NO. 4-00-0349

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

	Plaintiff-Appellee,			)	Circuit Court of

	v.			     		)	Champaign County

ERNEST THOMPSON,		 			)	No. 99CF741

	Defendant-Appellant.		)	

	                     		)	Honorable

							)	Arnold F. Blockman,

							)	Judge Presiding.

_______________________________________________________________

	JUSTICE KNECHT delivered the opinion of the court:

	In August 1999, defendant, Ernest Thompson, pleaded guilty to aggravated battery (720 ILCS 5/12-4(b)(11) (West 1998))

and violation of an order of protection (720 ILCS 5/12-30(a)

(West 1998)).  On September 7, 1999, the trial court sentenced

defendant to concurrent extended terms of nine years for aggra

vated battery and six years for violation of an order of protec

tion.  

	Defendant filed a pro se motion to withdraw guilty plea, which motion he later withdrew.  He filed no direct appeal. 

Instead, on February 10, 2000, defendant filed papers with the

trial court which the court construed as a motion to withdraw

guilty plea.  The trial court denied the motion, finding it

lacked jurisdiction to entertain the motion.  On February 15,

2000, defendant filed a petition to withdraw guilty plea and

vacate sentence.  Once again, on February 21, 2000, the trial

court denied the motion finding it lacked jurisdiction to enter

tain the motion.  

	On February 28, 2000, defendant filed a pro se postconviction petition under the Post-Conviction Hearing Act

(Act) (725 ILCS 5/122-1 through 122-8 (West 2000)).  The petition

alleged his plea was involuntary and in violation of the plea

agreement.  He also alleged he was unconstitutionally deprived of

a lawyer and was the victim of other unspecified unconstitutional

violations.  The trial court dismissed the petition as frivolous

and patently without merit.

	Defendant appeals, arguing (1) the trial court improp

erly entered an extended-term sentence for violation of an order

of protection and that sentence is void; (2) the extended-term

sentences imposed by the trial court based on his prior convic

tions violated Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); and (3) Public Act 83-942 (Pub.

Act. 83-942, eff. November 23, 1983 (1983 Ill. Laws 6200)),

amending the Act to allow dismissal of petitions prior to the

appointment of counsel, violated the single subject rule of the

Illinois Constitution.  (Ill. Const. 1970, art. IV, §8(d)).  We

affirm.

	Defendant argues, first, his extended- term sentence for

violation of an order of protection is improper and void because,

when a defendant has been convicted of multiple offenses of

differing classes, an extended- term sentence may only be imposed

for the conviction within the most serious class.  730 ILCS 5/5-

8-2(a) (West 1998); People v. Jordan, 103 Ill. 2d 192, 206, 469 N.E.2d 569, 575 (1984).  Aggravated battery is a Class 3 felony

(720 ILCS 5/12-4(e) (West 1998)) and violating an order of

protection with a prior violation is a Class 4 felony.  (720 ILCS 5/12-30(d) (West 1998)).  Thus, he contends the extended term

sentence for violating an order of protection was unauthorized

according to section 5-8-2(a) of the Unified Code of Corrections

(Unified Code_)) (730 ILCS 5/5-8-2(a) (West 1998)) and is void. 

The maximum non-extended term sentence for a Class 4 felony

violation of an order of protection is three years (730 ILCS 5/5-

8-1(a)(7) (West 1998)), and he asserts his sentence should be

reduced to three years.

	The State has not contested defendant's assertions that

his six -year extended -term sentence for violation of an order of

protection is void.  However, we find this issue is not a matter

of substantial deprivation of constitutional rights cognizable in

postconviction proceedings and defendant has forfeited the issue by not raising it until this appeal from the court's denial of

his postconviction petition.

	The Post-Conviction Hearing Act exists to permit

defendants to file postconviction petitions to establish "a

substantial deprivation of federal or state constitutional

rights."  People v. Haynes, 192 Ill. 2d 437, 464, 737 N.E.2d 169, 184 (2000).  The Post-Conviction Hearing Act is not a catch-all

or screening device to evaluate and correct any and all mistakes

that may have occurred in the trial court.  Further, because the

extended term on the aggravated battery is proper, a ruling in

defendant's favor on this issue would not change his punishment. 

The issue raised by defendant (that only the greater class

offense may include an extended -term sentence) involves a matter

created by statute.  We have consistently held such issues are

not of constitutional magnitude and, thus, not subject to scru tiny under the Post-Conviction Hearing Act.  See People v. Griffin, 321 Ill. App. 3d 425, 428, 748 N.E.2d 1235, 1238 (2001); People v. Guerrero, 311 Ill. App. 3d 968, 970, 725 N.E.2d 783, 784-85 (2000); People v. Bates, 179 Ill. App. 3d 705, 708-09, 534 N.E.2d 1019, 1021 (1989).

	Additionally, defendant's objection to his sentence was

not presented previously, either in a motion to reconsider

sentence, in a direct appeal, or in his postconviction petition. 

Statutory rights are subject to waiver where they could have been

raised in the trial court or on direct appeal but were not. 

Bates, 179 Ill. App. 3d at 709, 534 N.E.2d at 1021.  Further, defendant's contention of error, even if it was of constitutional

magnitude, is forfeited.  As we have previously stated,

"[d]efendant does not cite, nor are we aware of, any case in

which the [Post-Conviction Hearing Act] has been construed as

permitting a defendant to raise on appeal from the dismissal of a

postconviction petition an issue he never raised in that peti

tion.  This court will not be the first to so hold."  Griffin, 321 Ill. App. 3d at 428, 748 N.E.2d at 1238.

	Defendant next argues the extended- term sentences

imposed by the trial court in accordance with section 5-5-

3.2(b)(1) of the Unified Code of Corrections (730 ILCS 5/5-5-3.2(b)(1) (West

1998)) violated the provisions of Apprendi v. New Jersey,  530 U.S. 466, 147 L. Ed.2d 435, 120 S. Ct. 2348 (2000) because the

charging instrument did not include the element that his prior

record was sufficient to make him eligible for an extended term

sentence and his prior record was not proved at trial beyond a

reasonable doubt.  

	Defendant's contention must be rejected for three

reasons.  First, in People v. Helton, 321 Ill. App. 3d 420, 424, 749 N.E.2d 1007, 1010 (2001), this court held that Apprendi issues cannot be raised retroactively on collateral review. 

Second, an Apprendi challenge to extended- term sentencing has been found to be waived on the basis of a defendant's voluntary

guilty plea.  People v. Jackson, 199 Ill. 2d 286, 295, 769 N.E.2d 21, 26 (2002).

	Finally, on the merits, Ddefendant concedes the Apprendi cCourt explicitly recognized prior convictions constitute an

exception to the general rule that facts that increase a sentence

beyond the statutory maximum must be submitted to a jury and

proved beyond a reasonable doubt.  Apprendi, 530 U.S. at 476, 147 L. Ed.2d at 446, 120 S. Ct. at 2355.  However, he contends

because the Apprendi cCourt called into question whether its prior decision in Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed.2d 350, 118 S. Ct. 1219 (1998) (in which the cCourt upheld a

federal law allowing a judge to impose an enhanced sentence based

on prior convictions not alleged in the indictment), was cor

rectly decided, we should conclude Apprendi requires prior convictions be charged, submitted to a jury and proved beyond a

reasonable doubt and hold section 5-5-3.2(b)(1) of the Unified

Code is unconstitutional.  We decline.

	Defendant acknowledges this court has rejected these

same contentions in People v. Dillard, 319 Ill. App. 3d 102, 109, 745 N.E.2d 185, 191 (2001), and People v. Garry, 323 Ill. App. 3d 292, 300-01, 752 N.E.2d 1244, 1250-51 (2001).  We adhere to our

holdings in Garry and Dillard and reject defendant's contention Apprendi renders section 5-5-3.2(b)(1) unconstitutional.

	Defendant's final argument on appeal is that Public Act

83-942, which amended the Post-Conviction Hearing Act to allow

dismissal of petitions prior to the appointment of counsel,

violated the single subject rule of the Illinois Constitution. 

This court has rejected this argument in People v. Dorris, 319 Ill. App. 3d 579, 585, 746 N.E.2d 303, 307 (2001), and People v. Jones, 318 Ill. App. 3d 1189, 1193, 744 N.E.2d 344, 348 (2001).

	We affirm the trial court's judgment.

	Affirmed. 

	TURNER and STEIGMANN, JJ., concur.