SIXTH DIVISION
JUNE 23, 2006
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THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 80 C 3999 & 83 C 11761
)
ANDRE KELLEY, )
) Honorable
Defendant-Appellant. ) Eddie A. Stephens,
) Judge Presiding
JUSTICE TULLY delivered the opinion of the court:
Defendant, Andre Kelley appeals the second-stage dismissal of his postconviction
petition in which he alleged that his life sentence is void in light of the United States Supreme
Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.Ct. 2348
(2000). Plaintiff, the People of the State of Illinois (the State), moved for dismissal of
defendant's petition and on August 6, 2004, the circuit court granted the State's motion to
dismiss. On appeal, defendant argues that the circuit court erred in dismissing his post-
conviction petition because Apprendi applies retroactively to defendant's petition. For the
reasons below, we affirm.
FACTS
At defendant's jury trial, the State presented evidence confirming that at approximately
2:30 a.m. on June 3, 1980, defendant entered the backseat of a taxi driven by Charles Lawson
(the victim). Defendant instructed the victim to drive the taxi into an alley, at which time
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defendant placed a gun to the back of the victim's head and stated, "this is a stickup." Defendant
observed another car blinking its headlights at the victim's taxi and he instructed the victim to
drive the taxi farther into the alley. After the victim drove the taxi to the end of the alley,
defendant instructed him to turn left. When the victim refused to turn left, defendant shot him in
the back of his head. The victim died as a result of the gunshot wound he sustained to the back
of his head. A jury found defendant guilty of murder and attempted armed robbery, and the
circuit court sentenced defendant to a term of natural life imprisonment.
Defendant appealed his conviction and argued, inter alia, that he was prejudiced when the
trial judge stated to potential jurors that he believed the evidence at trial would show that
defendant killed and attempted to rob the victim. On this basis, this court reversed defendant's
convictions and remanded the case for a new trial. People v. Kelley, 113 Ill. App. 3d 761
(1983).
A second jury trial commenced and defendant was again found guilty of murder and
attempted armed robbery. The circuit court found that defendant qualified for a sentence of life
imprisonment under both section 5--8--1 of the Unified Code of Corrections (Ill. Rev. Stat. 1983,
ch. 38, par. 1005--8--1(a)(1)), which permits a life sentence if the murder was accompanied by
exceptionally brutal or heinous behavior indicative of wanton cruelty, and section 9--1(b)(6) of
the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9--1(b)(6)), which permits a
sentence of death if the murder was committed in the course of another felony. As such, the
circuit court sentenced defendant to life imprisonment for the murder and to a concurrent term of
14 years for the attempted armed robbery.
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Defendant filed a direct appeal of this conviction. On December 10, 1986, we affirmed
defendant's convictions and sentence. People v. Kelley, 1--85--2571 (1986) (unpublished order
under Supreme Court Rule 23).
On December 31, 1991, defendant filed a postconviction petition alleging that he was
deprived of his sixth amendment right to effective assistance of counsel. The circuit court
concluded that defendant's petition was frivolous and without merit and denied his post-
conviction petition. On January 23, 1994, we affirmed the circuit court's dismissal of defendant's
postconviction petition. People v. Kelley, 1--92--0897 (1994) (unpublished order under
Supreme Court Rule 23).
On October 4, defendant filed a "Supplemental Petition for Post-Conviction Relief." In
his petition, defendant argued that his life sentence violated the United State Supreme Court's
decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.Ct. 2348 (2000).
On January 10, 2003, the counsel appointed to represent defendant filed a "Second Supplemental
Petition for Post-Conviction Relief," in which he expanded defendant's Apprendi arguments. On
February 7, 2003, the State filed an amended motion to dismiss, and on August 6, 2004, the trial
court granted to State's motion to dismiss. The dismissal of this "Second Supplemental Petition
for Post-Conviction Relief" is the subject of defendant's timely appeal.
DISCUSSION
On appeal, defendant argues that his sentence of life imprisonment is unlawful under
Apprendi v. New Jersey 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.Ct. 2348 (2000) because the
sentence was based on factors that were not proven to a jury beyond a reasonable doubt.
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Defendant asserts that his sentence should be reduced to the maximum penalty authorized by the
jury's verdict, which was 40 years. The State asserts that Apprendi does not apply retroactively
to convictions that were final prior to the issuance of Apprendi by the United States Supreme
Court. We agree with the State.
At defendant's 1985 jury trial, the jury returned a general guilty verdict for first degree
murder and found defendant guilty of attempted armed robbery. At the time of the offense,
Illinois law provided that an offender could be sentenced for first degree murder to a term of
imprisonment of not less than 20 years but not more than 40 years (Ill. Rev. Stat. 1983, ch. 38,
par. 1005 --8--1 (a)(1)), and the State did not seek imposition of the death penalty.
The jury's verdict authorized a maximum penalty of 40 years' imprisonment. The judge,
relying on both section 5--8--1 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38,
par. 1005--8--1(a)(1)), which permits a life sentence if the murder was accompanied by
exceptionally brutal or heinous behavior indicative of wanton cruelty, and section 9--1(b)(6) of
the Criminal Code (Ill. Rev. Stat. 1983, ch. 38, par. 9--1(b)(6)), which permits a sentence of
death if the murder was committed in the course of another felony, sentenced defendant to life
imprisonment for the murder and sentenced defendant to a concurrent term of 14 years'
imprisonment for the attempted armed robbery.
On appeal, the State does not challenge defendant's contention that the death penalty
could not be the prescribed statutory maximum sentence because the case was not a capital case
and the trial judge did not make a valid death-eligibility finding under section 9--1(b)(6) of the
Criminal Code. Ill. Rev. Stat. 1983, ch. 38, par. 9--1(b)(6). Therefore, the only issue on appeal is
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whether Apprendi should apply retroactively to defendant's case because the aggravating factors
considered by the judge in concluding defendant was eligible for enhanced sentencing were not
submitted to the jury and proved beyond a reasonable doubt.
As stated, defendant asserts that his extended-term sentence violated the United States
Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120
S.Ct. At 2362-63.. In Apprendi, the United States Supreme Court held that the constitutional
due-process and jury-trial guarantees required 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." Apprendi, 530 U.S. at 490, 147 L.
Ed. 2d at 455, 120 S. Ct. at 2362-63. Defendant asserts that the aggravating factors upon which
his extended-term sentence was based were not proven beyond a reasonable doubt in violation of
Apprendi.
In assessing defendant's argument that his extended-term sentence violated Apprendi, we
must first addresses whether Apprendi applies retroactively to defendant, whose direct appeals
had been exhausted well before the United States Supreme Court decided Apprendi in June
2000. The Illinois Supreme Court has adopted the United States Supreme Court's decision in
Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989) (plurality op.) as the
appropriate test for determining when a new rule should apply retroactively. See People v.
Flowers, 138 Ill. 2d 218 (1990). According to Teague, in general, new rules do not apply
retroactively to cases on collateral review. Flowers, 138 Ill. 2d at 239. As an exception to the
general rule barring retroactive application, retroactivity is appropriate when:
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" 'the new rule either (1) places certain kinds of primary, private individual conduct
beyond the power of the criminal law making authority to proscribe, or (2) requires the
observance of those procedures that are implicit in the concept of ordered liberty.' "
People v. De La Paz, 204 Ill. 2d 426, 434 (2003), quoting Flowers, 138 Ill. 2d at 237,
citing Teague, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073 (plurality op.).
In People v. De La Paz, 204 Ill. 2d 426, our supreme court applied Teague and assessed
whether Apprendi applies retroactively. While defendant acknowledges that De La Paz was
correctly decided, defendant contends that De La Paz is distinguishable and, as such, does not
serve as a barrier to retroactive application of Apprendi in his case. We disagree.
In De La Paz, the defendant was convicted of armed robbery, armed violence, home
invasion, and aggravated battery. De La Paz, 204 Ill. 2d at 429. The defendant was sentenced to
a 55-year extended sentence for armed robbery and a concurrent 5-year sentence for aggravated
battery. De La Paz, 204 Ill. 2d at 429. The defendant argued that his extended sentence should
have been reversed because the trial court did not comply with Apprendi in sentencing him. De
La Paz, 204 Ill. 2d at 431. As in defendant's present appeal, the issue before our supreme court
was whether Apprendi applied retroactively to criminal cases in which direct appeals were
exhausted before Apprendi was decided. De la Paz, 204 Ill. 2d at 433.
Applying the test for retroactivity provided by the United States Supreme Court in
Teague, our supreme court held that Apprendi does not apply retroactively to criminal cases in
which direct appeals were exhausted before Apprendi was decided. De La Paz, 204 Ill. 2d at
439.
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In reaching its decision in De La Paz, our supreme court stated that the defendant did not argue
that retroactive application of Apprendi was appropriate under the first Teague exception and
noted that such an argument would not be persuasive if made. De La Paz, 204 Ill. 2d at 434.
Our supreme court reasoned that retroactive application of Apprendi was not appropriate under
the first Teague exception because "Apprendi did not 'decriminalize' [citation] any conduct." De
La Paz, 204 Ill. 2d at 434. In an effort to clarify that the first Teague exception did not apply to
cases in which appeals had been exhausted prior to the date on which Apprendi was decided, our
supreme court stated that "if Apprendi is to be applied retroactively, it can only be because the
rule announced in that case falls within the second Teague exception." De La Paz, 204 Ill. 2d at
434.
After confirming that Apprendi should not be applied retroactively pursuant to the first
Teague exception, our supreme court then discussed whether Apprendi should be applied
retroactively pursuant to the second Teague exception. De La Paz, 204 Ill. 2d at 434. Our
supreme court concluded that, like the first Teague exception, the second Teague exception does
not warrant retroactive application of Apprendi because an Apprendi violation does not involve
"such constitutional 'bedrock' as to require retroactive application, [since] such error is
potentially harmless." De La Paz, 204 Ill. 2d at 437.
Defendant contends that De La Paz is distinguishable because our supreme court's
holding in that case was limited to the conclusion that Apprendi does not apply retroactively
pursuant to the second Teague exception in that Apprendi did not represent a procedure that was
" 'implicit in the concept of ordered liberty.' " De La Paz, 204 Ill. 2d at 434, quoting Flowers, 138
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Ill. 2d at 237, citing Teague, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073 (plurality
op.). Hence, defendant asserts that De La Paz did not address whether the first Teague exception
should operate to provide retroactive application of Apprendi to cases such as defendant's.
Contrary to defendant's contention that the holding in De La Paz was limited only to a
conclusion that retroactive application of Apprendi was not appropriate under the second Teague
exception, our supreme court's opinion in De La Paz stated that the broad issue before the court
was "whether Apprendi should be applied retroactively to criminal cases in which direct appeals
were exhausted before Apprendi was decided." De La Paz, 204 Ill. 2d at 433. The court
concluded that "Apprendi should not be taken outside the general rule barring retroactivity." De
La Paz, 204 Ill. 2d at 434. Furthermore, the court specifically stated that "if Apprendi is to be
applied retroactively, it can only be because the rule announced in that case falls within the
second Teague exception." De La Paz, 204 Ill. 2d at 434. In light of our supreme court's opinion
in De La Paz, we cannot agree with defendant's contention that the holding in that case was
limited to a conclusion that Apprendi does not apply retroactively pursuant exclusively to
Teague's second exception. On the contrary, we believe that our supreme court's decision in De
La Paz stands for the proposition that Apprendi should not be applied retroactively to any
criminal cases in which direct appeals were exhausted before Apprendi was decided.
In addition to defendant's efforts to distinguish his case from our supreme court's decision
in De La Paz, defendant also asserts that retroactive application of Apprendi to his case is
appropriate pursuant to the United States Supreme Court's decision in Schriro v. Summerlin, 542
U.S. 348, 159 L. Ed. 2d 442, 124 S.Ct. 2519. (2004). Specifically, defendant asserts that while
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the United States Supreme Court held in Summerlin that Apprendi's effect on Arizona's capital
sentencing scheme was procedural, and therefore not subject to retroactive application of
Apprendi, the fact that Illinois's aggravating factors did not need to be proven beyond a
reasonable doubt at the time Apprendi was decided makes the effect on Illinois law substantive,
and therefore subject to retroactive application of Apprendi. We disagree.
The United States Supreme Court in Summerlin was faced with the issue of whether its
interpretation of Apprendi in its decision in Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556,
122 S. Ct. 2428 (2002), should apply retroactively to cases in which a defendant's conviction and
sentence had become final on direct review before Apprendi was decided. Summerlin, 542 U.S.
at 351, 159 L. Ed. 2d at 448, 124 S. Ct. at 2522. In Ring, the Court had decided Apprendi did
not permit a judge, sitting without a jury, to find an aggravating circumstance necessary for
imposition of the death penalty. Ring, 536 U.S. at 609, 153 L. Ed. 2d at 576-77, 122 S. Ct. at
2443.
The Court in Summerlin held that its interpretation of Apprendi in Ring should not be
given retroactive effect to criminal cases in which direct appeals had been exhausted before Ring
was decided. Summerlin, 542 U.S. at 358, 159 L. Ed. 2d at 453, 124 S. Ct. at 2526. In so doing,
the Court reasoned that the fact that the judge, rather than the jury, had found the existence of
aggravating factors beyond a reasonable doubt such that the death penalty was appropriate was
not a situation in which there was an alteration of the range of conduct Arizona law subjected to
the death penalty. Summerlin, 542 U.S. at 354, 159 L. Ed. 2d at 450, 124 S. Ct. at 2524. Rather,
the Court opined that having the judge rather than the jury assess the aggravating factors merely
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altered the range of permissible methods for determining whether a defendant's conduct was
punishable by death. Summerlin, 542 U.S. at 355-56, 159 L. Ed. 2d at 451, 124 S. Ct. at 2525.
The Court stated that the issue was "whether judicial factfinding so 'seriously diminishe[s]'
accuracy that there is an ' "impermissibly large risk" ' of punishing conduct the law does not
reach." (Emphasis in original.) Summerlin, 542 U.S. at 355-56, 159 L. Ed. 2d at 451, 124 S. Ct.
at 2525, quoting Teague, 489 U.S. at 312-13, 103 L. Ed. 2d at 357, 109 S. Ct. at 1076 quoting
Desist v. United States, 394 U.S. 244, 262, 22 L. Ed. 2d 248, 263, 89 S. Ct. 1030, 1041(1969)
(Harlan, J., dissenting). The Court held that there was legitimate disagreement over whether
juries were better fact finders than judges and, therefore, the Court could not confidently state
that judicial fact finding seriously diminished accuracy such that retroactive application of
Apprendi was appropriate. Summerlin, 542 U.S. at 355-58, 159 L. Ed. 2d at 451, 124 S. Ct. at
2525.
Here, defendant argues that while the United States Supreme Court's decision in
Summerlin held that Apprendi's effect on Arizona's capital sentencing scheme was procedural
and, therefore, not subject to retroactive application of Apprendi under Teague, the effect of
Apprendi on Illinois's sentencing scheme was substantive and, therefore, Apprendi should apply
retroactively to defendant's case. Specifically, defendant emphasizes that under Arizona's
sentencing scheme, the judge had to decide that the defendant was eligible for the death penalty
by finding that the aggravating factors were present by a standard of "beyond a reasonable
doubt," while in Illinois, defendant contends that the judge could enter an extended-term
sentence if he found the existence of aggravating factors by a finding less than "beyond a
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reasonable doubt." We cannot agree with defendant's assertion that Summerlin calls for
retroactive application of Apprendi to defendant's case.
First, we note that the actual holding of Summerlin was that Apprendi and Ring
announced new procedural rules that do "not apply retroactively to cases already final on direct
review." Summerlin, 542 U.S. at 358, 159 L. Ed. 2d at 453, 124 S. Ct. at 2526. Also, we note
that the holding in Summerlin was reached by addressing the constitutionality of Arizona's
sentencing scheme and assessing whether Apprendi should apply retroactively to cases in which
a judge rather than a jury made a decision regarding the existence of aggravating factors, the
existence of which determined whether a defendant was eligible for the death penalty.
Summerlin, 542 U.S. at 350, 159 L. Ed. 2d at 447, 124 S. Ct. at 2521. In his efforts to adapt the
Summerlin opinion to the facts of his case, defendant fails to recognize that nothing in the
Summerlin opinion suggests that the United States Supreme Court would have decided that case
differently if the Arizona sentencing statute called for the judge to find the existence of the
aggravating factors by some standard less than "beyond a reasonable doubt." In the absence of
some suggestion in the Court's Summerlin opinion that the outcome would have been different if
the statute at issue in that case had called for a finding of the aggravating factors by a standard
less than "beyond a reasonable doubt," we are left only with our supreme court's opinion in De
La Paz to guide our efforts to address defendant's petition for retroactive application of
Apprendi.
Second, our conclusion that De La Paz controls this case is strengthened by our supreme
court's decision in Lucien v. Briley, 213 Ill.2d 340 (2004), which was decided after Summerlin
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and in which our supreme court clearly stated that Apprendi was a procedural rule that "does not
apply retroactively to cases in which the direct appeal process had concluded when Apprendi
was decided." Lucien, 213 Ill.2d at 349. In light of both De La Paz and Lucien, we cannot
accept defendant's argument that the United States Supreme Court's holding in Summerlin
warrants retroactive application of Apprendi to Illinois's extended-sentencing scheme.
In sum, we confirm that the rule in Illinois is that "Apprendi does not apply retroactively
to cases in which the direct appeal process had concluded when Apprendi was decided." Lucien,
213 Ill. 2d at 349, see also De La Paz, 204 Ill. 2d 426. In this case, defendant's direct appeals
were exhausted before Apprendi was decided and, therefore, Apprendi does not apply
retroactively to defendant's case. Accordingly, we affirm the circuit court's dismissal of
defendant's postconviction petition.
McNULTY, P.J., and FITZGERALD SMITH, J., concur.
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