{ "id": 126427, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT RUSH, Defendant-Appellant", "name_abbreviation": "People v. Rush", "decision_date": "2001-05-11", "docket_number": "No. 5 \u2014 99\u20140092", "first_page": "1014", "last_page": "1028", "citations": [ { "type": "official", "cite": "322 Ill. App. 3d 1014" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "321 Ill. App. 3d 515", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132401 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0515-01" ] }, { "cite": "318 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279503 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "735", "parenthetical": "Quinn, P.J., specially concurring" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0719-01" ] }, { "cite": "319 Ill. App. 3d 949", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527758 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "968" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0949-01" ] }, { "cite": "292 Ill. App. 3d 340", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725027 ], "year": 1997, "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0340-01" ] }, { "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": "548 N.E.2d 766", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 292", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2507291 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0292-01" ] }, { "cite": "123 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550970 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "198" }, { "page": "194-95" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0184-01" ] }, { "cite": "465 U.S. 638", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11336877 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "654" }, { "page": "594" }, { "page": "1347-48" } ], "opinion_index": 0, "case_paths": [ "/us/465/0638-01" ] }, { "cite": "109 F. Supp. 2d 1059", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11240979 ], "year": 2000, "pin_cites": [ { "page": "1063" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/109/1059-01" ] }, { "cite": "621 N.W.2d 576", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11076421 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nw2d/621/0576-01" ] }, { "cite": "397 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "weight": 3, "year": 1970, "pin_cites": [ { "page": "363" }, { "page": "375" }, { "page": "1072" } ], "opinion_index": 0, "case_paths": [ "/us/397/0358-01" ] }, { "cite": "332 Ill. App. 3d 189", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1034168 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0189-01" ] }, { "cite": "325 Ill. App. 3d 876", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570276 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0876-01" ] }, { "cite": "138 Ill. 2d 218", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576736 ], "weight": 14, "year": 1990, "pin_cites": [ { "page": "225" }, { "page": "226" }, { "page": "237" }, { "page": "239" }, { "page": "241" }, { "page": "236-37" }, { "page": "242" }, { "page": "242" }, { "page": "233" }, { "page": "242" }, { "page": "236" }, { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0218-01" ] }, { "cite": "489 U.S. 288", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12032050 ], "weight": 36, "year": 1989, "pin_cites": [ { "page": "300" }, { "page": "348-49" }, { "page": "1069" }, { "page": "307-10" }, { "page": "353-56" }, { "page": "1073-75" }, { "page": "311" }, { "page": "356" }, { "page": "1075" }, { "page": "311" }, { "page": "356" }, { "page": "1076" }, { "page": "311, 315" }, { "page": "356, 359" }, { "page": "1076, 1078" }, { "page": "315" }, { "page": "359" }, { "page": "1078" }, { "page": "309" }, { "page": "355" }, { "page": "1074" }, { "page": "309" }, { "page": "355" }, { "page": "1074" }, { "page": "310" }, { "page": "355" }, { "page": "1075" }, { "page": "307" }, { "page": "353" }, { "page": "1073" } ], "opinion_index": 0, "case_paths": [ "/us/489/0288-01" ] }, { "cite": "318 Ill. App. 3d 238", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279475 ], "weight": 10, "year": 2000, "pin_cites": [ { "page": "251" }, { "page": "250-51" }, { "page": "252" }, { "page": "251" }, { "page": "252" }, { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0238-01" ] }, { "cite": "317 Ill. App. 3d 693", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026041 ], "weight": 17, "year": 2000, "pin_cites": [ { "parenthetical": "the court was faced with the identical question pertaining to the retroactive application of Apprendi to collateral proceedings and held that such question was of constitutional dimension and would be addressed" }, { "page": "702" }, { "page": "704", "parenthetical": "the court cites several federal circuit court decisions that have held that certain new rules do come within the second Teague exception" }, { "page": "703" }, { "page": "695" }, { "page": "697" }, { "page": "697" }, { "page": "696" }, { "page": "695" }, { "page": "700" }, { "page": "705" }, { "page": "702" }, { "page": "702" }, { "page": "706" }, { "page": "707-08" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0693-01" ] }, { "cite": "188 Ill. 2d 500", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 535990 ], "year": 1999, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0500-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 41, "year": 2000, "pin_cites": [ { "page": "469" }, { "page": "442" }, { "page": "469-70" }, { "page": "442-43" }, { "page": "2352" }, { "page": "469" }, { "page": "442" }, { "page": "2352" }, { "page": "471" }, { "page": "443" }, { "page": "2352" }, { "page": "469" }, { "page": "442" }, { "page": "2351" }, { "page": "471" }, { "page": "443" }, { "page": "2352" }, { "page": "476-77" }, { "page": "447" }, { "page": "2355-56" }, { "page": "477" }, { "page": "447" }, { "page": "2356" }, { "page": "484" }, { "page": "451" }, { "page": "2359" }, { "page": "490" }, { "page": "455" }, { "page": "2362-63" }, { "page": "497" }, { "page": "459" }, { "page": "2366" }, { "page": "499" }, { "page": "460" }, { "page": "2367", "parenthetical": "Scalia, J., concurring" }, { "page": "476, 497" }, { "page": "447, 459" }, { "page": "2355, 2366" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] } ], "analysis": { "cardinality": 1216, "char_count": 38534, "ocr_confidence": 0.777, "pagerank": { "raw": 1.9871275193690847e-07, "percentile": 0.7412914807002261 }, "sha256": "5f4a5118a64e5134947167b202c18c83a33660c0ff51f8a09ef41bb5a72ab507", "simhash": "1:188efd1c6f2856d1", "word_count": 6239 }, "last_updated": "2023-07-14T19:05:07.459628+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT RUSH, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WELCH\ndelivered the opinion of the court:\nOn November 9, 1995, a Marion County jury found Robert Rush (defendant) guilty of first-degree murder. On January 5, 1996, at defendant\u2019s sentencing hearing, the trial judge found the murder \u201cexceptionally brutal and heinous *** indicative of wanton cruelty\u201d and sentenced defendant to an extended-term sentence of 75 years in the Illinois Department of Corrections. On direct appeal, we affirmed defendant\u2019s conviction and sentence. People v. Rush, No. 5 \u2014 96\u20140080 (1998) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)).\nOn November 9, 1998, defendant filed a pro se postconviction petition. The petition alleged that defendant was deprived of his constitutional right to (1) due process of law when the trial court denied defendant an adequate opportunity to obtain private counsel, (2) due process of law when the trial court failed to suppress defendant\u2019s prior oral statements not disclosed in discovery, (3) due process of law when the trial court allowed prejudicial photographs to be shown to the jury, and (4) the effective assistance of appellate counsel when appellate counsel failed to raise the above three issues on direct appeal. On December 29, 1998, the trial court dismissed defendant\u2019s petition as \u201cpatently frivolous and without merit,\u201d and defendant appealed.\nWhile defendant\u2019s appeal was pending in this court, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Apprendi called into question the constitutionality of the sentencing scheme upon which defendant\u2019s extended-term sentence was based. On September 21, 2000, defendant filed a motion for leave to file a supplemental brief challenging under Apprendi the constitutionality of his extended-term sentence. We granted defendant\u2019s motion and will address the issues raised in his supplemental brief. However, before turning to the issues raised by defendant\u2019s supplemental brief, we first address defendant\u2019s arguments that the trial court erred in dismissing as frivolous and patently without merit the issues raised in his pro se postconviction \u2022 petition. For reasons explained in the nonpublishable portion of this opinion, we affirm the trial court\u2019s dismissal of these issues.\nWe now turn to defendant\u2019s supplemental brief, wherein defendant challenges for the first time the constitutionality of his extended-term sentence. In his supplemental brief, defendant argues that his extended-term prison sentence of 75 years is unconstitutional and must be vacated under the United States Supreme Court\u2019s decision in Apprendi. Defendant argues that under Apprendi, the imposition of his extended-term sentence was unconstitutional because it violated his rights to due* process, fair notice, and trial by jury. Defendant also argues that Apprendi applies retroactively to collateral proceedings and that, therefore, we must vacate his extended-term sentence and remand his cause for a new sentence to be imposed within the proper statutory range.\nIn response, the State sets forth three arguments challenging defendant\u2019s contentions. First, the State argues that defendant has waived his challenge to the constitutionality of his extended-term sentence because he failed to raise this challenge in his original post-conviction petition filed in the trial court. Second, the State argues that the new rule announced in Apprendi does not apply retroactively to claims on collateral review and that because defendant\u2019s extended-term sentence was imposed under then-constitutional rules, defendant has no basis to challenge the constitutionality of his extended-term sentence. Finally, the State argues that even if we do find that Apprendi applies retroactively, defendant\u2019s extended-term sentence is constitutional under Apprendi.\nIn the instant case, defendant was indicted on one count of first-degree murder (720 ILCS 5/9 \u2014 1(a)(2) (West 1994)). Although the indictment set forth the elements for first-degree murder, it did not allege that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Following the presentation of evidence, the jury was instructed as to the elements of first-degree murder. The jury was not instructed to make a finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. The jury returned a signed verdict form finding defendant guilty of first-degree murder as charged.\nAt defendant\u2019s sentencing hearing, the trial judge made a finding that the murder committed by defendant was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Nothing in the record indicates that the finding made by the trial judge was made beyond a reasonable doubt. The statute which allowed the trial judge to make this finding did not require that the finding be made beyond a reasonable doubt, or by any standard for that matter. However, based upon this \u201cfinding,\u201d defendant was sentenced to an extended-term sentence of 75 years in the Illinois Department of Corrections.\nUnder the Illinois statutory laws, the crime of first-degree murder carries a prison sentence of \u201cnot less than 20 years and not more than 60 years.\u201d 730 ILCS 5/5 \u2014 8\u20141(a)(1)(a) (West 1994). However, a trial judge is permitted to sentence a defendant to an extended term beyond the 60 years if the trial judge finds that the offense was \u201caccompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.\u201d 730 ILCS 5/5 \u2014 8\u20142(a)(1), 5 \u2014 5\u20143.2(b) (West 1994). In the instant case, had the trial judge not made the finding that the murder was accompanied by brutal or heinous behavior indicative of wanton cruelty, the trial judge would have had no authority to sentence defendant beyond 60 years\u2019 imprisonment. However, based upon the trial judge\u2019s finding, defendant was sentenced to 75 years\u2019 imprisonment. Defendant contends that this statute, authorizing the procedure by which his sentence was extended 15 years beyond the 60-year maximum, is unconstitutional under Apprendi and that, therefore, his extended-term sentence must be vacated.\nBefore we can address defendant\u2019s challenge to the constitutionality of his extended-term sentence, we must first address two preliminary arguments raised by the State. Our agreement with either of these two arguments forecloses an examination of the constitutionality of defendant\u2019s extended-term sentence. Again, the first argument concerns whether defendant waived his claim by failing to raise it in his original postconviction petition. The second argument concerns whether the rule announced in Apprendi applies retroactively to a postconviction petition. We turn now to the first argument.\nGenerally, a claim that is not raised in an original or amended postconviction petition is waived. 725 ILCS 5/122 \u2014 3 (West 1998). The State argues that because defendant did not challenge the constitutionality of his extended-term sentence in his original postconviction petition, it is waived. However, when a question raised by a defendant is of constitutional dimension, we can address the issue and relax the application of the waiver rule in the interest of fundamental fairness. People v. Wooters, 188 Ill. 2d 500, 510 (1999). The Illinois Appellate Court has already recognized that this precise issue raised by defendant is of constitutional dimension. People v. Beachem, 317 Ill. App. 3d 693 (1st Dist. 3d Div. 2000) (the court was faced with the identical question pertaining to the retroactive application of Apprendi to collateral proceedings and held that such question was of constitutional dimension and would be addressed); People v. Kizer, 318 Ill. App. 3d 238 (1st Dist. 1st Div. 2000). Accordingly, although this issue was not raised in defendant\u2019s original postconviction petition, fundamental fairness requires that we examine defendant\u2019s claim. Wherefore, we reject the State\u2019s first argument that defendant\u2019s claim is waived for his failure to raise it in the original postconviction petition.\nWe now turn to the State\u2019s second argument, which certainly is the most controversial and significant issue raised in this appeal: whether the rule announced in Apprendi applies retroactively to a defendant\u2019s timely filed postconviction petition. However, before reaching our conclusion, it is helpful, if not imperative, to examine several cases that guide our decision. First, we must look at the United States Supreme Court\u2019s decision in Apprendi. Then, we must turn to the United States Supreme Court decision in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), where the Supreme Court, in a plurality decision, clarified when a new rule of law should apply retroactively to cases on collateral review. Next, we must turn to the Illinois Supreme Court decision in People v. Flowers, 138 Ill. 2d 218 (1990), where our supreme court adopted the reasoning in Teague in determining whether a new rule applied retroactively to a claim brought under the Illinois Post-Conviction Hearing Act. Finally, we turn to People v. Beachem, 317 Ill. App. 3d 693 (1st Dist. 3d Div. 2000), People v. Kizer, 318 Ill. App. 3d 238 (1st Dist. 1st Div. 2000), People v. Scullark, 325 Ill. App. 3d 876 (2001), and People v. Burns, 332 Ill. App. 3d 189 (2001), four cases decided by our brethren in the First District that have resolved the precise issue before us. However, the results of these four decisions vary. Beachem and Bums decided that Apprendi does apply retroactively to the review of a timely filed postconviction petition, and Kizer and Scullark held that Apprendi does not apply retroactively to the review of a timely filed postconviction petition. After examining these cases, we shall explain our decision.\nIn Apprendi, Charles C. Apprendi, Jr., was arrested and charged with 23 counts of varying offenses, after firing several bullets into the home of an African-American family that had recently moved into the previously all-white neighborhood of Vineland, New Jersey. Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at 442, 12\u00d3 S. Ct. at 2351. Pursuant to a plea agreement, Apprendi pied guilty to three of the counts, and the State dismissed the remaining 20. Apprendi, 530 U.S. at 469-70, 147 L. Ed. 2d at 442-43, 120 S. Ct. at 2352. One of the counts to which Apprendi pied guilty was second-degree possession of a firearm for an unlawful purpose. Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at 442, 120 S. Ct. at 2352. Under the statutory laws of New Jersey, this crime carried a penalty of imprisonment for 5 to 10 years.\nAfter Apprendi\u2019s sentencing hearing, the trial judge made a finding, based on a preponderance of the evidence, that Apprendi\u2019s crime was racially motivated. The trial judge then sentenced Apprendi to an \u201cenhanced sentence\u201d of 12 years\u2019 imprisonment on the count of second-degree possession of a firearm for an unlawful purpose. Apprendi, 530 U.S. at 471, 147 L. Ed. 2d at 443, 120 S. Ct. at 2352. The \u201cenhanced sentence\u201d was imposed under New Jersey\u2019s hate-crime statute, which allowed a trial judge to sentence a defendant to an \u201cextended term\u201d of between 10 and 20 years\u2019 imprisonment if the trial judge found by a preponderance of the evidence that the defendant acted \u201c \u2018with a purpose to intimidate an individual or group of individuals because of. race, color, gender, handicap, religion, sexual orientation]],] or ethnicity.\u2019 \u201d Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351, quoting N.J. Stat. Ann. \u00a7 2C:44 \u2014 3(e) (West Supp. 2000). Apprendi challenged his enhanced sentence, arguing, \u201c[T]he Due Process Clause of the United States Constitution requires that the finding of bias upon which [the] hate[-]crime sentence was based must be proved to a jury beyond a reasonable doubt.\u201d Apprendi, 530 U.S. at 471, 147 L. Ed. 2d at 443, 120 S. Ct. at 2352.\nOn review, the United States Supreme Court struck down the New Jersey hate-crime statute. In describing the gravity of the case before it, the Supreme Court stated:\n\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. Taken together, these rights indisputably entitle a criminal defendant to a \u2018jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.\u2019 [Citations.]\u201d (Emphasis added.) Apprendi, 530 U.S. at 476-77, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355-56.\nThe Supreme Court then began its analysis by observing that an accused\u2019s right to have a jury determine every element of a crime charged and an accused\u2019s right to have every fact necessary to constitute the crime for which he is charged proven beyond a reasonable doubt \u201cextends down centuries into the common law.\u201d Apprendi, 530 U.S. at 477, 147 L. Ed. 2d at 447, 120 S. Ct. at 2356. The court pointed out that the right of an accused to have tried before a jury all the facts that constitute a statutory offense and to have those facts determined under the reasonable doubt standard provides \u201c \u2018concrete substance for the presumption of innocence.\u2019 \u201d Apprendi, 530 U.S. at 484, 147 L. Ed. 2d at 451, 120 S. Ct. at 2359, quoting In re Winship, 397 U.S. 358, 363, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1072 (1970).\nAfter reexamining several cases within this topic and the history upon which they rely, the Supreme Court delivered the following holding as its bottom line:\n\u201cOther than a 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.\nThe Supreme Court then ruled that the procedure allowed by the New Jersey hate-crime statute was unconstitutional because it deprived an accused of his right to have all the facts that increase the penalty beyond the prescribed statutory maximum submitted to a jury and proved beyond a reasonable doubt. The Court characterized the New Jersey procedure as an \u201cunacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.\u201d Apprendi, 530 U.S. at 497, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366.\nTo no surprise, since the release of the Apprendi decision, the floodgates have opened and claims have poured in from defendants seeking clemency from their \u201cunconstitutionally imposed\u201d extended-term sentences. Numerous claims challenging enhanced sentences authorized by several Illinois statutes have already faced scrutiny by the appellate court. Fortunately, solid and consistent case law has developed so that many Apprendi-based challenges are now being affirmed, modified, or remanded as summary orders.\nHowever, the issue before us is yet to have such a clear resolution carved. In fact, the question of whether Apprendi applies retroactively to cases on collateral review has received no less than four divergent conclusions by the Illinois appellate court. Illinois does not stand alone in reaching conflicting results regarding this question, as conflict exists among the federal circuits as well. See generally Clark v. State, 621 N.W.2d 576 (N.D. 2001). Shortly, however, our court may have guidance from our supreme court, as this precise issue is currently before it on appeal in Hill v. Cowan, appeal docketed, No. 90229 (September 19, 2000). But for now, the issue is before us, and we shall express our view. Fortunately, the one thing that is in agreement among the courts that have addressed the retroactivity of Apprendi is that the analysis must begin with the United States Supreme Court\u2019s decision in Teague v. Lane.\nIn Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), the United States Supreme Court clarified when a new rule is entitled to retroactive application to cases on collateral review. Teague, 489 U.S. at 300, 103 L. Ed. 2d at 348-49, 109 S. Ct. at 1069. In reaching its decision, the Supreme Court adopted Justice Harlan\u2019s views of retroactivity and held that a new rule will only apply retroactively to cases on collateral review if it falls within one of two exceptions. Teague, 489 U.S. at 307-10, 103 L. Ed. 2d at 353-56, 109 S. Ct. at 1073-75. Under the first exception, a new rule will be given retroactive effect if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. Teague, 489 U.S. at 311, 103 L. Ed. 2d at 356, 109 S. Ct. at 1075. Under the second exception, a new rule will be given retroactive effect if it requires the observance of those procedures that are implicit in the concept of ordered liberty. Teague, 489 U.S. at 311, 103 L. Ed. 2d at 356, 109 S. Ct. at 1076.\nThere is no debate that Apprendi does not fall within the first Teague exception. \u201cThe first exception to the general rule prohibiting retroactivity applies only to rules that decriminalize a class of conduct or prohibit a certain category of punishment for a class of defendants because of their status or offense.\u201d United States v. Murphy, 109 F. Supp. 2d 1059, 1063 (D. Minn. 2000). Consequently, whether the rule in Apprendi applies retroactively hinges solely on its qualification under the second Teague exception.\nThere is no doubt that the second Teague exception is to be narrowly construed. Teague reserves the second exception for only \u201cwatershed rules of criminal procedure\u201d and rules that \u201cundermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction.\u201d Teague, 489 U.S. at 311, 315, 103 L. Ed. 2d at 356, 359, 109 S. Ct. at 1076, 1078. Furthermore, the rule must be a \u201cbedrock procedural element.\u201d Teague, 489 U.S. at 315, 103 L. Ed. 2d at 359, 109 S. Ct. at 1078.\nThe reason for this narrow construction is to effectuate our notion of \u201cfinality,\u201d which \u201cis essential to the operation of our criminal justice system.\u201d Teague, 489 U.S. at 309, 103 L. Ed. 2d at 355, 109 S. Ct. at 1074. \u201cWithout finality, the criminal law is deprived of much of its deterrent effect.\u201d Teague, 489 U.S. at 309, 103 L. Ed. 2d at 355, 109 S. Ct. at 1074. Interestingly, the Supreme Court pointed out, \u201cThe \u2018costs imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus ... generally far outweigh the benefits of this application.\u2019 \u201d Teague, 489 U.S. at 310, 103 L. Ed. 2d at 355, 109 S. Ct. at 1075, quoting Solem v. Stumes, 465 U.S. 638, 654, 79 L. Ed. 2d 579, 594, 104 S. Ct. 1338, 1347-48 (1984).\nTo demonstrate how narrowly this second Teague exception is to be construed, we note that since Teague, no United States Supreme Court decision or Illinois Supreme Court decision has found a new rule that qualifies under the second Teague exception. See Beachem, 317 Ill. App. 3d at 702. However, the same cannot be said of all jurisdictions. See Beachem, 317 Ill. App. 3d at 704 (the court cites several federal circuit court decisions that have held that certain new rules do come within the second Teague exception). According to Beachem, the reason our supreme court has not found a new rule that qualifies under the second Teague exception is that it has not been presented with a new rule like Apprendi or one that reaches \u201c \u2018bedrock\u2019 pronouncements.\u201d Beachem, 317 Ill. App. 3d at 703. According to Kizer, our supreme court has not found a new rule that qualifies under the second Teague exception, whereas other jurisdictions have, because our supreme court construes the exception much more narrowly than other jurisdictions. Kizer, 318 Ill. App. 3d at 251. This leads us into an examination of our supreme court\u2019s decision in People v. Flowers, 138 Ill. 2d 218 (1990), where our supreme court adopted Teague in determining whether a new rule should apply retroactively to a claim filed under the Post-Conviction Hearing Act.\nIn Flowers, the defendant was charged with the offense of murder and tried before a jury. At the trial, the defendant argued that he was only guilty of voluntary manslaughter. The jury was instructed on the offense of murder and the offense of voluntary manslaughter in accordance with the prevailing Illinois pattern jury instructions. Flowers, 138 Ill. 2d at 225. After deliberations, the jury signed both verdict forms, finding the defendant guilty of murder and voluntary manslaughter. The trial court then instructed the jury that both verdicts could not be accepted because voluntary manslaughter is a lesser-included offense of murder. The jury was directed to continue deliberations. After further deliberations, the jury returned a signed verdict of guilty on the murder charge, and it returned the voluntary manslaughter verdict with their names crossed out. Flowers, 138 Ill. 2d at 226. Flowers\u2019 conviction and sentence were affirmed on direct appeal.\nSometime thereafter, Flowers filed a postconviction petition. This petition was dismissed by the trial court without an evidentiary hearing. However, the appellate court reversed on the basis of People v. Reddick, 123 Ill. 2d 184 (1988), a decision that was handed down by our supreme court sometime after the final judgment was rendered in Flowers\u2019 case. People v. Flowers, 192 Ill. App. 3d 292, 548 N.E.2d 766 (1989). In People v. Salazar, 162 Ill. 2d 513, 518 (1994), the supreme court explained its holding in Reddick-. The pattern jury instruction as to voluntary manslaughter (the same instruction used in Flowers\u2019 case) was erroneous in that it \u201cincorrectly 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.\u201d (Emphasis omitted.) The appellate court in Flowers held that Reddick applied retroactively to Flowers\u2019 postconviction claim, and the court awarded Flowers a new trial. The State then appealed our decision to our supreme court, which addressed the issue of whether the new rule announced in Reddick should apply retroactively to Flowers\u2019 postconviction proceeding. Flowers, 138 Ill. 2d at 237.\nIn deciding that Reddick did not apply retroactively, our supreme court adopted the United States Supreme Court\u2019s decision in Teague v. Lane. Flowers, 138 Ill. 2d at 239. Our supreme court noted that under the second Teague exception, \u201ca new rule may be applied on collateral review if it requires the observance of those procedures that are implicit in the concept of ordered liberty.\u201d Flowers, 138 Ill. 2d at 241, citing Teague, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073. Our supreme court acknowledged the rule in Reddick that \u201ccertain instructions, such as the burden of proof and elements of the offense, are essential to a fair trial\u201d (Reddick, 123 Ill. 2d at 198) and acknowledged that the new rule was of \u201cconstitutional dimension.\u201d Flowers, 138 Ill. 2d at 236-37. Nevertheless, it concluded that the rule did not \u201cestablish[ ] such a component of basic due process so as to fall within [the second exception].\u201d Flowers, 138 Ill. 2d at 242. Our supreme court provided little analysis in its discussion as to why the new rule announced in Reddick did not qualify under the second exception, but it merely stated, \u201cThis exception must be narrowly construed[,] and we do not believe that the Reddick rule established such a component of basic due process so as to fall within it.\u201d Flowers, 138 Ill. 2d at 242. We note that earlier in the decision our supreme court did point out, \u201c[W]hatever confusion may have occurred from these written instructions did not rise to a due process violation, in view of the way in which the situation was handled by the trial judge.\u201d Flowers, 138 Ill. 2d at 233.\nWe now turn to the conflicting decisions rendered by the appellate court from several divisions of the First District. As we stated earlier, two of these decisions held that Apprendi reaches back to a timely filed postconviction petition, and two of these decisions held that Apprendi does not reach back to a timely filed postconviction petition.\nThe first case decided was People v. Beachem, 317 Ill. App. 3d 693 (2000), where the First District, Third Division, held that Apprendi applies retroactively to a timely filed postconviction petition. In Beachem, defendant Dionna Beachem was found guilty of first-degree murder. Beachem, 317 Ill. App. 3d at 695. Following the jury\u2019s verdict, the trial court found that two statutory aggravating factors were present: the murder was exceptionally brutal and heinous, indicative of wanton cruelty, and the victim was over 60 years of age. Beachem, 317 Ill. App. 3d at 697. Based upon these factors, the trial court sentenced Beachem to an extended-term prison sentence of 90 years. Beachem, 317 Ill. App. 3d at 697. Beachem\u2019s conviction and sentence were affirmed on direct appeal.\nBeachem then filed a postconviction petition. Beachem, 317 Ill. App. 3d at 696. While the petition was pending, the United States Supreme Court delivered the Apprendi decision. Beachem then filed a supplemental brief challenging her extended-term sentence under Apprendi. Beachem noted that the most serious question facing the court was whether Apprendi applied retroactively to a timely filed postconviction petition. Beachem, 317 Ill. App. 3d at 695.\nIn determining that Apprendi reaches back, Beachem turned to the second Teague exception. The court observed that the rights at issue in Apprendi are \u201cat the core of our criminal justice system\u201d (Beachem, 317 Ill. App. 3d at 700), but the court also acknowledged that the second Teague exception is to be \u201cnarrowly construed\u201d (Beachem, 317 Ill. App. 3d at 705, quoting Flowers, 138 Ill. 2d at 242). Beachem likened the defendant\u2019s extended-term sentence to one in which, \u201conce the defendant serves the prescribed maximum sentence, he or she remains in prison on a charge never made and never proved.\u201d Beachem, 317 Ill. App. 3d at 702. Beachem described such a sentence as \u201crepugnant to our notions of fundamental fairness.\u201d Beachem, 317 Ill. App. 3d at 702. Beachem acknowledged that finding the retroactivity of a new rule should never lightly be done but that retroactivity was required because Beachem was essentially convicted of a crime never charged and never proved. Beachem held that the rule in Apprendi reached \u201cbedrock,\u201d and the court concluded that Apprendi applies retroactively to a timely filed postconviction petition. Beachem, 317 Ill. App. 3d at 706.\nThe decision in Beachem stood as good law for a couple of weeks. Then, the First District, First Division, delivered People v. Kizer, 318 Ill. App. 3d 238 (2000). Kizer addressed the same issue addressed in Beachem, but it reached the opposite conclusion. Kizer began by noting that the retroactivity of Apprendi hinged on the second Teague exception. Kizer then looked to our supreme court for guidance as to how narrowly this second exception should be construed.\nKizer examined Flowers and noted that our supreme court rejected the argument that Reddick qualified under the second exception. Kizer then examined the Reddick decision and opined that Reddick, like Apprendi, implicated the right to a jury verdict based on guilt beyond a reasonable doubt. Kizer, 318 Ill. App. 3d at 250-51. The court stated: \u201cWe do not mean to suggest that the very same situation was presented in Apprendi as in Reddick. But clearly Reddick and Apprendi deal with similar concerns and concerns that, in our view, are of commensurate gravity.\u201d Kizer, 318 Ill. App. 3d at 252. Kizer noted: \u201cRed-dick found that the instructions did nothing less than \u2018essentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter.\u2019 \u201d Kizer, 318 Ill. App. 3d at 251, quoting Reddick, 123 Ill. 2d at 194-95. The Kizer court further stated, \u201cThe burden of proof problem in Reddick exposed defendants to the danger of deprivations just as unfair as any deriving from the Apprendi problem.\u201d Kizer, 318 Ill. App. 3d at 252. Kizer then compared Apprendi and Reddick, stating: \u201cIn 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. [Citation.] 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. [Citation.]\u201d (Emphasis omitted.) Kizer, 318 Ill. App. 3d at 252. Kizer essentially concluded that because our supreme court did not allow Reddick to qualify under the second Teague exception, Apprendi should not qualify either.\nA few months later, the First District, Second Division, delivered People v. Scullark, No. 1 \u2014 99\u20141722 (March 13, 2001). In Scullark, the court agreed that Apprendi is not distinguishable from Reddick, and the court adopted the reasoning of Kizer. The Scullark court reiterated from Kizer that in Reddick, the jury received instructions which failed to apprise it of the State\u2019s burden of proof and that certain instructions, such as the burden of proof, are essential to a fair trial. Scullark agreed that Reddick implicated the right to a jury verdict based on guilt beyond a reasonable doubt, and Scullark followed Kizer\u2019s reasoning that because our supreme court in Flowers did not allow Reddick to fall within the second exception, neither should Apprendi.\nThe last case we shall examine was delivered on March 29, 2001, by the First District, Fourth Division. In People v. Burns, No. 1 \u2014 99\u2014 4030 (March 29, 2001), the Fourth Division followed Beachem and held that Apprendi does apply retroactively to the review of a timely filed postconviction petition. In agreeing with Beachem, Burns noted the \u201cimportant distinctions between the effects of the rule pronounced in Reddick, as opposed to the rule in Apprendi.\u201d Burns, slip op. at 7. Those distinctions listed by Burns included: \u201c[Although Reddick might have implicated the right to a jury verdict beyond a reasonable doubt and may have been of constitutional dimensions, the rule in Reddick did not trigger a fundamental right to due process. As the supreme court correctly stated in Flowers, although the jury instructions might have constituted \u2018grave error\u2019 in Reddick, it \u2018[was] not necessarily a constitutional error.\u2019 \u201d Burns, slip op. at 7, quoting Flowers, 138 Ill. 2d at 236. The court continued, \u201cEvery case that might have underlying constitutional implications does not, in and of itself, trigger the fundamental right to due process protected by the United States Constitution.\u201d Burns, slip op. at 7. The court in Bums further noted, \u201c[The Reddick] rule does not conjure up our traditional notions of due process, by directly violating the constitution, but instead is a violation of Illinois state law, which implicates the constitution at best ***.\u201d Burns, slip op. at 7.\nAfter distinguishing Reddick from Apprendi, Burns analyzed Ap prend\u00ed under the second Teague exception, without comparing it to Reddick, and found that the rule does fit into the narrow window of rules that fall under the second Teague exception. Burns observed that the rule in Apprendi that specifically requires every factor that increases the penalty for a crime beyond the prescribed statutory maximum to be submitted to a jury and proved beyond a reasonable doubt not only implicates the constitution but also is a \u201cbedrock procedural element\u201d of the fairness of a particular sentence. Burns, slip op. at 14. Like Apprendi, the Bums court pointed out that such a procedure invokes \u201cfundamental constitutional rights under the fourteenth and sixth amendments of the United States Constitution.\u201d Burns, slip op. at 14. Accordingly, Burns held that Apprendi did apply to the defendant\u2019s first timely filed postconviction petition.\nAfter reviewing the above-cited cases, and a multitude of other cases from varying jurisdictions that we do not cite, we believe that the decisions in Beachem and Burns are the better-reasoned decisions. We disagree with Kizer and Seullark and their essential reasoning that Reddick and Apprendi are indistinguishable and that because Flowers did not allow the rule in Reddick to come within the second Teague exception, Apprendi also should not fall within that exception. We adopt the analysis in Burns explaining the differences between the rule announced in Apprendi and the rule announced in Reddick. In addition, we believe that the constitutional issue in Reddick does not directly implicate the determination of guilt or innocence (People v. Weninger, 292 Ill. App. 3d 340, 343 (1997)), whereas Apprendi goes straight to the heart of the determination of guilt or innocence. We believe that the Apprendi rule is so grounded in fundamental fairness that it may be considered of watershed importance. We believe that Apprendi reaches bedrock.\nJustice Scalia puts it best in his concurring opinion when he states, \u201c[T]he guarantee that \u2018[i]n all criminal prosecutions, the accused shall enjoy the right to ... trial[ ] by an impartial jury\u2019 has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.\u201d (Emphasis in original.) Apprendi, 530 U.S. at 499, 147 L. Ed. 2d at 460, 120 S. Ct. at 2367 (Scalia, J., concurring). We agree that taking away defendant\u2019s right to have a jury determine certain such crucial facts beyond a reasonable doubt, and to force a prosecutor to prove these facts, has a direct implication on the determination of guilt or innocence. As we mentioned in People v. Nitz, 319 Ill. App. 3d 949 (2001), there is an immense difference between (a) allowing state officers or government officials to make factual determinations, without any standard of proof, that may deprive an accused of his liberty and (b) allowing an accused to have those crucial facts proved by the State beyond a reasonable doubt to an accused\u2019s fellow citizens. 319 Ill. App. 3d at 968. We believe that depriving an accused of such rights shatters the core of our criminal justice system and undermines the fundamental fairness that must underlie a conviction. We cannot ignore the strong language used by the Supreme Court in Apprendi that described such rights as \u201cof surpassing importance\u201d and that described such a sentencing procedure which violates Apprendi as \u201can unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.\u201d Apprendi, 530 U.S. at 476, 497, 147 L. Ed. 2d at 447, 459, 120 S. Ct. at 2355, 2366.\nAccordingly, based upon the above reasons, we believe that Apprendi does qualify under the second Teague exception and is therefore entitled to retroactive application to defendant\u2019s timely filed postconviction petition. We therefore reject the State\u2019s second argument.\nHaving found that Apprendi does apply retroactively in this case, the only issue that remains is whether defendant\u2019s 75-year, extended-term sentence is unconstitutional. The well-reasoned opinions recently handed down in Nitz and Beachem, 317 Ill. App. 3d at 707-08, explained why such a sentencing procedure, as defendant received in the instant case, is unconstitutional. We follow those decisions and incorporate their analysis here and find that the imposition of defendant\u2019s extended-term sentence was unconstitutional.\nAccordingly, we affirm the trial court\u2019s dismissal of those issues raised in defendant\u2019s postconviction petition, but pursuant to our authority under Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)), we modify defendant\u2019s sentence of 75 years\u2019 imprisonment to 60 years\u2019 imprisonment.\nAffirmed as modified.\nCHAPMAN, EJ., and GOLDENHERSH, J., concur.\nSubsequent to the filing of our opinion in this case, the First District withdrew the cited opinion in People v. Burns, filed a modified opinion upon the denial of rehearing, withdrew that opinion, and eventually filed a new modified opinion upon the denial of rehearing (People v. Burns, 332 Ill. App. 3d 189 (2001)).\nWe note that People v. Roberts, 318 Ill. App. 3d 719 (2000), also contemplated whether Apprendi applies retroactively to a postconviction proceeding, but the court concluded, \u201cWhether Apprendi violations may be addressed in a collateral, postconviction proceeding is something we need not decide in this case.\u201d 318 Ill. App. 3d at 728. Even so, Presiding Justice Quinn wrote a special concurrence expressing his belief that Apprendi should not be applied retroactively to collateral proceedings. Roberts, 318 Ill. App. 3d at 735 (Quinn, P.J., specially concurring). In addition, People v. Jones, 321 Ill. App. 3d 515 (2001), has also addressed this issue in considering whether Apprendi applies to an untimely, successive postconviction petition. However, as the issue in the instant case concerns a timely filed postconviction petition, we shall not discuss Jones.\nThere is essentially no dispute that Apprendi constitutes a \u201cnew rule.\u201d The appellate court has categorized the rule as such because when the rule in Apprendi was announced, it was not dictated by precedent and lower courts had not agreed that an Apprendi-like rule was the law at the time. See People v. Kizer, 318 Ill. App. 3d 238 (2000). For these reasons, we, too, shall treat Apprendi as a new rule.\nHowever, we point out that in Flowers, our supreme court stated: \u201c[W]e note that these instructions did not assure only a verdict of murder would be returned. The State points out that other verdicts have been reached in similar cases.\u201d Flowers, 138 Ill. 2d at 236.", "type": "majority", "author": "JUSTICE WELCH" } ], "attorneys": [ "Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "James Creason, State\u2019s Attorney, of Salem (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT RUSH, Defendant-Appellant.\nFifth District\nNo. 5 \u2014 99\u20140092\nOpinion filed May 11, 2001.\nRobert Agostinelli and Peter A. Carusona, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nJames Creason, State\u2019s Attorney, of Salem (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1014-01", "first_page_order": 1032, "last_page_order": 1046 }