944, 748 N.E.2d 1219, 1226 (2nd Dist. 2001); People v. Sharpe, 321 Ill. App. 3d 994, 997, 749 N.E.2d 432, 434 (3rd Dist. 2001); People v. Jones, 318 Ill. App. 3d 1189, 1192, 744 N.E.2d 344, 347 (4th Dist. 2001).  We adhere to Roberts and progeny and, accordingly, reject defendant's single subject challenge.

	B.

	Defendant next challenges the propriety of his extended term

for murder and the imposition of consecutive sentences.  At the

time of the commission of defendant's offenses, first degree murder2 carried a prison term of not less than 20 years and not more than 60 years (730 ILCS 5/5-8-1(a)(1) (West 1994)).  To

enhance defendant's murder sentence, the circuit court invoked

section 5-8-2(a) of the Unified Code of Corrections (730 ILCS

5/5-8-2(a) (West 1994)), which authorizes an extended term of not

less than 60 years and not more than 100 years in prison where it

finds any of the aggravating factors listed in section 5-5-3.2(b)

of the Corrections Code to be present.  730 ILCS 5/5-8-2(a) (West

1994).  One of the aggravating factors listed takes into

consideration the elderly age of the victim and specifically

suggests a more severe punishment for an offense committed

"against a person 60 years of age or older or such person's

property."  730 ILCS 5/5-5-3.2(b)(4)(ii) (West 1994).  Finding

the victim in the present case to be 62 years of age at the time

he was killed, the circuit court enhanced defendant's sentence

for murder to 70 years.

	While the circuit court further ordered defendant's

sentences to run consecutively, the basis of the court's order is

not clear from the record.  At all relevant times, section 5-8-

4(a) of the Corrections Code stated in relevant part:

		"The court shall not impose consecutive sentences for offenses which were committed

as part of a single course of conduct during

which there was no substantial change in the

nature of the criminal objection, unless, one

of the offenses for which defendant was

convicted was a Class X or Class 1 felony and

the defendant inflicted severe bodily injury,

or where the defendant was convicted of a

violation of Section 12-13 [criminal sexual

assault] or 12-14 [aggravated criminal sexual

assault] of the Criminal Code of 1961, in

which event the court shall enter sentences

to run consecutive."   730 ILCS 5/5-8-4(a)

(West 1994).

Paragraph (b) of the same section provided:

			"The court shall not impose a

consecutive sentence except as provided for

in subsection (a) unless, having regard to

the nature and circumstances of the offense

and the history and character of the

defendant, it is of the opinion that such a

term is required to protect the public from

further criminal conduct by the defendant the

basis for which the court shall set forth in

the record."  730 ILCS 5/5-8-4(b) (West 1994).

	The basis of the court's order of consecutive sentences was

not stated by the judge at the court's sentencing hearing and is

not specified in the formal sentencing mittimus.  As defendant notes, the circuit court at one point during the sentencing

hearing specifically cited section 5-8-4(a) and stated that

consecutive sentences were mandated under certain circumstances. 

At a later point, however, the court commented that defendant

needed "to be segregated from society for society's protection,"

a finding, according to the court, that was a "factor[] of

consideration in sentencing."  Hence, as defendant asserts, it is

not entirely clear under what paragraph of section 5-8-4

consecutive sentences were imposed.  In any event, defendant

claims his consecutive sentences cannot stand under either

sentencing provision and invites us to analyze this issue under

both sections.

	i.

	The version of section 5-8-4(a) involved here mandates the

imposition of consecutive sentences where the offenses were

committed by the defendant in a single course of conduct and one

of the offenses was a triggering offense as delineated by

statute.  People v. Whitney, 188 Ill. 2d 91, 96-97, 720 N.E.2d 225, 228 (1999); People v. Carney, 327 Ill. App. 3d 998, __, 765 N.E.2d 1028, 1030 (2002).  In the present case, if the circuit

court proceeded to impose consecutive sentences under section 5- 8-4(a), the triggering offense was a Class X or Class 1 felony

where defendant inflicted severe bodily injury.  See 730 ILCS

5/5-8-4(a) (West 1994).  Defendant's conviction of armed robbery,

a Class X felony, is a proper triggering offense as delineated by

the statute.

	Defendant maintains consecutive sentences under section 5-8-

4(a) are not permitted since the victim's death "was not

proximately caused by or related to the Class X felony of armed

robbery."  Rather, according to defendant, the victim's death

"was proximately caused by or related to the offense of first

degree murder," which, defendant correctly notes, is not a

triggering offense under the sentencing statute.3  The "proximate cause/related to" test espoused by defendant, however, is not the

applicable standard employed for purposes of section 5-8-4(a).

	Our supreme court in Whitney examined the question of whether the triggering felony must involve the infliction of

severe bodily harm to the victim of that felony to require

consecutive sentences under section 5-8-4(a).  After noting a

split among the districts concerning this issue, and particularly

noting this court's position as expressed in People v. Medrano, 282 Ill. App. 3d 887, 896-97, 669 N.E.2d 114 (1996), that the

bodily harm be "proximately connected" to the triggering crime

(Whitney, 188 Ill. 2d at 96, 720 N.E.2d at 227), the Whitney court stated section 5-8-4(a) mandates consecutive sentences "where the defendant has been convicted of either a

Class X or Class 1 felony and where he had inflicted severe

bodily injury during the commission of that felony."  (emphasis added.)  188 Ill. 2d at 98-99, 720 N.E.2d at 229.

	In People v. Sample, 326 Ill. App. 3d 914, 926, 761 N.E.2d 1199, 1209 (2001), this court examined Whitney in discussing the precise definition of the supreme court's phrase "during the

commission" of the triggering felony.  In fixing a definition,

the Sample court found significant the supreme court's treatment of Medrano and like cases employing a proximate connection test.  "Although the Whitney court recognized that several appellate courts had used the language of 'proximate connection' between

the triggering felony and the injury, its adoption of the phrase

'during the commission' of the felony indicates that this is the

preferred vocabulary."  Sample, 326 Ill. App. 3d at 926, 761 N.E.2d at 1209.  The Sample court then specifically drew upon death sentence jurisprudence regarding the timing of the offense

for felony murder purposes to give some meaning to the "during

the commission" standard.  Sample, 326 Ill. App. 3d at 927-28, 761 N.E.2d at 1209.  From this body of law the court concluded

the standard announced in Whitney is met where commission of the triggering offense and infliction of the bodily harm, the precise

timing of which not being dispositive, occurred "essentially

simultaneously."  Sample, 326 Ill. App. 3d at 927-28, 751 N.E.2d at 1210.

	In the present case, the requirement that the bodily injury be inflicted on the victim of the triggering felony is satisfied

since there was only one victim.  With regards to the necessary

connection between the triggering offense and the victim's bodily

harm, the evidence shows defendant and Richardson planned to rob

the victim prior to entering the victim's cab.  Upon being driven

to the designated address, Richardson shot the victim in the

head, prompting defendant to take a small amount of money from

the victim's person and then flee the scene with his accomplice. 

Notably, this court has recognized that while murder itself is

not a triggering felony under the version of section 5-8-4(a)

applicable here, the death of a victim during the commission of

the triggering offense may provide the basis for a finding of

severe bodily injury.  Carney, 765 N.E.2d at 1031; People v. Sergeant, 326 Ill. App. 3d 974, 990, 762 N.E.2d 518, 532 (2001).  Based on the evidence, we conclude the victim's death, i.e., the severe bodily injury, occurred essentially simultaneously with

the armed robbery and, hence, the victim's death occurred during

the commission of the triggering crime as directed by Whitney.  See Carney, 765 N.E.2d at 1031 (finding victim's death occurred during the commission of the triggering offense of armed robbery

to the victim where the defendant, while attempting to steal a

small amount of money, briefly struggled with the victim, during

which the victim was shot).

	Defendant cites People v. Strickland, 154 Ill. 2d 489, 609 N.E.2d 1366 (1992), and Medrano to support of his position.  We find defendant's reliance on Strickland misplaced since the link between the triggering felony and the bodily injury necessary

under section 5-8-4(a) was never addressed in that case.  Indeed,

the Strickland court never discussed the injury having to be proximately caused by the triggering offense.  Rather, the court

limited its consideration to whether the offenses for which

defendant was convicted were committed as a part of a single

course of conduct during which there was no substantial change in

the nature of the criminal objective.  Strickland, 154 Ill. 2d at 540-41, 609 N.E.2d at 1389.  See Carney, 765 N.E.2d at 1031-32 (distinguishing Strickland on this basis in response to same argument advanced by defendant this case); Sample, 326 Ill. App. 3d at 928, 761 N.E.2d at 1210) (same).

	We are also unpersuaded by defendant's reliance on Medrano.  In Medrano, the court held in part that consecutive sentences imposed pursuant to section 5-8-4(a) could not stand where the

evidence did not establish a "proximate connection" between

defendant's armed robbery and kidnaping of the victim and the

injuries sustained by the victim as a result of the defendant's

later attempt to murder her.  While, as noted in Carney and Sample, the Medrano court provided no explanation or factual basis for its holding (Carney, 765 N.E.2d at 1032; Sample, 326 Ill. App. 3d at 928, 761 N.E.2d at 1210), it did explain in a footnote that "[a]lthough section 5-8-4(a) does not specifically

indicate that there must be a proximate connection between the

Class X or Class 1 felony and the 'grievous bodily injury'

suffered by the victim," *** "such is a reasonable interpretation

of the statute's plain language[.]"  Medrano, 282 Ill. App 3d at 896 n.1, 669 N.E.2d at 120 n.1.  Thus, perhaps more noteworthy

than Medrano's failure to elaborate on his holding is the fact the Medrano court's interpretation of section 5-8-4(a) conflicts with the subsequent and recent construction given that provision

by the supreme court in Whitney.  In our view, Medrano is no longer persuasive authority regarding the requisite connection

between the triggering offense and the victim's injury.

	Because the victim's death was sufficiently connected to the

commission of the armed robbery of that victim, and since

defendant concedes the offenses for which he was convicted were

committed in a single course of conduct, consecutive sentences

were mandated under section 5-8-4(a) of the Corrections Code.  We

therefore uphold defendant's consecutive sentences under that

sentencing provision and, accordingly, need not consider whether

consecutive sentences would have been proper under section 5-8-

4(b).

	ii.

	Defendant additionally contends, citing People v. Miller, 193 Ill. App. 3d 918, 552 N.E.2d 988 (1989), and People v. Biggs, 294 Ill. App. 3d 1046, 691 N.E.2d 48 (1998), his consecutive sentences constitute impermissible double enhancement because the

victim's death was used to support both his murder conviction and

the circuit court's order that his sentences be served

consecutively.  As applicable to defendant's argument, double

enhancement occurs when a single factor is used both as an

element of an offense and as an aggravating factor to warrant the imposition of a harsher sentence than might otherwise have been

imposed.  People v. Gonzalez, 151 Ill. 2d 79, 83-84, 600 N.E.2d 1189, 1191 (1992); People v. Watkins, 325 Ill. App. 3d 13, 18-19, 757 N.E.2d 117, 122 (2001).

	This court has recently discussed the issue of whether

consecutive sentences imposed pursuant to section 5-8-4(a)

implicate double enhancement concerns.  In both Carney and Sample, the courts, construing our supreme court's recent decisions in People v. Carney, 196 Ill. 2d 518, 752 N.E.2d 1137 (2001), and People v. Wagener, 196 Ill. 2d 269, 752 N.E.2d 430 (2001), as well as the court's decision in Whitney, indicated that consecutive sentencing does not constitute improper double

enhancement.  As explained by the supreme court, consecutive

sentences constitute separate sentences for each crime of which

the defendant has been convicted and affect only the manner in

which the sentences are served; they do not alter the range of

punishment for a given crime.  Carney, 196 Ill. 2d at 529-35, 752 N.E.2d at 1143-44; Wagener, 196 Ill. 2d at 286, 752 N.E.2d at 430; see also Watkins, 325 Ill. App. 3d at 20; 757 N.E.2d at 123.  Since the imposition of consecutive sentences does not constitute

an increase in penalty, the courts reasoned that such sentences

do not "enhance" punishment at all.  Carney, 765 N.E.2d at 1032; Sample, 326 Ill. App. 3d at 931, 761 N.E.2d at 1212.  The courts further noted Whitney supports the position that any triggering offense as delineated by section 5-8-4(a), irrespective of the

particular elements, that results in severe bodily injury being

inflicted on the victim of that offense could be used to trigger

mandatory consecutive sentences.  Carney, 765 N.E.2d at 1033; Sample, 326 Ill. App. 3d at 931, 761 N.E.2d at 1212.

	The court in People v. Phelps, No. 1-99-4099 (March 29, 2002) recently took issue with the holdings of Carney and Sample that consecutive sentencing under section 5-8-4(a), no matter the

triggering offense, never implicate double enhancement concerns. 

The Phelps court believed the double enhancement principles set forth in People v. Ferguson, 132 Ill. 2d 86, 97, 547 N.E.2d 429 (1987), where it was stated that while the legislature has the

power to authorize further punishment based on an inherent

element of an offense, it must clearly and unambiguously express

that intention, could not be ignored.  According to the court,

section 5-8-4(a) did not expressly indicate the legislature's

intent to require consecutive sentences for Class X or Class 1

felonies that include severe bodily injury as an element of an

offense.  Phelps, slip op. at 16.

	The differences in opinion expressed by the foregoing cases does not impact our decision concerning the propriety of

defendant's consecutive sentences in this case.  Regardless of

whether we adopt the reasoning of the Carney and Sample opinions, or follow the position of the court in Phelps, defendant's consecutive sentences do not violate principles of double

enhancement.  The version of the armed robbery statute under

which defendant was convicted does not include the infliction of

severe bodily injury as an element of the crime.  See 720 ILCS

5/18-2(a) (West 1995) ("[a] person commits armed robbery when he

or she violates Section 18-1 [the robbery statute, which is

violated when a person "takes property from the person or

presence of another by the use of force or by threatening the

imminent use of force] while he or she carries on or about his or

her person, or is otherwise armed with a dangerous weapon"). 

Indeed, the court in Phelps expressly recognized that section 5- 8-4(a) requires consecutive sentencing where the defendant causes

severe bodily harm in the course of committing a triggering

offense that does not include severe bodily injury as an element

of the offense, such as armed robbery.  Slip op. at 16.  Because

severe bodily injury to the victim in this case was not an

element of the triggering offense of armed robbery, defendant's

consecutive sentences do not constitute impermissible double

enhancement.

		C.

	Defendant lastly challenges the validity of his extended term sentence for murder and his consecutive sentences under

Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  According to Apprendi, the due process clause of the fourteenth amendment of the United States Constitution

(U.S. Const., amend. XIV) mandates that "[o]ther 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."  530 U.S. at

490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.Pursuant to Apprendi, federal due process (U.S. Const., amend. XIV) mandates that "[o]ther 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."  530 U.S. at 490,

147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

	The record before us indicates that defendant's second postconviction petition was not filed within the applicable

filing period set forth by the Act.  Indeed, defendant

acknowledged at oral argument that his petition was untimely.

	We note the first (People v. Kizer, 318 Ill. App. 3d 238, 252, 741 N.E.2d 1103, 1115 (2000)), second (People v. Scullark, 325 Ill. App. 3d 876, 892, 759 N.E.2d 565, 581 (2001)), fifth (People v. Coulter, 321 Ill. App. 3d 644, 659, 748 N.E.2d 240, 251 (2001)), and sixth (People v. Montgomery, No. 1-00-0497, slip op. at 14 (December 28, 2001)) divisions of this court have found

Apprendi inapplicable to collateral proceedings.  However, this particular division in People v. Beachem, 317 Ill. App. 3d 693, 706, 740 N.E.2d 389, 397 (2000), as well as the fourth division

in People v. Burns, No. 1-99-4030, slip op. at 13 (March 29, 2001), have determined that Apprendi applies retroactively to cases pending on collateral review.

	Significantly, we stated in Beachem that "Apprendi applies to a timely-filed postconviction petition."  (emphasis addded.) 317 Ill. App. 3d at 706, 740 N.E.2d at 397.  Recently, in People v. Walker, No. 1-00-0948, slip op. at 12-13 (May 15, 2002), we noted our consideration of Apprendi's retroactive application in Beachem was limited to timely, first petitions for postconviction relief and, thus, we did not directly confront the issue of

whether Apprendi's ruling extends to an untimely-filed petition.  In Walker, we shed some light on this matter, holding that Apprendi may apply retroactively to an untimely-instituted postconviction petition where the defendant's delay in filing for

relief was not occasioned by his culpable negligence as provided

for by section 122-1 of the Act.  Slip op. at 15-16.

	The instant case presents the question of whether an

Apprendi claim should be recognized in an untimely and successive postconviction proceeding.  This issue was resolved in People v. Jones, 321 Ill. App. 3d 515, 523, 747 N.E.2d 1074, 1081 (2001), where this court held that Apprendi has no application to untimely, successive postconviction proceeding.  We recognize the

Third District appellate court has expressed a different view in

People v. Lee, 326 Ill. App. 3d 882, 762 N.E.2d 18 (2001), appeal granted No. 93211 (April 3, 2002).  There, the reviewing court found an Apprendi challenge cognizable despite defendant first raising his challenge in an untimely, successive post-

conviction petition.  We reject Lee and adhere to the ruling in Jones that Apprendi claims are not cognizable to untimely, successive postconviction petitions.  Accordingly, defendant's

Apprendi challenges to his extended-term and consecutive sentences are not cognizable on this appeal.

		CONCLUSION

	For the foregoing reasons, the order of the circuit court

summarily dismissing defendant's second petition for

postconviction relief is affirmed.

	Affirmed.

	WOLFSON and SOUTH, JJ., concur.

A successive postconviction petition is permitted "only if the

proceedings on the initial petition were deficient in some

fundamental way."  People v. Wright, 189 Ill. 2d 1, 12, 723 N.E.2d 230, 237 (1999).  As explained in Jones:

			"In Flores, this court held that the procedural bars of waiver and res judicata may be relaxed with respect to successive

postconviction petitions only under certain

circumstances.  Under the 'cause and

prejudice' test announced in Flores, claims in a successive postconviction petition are

barred unless the petitioner can establish

good cause for failing to raise his claims in

prior proceedings and actual prejudice

resulting from the claimed errors.

[Citation].  For purposes of this test,

'cause' is defined as 'some objective factor

external to the defense [that] impeded

counsel's efforts to raise the claim' in an

earlier proceeding [Citations], and

'prejudice' is defined as 'an error which 'so

infected the entire trial that the resulting

conviction violates due process.'

[Citations.]  Jones, 191 Ill. 2d at 358, 732 N.E.2d at 575-76; see also Orange, 195 Ill. 2d at 449, 749 N.E.2d at 939.