No. 2--01--0665

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Kane County.

	)

	Plaintiff-Appellee,	)	No. 90--CF--516  

                                )                   

v.	)

	)

IAN M. BERONICH,  	)	Honorable

	)	Philip L. DiMarzio,

	Defendant-Appellant.	)	Judge, Presiding.

________________________________________________________________

	JUSTICE BOWMAN delivered the opinion of the court:

	Defendant, Ian Beronich, appeals the circuit court's order

that dismissed his second amended postconviction petition. 

Defendant contends his guilty plea to first-degree murder (Ill.

Rev. Stat. 1989, ch. 38, par. 9--1(b)) was involuntary because the

court admonished him that he was eligible for an extended-term

sentence but the extended-term sentencing statute was later

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

	On April 10, 1990, defendant was indicted for murder and other

offenses in connection with the death of Thomas Cochrane. 

Represented by attorney F. Keith Brown, defendant entered a

negotiated guilty plea on November 28, 1990.  In exchange for the

plea, the State agreed to recommend a 50-year prison sentence and

nol-pros the remaining charges.

	The trial court admonished defendant that the normal

sentencing range for murder was 30 to 60 years.  Later, the court

stated that the sentence could be between 20 and 60 years'

imprisonment.  The court also said, "Sometimes it can be extended

to 60 to 100 years based upon the nature of the event, whether it

was heinous or brutal or other factors."  The prosecutor

interjected that defendant was eligible for a sentence of natural-

life imprisonment because the victim was a potential witness in a

prosecution.  The court added that the life sentence would be

without the possibility of parole.  The court also told defendant

that he would serve 25 years or a little less of the 50-year

sentence, assuming his good behavior in prison.

	The court advised defendant of the rights that he was giving

up by pleading guilty.  Defendant said that no one had forced him

to plead guilty, that he had sufficient time to consult with

counsel, and that he had no complaints about his lawyer.

	After hearing the factual basis, the court accepted the plea

as knowing and voluntary.  The court concurred in the negotiated

disposition and sentenced defendant to 50 years' imprisonment.

	Defendant did not file a direct appeal.  On October 23, 1997,

he filed a pro se petition pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West 1996)), alleging several grounds for relief.  Defendant's affidavit and other

exhibits accompanied the petition.  On April 16, 1998, the trial

court dismissed some of the claims as frivolous and patently

without merit, but appointed the public defender to represent

defendant on the remaining claims.

	Attorney Donald Zuelke filed an amended petition which

included allegations that defendant had not been culpably negligent

in filing the petition beyond the three-year time limit the Act

allows (725 ILCS 5/122--1(c) (West 1996)).  After a hearing, the

court found that defendant was not culpably negligent for filing

the petition late, but denied the remaining claims on their merits.

	On appeal, this court held that the trial court erred by

summarily dismissing any of the petition's claims because the court

initially considered the petition beyond the Act's 90-day time

limit for summary action (725 ILCS 5/122--2.1(a) (West 1996)). 

People v. Beronich, No. 2--98--1377 (2000) (unpublished order under to Supreme Court Rule 23).

	Following remand, the trial court reappointed Zuelke, who

filed a second amended postconviction petition for defendant.  At

a brief hearing, the court granted the State's motion for a

directed finding on certain claims in the second amended petition

but ordered a further hearing on defendant's claim that his counsel

was ineffective for not moving to suppress his statements to

police.

	Zuelke later filed an addendum to the second amended petition

arguing that during the plea colloquy the trial court had 

incorrectly advised defendant of the maximum sentence he faced

because Apprendi rendered Illinois's extended-term sentencing statutes unconstitutional.  The court took the matter under

advisement and later issued an order denying the petition.  The

court rejected the Apprendi claim, finding that even if Apprendi applied defendant had waived the issue by pleading guilty without preserving this claim.  Moreover, had defendant timely raised the

issue, the trial court might have afforded him the right to have

the jury determine the existence of the aggravating factors beyond

a reasonable doubt.  Defendant filed a timely notice of appeal.

	On appeal, defendant argues only the Apprendi claim.  He contends that his guilty plea was not knowing and voluntary because

the trial court misadvised him about the maximum possible penalty. 

The trial court told him that he faced a maximum of 100 years or 

natural life in prison; however, Apprendi later made those sentences unconstitutional.  Defendant contends that had he known

that he faced a maximum of only 60 years in prison, he would not

have agreed to accept a 50-year sentence, which was only 10 years

less than the maximum.

	Before proceeding to the merits of defendant's claim, we must

first address several preliminary matters in order to frame the

issues properly.  First, the parties devote much of their briefs to

arguing whether Apprendi even applies to this case.  Defendant was convicted of first-degree murder.  The question whether Apprendi applies to natural-life or extended-term sentences for murder in

Illinois has divided the appellate court and even panels of this

district.  Some panels have taken the position that the enhanced

sentences for first-degree murder are like any other extended-term

sentences to which Apprendi applies.  See People v. Swift, 322 Ill. App. 3d 127, 129 (2001); People v. Joyner, 317 Ill. App. 3d 93, 110 (2000).  Most recently, a majority of this court held that Apprendi does apply to enhanced sentences for first-degree murder.  People v. Tenney, 329 Ill. App. 3d 430, 442 (2002).  Because we dispose of this appeal on different grounds, we need not revisit this question

again here, but will assume that Apprendi applies.

	Second, assuming that Apprendi does apply, defendant's argument reads that decision too broadly.  In Apprendi, the court held, "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.  Although defendant correctly states Apprendi's holding, his contentions are based on the assumption that Apprendi renders all extended-term sentencing statutes void.  This is

incorrect.

	Apprendi does not hold that a State may never subject a defendant to a sentence beyond the usual statutory maximum, only

that the facts justifying the enhancement (other than prior

convictions) must be proved to a jury beyond a reasonable doubt. 

The Illinois Supreme Court has held that the State's extended-term sentencing provisions are not void ab initio under Apprendi.  Hill v. Cowan, No. 90229, slip op. at __4 (April 18, 2002).  Accordingly,  that court has upheld the extended-term sentences of defendants who

waived the issue by pleading guilty.  Hill, slip op. at __3; People v. Jackson, 199 Ill. 2d 286, 295-96 (2002).  Moreover, this court has held that Apprendi does not apply on collateral review, thus upholding extended-term sentences that were not timely challenged. 

See People v. McGee, 328 Ill. App. 3d 930, 936 (2002). 

	It is clear from these cases that Illinois's extended-term

sentencing statutes are not void under Apprendi.  This is significant because it means that the trial court's admonishment

here that defendant was eligible for extended-term sentences was

not only true under the then-existing law but remains literally

true today.  The only changes wrought by Apprendi are that the State would have to allege the enhancing factors in the indictment

and prove them to a jury beyond a reasonable doubt, facts that the

court's admonishments need not cover.  See Jackson, 199 Ill. 2d at 296-97.  Defendant's argument thus reduces to one that, had he

known that he had the right to have a jury, rather than the trial

court, decide whether his conduct was brutal and heinous, he would

have rejected the State's plea offer and insisted on going to

trial.

	Having said that, we must also reject the State's contentions

that defendant cannot raise his argument because a guilty plea

waives Apprendi claims (Hill, slip op. at __23; Jackson, 199 Ill. 2d at 295-96), and because Apprendi does not apply to cases on collateral review (McGee, 328 Ill. App. 3d at 936).  Defendant's argument is not an Apprendi claim per se because he did not receive an extended-term sentence.  The 50-year sentence to which he agreed

was within the "normal" range for first-degree murder.  Rather,

defendant claims that his plea was not knowing and voluntary

because the trial court improperly advised him of the maximum

sentence for which he was eligible.  A guilty plea does not waive

a contention that the plea itself was involuntary because of faulty

admonishments.  See People v. Gosier, 145 Ill. 2d 127, 141-42 (1991).  Moreover, such claims may be raised in a postconviction

petition.  See People v. Wendt, 283 Ill. App. 3d 947, 957 (1996).

	We note, however, that defendant has waived his claim in

another way.  Although defendant argued in the addendum to the

second amended petition that his plea was involuntary because of

the improper admonishments, defendant presented no evidence in

support of this claim.  His affidavit incorporated from the

original petition does not address this claim and he presented no

live testimony on this issue.

	A postconviction petition must include affidavits, records, or

other evidence supporting its allegations or state why these

documents are unavailable.  725 ILCS 5/122--2 (West 2000).  Here,

defendant did file an affidavit but, as noted, it does not address

the claim he now makes.  Defendant acknowledges this omission, but

contends that the basis for the claim is "apparent from the

record."  We disagree.

	Before accepting defendant's plea, the trial court advised him

that he was eligible for a sentence of between 60 and 100 years in

prison "based upon the nature of the event, whether it was heinous

or brutal or other factors."  See 730 ILCS 5/5--8--2(a)(1) (West

2000).  The State had considerable evidence against defendant,

including his own confession in which he described in detail

stabbing the victim numerous times and beating him with a dumbbell. 

It is not "apparent" that, had defendant known he had the right to

have a jury, rather than the trial judge, decide whether his

conduct was brutal and heinous, he would have rejected the plea

offer and insisted on going to trial.  However, providing incorrect

admonishments when accepting a guilty plea may be plain error.  People v. Davis, 145 Ill. 2d 240, 250-51 (1991).  Therefore, we address the issue.

	Defendant contends that his plea was not knowing and voluntary

because the trial court incorrectly advised him about the sentence

he could receive.  Defendant observes that improper admonishments

about the sentences to which a defendant is subject may render a

guilty plea unknowing.  See Davis, 145 Ill. 2d at 250; United States v. Guerra, 94 F.3d 989, 994-95 (5th Cir. 1996) (plea invalid where court informed defendant he was eligible for twice the actual

maximum sentence available).  However, in those cases, the courts'

admonishments were wrong when the courts gave them.

	In Brady v. United States, 397 U.S. 742, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970), the Supreme Court stated as follows:

	"[A]bsent misrepresentation or other impermissible conduct by

state agents, [citation], a voluntary plea of guilty

intelligently made in the light of the then applicable law

does not become vulnerable because later judicial decisions

indicate that the plea rested on a faulty premise.  A plea of

guilty triggered by the expectations of a competently

counseled defendant that the State will have a strong case

against him is not subject to later attack because the

defendant's lawyer correctly advised him with respect to the

then existing law as to possible penalties but later

pronouncements of the courts, as in this case, hold that the

maximum penalty for the crime in question was less than was

reasonably assumed at the time the plea was entered."  Brady, 397 U.S. at 757, 25 L. Ed. 2d at 761, 90 S. Ct. at 1473.

	In other words, whether a guilty plea is intelligent and

voluntary is judged in light of the law that existed when the plea

was entered and a voluntary plea is not invalidated by later

changes in the law.  Recently, the United States Court of Appeals

for the Eleventh Circuit relied on Brady to reject an argument nearly identical to that defendant makes here.  The court held that

Brady foreclosed the argument that Apprendi, because it reduced the maximum sentence defendants faced, retroactively invalidated their

pleas.  United States v. Sanchez, 269 F.3d 1250, 1285 (11th Cir. 2001).  We agree with this analysis and hold that defendant's plea

was voluntary.

	Defendant has abandoned his contentions that his counsel

provided ineffective representation.  Therefore, we assume that he

had the advice of competent counsel.  Defendant does not claim that

he was improperly coerced to plead guilty or that he was promised

anything other than the explicit terms of the plea agreement.  The

trial court correctly advised him of the then-existing sentencing

options.  As noted, it is far from clear that the court's

admonitions were wrong even in light of Apprendi, but, even assuming that they were misleading under that decision, they were

correct at the time and we evaluate the plea's knowing and

voluntary character by the law at the time it was entered, not with

hindsight.

	The judgment of the circuit court of Kane County is affirmed.

	Affirmed.

	GROMETER and KAPALA, JJ., concur.