{ "id": 1599274, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENISE PAYNE, Defendant-Appellant", "name_abbreviation": "People v. Payne", "decision_date": "2002-12-20", "docket_number": "No. 1\u201400\u20144120", "first_page": "154", "last_page": "172", "citations": [ { "type": "official", "cite": "336 Ill. App. 3d 154" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "202 Ill. 2d 89", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442050 ], "year": 2002, "pin_cites": [ { "page": "108-13" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0089-01" ] }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "154-55" }, { "page": "154" }, { "page": "154" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "189 Ill. 2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224785 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "53" }, { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0048-01" ] }, { "cite": "195 Ill. 2d 117", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725376 ], "year": 2001, "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0117-01" ] }, { "cite": "156 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777558 ], "year": 1993, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0149-01" ] }, { "cite": "323 Ill. App. 3d 872", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171687 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0872-01" ] }, { "cite": "198 Ill. 2d 625", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2002, "pin_cites": [ { "parenthetical": "holding that Apprendi does apply retroactively" } ], "opinion_index": 0 }, { "cite": "326 Ill. App. 3d 882", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281456 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/0882-01" ] }, { "cite": "317 Ill. App. 3d 693", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026041 ], "year": 2000, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0693-01" ] }, { "cite": "327 Ill. App. 3d 973", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 79457 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-app-3d/327/0973-01" ] }, { "cite": "318 Ill. App. 3d 238", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279475 ], "year": 2000, "pin_cites": [ { "page": "252", "parenthetical": "holding that Apprendi does not apply retroactively" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0238-01" ] }, { "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": "332 Ill. App. 3d 179", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1034219 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0179-01" ] }, { "cite": "202 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442047 ], "year": 2002, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0378-01" ] }, { "cite": "161 Ill. 2d 82", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783183 ], "year": 1994, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0082-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 8, "year": 1984, "pin_cites": [ { "page": "687, 694" }, { "page": "693, 698" }, { "page": "2064, 2068" }, { "page": "689" }, { "page": "694-95" }, { "page": "2065" }, { "page": "697" }, { "page": "699, 104" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "47 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905414 ], "year": 1970, "pin_cites": [ { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0001-01" ] }, { "cite": "197 Ill. 2d 216", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259047 ], "year": 2001, "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0216-01" ] }, { "cite": "314 Ill. App. 3d 64", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140025 ], "year": 2000, "pin_cites": [ { "page": "69" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0064-01" ] }, { "cite": "307 Ill. App. 3d 406", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173570 ], "year": 1999, "pin_cites": [ { "page": "409", "parenthetical": "\"the last time [the defendant] had regularly attended school was in eighth grade\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0406-01" ] }, { "cite": "319 Ill. App. 3d 200", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527790 ], "year": 2001, "pin_cites": [ { "parenthetical": "defendant was 13 years old and reading at eighth-grade level" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0200-01" ] }, { "cite": "323 Ill. App. 3d 892", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171574 ], "year": 2001, "pin_cites": [ { "parenthetical": "defendant was in ninth grade" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0892-01" ] }, { "cite": "202 Ill. 2d 59", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442048 ], "weight": 7, "year": 2002, "pin_cites": [ { "page": "66" }, { "page": "67" }, { "page": "62" }, { "page": "66" }, { "page": "68" }, { "page": "68" }, { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0059-01" ] }, { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "380" }, { "page": "385, 388-89" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0366-01" ] }, { "cite": "197 Ill. 2d 239", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259103 ], "year": 2001, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0239-01" ] }, { "cite": "327 Ill. App. 3d 180", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 79313 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "183" }, { "page": "183" }, { "page": "184" }, { "page": "190-91" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/327/0180-01" ] }, { "cite": "174 Ill. 2d 410", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223616 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "418" }, { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0410-01" ] }, { "cite": "194 Ill. 2d 154", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096304 ], "year": 2000, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/194/0154-01" ] }, { "cite": "175 Ill. 2d 372", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295767 ], "year": 1997, "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0372-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 12, "year": 2000, "pin_cites": [ { "page": "476" }, { "page": "447" }, { "page": "2355" }, { "page": "497" }, { "page": "459" }, { "page": "2366" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "386 U.S. 738", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182629 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0738-01" ] } ], "analysis": { "cardinality": 1625, "char_count": 47538, "ocr_confidence": 0.771, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.059876463840169834 }, "sha256": "182157be2b678560eec58e89d9b49556350948c2244607dce94c26ff3020142a", "simhash": "1:9b47b4b2752100d9", "word_count": 7737 }, "last_updated": "2023-07-14T16:43:40.180592+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. DENISE PAYNE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019HARA FROSSARD\ndelivered the opinion of the court:\nFollowing a bench trial, defendant Denise Payne was convicted of first degree murder. The State sought the death penalty and defendant waived a jury for both phases of the capital sentencing hearing. After a death penalty hearing before the trial court, defendant was sentenced to an extended term of 80 years in prison. Defendant appealed and her counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). Defendant responded, contending that the State did not prove she had the intent to kill beyond a reasonable doubt. Rejecting defendant\u2019s contention, this court granted defense counsel\u2019s motion to withdraw and affirmed the trial court\u2019s judgment. People v. Payne, No. 1 \u2014 97\u20144467, slip order at 2-3 (August 23, 1999) (unpublished order under Supreme Court Rule 23) (\u201cthe evidence was sufficient to show that defendant possessed the requisite intent and committed the offense of first degree murder\u201d).\nDefendant subsequently filed a pro se postconviction petition, which the circuit court summarily dismissed as frivolous and patently without merit. In this appeal, defendant contends (1) that her pro se petition sufficiently raised the gist of a meritorious claim of ineffective assistance of trial counsel; (2) that appellate counsel was ineffective; (3) that her extended-term sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); and (4) that Public Act 83 \u2014 942, effective November 23, 1983, violates the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. iy \u00a7 8(d)). We affirm.\nBACKGROUND\nDefendant\u2019s conviction arose from the beating death of her five-year-old stepson, J.P., on February 21, 1995, in Harvey, Illinois. Defendant filed a motion to suppress statements, arguing that her confession was involuntarily obtained as a result of psychological coercion. Following a hearing, at which the interrogating officer and defendant\u2019s sister testified, the trial court denied the motion to suppress.\nAt trial, Harvey police detective James McGee testified that in the late evening hours of February 21, 1995, he was dispatched to an area hospital in connection with a reported incident of child abuse. At the emergency room, he observed J.E, who was unconscious with bruises, scars, marks, lacerations, and cuts \u201call about\u201d his body. Detective McGee then went to J.E\u2019s home, where he spoke with defendant, who appeared calm and unconcerned. Defendant told Detective McGee that as she and J.E were walking down the stairs, she slipped on the third stair from the bottom and landed on top of J.E After further conversation, defendant told Detective McGee that she punished J.E by striking him with a stick, which Detective McGee recovered from under the kitchen table. Defendant agreed to accompany Detective McGee to the hospital. There, Detective McGee spoke with medical personnel while defendant stayed in the emergency room waiting area. Defendant subsequently accompanied Detective McGee to the police department. The next afternoon, Detective McGee searched defendant\u2019s home with her husband\u2019s consent and recovered a leather belt.\nJ.E\u2019s sister, 11-year-old D.E, testified that on February 21, 1995, she was nine years old. She explained that at that time, she lived with her father, her stepmother, her eight-year-old sister, her six-year-old brother, and J.E, who was five years old. D.E testified that on the day in question she heard defendant ask J.P. whether he had any homework. J.E responded that he did not. Defendant and J.E went upstairs to the boys\u2019 room, where defendant again asked J.E about his homework. When J.E said he had none, defendant accused him of lying. Defendant then asked the children who broke the closet door in the boys\u2019 room, and D.E told her that her niece had done it. Defendant telephoned her sister and then called J.E downstairs. D.E testified that she heard J.E walk downstairs and then heard him \u201cgetting a whooping\u201d with the belt. D.E heard smacking noises and heard J.E screaming and hollering, \u201cFlease, God.\u201d When asked whether J.E\u2019s screaming was any different that day from any other time, she replied that he was louder than ever before.\nOn cross-examination, D.E stated that other than the day in question, every time she \u201cgot a whooping,\u201d defendant would say to her, \u201cI\u2019m going to kill you.\u201d D.E also stated that defendant \u201cused to say that all the time.\u201d However, D.E acknowledged that she did not tell the police about these statements by defendant.\nFaramedic Geral Kurylo testified that around 11:30 p.m. on the date in question, she and her partner were dispatched to defendant\u2019s home. When Kurylo entered the home, defendant was talking on the telephone, crying, and holding J.E in her arms. She then set J.E down on the kitchen table, promptly stopped crying, and lit a cigarette. Kurylo testified that J.E was limp and chalky white, which indicated he had been without oxygen for some length of time, and had chunky vomit around his face. The paramedics asked defendant what happened, and she replied that J.E was sitting on the sofa coughing, and then all of a sudden he just quit coughing and stopped breathing. After determining that J.E was not breathing and had no pulse, Kurylo picked J.E up and told defendant they were going to the hospital. When Kurylo asked defendant whether she was coming, defendant said she could not.\nIn the ambulance on the way to the hospital, Kurylo noticed that J.E had black marks on his neck about the width of a finger and other marks all over his body. J.E\u2019s left arm was swollen and discolored from the top of his shoulder to his elbow. At the hospital, Kurylo noticed that J.E had \u201cmany, many wounds\u201d across his back and buttocks in different stages of healing, injuries to the bottoms of his feet, and what appeared to be bite marks on his side and the back of his thighs.\nOn cross-examination, Kurylo acknowledged that in her narrative she wrote, \u201cAssorted wounds over child\u2019s body, arms and fingers,\u201d but did not specify the nature or location of the wounds and did not mark J.E\u2019s injuries on the illustration of the human figure. She also did not note that J.E was chalky white.\nThe parties stipulated that, if called to testify, Dr. Allswede would have testified that J.E arrived at the Ingalls Hospital emergency room in full cardiorespiratory arrest, was comatose, and did not respond to verbal or painful stimulation. After examining J.E, Dr. Allswede found whip marks of various ages on his thighs, arms, and front and back torso; bruises and abrasion to his chest, back, and left arm; blistering on his fingertips; a laceration to the right lower lip; fresh bruises and abrasions to both flanks; bruises to the left neck; and an abrasion and a hematoma to the left eye socket. Based on his medical training, education, and experience, Dr. Allswede would have testified that J.E\u2019s injuries were the result of child abuse.\nThe parties stipulated that on February 22, 1995, J.E was transferred via helicopter to Wyler\u2019s Children\u2019s Hospital and arrived in a comatose state on an intubator. Bruises, lacerations, hematomas, abrasions, and cord marks were noted by doctors at Wyler\u2019s Children\u2019s Hospital, and a CT scan revealed severe brain injury with massive edema. The parties further stipulated that, if called to testify, Dr. Chaney would have testified that based on her medical training, education, and experience, it was her opinion that J.E\u2019s injuries were the result of child abuse. Finally, the parties stipulated that J.E was pronounced dead at 7:33 a.m.\nAssistant State\u2019s Attorney Frank Cece testified that in connection with the investigation of J.E\u2019s death, he spoke with Detective McGee, Dr. Allswede, the medical examiner\u2019s office, and J.E\u2019s siblings on February 22, 1995. Cece then spoke with defendant in an interview room at the police station. Cece introduced himself, asked whether defendant was under the influence of alcohol or drugs, and advised her of her constitutional rights. Cece and defendant then talked about what happened with J.E, and Cece reduced defendant\u2019s statement to writing.\nDefendant related that she was the parent who would discipline the children, mainly for lying, and that although she usually used a belt on them, for the last couple of weeks she had been using a stick that was a piece of wall trim. Defendant related that after dinner on February 21, 1995, she went upstairs to the boys\u2019 room and found it \u201call in a wreck.\u201d Defendant found J.E\u2019s homework under his pillow. Earlier, J.E had told defendant he did not have any homework. When defendant asked the children who broke the closet door, they first blamed each other, and then blamed their cousin. Defendant telephoned her sister and learned that her children denied breaking the door. Defendant stated, \u201cThat\u2019s when I went and got the stick.\u201d\nDefendant related in her statement that she asked J.E why his homework was not done and why he lied about not having any homework. When J.E said he did not know or that he forgot, defendant told him \u201cto get his ass into the dining room,\u201d where they started on his homework. Defendant told Cece that she would point to letters and ask J.E what they were, but J.E kept saying that he had forgotten them. Defendant related:\n\u201cWhen [J.E] told me that he forgot, that\u2019s when I hit him with the stick on his shoulder and on his back real hard.\n[J.E] had taken off his shirt and pants before I started hitting him, because I told him to. That way [J.E] would feel the pain when I hit him. After I started hitting [J.E], he told me the right letters. [J.E] would keep forgetting the pictures and the letters, so every time he forgot, I would keep hitting [J.E] all over his body. I would hit him with the stick, and he kept jumping around and moving, but he never ran away, because he knew better.\nI hit [J.E] all over his back, shoulders, arms, butt, legs, face and head with the stick. [J.E] kept crying saying, \u2018Okay, okay, mama, I won\u2019t do it anymore,\u2019 but I kept hitting him because he needed to be punished. When I got through with [J.E] his whole body was red. His lip was bleeding.\u201d\nDefendant told Cece that by 9:30 p.m., all the kids were in bed. Some time later, defendant noticed that J.E was breathing funny. She took J.E downstairs and got some water, and when she returned, J.E had stopped breathing. Defendant tried to perform cardiopulmonary resuscitation (CFR) and then called for an ambulance. Defendant noted her husband knew she disciplined the. children with the belt and the stick and stated, \u201cHe even told me that when I used to hit the kids with an extension cord, it was excessive.\u201d Defendant concluded by saying, \u201cI want to say that I know I went too far in whooping [J.E]\u201d\nDr. Simms, the deputy medical examiner who performed J.E\u2019s autopsy, testified that he observed a total of 9 injuries in the area of J.E\u2019s head and neck, 15 marks on his back and buttocks, 7 injuries on his abdomen, and 46 marks on his extremities. These external injuries ranged in age from a few weeks to a few hours old. Dr. Simms indicated that some of the marks were consistent with being made by fingernails, while others were consistent with being made by a belt or wooden stick, as defendant admitted to using.\nDr. Simms identified 29 photographs as accurately depicting J.E\u2019s injuries. Dr. Simms noted that J.E\u2019s back and left upper arm were swollen. He described the complex loop scar on the back of J.E\u2019s left thigh as the size and thickness of a coat hanger. He stated that the multiple linear and curvilinear scratches on the back of J.E\u2019s left upper arm were consistent with fingernail scratches or injuries caused by someone holding his arm, and that the injuries to J.E\u2019s fingertips could be consistent either with J.E striking out and fighting with his hands, or with blunt trauma inflicted onto the fingertips. Dr. Simms explained that the linear wounds were inflicted with some kind of rod-shaped instrument, that he believed some of the curvilinear wounds were inflicted by fingernails, and that he could not tell what inflicted the other curvilinear wounds. He stated that the loop-shaped wounds were caused by a belt or some other type of pliable instrument, and that the angled scars would have been caused by a fairly hard object such as the edge of a piece of wood or a belt buckle. When shown the stick and belt Detective McGee recovered from defendant\u2019s home, Dr. Simms agreed that the linear and angled wounds on J.E\u2019s body were consistent with being struck with those objects. Dr. Simms testified that many of J.E\u2019s injuries could be characterized as pattern injuries, which indicated that they were inflicted intentionally, as opposed to accidentally.\nDr. Simms further testified that he conducted an internal examination of J.E He observed a large area of contusion on the back of the head, indicating a fresh hemorrhage. J.E\u2019s brain was swollen to the point that it had pushed through the opening at the bottom of the skull and put pressure on the brain stem where the breathing and heart centers are located. Dr. Simms stated that when the brain herniates through the opening at the base of the skull and puts pressure on the brain stem, it usually causes death. Dr. Simms noted multiple hemorrhages on J.E\u2019s tongue and a hemorrhage in the neck near the thyroid gland, which indicated that pressure was applied or trauma was inflicted in the area of the windpipe. He stated that taken together with the external injuries to J.E\u2019s neck, the hemorrhages on J.E\u2019s tongue and neck indicated that he had been strangled.\nDr. Simms observed a large amount of hemorrhage in J.E\u2019s left chest, fourth rib on the left side, back, buttocks, abdomen, and muscles surrounding the kidney. Dr. Simms found a \u201ctremendous amount\u201d of hemorrhage in the upper back and the upper arms, which accounted for the external swelling of J.E\u2019s back and left upper arm. Dr. Simms stated that a broad area of hemorrhage is consistent with repetitive beating with a significant amount of force. He also stated that taking into account the area of hemorrhage all over J.E\u2019s back, the hemorrhage on the back of his head, and the bruises on the upper parts of both his arms, he believed J.E had been repetitively battered against a wall or a floor. J.E\u2019s brain swelling may have been caused by lack of oxygen due to strangulation, or by the trauma of his head repeatedly accelerating and then suddenly stopping as it was struck against a surface. Finally, Dr. Simms stated that the manner of J.E\u2019s death was homicide, with the cause being multiple injuries due to blunt force trauma due to child abuse, with strangulation as a significant contributing condition.\nDefendant testified as to the circumstances leading up to J.P.\u2019s beating on February 21, 1995. She testified that shortly before that date, her mother had passed away. This was very traumatic for defendant, as the two women had been best friends despite the fact that when defendant was a child, her mother had been a strict disciplinarian who beat her with pop bottles, cast-iron skillets, shoes, and books. Defendant stated that in 1995, she was drinking a gallon of whiskey per week and was taking prescription drugs for diabetes and hypertension. On February 21, 1995, defendant\u2019s sister, her sister\u2019s four children, and her sister\u2019s boyfriend had been visiting, and all eight children had been running around the house. Defendant was also worried about whether her husband was going to bring his paycheck home. Defendant described it as \u201ca stressful, exhaustive day.\u201d\nDefendant acknowledged that she told the police she disciplined the children on the night in question. She insisted that she did not at any time intend to kill J.E She also denied grabbing J.E by the throat and choking him. When shown the stick that Detective McGee recovered from her house, defendant described it as roughly two feet long and about the thickness of a fingertip. She stated that the stick reminded her of a ruler her mother used to whip her. Finally, defendant explained that she stopped crying when the paramedics arrived at her house because it was not her habit to let people see her cry.\nOn cross-examination, defendant stated that she believed she was a good parent and that part of her responsibility as a good parent was discipline. She acknowledged that she used the stick recovered by Detective McGee as an instrument of discipline, but denied having hit the children with an extension cord. Defendant stated that she intentionally beat J.E with the stick and the belt. She also said that she \u201chad hold of him,\u201d although she did not remember where she had grabbed him. Defendant stated that J.E was disrobed because he was about to take a bath, that he was crying, and that he tried to get away from her. Defendant testified that she was angry and was not thinking clearly because J.E\u2019s \u201croom was tore up. He had defecated in the closet again. He was just generally misbehaving.\u201d\nIn response to questioning by the trial court, defendant stated that she drank about four shots of whiskey about an hour or two before the incident. She denied having hit J.E\u2019s head against the wall, the floor, or any other object. Finally, defendant stated that the only time she put her hand on J.E\u2019s throat was when she was trying to resuscitate him.\nFollowing closing arguments, the trial court found defendant guilty of first degree murder. The State sought the death penalty, and defendant waived a jury for both phases of the capital sentencing hearing. After being presented with the presentence investigation report and hearing the testimony of several witnesses, the parties\u2019 stipulations as to other witnesses\u2019 testimony, a victim impact statement, and the attorneys\u2019 arguments, the trial court found defendant eligible for the death penalty because J.E was under 12 years old and J.E\u2019s death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty. The trial court declined to impose the death penalty because defendant did not have a significant criminal background, defendant was beaten by her mother as a child, and defendant \u201cwas operating under a high degree of stress at the time of this beating.\u201d Noting that \u201c[t]his is perhaps one of the worst beating cases, if not the worst beating case I have ever observed,\u201d the trial court imposed an extended-term sentence of 80 years in prison based on its finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.\nANALYSIS\nUnder the Eost-Conviction Hearing Act (Act), a defendant may collaterally challenge his or her conviction or sentence for violations of federal or state constitutional rights. 725 ILCS 5/122 \u2014 1 et seq. (West 1998); People v. Tenner, 175 Ill. 2d 372, 377 (1997). A petition for post-conviction relief must \u201cclearly set forth the respects in which petitioner\u2019s constitutional rights were violated\u201d and \u201cshall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.\u201d 725 ILCS 5/122 \u2014 2 (West 1998). Any claim of substantial denial of constitutional rights that is not raised in the original or an amended petition is waived. 725 ILCS 5/122 \u2014 3 (West 1998). Issues that were raised and decided on direct appeal are barred by the doctrine of res judicata, and issues that could have been raised on appeal, but were not, are deemed waived. People v. Mahaffey, 194 Ill. 2d 154, 170 (2000).\nIn cases where the death penalty is not involved, adjudication of a postconviction petition follows a three-stage process. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). The instant case was before the circuit court at the first stage of this process. In the first stage, the circuit court is required to review the petition within 90 days of its filing and determine whether it is frivolous or patently without merit. 725 ILCS 5/122 \u2014 2.1(a)(2) (West 1998). The circuit court\u2019s review at this point is independent, as the Act does not permit any further pleadings from the defendant or any motions, responsive pleadings, or other input from the State at the first stage. Gaultney, 174 Ill. 2d at 418; People v. Montgomery, 327 Ill. App. 3d 180, 183 (2001). To survive first-stage dismissal, a petition need only present the gist of a constitutional claim. People v. Edwards, 197 Ill. 2d 239, 244 (2001).\nDuring first-stage review, the circuit court must determine whether the postconviction petition alleges a constitutional infirmity which, if proven, would necessitate relief under the Act. People v. Coleman, 183 Ill. 2d 366, 380 (1998). The first stage of postconviction review presents a pleading question. Montgomery, 327 Ill. App. 3d at 183. All well-pleaded facts that are not positively rebutted by the record are taken as true, and due to the elimination of all factual issues, a first-stage dismissal is subject to de novo review. Coleman, 183 Ill. 2d at 385, 388-89.\nAt the first stage, the court may examine the transcripts, the court file of the proceeding in which the defendant was convicted, and any action taken by an appellate court in such a proceeding. 725 ILCS 5/122 \u2014 2.1(c) (West 1998). The court reviews these records in order to determine whether the well-pleaded facts included in the petition are positively rebutted by the record, thereby rendering the petition frivolous or patently without merit. Montgomery, 327 Ill. App. 3d at 184.\nI. Ineffective Assistance of Trial Counsel In her pro se petition for postconviction relief, defendant alleged as follows:\n\u201cPetitioner was denied effective assistance of counsel as required by the 6th amendment. Petitioner\u2019s trial counsel fell below standard for effective assistance of counsel. During Petitioner\u2019s statement hearing counsel failed to establish all evidence of coercion, that was available to be presented in the court. Counsel did not inform the court of Petitioner\u2019s limited education, the circumstances in which Petitioner signed statement such as the [ejffects of her illness and the length of time she was in police custody. These are things that the Petitioner asserts caused her to make and sign the police statement.\u201d\nDefendant argues that trial counsel was deficient in not establishing that the circumstances of the police interrogation, defendant\u2019s limited education, and her hypertension and diabetes could have induced her into confessing or otherwise prevented her from having the capacity to understand the meaning and effect of her confession. Defendant contends that her petition raised the gist of a meritorious claim that trial counsel was ineffective for failing to present sufficient evidence of the involuntariness of her confession.\nThe Act mandates that a postconviction petition \u201cshall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.\u201d 725 ILCS 5/122 \u2014 2 (West 1998). The failure to either attach the necessary \u201caffidavits, records, or other evidence\u201d or explain their absence is fatal to a postconviction petition and by itself justifies summary dismissal. People v. Collins, 202 Ill. 2d 59, 66 (2002). Defendant\u2019s own sworn verification is not a substitute for the \u201caffidavits, records, or other evidence\u201d required by the Act. Collins, 202 Ill. 2d at 67. Here, defendant\u2019s petition was unsupported by attached affidavits, records, or other evidence and offered no explanation for the absence of such documentation. Accordingly, summary dismissal was proper.\nDefendant argues that the lack of attached affidavits, records, or other evidence and the lack of an explanation for their absence is not fatal to her petition. She offers two reasons for this conclusion. First, defendant argues that she was not required to attach documentation beca\u00fase the record supports her claim of ineffectiveness. Specifically, defendant notes that the presentence investigation report indicates she earned only one-half of a credit in high school, suffered from diabetes and hypertension, and was prone to headaches and depression.\nWe have examined the record and find that it actually refutes defendant\u2019s claims of ineffectiveness. The record reveals that contrary to defendant\u2019s allegation in her pro se petition, trial counsel did inform the trial court of the \u201c[e]ffects of her illness and the length of time she was in police custody.\u201d Moreover, in the written motion to suppress, counsel alleged that the interrogating officer, Detective McGee, told defendant that if she wanted her medicine, she had to sign a statement, and that it \u201cwas in this weakened, and psychologically stressed condition that defendant made, and signed statements against herself.\u201d During opening statements at the hearing on the motion, counsel informed the trial court that defendant suffered from hypertension and diabetes, and alleged that defendant asked the police for her medication both at the hospital and in the interview room at the police station. Counsel further claimed that Detective McGee told defendant she would have to talk with them if she wanted her medication and that \u201cwith her need for her medication she [made] a statement.\u201d Defense counsel concluded his opening statements by arguing that defendant \u201cdid not sign that confession or make it freely and voluntarily because *** she was in need of her medication.\u201d In the course of questioning Detective McGee, defense counsel elicited testimony that defendant was in \u201cthe lockup\u201d from 2 a.m. until 8 p.m. and her statement was elicited around 8 p.m. Defense counsel then questioned defendant\u2019s sister, eliciting testimony that defendant was a diabetic and had high blood pressure. During closing statements at the hearing, counsel repeatedly argued that defendant confessed because she needed her medicine.\nWith regard to defendant\u2019s argument regarding her \u201climited education,\u201d we acknowledge that counsel did not inform the court of defendant\u2019s level of education and that the presentence investigation report indicates that defendant earned only one-half of a credit in high school. However, statements made by defendants with a ninth-grade education, or less, have been found voluntary in Illinois. See, e.g., People v. Golden, 323 Ill. App. 3d 892 (2001) (defendant was in ninth grade); People v. Kolakowski, 319 Ill. App. 3d 200 (2001) (defendant was 13 years old and reading at eighth-grade level); People v. Saunders, 307 Ill. App. 3d 406, 409 (1999) (\u201cthe last time [the defendant] had regularly attended school was in eighth grade\u201d). These cases rebut defendant\u2019s claim that defense counsel was ineffective for failing to challenge the voluntariness of her confession based on her limited education.\nWe further note that the record contains a report from a psychologist concluding that, at the time of her arrest and questioning, defendant was competent to understand and waive her constitutional rights under Miranda. The record contains a subsequent report from a psychiatrist concluding that defendant \u201chas an adequate understanding of her Miranda rights, and is competent to waive those rights.\u201d Although the issue of whether a confession was voluntary is distinct from the issue of whether a waiver of Miranda rights was knowing and intelligent, the review of both issues includes many of the same factors, such as the individual\u2019s mental ability, familiarity with the language, age, education, and experience. In re M.W., 314 Ill. App. 3d 64, 69 (2000).\nDefendant\u2019s allegations regarding trial counsel\u2019s ineffectiveness are positively rebutted by the record. In such situations, summary dismissal is appropriate. People v. Rogers, 197 Ill. 2d 216, 222 (2001). We reject defendant\u2019s argument that since the record supported her claim of ineffectiveness, her failure to attach supporting documentation to her postconviction petition or explain its absence was not fatal to her petition. The circuit court\u2019s decision to summarily dismiss defendant\u2019s pro se postconviction petition was proper.\nWe also reject defendant\u2019s second argument in support of her claim that her failure to attach supporting documentation or explain its absence is not fatal to her petition. Defendant contends that Collins does not require attached documentation or an explanation of its absence where, as in her case, it would have been virtually impossible to obtain an affidavit from trial counsel acknowledging his incompetence. Relying on People v. Williams, 47 Ill. 2d 1, 4 (1970), defendant asserts, \u201cThe difficulty or impossibility of obtaining such an affidavit is self-apparent.\u201d Defendant argues that, due to this difficulty, \u201cthe explanation for the lack of corroborating evidence or affidavits can be inferred from the facts alleged\u201d in the petition.\nWe disagree.\nIn Collins, the only attachment to the petition was the defendant\u2019s sworn verification. Collins, 202 Ill. 2d at 62. Despite the fact that the only other likely witness to the conversation alleged in the petition regarding defendant\u2019s intention to appeal the case was the very attorney that the defendant was claiming had been ineffective, the supreme court held that summary dismissal was justified because the petition was unsupported by \u201caffidavits, records, or other evidence\u201d and offered no explanation for the absence of such documentation. Collins, 202 Ill. 2d at 66.\nThe Collins court acknowledged that in some cases, such as Williams, the requirement of attaching affidavits, records, or other evidence would place an unreasonable burden upon postconviction petitioners. Collins, 202 Ill. 2d at 68. However, the court made clear that petitioners must still comply with section 122 \u2014 2:\n\u201cThis does not mean, however, that the petitioners in such cases are relieved of bearing any burden whatsoever. On the contrary, section 122 \u2014 2 makes clear that the petitioner who is unable to obtain the necessary \u2018affidavits, records, or other evidence\u2019 must at least explain why such evidence is unobtainable. In this case, defendant is asking to be excused not only from section 122 \u2014 2\u2019s evidentiary requirements but also from section 122 \u2014 2\u2019s pleading requirements. Nothing in the Act authorizes such a comprehensive departure.\u201d (Emphasis omitted.) Collins, 202 Ill. 2d at 68.\nGiven this language, we reject defendant\u2019s argument that Collins does not require an explanation of the absence of attached documentation and reject defendant\u2019s argument that \u201cthe explanation for the lack of corroborating evidence or affidavits can be inferred from the facts alleged\u201d in the petition. Defendant failed to attach the necessary affidavits, records, or other evidence and failed to offer an explanation for the absence of such documentation. Accordingly, summary dismissal was proper. Collins, 202 Ill. 2d at 66.\nMoreover, unlike Collins or Williams, which address allegations of ineffective assistance in the context of a guilty plea, the instant case alleges ineffective assistance for failing to sufficiently challenge the voluntariness of defendant\u2019s confession. A review of the record supports summary dismissal because the record refutes defendant\u2019s claims of ineffectiveness. Ineffective assistance of counsel is established when it is proven that counsel\u2019s representation fell below an objective standard of reasonableness and that, but for counsel\u2019s deficient performance, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984). The defendant must overcome a \u201cstrong presumption\u201d that the lawyer\u2019s conduct falls within the wide range of reasonable professional assistance and that the challenged conduct constitutes sound trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. If the ineffectiveness claim can be disposed of on the basis that the defendant did not suffer sufficient prejudice, a court need not consider whether counsel\u2019s performance was deficient. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104. S. Ct. at 2069; People v. Erickson, 161 Ill. 2d 82, 90 (1994). For the reasons previously discussed, the record rebuts defendant\u2019s claims of ineffectiveness. Trial counsel properly challenged the voluntariness of defendant\u2019s confession. We conclude that defendant\u2019s petition failed to raise the gist of a meritorious claim that trial counsel was ineffective for failing to present sufficient evidence of the involuntariness of her confession.\nII. Extended-Term Sentence and Apprendi\nDefendant contends that her extended-term sentence should be vacated because, in violation of Apprendi, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348, the facts supporting an enhanced sentence were never charged. Defendant argues that because J.E\u2019s age and the allegation that the crime was exceptionally brutal and heinous were not charged, she did not have notice that she qualified for an extended-term sentence. We are mindful that our supreme court recently held in People v. Swift, 202 Ill. 2d 378, 392 (2002), that for purposes of Apprendi analysis, the sentencing range for first degree murder is 20 to 60 years\u2019 imprisonment, and that any sentence greater than 60 years requires additional factual findings which must be proven beyond a reasonable doubt.\nIn this appeal, defendant urges us to apply Apprendi retroactively on postconviction review. There is a split of authority among the divisions of the First District regarding the retroactive application of Apprendi to cases pending on postconviction review. See, e.g., People v. Gholston, 332 Ill. App. 3d 179 (2002); People v. Scullark, 325 Ill. App. 3d 876 (2001); People v. Montgomery, 327 Ill. App. 3d 180, 190-91 (2001); People v. Kizer, 318 Ill. App. 3d 238, 252 (2000) (holding that Apprendi does not apply retroactively); People v. Kidd, 327 Ill. App. 3d 973 (2002); People v. Beachem, 317 Ill. App. 3d 693, 706 (2000); People v. Lee, 326 Ill. App. 3d 882 (2001), appeal allowed, 198 Ill. 2d 625 (2002) (holding that Apprendi does apply retroactively). We agree with Kizer and its progeny and hold that Apprendi does not apply retroactively to cases on collateral review.\nMoreover, on the merits defendant\u2019s Apprendi challenge fails. In Swift, unlike the instant case, the State did not seek the death penalty, but requested an extended-term sentence. In the instant case, the State sought the death penalty and defendant waived a jury for both phases of the capital sentencing hearing. The trial judge found defendant eligible for the death penalty based on the aggravating factor designated in section 9 \u2014 1(b)(7) of the Criminal Code of 1961. 720 ILCS 5/9 \u2014 1(b)(7) (West 1998). Under section 9 \u2014 1(b)(7), the trial judge found defendant eligible for the death penalty because J.E was under 12 years old and his death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty. 720 ILCS 5/9\u2014 1(b)(7) (West 1998). The section 9 \u2014 1(b)(7) aggravating factor was required to be proved by the State beyond a reasonable doubt. 720 ILCS 5/9 \u2014 1(f) (West 1998). Defendant waived his right to have a jury determine whether the section 9 \u2014 1(b)(7) factor had been proved beyond a reasonable doubt, and following the jury waiver, the trial judge found that the State proved the aggravating factor necessary for the imposition of any penalty up to and including death.\nThe trial judge declined to impose the death penalty based on defendant\u2019s lack of significant criminal background, the fact that defendant was abused by her mother as a child, and the fact that defendant \u201cwas operating under a high degree of stress at the time of this beating.\u201d Rather than imposing a death sentence, the judge imposed an extended term of 80 years\u2019 imprisonment based on the same aggravating factor on which the finding of death eligibility was predicated and proved by the State beyond a reasonable doubt. Therefore, no Apprendi violation occurred. See People v. Tye, 323 Ill. App. 3d 872 (2001).\nRegarding notice, the indictment charged defendant with first degree murder for beating and strangling the five-year-old victim. The record reflects that defendant was aware of the State\u2019s intent to seek the death penalty, as demonstrated by the following discussion between the trial court and defense counsel:\n\u201cTHE COURT: You are aware though that prior to and I believe there was discussion of this earlier that the State was going to seek the death penalty in this particular case?\nDEFENSE COUNSEL: Yes, judge. We are not arguing notice. >jc sj:\nTHE COURT: He\u2019s not arguing notice. He\u2019s basically arguing there is not sufficient statutory aggravating factors to even have a hearing.\nDEFENSE COUNSEL: Correct.\u201d\nIn this case, where the State sought the death penalty and defendant waived a jury for both phases of the capital sentencing hearing, defendant cannot contend that she was denied the right to a jury because she waived a jury. Defendant cannot argue that the standard of proof was lacking because section 9 \u2014 1(f) of the Criminal Code of 1961 (720 ILCS 5/9 \u2014 1(f) (West 1998)) requires the death-eligibility factors to be proven beyond a reasonable doubt regardless of whether the proceedings take place before a jury or before the trial judge without a jury. Defendant was found eligible for the death penalty. Moreover, based on this record, for the reasons previously discussed, defendant cannot claim lack of notice or that she was unaware of the possible sentencing consequences.\nWe are mindful that the Supreme Court in Apprendi noted that enhanced sentencing without proof beyond a reasonable doubt dealt \u2022with \u201cconstitutional protections of surpassing importance.\u201d Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355. The Court in Apprendi further recognized that the traditional role of the jury to determine the facts that provide the basis for the maximum sentence under law is \u201can 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. In the context of this case, the enhanced sentence was imposed after the State proved the aggravating factor beyond a reasonable doubt. Defendant had, but waived, the opportunity to have a jury make the determination as to whether the aggravating factor had been proved beyond a reasonable doubt. Under these circumstances, the imposition of defendant\u2019s extended-term sentence did not violate Apprendi.\nIII. Ineffective Assistance of Appellate Counsel\nDefendant contends that appellate counsel was ineffective in not arguing on direct appeal that her sentence was excessive in light of the circumstances of the offense and defendant\u2019s limited criminal history. The circumstances of the offense that defendant asserts support a claim of excessiveness include (1) that J.E\u2019s death resulted from physical discipline, as opposed to a calculated and premeditated act; (2) that once she realized the severity of J.E\u2019s injuries, she called 911 and performed CFR; (3) that she was under significant stress, the children were misbehaving, and she was suffering from the recent death of her mother; and (4) that she had drunk four shots of whiskey within 90 minutes of the fatal beating, and the alcohol, the effects of which may have been intensified by the medication she was taking, may have affected her judgment. Defendant also emphasizes that she only has two prior convictions: one in 1982 for aggravated assault and one in 1976 for possession of cannabis. Defendant argues that all the facts necessary to address the excessiveness issue were in the record and that, given the obviousness of the issue, appellate counsel\u2019s failure to raise it on appeal was deficient as her sentence would likely have been reduced had its excessiveness been challenged on appeal.\nDefendant acknowledges that she did not raise this argument in her pro se postconviction petition, but she urges us to review the issue as a matter of fundamental fairness. As noted above, any claim of substantial denial of constitutional rights that is not raised in the original or an amended petition is waived. 725 ILCS 5/122 \u2014 3 (West 1998). However, where fundamental fairness so requires, the waiver rule may be relaxed. People v. Davis, 156 Ill. 2d 149, 158 (1993). The doctrine of \u201cfundamental fairness\u201d requires review of waived claims only when a defendant shows cognizable \u201ccause\u201d for her failure to make timely objection and shows \u201cactual prejudice\u201d resulting from the error of which she complains. People v. Hudson, 195 Ill. 2d 117, 123 (2001).\nDefendant has offered no explanation as to why this claim of ineffectiveness was not raised in her pro se postconviction petition. Accordingly, she has failed the \u201ccause\u201d portion of the fundamental fairness test. Moreover, she has not shown that actual prejudice resulted from appellate counsel\u2019s failure to argue on direct appeal that her sentence was excessive. To establish \u201cactual prejudice,\u201d a defendant must demonstrate not merely that the error complained of created a possibility of prejudice, but that the error was of constitutional dimensions and worked to her actual and substantial disadvantage. Hudson, 195 111. 2d at 123-24.\nDefendant was convicted of first degree murder. Generally, first degree murder carries a sentence of 20 to 60 years in prison. 730 ILCS 5/5 \u2014 8\u20141(a)(1)(a) (West 1998). However, the State sought the death penalty. Defendant waived a jury for both phases of the capital sentencing hearing. The judge considered the presentence investigation report and heard the testimony of several witnesses. The judge also considered stipulated testimony, a victim impact statement, and the arguments of the attorneys. The trial judge found defendant eligible for the death penalty because the victim, J.E, was under 12 years old, and J.E\u2019s death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty. Based upon this finding the trial judge could have imposed the death penalty (720 ILCS 5/9 \u2014 1(b)(7) (West 1998)) or life imprisonment (730 ILCS 5/5 \u2014 8\u20141(a)(1)(b) (West 1998)) or an extended-term sentence between 60 and 100 years (730 ILCS 5/5 \u2014 8\u20142(a)(1), 5 \u2014 5\u20143.2(b) (West 1998)). However, the judge declined to impose the death penalty because defendant had no significant criminal background, was abused by her mother as a child, and \u201cwas operating under a high degree of stress at the time of this beating.\u201d The judge imposed an extended-term sentence of 80 years in prison.\nA trial court\u2019s sentencing determination must be based on the particular circumstances of each case, including factors such as the defendant\u2019s credibility, demeanor, general moral character, mentality, social environment, habits, and age. People v. Fern, 189 Ill. 2d 48, 53 (1999); People v. Perruquet, 68 Ill. 2d 149, 154-55 (1977). Generally, the trial court is in a better position than a court of review to determine an appropriate sentence considering the particular facts and circumstances of each individual case. Perruquet, 68 Ill. 2d at 154. The trial court is the proper forum for the determination of a defendant\u2019s sentence, and the trial court\u2019s decisions in regard to sentencing are entitled to great deference and weight. Perruquet, 68 Ill. 2d at 154. Absent an abuse of discretion by the trial court, a sentence may not be altered upon review. Perruquet, 68 Ill. 2d at 154. If the sentence imposed is within the statutory range, it will not be deemed excessive unless it is greatly at variance with the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense. Fern, 189 Ill. 2d at 54.\nThe record establishes that the trial court was fully aware both of the circumstances surrounding the crime and of defendant\u2019s limited criminal history. In deciding not to impose the death penalty, the trial court outlined the mitigating evidence:\n\u201cI believe there are several factors in this. Three of them that I will state is one, lack of any significant background. There is no doubt there is no significant criminal background. There is testimony from her as to having a childhood very similar to this. And although this does not excuse or to any degree mitigate except for purpose of death penalty would mitigate it. It\u2019s clear she was operating under a high degree of stress at the time of this beating.\u201d\nAfter hearing further argument, the trial court indicated as follows:\n\u201cThis is perhaps one of the worst beating cases, if not the worst beating case I have ever observed. I have taken into account all the other, all the factors. When I say this I am considering the facts of the case, those matters in aggravation and mitigation, the arguments and statements made by the parties, all the matters that are statutory in aggravation and mitigation, as well as those brought to my attention. It\u2019s the sentence order of this court that you serve [an] extended term sentence of 80 years in the Illinois Department of Corrections.\u201d\nThe record reflects that the trial court considered all factors in mitigation and aggravation and sentenced defendant well within the statutory range. The experienced trial court indicated that J.E\u2019s death resulted from \u201cone of the worst beating cases, if not the worst beating case\u201d it had ever observed. The sentence was not greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense. Based on the record, the trial court did not abuse its discretion in sentencing defendant, and the 80-year term was not excessive.\nDefendant has not demonstrated that she was actually prejudiced by appellate counsel\u2019s failure to argue on appeal that her sentence was excessive. Accordingly, fundamental fairness does not compel us to relax the waiver rule and review defendant\u2019s claim. Waiver aside, for the reasons previously discussed, we reject defendant\u2019s argument that appellate counsel\u2019s failure to raise the excessive sentence issue demonstrated ineffective assistance of counsel. We conclude defendant\u2019s sentence would not have been reduced had it been challenged on appeal based on excessiveness.\nIV Single Subject Challenge\nWe reject defendant\u2019s contention that Public Act 83 \u2014 942, effective November 23, 1983, amending the Post-Conviction Hearing Act to allow first-stage dismissals, violates the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV \u00a7 8(d)). See People v. Boclair, 202 Ill. 2d 89, 108-13 (2002).\nCONCLUSION\nDefendant\u2019s extended-term sentence of 80 years in prison does not violate Apprendi and is constitutional. The extended-term sentence of 80 years in prison is not excessive. Defendant\u2019s sentence is affirmed. Public Act 83 \u2014 942 does not violate the single subject rule. The dismissal of defendant\u2019s postconviction petition is affirmed because the petition failed to present the gist of a constitutional claim.\nAffirmed.\nO\u2019BRIEN, P.J., and GALLAGHER, J, concur.", "type": "majority", "author": "JUSTICE O\u2019HARA FROSSARD" } ], "attorneys": [ "Michael J. Pelletier and Elizabeth A. Botti, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb and John E. Nowak, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENISE PAYNE, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201400\u20144120\nOpinion filed December 20, 2002.\nMichael J. Pelletier and Elizabeth A. Botti, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb and John E. Nowak, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0154-01", "first_page_order": 172, "last_page_order": 190 }