SECOND DIVISION

									December 28, 18, 2001<>

No. 1--99--3621

THE PEOPLE OF THE STATE OF ILLINOIS, 

		Plaintiff-Appellee, 

				v.

CHARLES STEWART, 

		Defendant-Appellant.	

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Appeal from the 

Circuit Court of

Cook County.

Honorable

James D. Egan,

Judge Presiding.

	JUSTICE BURKE delivered the opinion of the court:

	Defendant Charles Stewart appeals from an order of the circuit

court dismissing, without an evidentiary hearing, his pro se petition for postconviction relief filed pursuant to the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 1998)).  On appeal, defendant contends that the trial court erred

in summarily dismissing his postconviction petition as untimely,

that his extended-term sentence violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and that

Public Act 83--942 (Pub. Act 83--942, eff. November 23, 1983)

violates the single subject rule of article IV, section 8, of the

Illinois Constitution (Ill. Const. 1970, art. IV, §8).  For the

reasons set forth below, we affirm.

	STATEMENT OF FACTS

	On June 1, 1995, defendant was found guilty of first degree

murder following a bench trial as a result of his "violation" of a

fellow gang member, or, in lay language, for his participation in

punishing and beating to death the fellow gang member for

wrongdoing.  Defendant was sentenced to an extended-term of 70

years' imprisonment based on the fact that the killing was brutal

and heinous.  We affirmed defendant's conviction upon direct appeal

in an order issued pursuant to Supreme Court Rule 23 (166 Ill. 2d

R. 23).  Upon rehearing, we modified the order but again affirmed

the judgment of the trial court.  People v. Stewart, No. 1--95-- 3666 (1996) (unpublished order under Supreme Court Rule 23). 

Thereafter, defendant appealed to the Illinois Supreme Court, which

affirmed this court.  People v. Stewart, 179 Ill. 2d 556, 689 N.E.2d 1129 (1997).

	On August 17, 1999, defendant filed a pro se postconviction petition, alleging ineffective assistance of trial counsel in

failing to call a handwriting expert at trial and ineffective

assistance of appellate counsel in failing to raise vital and

proper issues on appeal and in failing to raise the issues

presented to the appellate court in the supreme court.  On

September 10, 1999, the trial court summarily dismissed defendant's

petition, finding that it was untimely.  This appeal followed.

	ANALYSIS

	I.  Dismissal of Postconviction Petition

	Defendant first contends that the trial court erred in

dismissing his postconviction petition because: (1) it raised "far

more than" a gist of a valid constitutional claim, specifically,

ineffective assistance of counsel because counsel failed to timely

secure and present testimony from a handwriting expert to support

defendant's testimony that he did not sign the confession admitted

against him at trial; (2) the trial court does not have authority

to address the timeliness of a postconviction petition at the

summary dismissal stage; and (3) the trial court failed to

summarily dismiss his postconviction petition within 90 days.1  With respect to the issue of timeliness, defendant asks us to

follow two Fifth District cases, which held that the issue of

timeliness cannot be made at the summary dismissal stage.

	Section 122--1(c) of the Act, which sets forth the time

limitation for filing a postconviction petition, provides:

			"No proceedings under this Article shall

be commenced more than 6 months after the

denial of a petition for leave to appeal or the date for filing such a petition if none is

filed or more than 45 days after the defendant

files his or her brief in the appeal of the

sentence before the Illinois Supreme Court 

*** or 3 years from the date of conviction,

whichever is sooner, unless the petitioner

alleges facts showing that the delay was not

due to his or her culpable negligence."  725

ILCS 5/122--1(c) (West 1998).

 	Although there clearly is a split among the appellate districts as to whether a postconviction petition can be dismissed

at the summary dismissal stage based on untimeliness,2 the First District addressed the issue in People v. Scullark, 1--99--1722 (October 31, 2001), and People v. Lopez, 317 Ill. App. 3d 1047, 740 N.E.2d 1179 (2000).  In both cases, after analyzing other decisions

on the issue and relevant supreme court authority, the Lopez and Scullark courts concluded that timeliness of a postconviction petition may be addressed at the summary dismissal stage. 

Scullark, slip op. at 4; Lopez, 317 Ill. App. 3d at 1052-53.  We believe the Scullark and Lopez decisions are sound and we follow them.  Accordingly, we reject defendant's request to follow the

Fifth District's decisions.

	Pursuant to section 122--1(c), defendant's postconviction

petition here was due the sooner of (1) June 1, 1998 (three years

from the date of his conviction on June 1, 1995), or (2) August 23,

1997 (45 days after defendant filed his brief in the supreme court

on July 9, 1997).  Defendant did not file his petition until August

7, 1999, and therefore, it was untimely.  Despite this, the Act

provides a "safety valve" for defendants who do not timely file

their petitions.  Scullark, slip op. at 5.  Under the Act, a defendant may be excused from timely filing his petition if he can

establish that the tardiness was not due to his culpable

negligence.  725 ILCS 5/122--1(c) (West 1998).

	In Scullark, the trial court summarily dismissed the defendant's postconviction petition as untimely.  On appeal, the defendant contended, inter alia, that his failure to include allegations in his petition that he was not culpably negligent

should not result in dismissal of his petition.  Scullark, slip op. at 5. The Scullark court agreed.  First, it noted that the plain language of the Act does not require that allegations of lack of

culpable negligence must be contained in a postconviction petition. 

Scullark, slip op. at 5.  Second, even if such allegations were necessary in a petition, the court reasoned that they need not be

alleged at the outset or in the original petition because a

defendant can amend his petition.  Scullark, slip op. at 6.  Lastly, the Scullark court noted that our supreme court in People v. Wright, 189 Ill. 2d 1, 11, 723 N.E.2d 230 (1999), stated that a postconviction petition should not be dismissed for failure to

allege lack of culpable negligence if the petition can be amended

to include such allegations.  According to Scullark, Wright stands for the proposition that if a petition is unsuccessful due to a

failure to include lack of culpable negligence allegations in it,

a defendant must be given an opportunity to amend.  Scullark, slip op. at 8.  Thus, "[t]he logical implication of [Wright's] holding is that it is not strictly necessary for the petitioner to plead a

lack of culpable negligence until the issue has been raised by the

State (or by the court, which may dismiss for lack of timeliness in

the initial summary hearing without the State's motion), at which point the petitioner should be allowed to amend his petition." 

Scullark, slip op. at 8.  While the defendant in Scullark had not asked to amend his petition or filed a motion to amend following

the trial court's summary dismissal, he did file a motion to

reconsider dismissal of the petition, which motion contained

allegations of lack of culpable negligence.  Because of this, the Scullark court assessed whether the allegations were sufficient. 

	In the instant case, the issue of timeliness and defense of

lack of culpable negligence  were was raised by the trial court when it

summarily dismissed defendant's petition based on untimeliness. 

However, defendant did not file a motion to amend his

postconviction petition or a motion to reconsider following the

summary dismissal.  In fact, defendant did not even raise any

allegations with respect to lack of culpable negligence until his

reply brief before this court.  Pursuant to Wright and Scullark, defendant was required to raise and allege his lack of culpable

negligence at the trial level, either in his postconviction

petition, a motion to amend his petition, or a motion of whatever

nature directed at the trial court's summary dismissal.  See also People v. Cruz, 324 Ill. App. 3d 927, 929, 755<> N.E.2d 90<> (2001) 

No. 1-99-3215, slip op. at 3 (August 3, 2001) (where the defendant files his postconviction petition after the

expiration of the applicable time period, he must allege facts that

the delay was not due to his culpable negligence).  This is particularly true since the trial court is allowed to address not

only the timeliness of a postconviction petition at the summary

dismissal stage, but also whether a defendant has established a

lack of culpable negligence, thus excusing the untimeliness.  See Lopez, 317 Ill. App. 3d at 1052-53.  As such, these questions should be resolved before the trial court.  Accordingly, because

defendant here did not raise any allegations of lack of culpable

negligence until this appeal, our case is distinguishable from

Scullark and mandates a different result.  We conclude that the trial court properly assessed the timeliness of defendant's

petition and, since defendant failed to allege facts showing a lack

of culpable negligence on his part, the trial court did not err in

dismissing defendant's postconviction petition.

	II.  Extended-Term Sentence and Apprendi

	Defendant next contends that his 70-year extended-term

sentence violates Apprendi because it was based on the elements of brutal and heinous conduct, factors not submitted to the jury nor

proven beyond a reasonable doubt.  Defendant asks us to reduce his

sentence to a term within the statutory range or remand the case

for sentencing within the statutory range.

	Several courts have held, pursuant to Apprendi, that where the State seeks to enhance or extend a sentence for murder on the basis

that the crime was brutal or heinous, it must allege those facts in the charging instrument and prove them to a jury beyond a

reasonable doubt.  People v. Rush, 322 Ill. App. 3d 1014, 1027-28, 748 N.E.2d 832 (2001); People v. Kaczmarek, 318 Ill. App. 3d 340, 353, 741 N.E.2d 1131 (2000); People v. Beachem, 317 Ill. App. 3d 693, 708-09, 740 N.E.2d 389 (2000).  These courts have explained

why the sentencing procedure based on elements of brutal and

heinous conduct is unconstitutional under Apprendi.  We follow these decisions.  

	This does not end our analysis, however, because the question

remains as to whether Apprendi applies retroactively to a postconviction petition.  We note that there is a split among the

Districts of the appellate court and among the divisions of the

First District as to whether Apprendi applies retroactively to postconviction petitions.  Compare People v. Herring, 324 Ill. App. 3d 458, 467, 754 N.E.2d 385 (1st Dist. 6th Div. 2001); Rush, 322 Ill. App. 3d at 1027 (5th Dist. 2001); Beachem, 317 Ill. App. 3d at 706 (1st Dist. 3d Div.) (all holding that Apprendi applies retroactively to collateral proceedings), with People v. Helton, 321 Ill. App. 3d 420, 422, 749 N.E.2d 1007 (4th Dist. 2001); People v. Kizer, 318 Ill. App. 3d 238, 252, 741 N.E.2d 1103 (1st Dist. 1st Div. 2000) (holding that Apprendi does not apply retroactively to collateral proceedings).  See also People v. Jones, 321 Ill. App. 3d 515, 523, 747 N.E.2d 1074 (1st Dist. 2d Div. 2001) (holding that Apprendi does not apply retroactively to untimely successive postconviction petitions).  In Scullark, this division agreed with the Kizer court and concluded that Apprendi does not apply to cases pending on collateral review.  Scullark, slip op. at 29.  Accordingly, the Scullark court concluded that the defendant's "attempt to raise Apprendi issues through this post-conviction appeal [be] stricken."  Scullark, slip op. at 31.

	Based on Scullark, we similarly decline to address defendant's Apprendi argument; his argument is not properly raised on collateral review, whether timely or untimely filed.

	III.  Constitutionality of Public Act 83--942

	Defendant lastly contends that Public Act 83--942 (Pub. Act

83--942, eff. November 23, 1983), which amended the Act, violates

the single subject rule of article IV, section 8, of the Illinois

Constitution (Ill. Const. 1970, art. IV, §8).  This argument has

been rejected by every district of the appellate court, except for

the Fifth District, which apparently has not yet addressed the

issue.  See People v. Vilces, 321 Ill. App. 3d 937, 944-45, 748 N.E.2d 1219 (2d Dist. 2001); People v. Sharpe, 321 Ill. App. 3d 994, 997, 749 N.E.2d 432 (3d Dist. 2001); People v. Dorris, 319 Ill. App. 3d 579, 585, 746 N.E.2d 303 (4th Dist. 2001); People v. Jones, 318 Ill. App. 3d 1189, 1193, 744 N.E.2d 344 (4th Dist. 2001); People v. Roberts, 318 Ill. App. 3d 719, 733-34, 743 N.E.2d 1025 (1st Dist. 2000).  We find no persuasive reasons to depart

from these decisions, since they are well reasoned and sound. 

Accordingly, we conclude that Public Act 83--942 does not violate

the single subject rule.

	CONCLUSION

	For the reasons stated, we affirm the judgment of the circuit

court of Cook County.

	Affirmed.

	WOLFSON and HALL, JJ., concur.