{ "id": 279475, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK KIZER, Defendant-Appellant", "name_abbreviation": "People v. Kizer", "decision_date": "2000-12-26", "docket_number": "No. 1-99-0733", "first_page": "238", "last_page": "252", "citations": [ { "type": "official", "cite": "318 Ill. App. 3d 238" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "202 F.3d 598", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 917809 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/f3d/202/0598-01" ] }, { "cite": "41 F.3d 175", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7407946 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/f3d/41/0175-01" ] }, { "cite": "69 F.3d 963", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7412657 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/f3d/69/0963-01" ] }, { "cite": "421 U.S. 684", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541415 ], "weight": 6, "year": 1975, "pin_cites": [ { "page": "697-98" }, { "page": "519" }, { "page": "1889" }, { "page": "698" }, { "page": "519" }, { "page": "1889" } ], "opinion_index": 0, "case_paths": [ "/us/421/0684-01" ] }, { "cite": "508 U.S. 275", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12227 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/us/508/0275-01" ] }, { "cite": "162 Ill. 2d 513", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477557 ], "year": 1994, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0513-01" ] }, { "cite": "143 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591446 ], "year": 1991, "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0435-01" ] }, { "cite": "905 F.2d 1129", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1807255 ], "year": 1990, "pin_cites": [ { "page": "1134" } ], "opinion_index": 0, "case_paths": [ "/f2d/905/1129-01" ] }, { "cite": "123 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550970 ], "weight": 8, "year": 1988, "pin_cites": [ { "page": "194" }, { "page": "197" }, { "page": "194-95" }, { "page": "198" }, { "page": "198" }, { "page": "194-95" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0184-01" ] }, { "cite": "65 Ind. 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FREDERICK KIZER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COHEN\ndelivered the opinion of the court:\nBACKGROUND\nIn 1995, a jury convicted the defendant of one count of first degree murder, three counts of attempted murder and two counts of aggravated battery. The trial court sentenced the defendant to consecutive terms of 50 years for first degree murder and terms of 25, 15 and 10 years for the attempted murder counts. We affirmed the convictions on direct appeal. People v. Kizer, No. 1\u201495\u20143562 (1997) (unpublished order under Supreme Court Rule 23).\nThe defendant then challenged his convictions under the Post-Conviction Hearing Act (725 ILCS 5/122\u20141 et seq. (West 1998)). The court reviewed the defendant\u2019s petition and dismissed it as frivolous and patently without merit. 725 ILCS 5/122\u20142.1(a)(2) (West 1998).\nThe defendant appealed from the dismissal of his postconviction petition. In his appeal, the defendant for the first time challenged the propriety of his sentence, arguing that the trial court erred in making his sentences consecutive rather than concurrent.\nThis court initially disposed of the appeal in an unpublished order. The defendant filed a petition for rehearing. The order was withdrawn in order to allow consideration of this motion, which is taken with the case. We deny the petition for rehearing.\nANALYSIS\nIn his pro se postconviction petition, the defendant challenged the sufficiency of the evidence and alleged that his counsel was ineffective, that the trial court demonstrated bias against him and that the prosecution engaged in improper closing argument. He also alleged that his appellate counsel was ineffective for failing to raise these issues on direct appeal. In this appeal, he contests the propriety of his 10-year and his 15-year consecutive sentences. He acknowledges that this issue was raised neither on direct appeal nor in his pro se petition, but argues that the sentences may nonetheless be attacked at any time because they did not conform to a statutory requirement and therefore are void. People v. Arna, 168 Ill. 2d 107, 113 (1995). In a supplemental brief, the defendant contends that the law under which he was sentenced has been rendered unconstitutional by the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). As a result, he argues, his consecutive sentences are void and must be modified to run concurrently.\nI\nThe defendant shot at William and Kevin Richardson. He missed William Richardson, but hit Kevin Richardson in the shoulder. The bullet broke Kevin Richardson\u2019s arm. For these attempted murders the trial court imposed 10-year and 15-year consecutive sentences.\nThe imposition of concurrent and consecutive sentences is governed by section 5\u20148\u20144(a) of the Unified Code of Corrections (Code) (730 ILCS 5/5 \u2014 8\u20144(a) (West 1998)). That section provides in pertinent part:\n\u201cThe 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 objective, 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, *** in which event the court shall enter sentences to run consecutively.\u201d 730 ILCS 5/5 \u2014 8\u20144(a) (West 1998).\nIn People v. Whitney, 188 Ill. 2d 91, 96 (1999), the Illinois Supreme Court construed this statutory provision to require consecutive sentencing where a defendant is convicted of either a Class X or a Class 1 felony and inflicted severe bodily injury to the victim of that felony.\nThe State concedes that William Richardson was not injured and, therefore, that the consecutive sentence for the defendant\u2019s attempt to murder him is void under Whitney. Accordingly, the State acknowledges that waiver does not bar the defendant\u2019s present claim (Arna, 168 Ill. 2d at 113) and that his 10-year sentence should run concurrently with the other sentences. We agree. The State does not concede, however, that the consecutive term for the attempted murder of Kevin Richardson was improper.\nThe attempted murder of Kevin Richardson was the triggering conviction for the imposition of the 15-year consecutive sentence under Whitney. Attempted murder is a Class X felony, which satisfies the first element of the consecutive sentencing statute. People v. Biggs, 294 Ill. App. 3d 1046, 1053 (1998). Kevin Richardson\u2019s fractured arm from the gunshot wound provided the second element: severe bodily injury. Biggs, 294 Ill. App. 3d at 1053. The defendant contends, however, that Kevin Richardson\u2019s injury was not sufficiently grave to qualify as \u201csevere bodily injury\u201d under the sentencing statute.\nThe State asserts that the defendant has waived this issue because he failed to file a motion to reconsider sentence or raise the issue either on direct appeal or in his pro se postconviction petition.\nA postconviction proceeding is not an appeal of the underlying judgment but, rather, a collateral proceeding where the defendant may challenge a conviction or sentence for violations of constitutional rights. People v. Johnson, 183 Ill. 2d 176, 186 (1998). Any claim of substantial denial of constitutional rights that was not raised in the original or in an amended petition is waived. 725 ILCS 5/122\u20143 (West 1998). In addition, the court\u2019s ruling on a postconviction petition has res judicata effect as to all claims raised in the petition as well as those that could have been raised. People v. Flores, 153 Ill. 2d 264, 274 (1992). The same principles apply to those issues that were or could have been raised on direct appeal. Johnson, 183 Ill. 2d at 186.\nIn this case, the facts relating to the sentence for the attempted murder of Kevin Richardson appear in the original appellate record and therefore could have been raised on direct appeal or in the defendant\u2019s postconviction petition. Because the defendant wholly failed to raise the issue in the circuit court (see People v. Davis, 156 Ill. 2d 149, 163 (1993)), he has waived it for purposes of appellate review. Flores, 153 Ill. 2d at 274; see also People v. Martin, 289 Ill. App. 3d 367, 371 (1997). Moreover, plain error may not be invoked in postconviction proceedings to save procedurally defaulted claims (Davis, 156 Ill. 2d at 159), and for the reasons that follow, we find that the 15-year sentence was not void so as to preclude application of the waiver rule to his present claim.\nThe trial court had jurisdiction of the parties and the subject matter, as well as the authority to sentence the defendant to consecutive terms. Thus, any error as to whether Kevin Richardson\u2019s injury was sufficient to satisfy the bodily injury requirement of the sentencing statute rendered the judgment voidable, rather than void, and therefore not subject to collateral attack. Davis, 156 Ill. 2d at 156-58. We therefore conclude that the defendant may not avoid application of the waiver rule to this claim.\nII\nIn a supplemental brief, the defendant contends that Apprendi renders section 5\u20148\u20144(a) of the Code unconstitutional and that his consecutive sentences imposed under that statute are therefore void and must be modified to run concurrently. He maintains that this is so because severe bodily injury was a factor that increased the penalty for his crimes but was not pleaded and proved beyond a reasonable doubt.\nThe defendant in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), was arrested for firing several shots into the home of an African-American family that had moved into a previously all-white neighborhood. Pursuant to a plea agreement, the defendant pled guilty to second degree possession of a firearm for an unlawful purpose, a crime carrying a sentencing range of 5 to 10 years. Apprendi, 530 U.S. at 470, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351. The prosecution asked the judge to sentence the defendant under the New Jersey \u201chate crime\u201d law, which provided for an extended term of imprisonment (in this case 10 to 20 years) if the judge found by a preponderance of the evidence that the defendant acted with the purpose to intimidate an individual based on race, color, gender, handicap, religion, sexual orientation or ethnicity. The judge imposed such a sentence (12 years) finding that the defendant had acted with a purpose to intimidate because of race.\nThe United States Supreme Court ruled that the New Jersey statutory scheme violated the defendant\u2019s due process rights. The Court held: \u201cOther 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.\u201d Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Because the defendant\u2019s sentence had been extended beyond the statutory maximum based on a factor found by only a preponderance of the evidence, his sentence under the hate crime statute was unconstitutional.\nPeople v. Clifton, 321 Ill. App. 3d 707 (2000), applied Apprendi to section 5 \u2014 8\u20144(a) of the Unified Code of Corrections (730 ILCS 5\u20148\u20144(a) (West 1998)). The court held section 5\u20148\u20144(a) unconstitutional under Apprendi, because the provision permitted a court to impose consecutive sentences based on a finding (i.e., severe bodily injury) not submitted to a jury or proved beyond a reasonable doubt. In reaching that conclusion, the court found that the practical effect of section 5\u20148\u20144(a) was to extend the range of sentences to which a defendant may be exposed for a given course of conduct and, accordingly, that \u201c[i]f consecutive sentences are to be imposed pursuant to a factual finding that severe bodily injury occurred, then severe bodily injury will have to be submitted to a jury and proved beyond a reasonable doubt.\u201d Clifton, 321 Ill. App. 3d at 727.\nHowever, in People v. Sutherland, 317 Ill. App. 3d 1117 (2000), another division of the First District of the Appellate Court found that section 5 \u2014 8\u20144(a) did not violate Apprendi. The Sutherland court reasoned that a finding mandating consecutive sentences under section 5 \u2014 8\u20144(a) did not actually extend the sentence beyond the prescribed statutory maximum as in Apprendi. Sutherland, 317 Ill. App. 3d at 1131.\nIn the instant case, the defendant argues that, under Apprendi and Clifton, it was unconstitutional for the trial judge to make his sentences consecutive rather than concurrent based on a finding that he inflicted severe bodily injury, since this question was not submitted to a jury or proved beyond a reasonable doubt.\nThe issue now confronting this court is whether the Apprendi rule applies retroactively to cases on collateral review under the Illinois Post-Conviction Hearing Act (725 ILCS 5/122\u20141 et seq. (West 1998)). The retroactivity of Apprendi is a threshold question that we address prior to proceeding to the merits of the defendant\u2019s claim or analyzing the question of whether section 5 \u2014 8\u20144(a) does in fact violate Apprendi. Teague v. Lane, 489 U.S. 288, 300, 103 L. Ed. 2d 334, 349, 109 S. Ct. 1060, 1070 (1989).\nThe first Illinois court to address the retroactivity of Apprendi was the circuit court of St. Clair County in Hill v. Cowan, No. 82\u2014CF\u201409 (2000). The court decided that Apprendi applied retroactively to cases on collateral review and, therefore, granted relief to the petitioner. Eleven days after Hill was decided, the appellate court handed down Clifton. The Clifton court opined in a footnote that Apprendi would not be retroactively applicable to cases on collateral review under the Post-Conviction Hearing Act. Clifton, 321 Ill. App. 3d at 725 n.3.\nWe first decided the instant case as an unpublished order under Supreme Court Rule 23. 155 Ill. 2d R. 23. In that order, we agreed with Clifton and found that Apprendi was not to be retroactively applied to postconviction hearings. Two days later, another division of this court decided People v. Beachem, 317 Ill. App. 3d 693 (2000). In a thoughtful opinion by Justice Wolfson, the court held that Apprendi should be retroactively applied on collateral review.\nThe office of the State\u2019s Attorney then filed a motion requesting that we publish our disposition of the instant case. Our views on retroactive application of Apprendi in postconviction proceedings have not changed. We decided to publish an opinion in order to clarify the reasons for our views and hopefully help to focus the dispute on this critical and undeniably thorny issue.\nIll\nAs a general proposition, the United States Constitution neither mandates nor prohibits the retroactive application of new constitutional rules on collateral review. Linkletter v. Walker, 381 U.S. 618, 629, 14 L. Ed. 2d 601, 608, 85 S. Ct. 1731, 1737 (1965). The United States Supreme Court spoke to the issue of retroactive application of new constitutional rules on collateral review in Teague v. Lane. Prior to Teague, the Court used a decidedly ad hoc approach to retroactivity, evaluating in each case \u201c(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.\u201d Stovall v. Denno, 388 U.S. 293, 297, 18 L. Ed. 2d 1199, 1203, 87 S. Ct. 1967, 1970 (1967). In a series of dissents, Justice Harlan criticized this approach as inequitable in application and insensitive to the Court\u2019s institutional role. He suggested instead an approach that focused on the procedural posture of the case. Justice Harlan recommended that a new constitutional rule should always be applied retroactively to cases on direct review, but should never be applied retroactively on habeas corpus review, barring exceptional circumstances. The Teague plurality expressly adopted Justice Harlan\u2019s views on this subject. Teague, 489 U.S. at 310, 103 L. Ed. 2d at 356, 109 S. Ct. at 1075.\nJustice Harlan formulated the basic policy adopted by Teague after a careful balancing of competing interests in light of the Court\u2019s adjudicatory role and the purpose of the postconviction proceeding. See Mackey v. Unites States, 401 U.S. 667, 688-89, 28 L. Ed. 2d 404, 418, 91 S. Ct. 1160, 1178 (1971) (Harlan, J., dissenting in part and concurring in part). The purpose of collateral proceedings such as habeas corpus, Justice Harlan reasoned, is to ensure that state courts \u201ctoe the constitutional mark\u201d and in good faith attempt to conform to constitutional standards as understood. Teague, 489 U.S. at 306-07, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073. Overturning cases based on law announced at a later date would do nothing to further that purpose. \u201c \u2018In order to perform this deterrence function, ... the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place.\u2019 \u201d Teague, 489 U.S. at 306, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073, quoting Desist v. United States, 394 U.S. 244, 262-63, 22 L. Ed. 2d 248, 263, 89 S. Ct. 1030, 1041 (1969) (Harlan, J., dissenting).\nJustice Harlan recognized that the body responsible for defining the scope of a postconviction remedy had some leeway in striking the balance among the relevant interests when it made its decision on a retroactivity rule.\n\u201c \u2018The interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial revision, may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the competing interest in readjudicating convictions according to all legal standards in effect when a habeas petition is filed.\u2019 \u201d Teague, 489 U.S. at 306, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073, quoting Mackey, 401 U.S. at 683, 28 L. Ed. 2d at 415, 91 S. Ct. at 1175 (Harlan, J., dissenting in part and concurring in part).\nTeague concerned federal habeas corpus proceedings and not state postconviction proceedings. The decision concerning retroactivity in the latter context is for the government of the relevant state, which has the ultimate responsibility to balance \u2014 in the context of its own postconviction proceeding law \u2014 the policies and concerns identified by Justice Harlan in the context of habeas corpus. See, e.g., Daniels v. State, 561 N.E.2d 487, 489 (Ind. 1990).\nTeague sets out a three-step process for deciding the applicability of a new rule on collateral review. O\u2019Dell v. Netherland, 521 U.S. 151, 156, 138 L. Ed. 2d 351, 358, 117 S. Ct. 1969, 1973 (1997). First, the court determines the date upon which the defendant\u2019s conviction became final. \u201cA state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.\u201d Caspari v. Bohlen, 510 U.S. 383, 390, 127 L. Ed. 2d 236, 246, 114 S. Ct. 948, 953 (1994).\nSecond, the court determines whether the constitutional rule sought by the defendant existed when the conviction became final. O\u2019Dell, 521 U.S. at 156, 138 L. Ed. 2d at 358, 117 S. Ct. at 1973. If the rule existed at the time the defendant\u2019s conviction became final, it is not a new rule. In that case the rule is applied on collateral review, since it is the law that should have been utilized in the first place. If the rule sought by the defendant is new, however, it is generally not to be applied on collateral review. According to the Teague plurality, \u201ca case announces a new rule if the result was not dictated by precedent existing at the time the defendant\u2019s conviction became final.\u201d (Emphasis in original.) Teague, 489 U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070. This is a very broad conception of a new rule, as Justice Brennan noted in his Teague dissent:\n\u201cFew decisions on appeal or collateral review are \u2018dictated\u2019 by what came before. Most such cases involve a question of law that is at least debatable, permitting a rational judge to resolve the case in more than one way. Virtually no case that prompts a dissent on the relevant legal point, for example, could be said to be \u2018dictated\u2019 by prior decisions.\u201d (Emphasis in original.) Teague, 489 U.S. at 333, 103 L. Ed. 2d at 371, 109 S. Ct. at 1088 (Brennan, J., dissenting, joined by Marshall, J.).\nIn another case, the Court indicated that a rule could be considered new if there had been a significant difference of opinion on the issue in the lower courts before the rule was established. Butler v. McKellar, 494 U.S. 407, 415, 108 L. Ed. 2d 347, 356-57, 110 S. Ct. 1212, 1217-18 (1990).\nThird, Teague directs that if the rule is new, the court must determine whether it falls within one of two narrow exceptions to the Teague doctrine. O\u2019Dell, 521 U.S. at 156-57, 138 L. Ed. 2d at 358, 117 S. Ct. at 1973. Unless one of the exceptions applies, the new rule should not be utilized on collateral review.\nThe first of these narrow exceptions applies if the rule in question places an entire category of primary conduct beyond the reach of the criminal law. Sawyer v. Smith, 497 U.S. 227, 241, Ill L. Ed. 2d 193, 211, 110 S. Ct. 2822, 2831 (1990). The second, even more circumscribed exception applies if the new rule requires the observance of those procedures that are implicit in the concept of ordered liberty. O\u2019Dell, 521 U.S. at 157, 138 L. Ed. 2d at 358, 117 S. Ct. at 1973. This exception involves \u201cwatershed\u201d rules of criminal procedure that are necessary to the fundamental fairness of a criminal proceeding. Sawyer, 497 U.S. at 241-42, Ill L. Ed. 2d at 211, 110 S. Ct. at 2831. To qualify for retroactive application under this exception, a rule must be aimed at improving the accuracy of trial and be of such importance that it alters our understanding of the bedrock procedural elements essential to a fair trial. Sawyer, 497 U.S. at 242, 111 L. Ed. 2d at 211, 110 S. Ct. at 2831.\nTeague\u2019s analysis applies to retroactivity in federal habeas corpus proceedings. Retroactivity under the Illinois Post-Conviction Hearing Act is a matter of state law, for which Illinois may fashion its own standard within broad constraints. See People v. Flowers, 138 Ill. 2d 218, 237 (1990); M. Hutton, Retroactivity in the States: The Impact of Teague v. Lane on State Postconviction Remedies, 44 Ala. L. Rev. 421 (1993). However, in People v. Flowers, 138 Ill. 2d at 237, the Illinois Supreme Court decided to adopt as the standard for retroactivity of new rules under the Post-Conviction Hearing Act the same standard as that annunciated in Teague for retroactivity in habeas corpus proceedings. Accordingly, we now apply the Teague analysis to the instant case.\nStep One: The defendant\u2019s convictions became final in 1997. Ap-prendi was decided in 2000.\nStep Two: We believe that the rule of Apprendi was not dictated by prior precedent. Apprendi was decided over a strong dissent. Moreover, before the Court decided Apprendi, lower courts certainly had not agreed that an Apprendi-like rule was the law. Thus, we maintain Apprendi is a new rule for the purposes of retroactivity analysis.\nStep Three: The first Teague exception is not relevant in this case, because Apprendi did not place the actions for which the defendant was sentenced beyond the reach of the criminal law. The state\u2019s authority to punish the defendant for attempted murder is beyond question. Jones v. Smith, No. 99\u201456405, slip op. at 9 (9th Cir. November 7, 2000).\nThe defendant urges, however, that the rule of Apprendi qualifies for retroactive application on collateral review under the second Teague exception.\nIndeed the retroactivity of Apprendi does turn on the interpretation of this exception. As the Supreme Court has acknowledged, the precise contours of the second Teague exception may be difficult to delimit. Saffle v. Parks, 494 U.S. 484, 495, 108 L. Ed. 2d 415, 429, 110 S. Ct. 1257, 1264 (1990). Nevertheless, \u201c[t]he scope of the Teague exceptions must be consistent with the recognition that \u2018[application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.\u2019 \u201d Sawyer, 497 U.S. at 242, 111 L. Ed. 2d at 211, 110 S. Ct. at 2831, quoting Teague, 489 U.S. at 309, 103 L. Ed. 2d at 355, 109 S. Ct. at 1074.\nIt is clear the rule in Apprendi was aimed at improving the accuracy of the criminal proceeding, as required by the second exception. Further, it cannot be disputed that the majority in Apprendi (as well as the dissenters) saw the rule being announced as important. \u201cAt stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without \u2018due process of law,\u2019 Arndt. 14, and the guarantee that \u2018[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,\u2019 Arndt. 6.\u201d Apprendi, 530 U.S. at 476-77, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355. Yet the crucial question remains to be answered. Did Apprendi alter our understanding of the bedrock procedural elements essential to a fair trial?\nFederal cases have taken differing views on whether the Apprendi rule is sufficiently fundamental to be retroactively applicable in habeas corpus proceedings under the second Teague exception. In United States v. Murphy, 109 F. Supp. 2d 1059 (D. Minn. 2000), a district court found Apprendi could be retroactively applied under that exception. The defendant in Murphy was convicted of possession of and conspiracy to distribute crack cocaine, along with related offenses. Based upon a finding by the trial judge as to the type and quantity of narcotics possessed by the defendant, the judge imposed sentences totaling 30 years\u2019 imprisonment followed by 10 years\u2019 supervised release, in accord with the mandatory minimum sentences established by Congress. Without such a finding the defendant would have been sentenced under a \u201ccatch-all\u201d sentencing provision for narcotics crimes. Under that provision there is no mandatory minimum and the maximum sentence is 20 years\u2019 imprisonment and 3 years\u2019 supervised release. Murphy, 109 F.2d at 1061.\nOn habeas corpus review, the court found that Apprendi mandated that if the prosecution sought to subject a drug offender to an enhanced sentence, it would have to submit the questions of type and quantity of narcotics to the jury for a finding beyond a reasonable doubt. The court further found that this new rule was \u201cso grounded in fundamental fairness that it may be considered of watershed importance\u201d and thus came under the second Teague exception. Murphy, 109 F.2d at 1064.\nIn Jones v. Smith, No. 99\u201456405 (9th Cir. November 7, 2000), the Ninth Circuit declined to give Apprendi retroactive application for habeas corpus under the second Teague exception. A jury convicted the defendant in Jones of attempted murder with premeditation, and he was sentenced to life in prison. However, premeditation was not alleged in the charging instrument. The element of premeditation made a great difference in the range of potential sentences. The court noted that this error might violate Apprendi. Jones, slip op. at 7-8. According to Apprendi, the fourteenth amendment commands that \u201cany fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.\u201d (Emphasis added.) Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355. See also United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000); United States v. Cavender, 228 F.3d 792, 804 (7th Cir. 2000). The Jones court found that this new constitutional rule was not an absolute prerequisite to a fair trial and that the second exception therefore did not apply. Jones, slip op. at 9.\nWhile an attempt to limit Jones to its facts could be made by pointing out that in Jones the defendant, regardless of the allegedly defective charging instrument, had actual notice of the nature of the accusation against him and the range of possible sentences {Jones, slip op. at 9), under Teague, such an exercise is beside the point. Teague represents a rejection of the case-by-case approach to retroactivity. \u201cTeague forces courts to choose between complete retroactivity and non-retroactivity; there is no room for a selective approach that would only benefit defendants whose trials were probably inaccurate.\u201d E. Boshkoff, Resolving Retroactivity After Teague v. Lane, 65 Ind. L.J. 651, 658 (1990). Retroactivity of a proposed rule is a threshold question that must be decided before the merits of a defendant\u2019s claim. Teague, 489 U.S. at 300, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070. The Jones court had to decide the retroactivity of the new constitutional rule in Apprendi before it could consider whether the defendant\u2019s specific situation represented a violation of that rule.\nIV\nAs noted above, Flowers adopts Teague. But as can be easily ascertained from the catalogue of cases cited above, Teague, especially the second exception, is susceptible to divergent interpretations. Ultimately, however, we believe that it is the second Teague exception as understood by the court in Flowers that controls. As this is a matter of state law, and in light of the conflicting authority at the federal level, we must ultimately take our direction from the Illinois Supreme Court and its view of the scope of the second Teague exception in Flowers.\nFirst, we note that Flowers cautions that Illinois courts are to construe the second exception narrowly. Flowers, 138 Ill. 2d at 242.\nNow we examine how Flowers applied the second exception to the facts before it. Flowers found that a new constitutional rule of criminal procedure, set out in People v. Reddick, 123 Ill. 2d 184 (1988), did not qualify for retroactive application under the second exception. Flowers, 138 Ill. 2d at 242. Although Reddick was decided on state law grounds, Flowers held that the error identified in Reddick was of constitutional dimension. Flowers, 138 Ill. 2d at 237; accord Falconer v. Lane, 905 F.2d 1129, 1134 (7th Cir. 1990).\nIn People v. Reddick, 123 Ill. 2d 184 (1988), the court was presented with consolidated appeals from two murder convictions. At trial, each of the defendants admitted that he had killed the victim, but argued (unsuccessfully) that he was guilty of manslaughter rather than murder due to some mitigating mental state. On appeal, the defendants contended that improper jury instructions regarding the elements of murder and manslaughter compelled reversal of their convictions.\nThe Reddick court held that the instructions, when given together, misallocated the appropriate burdens of proof. Reddick, 123 Ill. 2d at 194; People v. Shields, 143 Ill. 2d 435, 442 (1991). The instructions placed the responsibility of proving the mitigating circumstances that would reduce murder to manslaughter on the State. Of course, it is unlikely that the State would attempt to prove that a defendant was guilty only of manslaughter rather than murder if it charged the defendant with murder.\nIn a later case the Illinois Supreme Court described the Reddick holding as follows:\n\u201cIn Reddick, this court held that the Illinois pattern jury instructions regarding murder and voluntary manslaughter, used by the trial court at the Reddick defendants\u2019 trials, incorrectly advised the jury that it was the State\u2019s burden to prove one of the mitigating mental states that would reduce murder to voluntary manslaughter. This court determined that the instructions should have told the jury that it was the State\u2019s burden to disprove the pertinent mitigating mental states.\u201d (Emphasis in original.) People v. Salazar, 162 Ill. 2d 513, 518 (1994).\nReddick held that the prosecution should be required to disprove the mitigating mental states beyond a reasonable doubt once the defendant had presented sufficient evidence to raise the issue. Reddick, 123 Ill. 2d at 197.\nWe disagree with our colleagues\u2019 conclusion in Beachem that Red-dick, \u201cdid not implicate the right to a jury verdict beyond a reasonable doubt and, consequently, the fundamental fairness and accuracy concerns inherent in the second Teague exception.\u201d Beachem, 317 Ill. App. 3d at 705. Reddick found that the instructions did nothing less than \u201cessentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter [instead of murder].\u201d Reddick, 123 Ill. 2d at 194-95.\nFlowers held that Reddick announced a rule of constitutional dimension, involving the right to have the jury adequately apprised of the relevant law. Flowers, 138 Ill. 2d at 237. Instructions that do not adequately apprise the jury of the law may be more or less harmful depending on the nature of the misinformation. The nature of the misinformation involved in the Reddick instructions, that court concluded, was that \u201cthe jury was not apprised of the People\u2019s burden of proof.\u201d Reddick, 123 Ill. 2d at 198. The court observed that it had previously held that \u201ccertain instructions, such as the burden of proof and elements of the offense, are essential to a fair trial.\u201d (Emphasis added.) Reddick, 123 Ill. 2d at 198. And though Reddick was decided on state law grounds, the United States Supreme Court has emphatically made clear that instructions misstating the burden of proof in a criminal trial may violate due process and even the right to trial by jury. Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993). Accordingly, we think that Reddick did implicate the right to a jury verdict beyond a reasonable doubt.\nReddick cannot be distinguished from cases such as Sullivan on the basis that it dealt with whether the defendant\u2019s offense was murder or manslaughter instead of whether the defendant was guilty of anything at all. \u201c[Cjriminal law \u2018is concerned not only with guilt or innocence in the abstract, but also with the degree of criminal culpability\u2019 assessed.\u201d Apprendi, 530 U.S. at 485, 147 L. Ed. 2d at 452, 120 S. Ct. at 2360, quoting Mullaney v. Wilbur, 421 U.S. 684, 697-98, 44 L. Ed. 2d 508, 519, 95 S. Ct. 1881, 1889 (1975). The distinction between murder and manslaughter may be of greater importance than the difference between guilt or innocence for many lesser crimes. Mullaney, 421 U.S. at 698, 44 L. Ed. 2d at 519, 95 S. Ct. at 1889.\nFederal habeas corpus courts have, under the second Teague exception, given retroactive application to Sullivan and related cases that held that erroneous instructions in criminal trials violated the constitution. See, e.g., Harmon v. Marshall, 69 F.3d 963 (9th Cir. 1995); Adams v. Aiken, 41 F.3d 175 (4th Cir. 1994); Gaines v. Kelley, 202 F.3d 598 (2d Cir. 2000). This merely serves to underscore how narrowly Flowers, which declined to make retroactive a similar holding, understood the second exception.\nThe burden of proof problem in Reddick exposed defendants to the danger of deprivations just as unfair as any deriving from the Apprendi problem. In Apprendi the Court was concerned that the defendant was being sentenced to what amounted to a greater crime rather than a lesser one on the basis of a factor found by merely a preponderance of the evidence rather than beyond a reasonable doubt. Apprendi, 530 U.S. at 483-84, 147 L. Ed. 2d at 451, 120 S. Ct. at 2359. In Reddick, however, the court found that the instructions made it not just less likely, as the lower standard of proof made it in Apprendi, but impossible for a finder of fact following the burden of proof instructions to find the defendant guilty of the lesser crime rather than the greater crime. Reddick, 123 Ill. 2d at 194-95.\nWe do not mean to suggest that the very same situation was presented in Apprendi as in Reddick. But clearly Reddick and Ap-prendi deal with similar concerns and concerns that, in our view, are of commensurate gravity. Yet the Illinois Supreme Court found that the Reddick rule was not sufficiently fundamental to qualify under the second Teague exception.\nThus, since the Illinois Supreme Court in adopting Teague balanced the policy concerns in such a way that the second exception did not apply to Reddick, we believe that the exception also does not apply to Apprendi. Because we hold that Apprendi should not be retroactively applied under the Post-Conviction Hearing Act, the defendant\u2019s sentence was not unconstitutional at the time that it was entered, regardless of whether it would be unconstitutional if entered now. Since we find that Apprendi does not apply retroactively to cases on collateral review, we need not further address the merits of the defendant\u2019s claim as to the sentence for the attempted murder of Kevin Richardson. The 10-year consecutive sentence for the attempted murder of William Richardson is hereby modified to run concurrently with the other sentences.\nAffirmed as modified.\nMcNULTY, EL, and O\u2019MARA FROSSARD, J., concur.", "type": "majority", "author": "JUSTICE COHEN" } ], "attorneys": [ "Michael J. Pelletier and Barbara C. Kamm, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and William Toffenetti, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK KIZER, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201499\u20140733\nOpinion filed December 26, 2000.\nMichael J. Pelletier and Barbara C. Kamm, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and William Toffenetti, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0238-01", "first_page_order": 258, "last_page_order": 272 }