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MICHAEL SCHRADER, Petitioner-Appellant." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nPetitioner, Michael Schrader, appeals from the circuit court\u2019s denial of his pro se petition for relief from judgment filed pursuant to section 2 \u2014 1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2\u2014 1401 (West 2002)) (section 2 \u2014 1401). On appeal, petitioner contends that (1) the court was without authority to summarily dismiss his section 2 \u2014 1401 petition, (2) his extended-term sentence of 70 years for murder based on his \u201cbrutal or heinous\u201d conduct is unconstitutional, and (3) his convictions for armed robbery and armed violence are prohibited by the one-act, one-crime doctrine. This court affirmed the circuit court\u2019s denial in a Rule 23 (166 Ill. 2d R. 23) disposition, now withdrawn by separate order. The original issues petitioner raised on appeal, and those additionally set forth in his petition for rehearing, will be addressed in this opinion.\nFollowing a jury trial in 1983, petitioner was convicted of murder, armed robbery, and armed violence for his involvement in a 1982 store robbery. He was found eligible for the death penalty but was sentenced to an extended prison term of 70 years for murder and to two concurrent 30-year terms for armed robbery and armed violence. No direct appeal was taken.\nPetitioner filed his initial postconviction petition in 1993, in which he alleged his trial counsel was ineffective for failing to perfect his direct appeal. The circuit court summarily dismissed the petition, finding petitioner elected to pursue a clemency petition in lieu of a direct appeal. The Cook County public defender\u2019s office filed a motion pursuant to Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 546, 107 S. Ct. 1990, 1993 (1987), which the appellate court granted, affirming the circuit court\u2019s first-stage summary dismissal. People v. Schrader, No. 1 \u2014 93\u20142255 (1994) (unpublished order under Supreme Court Rule 23).\nIn September of 2000, petitioner filed a second, successive post-conviction petition, alleging only that his extended-term sentence was in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) (Apprendi). In November of 2000, the circuit court summarily dismissed the petition without prejudice, expressly permitting petitioner to refile his petition in the event Ap-prendi were to become applicable to successive postconviction petitions. Petitioner sought leave to file a late notice of appeal, which the circuit court denied.\nPetitioner filed the instant section 2 \u2014 1401 petition for relief from judgment in March of 2002, again arguing that his extended-term sentence, based upon the brutal or heinous behavior, was imposed in contravention of Apprendi. On April 23, 2002, the circuit court summarily dismissed the petition, finding it was barred by the statute of limitations and by nonconformity with the pleading requirements of section 2 \u2014 1401. Petitioner timely appeals.\nI\nPetitioner initially contends the circuit court lacked the statutory authority to summarily dismiss his section 2 \u2014 1401 petition. Section 2 \u2014 1401 provides a comprehensive statutory procedure by which final orders, judgments, and decrees may be challenged more than 30 days after their entry. People v. Pinkonsly, 207 Ill. 2d 555, 562, 802 N.E.2d 236 (2003). Section 2 \u2014 1401 provides remedial powers to criminal cases. People v. Harvey, 196 Ill. 2d 444, 447, 753 N.E.2d 293 (2001). A section 2 \u2014 1401 petition requires the circuit court to determine whether facts exist that were unknown to the court at the time of trial and would have prevented entry of the judgment. Pinkonsly, 207 Ill. 2d at 566. The dismissal of a section 2 \u2014 1401 petition is reviewed under an abuse of discretion standard. Pinkonsly, 207 Ill. 2d at 562.\nAs recognized recently by the First District Appellate Court in People v. Taylor, 349 Ill. App. 3d 718, 719, 812 N.E.2d 581 (2004) (Taylor), there is \u201ca dispute among the districts of this court concerning whether a [circuit] court may summarily dismiss *** defendant\u2019s section 2 \u2014 1401 petition sua sponte.\u201d The Second District Appellate Court has held that a circuit court commits reversible error by dismissing a section 2 \u2014 1401 petition without giving petitioner notice and an opportunity to respond to the dismissal, and a reviewing court may not look beyond this error to assess the merits of the petition. See People v. Mescall, 347 Ill. App. 3d 995, 808 N.E.2d 1101 (2d Dist. 2004); People v. Pearson, 345 Ill. App. 3d 191, 802 N.E.2d 386 (2d Dist. 2003), appeal allowed, 208 Ill. 2d 549 (2004) (Pearson); People v. Gaines, 335 Ill. App. 3d 292, 295-97, 780 N.E.2d 822 (2d Dist. 2002); see also People v. Winfrey, 347 Ill. App. 3d 987, 988-91, 808 N.E.2d 589 (2d Dist. 2004) (summary dismissal of habeas corpus petition improper); People v. Shellstrom, 345 Ill. App. 3d 175, 176-79, 802 N.E.2d 381 (2nd Dist. 2003), appeal allowed, 208 Ill. 2d 552 (2004) (summary dismissal of mandamus petition improper).\nIn contrast, the Fourth District has reached the opposite conclusion, holding that a circuit court possesses the inherent authority to strike a section 2 \u2014 1401 petition sua sponte if it finds the petition to be frivolous and without merit. See People v. Bramlett, 347 Ill. App. 3d 468, 472-73, 806 N.E.2d 1251 (4th Dist. 2004); see also Mason v. Snyder, 332 Ill. App. 3d 834, 839-43, 774 N.E.2d 457 (4th Dist. 2002) (summary dismissal of mandamus petition proper).\nIn Taylor, 349 Ill. App. 3d at 720, the First District expressly declined to follow the Second District\u2019s holding in Pearson, where the court rejected the State\u2019s argument that the summary dismissal could be affirmed on grounds that the petition lacked merit and defendant sustained no prejudice. The Pearson court reasoned that the \u201cproceedings by which defendant\u2019s petition was dismissed were too far removed from those to which he was entitled for us to hold that he suffered no prejudice.\u201d Pearson, 345 Ill. App. 3d at 195. In Taylor, however, the court decided that it \u201cmay look beyond any alleged procedural defect where *** defendant\u2019s petition raised a pure question of law, was frivolous and completely without merit and no prejudice resulted from the [circuit] court\u2019s dismissal.\u201d Taylor, 349 Ill. App. 3d at 720; see also Owens v. Snyder, 349 Ill. App. 3d 35, 811 N.E.2d 738 (2004) (summary dismissal of mandamus petition proper where found to be frivolous and no prejudice incurred by defendant).\nIn the case sub judice, the relevant holdings and reasoning of the First and Fourth District cases will be applied. Petitioner\u2019s section 2 \u2014 1401 petition raised only a pure question of law \u2014 whether his extended-term sentence was in violation of Apprendi. At the time of the summary dismissal, on April 23, 2002, People v. De La Paz, 204 Ill. 2d 426, 439, 791 N.E.2d 489 (2003) (De La Paz), was the controlling and dispositive authority on this issue. De La Paz held that Apprendi does not apply retroactively to cases on collateral review. De La Paz, 204 Ill. 2d at 439. Therefore, the circuit court applied the law properly in reaching its conclusion that petitioner\u2019s Apprendi challenge was frivolous and without merit. \u201c[E]ven if [petitioner] had been given notice and an opportunity to be heard before the court dismissed his petition, he could not have cured its inherent defects\u201d because he could not allege \u201cany facts in his petition that would circumvent De La Paz and make his extended-term sentence subject to Apprendi.\u201d Taylor, 349 Ill. App. 3d at 721.\nOn the same day Taylor was decided, the United States Supreme Court decided Schriro v. Summerlin, 542 U.S. 348, 159 L. Ed. 2d 442, 124 S. Ct. 2519 (2004) (Schriro), and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004) (Blakely). In his petition for rehearing, petitioner relies on both Schriro and Blakely, maintaining that his extended-term sentence is unconstitutional. As these cases concern the constitutionality of sentencing enhancements, they create an additional component to petitioner\u2019s specific challenge, thereby differentiating the instant case from Taylor despite the indistinguishable nature of the claims. Part II of this opinion addresses petitioner\u2019s sentencing challenge in light of these decisions.\nII\nThe indictment in this case charged petitioner with three counts of first degree murder, making no mention of his \u201cbrutal or heinous\u201d behavior. The jury found petitioner guilty of murder. Petitioner waived his right to a jury for purposes of the death penalty hearing. The judge found petitioner death eligible since he was older than 18 years of age and the murder occurred during the commission of another felony \u2014 armed robbery. Nonetheless, the court elected not to impose the death penalty, but found his behavior to be \u201cbrutal or heinous,\u201d thereby authorizing the imposition of an extended-term sentence. Under the statutory guidelines in place at the time of petitioner\u2019s sentencing, the term of imprisonment for first degree murder was 20 to 40 years\u2019 imprisonment (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 8\u2014 1(a)(1)(a)); however, since the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 5\u20143.2(b)), the circuit court was authorized to impose an extended-term sentence within the range of 40 to 80 years. Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 8\u20142. Petitioner was sentenced to 70 years.\nPetitioner insists that the extended-term portion of his sentence, that which is in excess of the statutory maximum of 40 years, must be vacated since this \u201cenhanced\u201d offense was not charged in the indictment, nor proved beyond a reasonable doubt.\nA\nPetitioner\u2019s initial argument is premised on Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002) (Ring), where the United States Supreme Court applied the principle set forth in Apprendi to a death sentence imposed under the Arizona sentencing scheme. Arizona allowed judges to impose a sentence of death whether or not a jury had agreed to impose death, if the judge found the existence of an aggravating factor beyond a reasonable doubt. Ring, 536 U.S. at 592-93, 153 L. Ed. 2d at 566, 122 S. Ct. at 2434-35. The Supreme Court held that because Arizona\u2019s law authorized the death penalty only if an aggravating factor was present, Apprendi required the existence of such a factor to be proved to a jury rather than to a judge, in those cases in which defendant chose to have a jury decide his case. Ring, 536 U.S. at 603-09, 153 L. Ed. 2d at 573-77, 122 S. Ct. at 2440-43.\nIn both his original and reply briefs, petitioner argued, based on the Ninth Circuit\u2019s holding in Summerlin v. Stewart, 341 F.3d 1082 (9th Cir. 2003) (Summerlin), that Ring embodied a substantive change in the law and was to be applied retroactively. Since the filing of petitioner\u2019s reply brief, however, the Supreme Court overturned Sum-merlin, holding that \u201cRing announced a new procedural rule that does not apply retroactively to cases already final on direct review.\u201d Schriro, 542 U.S. at 358, 159 L. Ed. 2d at 453, 124 S. Ct. at 2526. In his petition for rehearing, petitioner insists that when the retroactivity analysis of Schriro is applied to Illinois law, as opposed to Arizona law, Ring must be construed to apply retroactively.\nPetitioner acknowledges that in De La Paz, our supreme court held that Apprendi was not to be applied retroactively to cases on collateral review, yet he maintains that his sentencing challenge is not based on Apprendi, but on Ring. Petitioner, however, fails to explain adequately why Ring, which merely applies the rule of Apprendi, should be taken outside the ambit of De La Paz. Although framed under Ring, petitioner\u2019s sentencing challenge is indistinguishable from a direct Apprendi challenge; \u201cdefendant raising an Apprendi claim on appeal is simply complaining that he received a sentence in excess of the normal sentencing range, without the fact or facts necessary to permit such sentence having been proven to a jury beyond a reasonable doubt.\u201d De La Paz, 204 Ill. 2d at 437. This is precisely petitioner\u2019s argument here under Ring.\nUnder Apprendi, \u201c[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.\u201d Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Almost interchangeably, under Ring, \u201c[cjapital defendants, no less than noncapital defendants *** are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.\u201d Ring, 536 U.S. at 589, 153 L. Ed. 2d at 564, 122 S. Ct. at 2432. Or stated otherwise, where defendant elects for a jury trial, a sentencing judge, sitting without a jury, may not find an aggravating circumstance necessary for imposition of the death penalty. Ring, 536 U.S. at 589, 153 L. Ed. 2d at 564, 122 S. Ct. at 2432. In Illinois, under either Apprendi or Ring, a jury must find any fact, including aggravating factors, beyond a reasonable doubt before the circuit court may impose a sentence beyond the statutory maximum. Therefore, the issue of whether Ring is retroactive in Illinois is governed by the same analysis as that which has been conducted with respect to Apprendi.\nIn De La Paz, the Illinois Supreme Court employed the retroactivity test from Teague v. Lane, 489 U.S. 288, 307, 103 L. Ed. 2d 334, 353, 109 S. Ct. 1060, 1073 (1989), and held that Apprendi is not retroactive. De La Paz, 204 Ill. 2d at 433-34, 43S-39. Analogously, in Schriro, the United States Supreme Court applied the Teague retroactivity test and held, without qualification, that Ring was neither a substantive rule warranting application to cases on collateral review, nor was it a watershed procedural rule worthy of the same. Schriro, 542 U.S. at 354-58, 159 L. Ed. 2d at 450-52, 124 S. Ct. at 2524-26.\nIn advancing his position, petitioner posits that People v. Swift, 202 Ill. 2d 378, 781 N.E.2d 292 (2002), set forth three different substantive offenses of murder in Illinois: (1) murder simpliciter (20 to 40 years in 1982); (2) capital murder (death or life imprisonment); and (3) enhanced murder (extended-term sentencing), which essentially is murder simpliciter accompanied by an aggravating factor, such as \u201cbrutal or heinous\u201d behavior. Under his reading of Swift, petitioner asserts that when applying Ring to the Illinois murder statute, the result is an increase in the number of elements of the offense. He contends that the aggravating factors (i.e., \u201cbrutal or heinous\u201d) are, in fact, additional factual elements of \u201cenhanced\u201d murder. Quoting Schriro, 542 U.S. at 354, 159 L. Ed. 2d at 450, 124 S. Ct. at 2524, petitioner reasons that since \u201c[a] decision that modifies the elements of an offense is normally substantive rather than procedural,\u201d Ring, which modifies the elements of murder in Illinois, also must be substantive and, therefore, retroactive.\nDespite petitioner\u2019s assertions to the contrary, the supreme court in Swift did not create two elevated forms of murder, nor did it alter the range of conduct prohibited by, and delineated in, Illinois\u2019 homicide statute (720 ILCS 5/9 \u2014 1(a) (West 2000)). \u201cAggravating factors are not elements of the offense of murder. They are sentencing factors.\u201d People v. Davis, 205 Ill. 2d 349, 378, 793 N.E.2d 552 (2002). Swift merely clarified the Apprendi-compliant requirements for sentencing purposes. Further compelling evidence that Swift did not have the effect petitioner suggests is found in the legislature\u2019s response to Apprendi, as manifested in amendments to both the extended-term statute (730 ILCS 5/5 \u2014 8(2)(a) (West 2002)) (section 5 \u2014 8\u20142) and the statute involving the form of criminal charges (725 ILCS 5/111 \u2014 3(c\u20145) (West 2002)) (section 111 \u2014 3(c\u20145). \u201cThe rule stated in Apprendi, and correspondingly in Ring, which is reflected in section 111 \u2014 3(c\u20145), is a new procedural rule and not one of substance and, therefore, does not create an element of the offense of first-degree murder.\u201d People v. Crutchfield, 353 Ill. App. 3d 1014, 1024 (2004); see also People v. Jett, 341 Ill. App. 3d 200, 203, 793 N.E.2d 214 (2003) (inclusion of \u201cbrutal or heinous\u201d factor in. indictment did not alter elements of first degree murder). \u201cThe amendments [in sections 111 \u2014 3 and 5 \u2014 8\u20142] clearly did not alter legal rules to make convictions easier, nor did they increase the punishment for a previously committed offense or make any changes to the elements of the offense of murder. The only change made is that the finder of fact must determine the existence of the relevant aggravating factor beyond a reasonable doubt, thereby increasing the burden required of the State.\u201d People v. O\u2019Quinn, 339 Ill. App. 3d 347, 362-63, 791 N.E.2d 1066 (2003). Therefore, Ring, like Apprendi, which requires proof of an aggravating factor to a jury beyond a reasonable doubt, does not embody a substantive rule to be applied retroactively.\nAlternatively, petitioner contends Ring is a watershed rule of criminal procedure, warranting retroactive application under Illinois law. Petitioner acknowledges that the Schriro Court found it implausible that the finding of aggravating factors by a judge, rather than by a jury, so seriously diminishes accuracy as to produce an impermissibly large risk of injustice. Schriro, 542 U.S. at 355-56, 159 L. Ed. 2d at 451, 124 S. Ct. at 2525. He nonetheless argues that the Schriro Court only was able to reach this conclusion because Arizona\u2019s homicide statute already required proof beyond a reasonable doubt for its aggravating factors, so the net effect of Ring in Arizona merely was to \u201calter the procedural matrix\u201d by having a jury, rather than a judge, make certain factual determinations.\nIn Illinois, he contends, the change would be not only fact-finding by a jury, but an increase in the quantum of proof from that of a mere preponderance of evidence to proof beyond a reasonable doubt. Such a modification, he maintains, would so seriously diminish accuracy as to produce an impermissibly large risk of injustice.\nAs noted previously, our supreme court has examined Ring\u2019s implications under Illinois law in the context of Apprendi, which imposes the same constitutional requirements on sentencing factors as Ring, and \u201cdecline[d] to hold that an Apprendi violation comprises such constitutional \u2018bedrock\u2019 as to require retroactive application, when such error is potentially harmless.\u201d De La Paz, 204 Ill. 2d at 437. Our supreme court also has examined, and approved of, Illinois\u2019 sentencing procedure in light of Ring specifically. People v. Ballard, 206 Ill. 2d 151, 202-05, 794 N.E.2d 788 (2002). The court found that \u201c[t]he second stage of Illinois capital sentencing proceedings clearly bears a marked resemblance to the balancing of factors in which [circuit] courts traditionally engage in determining what sentence to impose within a statutory range, a practice of which Apprendi explicitly approved.\u201d Ballard, 206 Ill. 2d at 204. Therefore, a comparison between the underlying Arizona and Illinois homicide statutes under Ring does not yield a different conclusion than the supreme court reached in De La Paz. Accordingly, petitioner\u2019s attempt to have this court apply Ring retroactively and depart from Schriro is rejected.\nIrrespective of the foregoing, petitioner\u2019s claim is without merit. Prior to being sentenced to an extended term of imprisonment, petitioner was found death eligible by the circuit court after waiving a jury at his death penalty hearing. In such circumstances, petitioner may not claim successfully that the extended-term portion of his sentence is improper, since \u201cour supreme court has held the imposition of an extended-term sentence, after *** defendant has been found death eligible, does not violate Apprendi.\u201d People v. Anderson, 352 Ill. App. 3d 934, 936-37 (2004), citing People v. Ford, 198 Ill. 2d 68, 73-75, 761 N.E.2d 735 (2001) (Ford). Based exclusively upon facts proved beyond a reasonable doubt, petitioner faced a prescribed statutory maximum of death. The sentence actually imposed \u2014 70 years in prison \u2014 does not exceed this maximum. See Ford, 198 Ill. 2d at 74. The maximum sentence facing defendant (i.e., death) was established when the circuit court found, by proof beyond a reasonable doubt, that the murder was committed in the course of another felony \u2014 armed robbery. The \u201ccourt\u2019s subsequent finding that the murder \u2018was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty\u2019 did nothing to increase the penalty that defendant was facing. Rather, it simply guided the [circuit] court in fashioning an appropriate sentence that was both specifically authorized by statute and below the prescribed statutory maximum. This is precisely the type of judicial fact finding that Apprendi permits.\u201d Ford, 198 Ill. 2d at 74-75.\nPetitioner\u2019s challenge to the sufficiency of the indictment, for its failure to charge him with \u201cbrutal or heinous\u201d conduct, also is unavailing. Our supreme court has held that the due process clause of the fourteenth amendment, upon which Apprendi was entirely based, does not require notice of sentence-enhancing facts. Ford, 198 Ill. 2d at 72 n.l; People v. Thurow, 203 Ill. 2d 352, 366-67, 786 N.E.2d 1019 (2003). Under Ring, \u201cthe fifth amendment does not necessitate that aggravating factors, even if they are the equivalent of the elements of an offense, be pled in a state-court indictment.\u201d People v. McClain, 343 Ill. App. 3d 1122, 1139, 799 N.E.2d 322 (2003). Rather, \u201c \u2018[t]he only possible constitutional implication that Ring and Apprendi may have in relation to our capital defendants is that they must receive reasonable notice of aggravating circumstances, pursuant to the [s]ixth Amendment\u2019s notice requirement,\u2019 [citation]\u201d under which, state criminal \u201cdefendants have a right to \u2018reasonable notice\u2019 so as to guarantee that they are afforded an opportunity to defend against the charges.\u201d McClain, 343 Ill. App. 3d at 1138, 1139.\nWhen a charging instrument is attacked for the first time on appeal, it is sufficient that it \u201c \u2018 \u201capprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same\u201d \u2019 \u201d (Davis, 205 Ill. 2d at 375-76, quoting People v. Thingvold, 145 Ill. 2d 441, 448 (1991), quoting People v. Gilmore, 63 Ill. 2d 23, 29 (1976)); however, Apprendi does not afford relief on the basis of a deficient charging instrument unless defendant can demonstrate how he was prejudiced. People v. Davis, 352 Ill. App. 3d 570, 575 (2004).\nHere, petitioner makes no claim of prejudice, nor does the record reveal that the deficiency in the indictment caused him any prejudice. Petitioner was aware of the precise offense charged with sufficient specificity to prepare his defense, and he may assert his conviction as a bar to future prosecution arising out of the same. Petitioner was aware that he could receive a death sentence based on the commission of the murder during the commission of the armed robbery. Petitioner then received a lesser sentence based on the circumstances of the murder, of which he was aware. Absent any showing of prejudice, petitioner is not entitled to relief on this basis.\nB\nAlso raised in his petition for rehearing is petitioner\u2019s sentencing challenge premised on Blakely, under which the standard statutory maximum \u201cis the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.\u201d (Emphasis omitted.) Blakely, 542 U.S. at 303, 159 L. Ed. 2d at 413, 124 S. Ct. at 2537. \u201cIn other words, the relevant \u2018statutory maximum\u2019 is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury\u2019s verdict alone does not allow, the jury has not found all the facts \u2018which the law makes essential to the punishment,\u2019 [citation] and the judge exceeds his proper authority.\u201d (Emphasis omitted.) Blakely, 542 U.S. at 303-04, 159 L. Ed. 2d at 413-14, 124 S. Ct. at 2537.\nAlthough Blakely potentially \u201ccalls into doubt the constitutionality of such enhancements\u201d (United States v. Ward, 377 F.3d 671, 678 (7th Cir. 2004)), \u201c[t]he Supreme Court has not made the Blakely rule applicable to cases on collateral review.\u201d Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004). \u201cBlakely itself did not announce that it was applicable retroactively \u2014 and indeed the same-day decision in Schriro [citation] teaches the strong unlikelihood that Blakely will hereafter be given retroactive effect.\u201d United States v. Traeger, 325 F. Supp. 2d 860, 864 (N.D. Ill. 2004); see also United States v. Malone, No. 04 C 50327 (N.D. Ill. August 3, 2004); United States v. Lowe, No. 04 C 50019 (N.D. Ill. August 5, 2004). Absent any binding authority compelling the retroactive application of Blakely to cases on collateral review, petitioner\u2019s request that this court do so here is declined. This conclusion takes into consideration our supreme court\u2019s ruling, under analogous circumstances, in De La Paz, where the court rejected the retroactive application of Apprendi.\nIll\nPetitioner\u2019s remaining claim on appeal is that the circuit court\u2019s entry of convictions for both armed robbery and armed violence are forbidden by the one-act, one-crime doctrine. Notably, petitioner failed to raise this issue in his section 2 \u2014 1401 petition before the circuit court, and it is now being raised for the first time in this appeal. Recently, the supreme court held that \u201can alleged one-act, one-crime violation and the potential for a surplus conviction and sentence affects the integrity of the judicial process, thus satisfying the second prong of the plain error rule,\u201d which allows the review of a waived error if either of the two prongs is satisfied. People v. Harvey, 211 Ill. 2d 368, 389, 813 N.E.2d 181 (2004). A reviewing court may invoke the plain error rule to review alleged errors not properly preserved when (1) the evidence in a criminal case is closely balanced or (2) the error is so fundamental and of such magnitude that the accused is denied the right to a fair trial and remedying the error is necessary to preserve the integrity of the judicial process. People v. Lindsey, 201 Ill. 2d 45, 54, 772 N.E.2d 1268 (2002); 134 Ill. 2d R. 615(a). Since the second prong of the plain error rule is satisfied, petitioner\u2019s argument will be addressed on its merits. See Harvey, 211 Ill. 2d at 389.\nIn this case, petitioner and another man burst into a store. Petitioner, who was armed with a shotgun, fired at and killed Wanda Ortiz. The men then announced a \u201cstick-up\u201d and told everyone to lie down on the floor. Petitioner put his foot on the back of the store\u2019s owner, Yung Joo, as the other man went to the cash register and grabbed Joo\u2019s wife, ordering her to give him money and food stamps from the register. When Joo lifted up his head, petitioner stomped on Joo\u2019s back with his foot, forcing his face to the floor, injuring his eyes and lacerating his nose.\nPetitioner was charged with, and the jury instructed on, armed robbery in that (1) petitioner took currency and food stamps from Joo, that (2) he did so by the use of force or by threatening the imminent use of force, and (3) was armed with a dangerous weapon. Petitioner also was charged with, and the jury instructed on, armed violence in that he, (1) while armed with a dangerous weapon, (2) committed the felony of aggravated battery by committing a battery on Joo in that he intentionally and knowingly, without legal justification, caused great bodily harm to Joo by kicking him about the body.\nIn People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977), the Illinois Supreme Court held that a defendant may not be convicted of multiple offenses when those offenses all are based on precisely the same physical act. King, 66 Ill. 2d at 566. This holding was reaffirmed and clarified in People v. Rodriguez, 169 Ill. 2d 183, 661 N.E.2d 305 (1996), where it was noted that an analysis under King requires a two-step examination. Rodriguez, 169 Ill. 2d at 186. First, a court must ascertain whether defendant\u2019s conduct consisted of a single physical act or separate acts; \u201c[mjultiple convictions are improper if they are based on precisely the same physical act.\u201d Rodriguez, 169 Ill. 2d at 186. An \u201cact\u201d is defined as \u201cany overt or outward manifestation which will support a different offense.\u201d King, 66 Ill. 2d at 566. If defendant committed multiple acts, the court then proceeds to the second step to determine whether any of the other offenses are lesser-included offenses; if they are, multiple convictions are improper; however, if they are not, multiple convictions may be entered properly. Rodriguez, 169 Ill. 2d at 186.\nArmed robbery is the commission of robbery while armed with a dangerous weapon. Ill. Rev. Stat. 1981, ch. 38, par. 18 \u2014 2. Robbery is the taking of property from the person or presence of another by the use of force or by threatening the imminent use of force. Ill. Rev. Stat. 1981, ch. 38, par. 18 \u2014 1. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law. Ill. Rev. Stat. 1981, ch. 38, par. 33A \u2014 2. A person commits aggravated battery, a felony, when, in committing a battery, he intentionally or knowingly causes great bodily harm or permanent disability or disfigurement. Ill. Rev. Stat. 1981, ch. 38, par. 12 \u2014 4(a).\nThe primary inquiry is whether there are separate acts. The indictment must indicate that the State intends to treat defendant\u2019s conduct as separate acts. See People v. Crespo, 203 Ill. 2d 335, 342, 345, 788 N.E.2d 1117 (2001). In Crespo, defendant stabbed the victim three times, but the State did not differentiate between the acts in the charging instrument. The State argued, for the first time on appeal, that each stab was a separate act. The supreme court noted that each stab \u201ccould have\u201d supported a separate charge and the State \u201ccould have argued the case to the jury that way\u201d but chose not to do so. (Emphasis omitted.) Crespo, 203 Ill. 2d at 344. The court found that to apportion the crimes among the three stabs for the first time on appeal would be unfair and concluded that multiple convictions could not be sustained. Crespo, 203 Ill. 2d at 343, 345.\nIn Rodriguez, the supreme court emphasized that a person can be guilty of two offenses when a common act is part of both offenses. Rodriguez, 169 Ill. 2d at 188. There, defendant was charged with the offenses of aggravated criminal sexual assault and home invasion. The aggravated criminal sexual assault count alleged that defendant committed an act of sexual penetration and displayed, or threatened the victim with, a gun. The home invasion count alleged that defendant unlawfully entered the victim\u2019s dwelling and threatened her with imminent use of force while armed with a gun. The court found that although these offenses shared in common the act of defendant threatening the victim with a gun, the offenses were predicated on separate physical acts. As long as there are multiple acts, as defined in King, their interrelationship does not preclude multiple convictions. Rodriguez, 169 Ill. 2d at 189.\nHere, petitioner\u2019s actions satisfy the elements of armed robbery; he threatened force and took the property of another while armed with a dangerous weapon when he entered the store armed with a shotgun, announced a \u201cstick-up,\u201d and took money and food stamps from Joo\u2019s cash register. Other, different acts by petitioner satisfy the elements of armed violence; he committed a felony, aggravated battery, while armed with a dangerous weapon when he kicked Joo in the back while holding a shotgun. In this way, petitioner committed two separate and distinct acts. Although the two offenses have in common the act of petitioner wielding a gun, as long as there are multiple acts, their interrelationship does not preclude multiple convictions. Rodriguez, 169 Ill. 2d at 189. The fact that the armed violence occurred during the armed robbery also is inconsequential, since \u201c[t]wo separate acts do not become one solely because of proximity in time.\u201d People v. Pearson, 331 Ill. App. 3d 312, 322, 770 N.E.2d 1183 (2002) (Pearson), citing People v. Myers, 85 Ill. 2d 281, 287-88, 426 N.E.2d 535 (1981).\nHaving found the existence of multiple acts, the question becomes whether either offense is a lesser-included offense of the other. It should be noted that it is impermissible to base a conviction for armed violence on armed robbery (People v. Cummings, 351 Ill. App. 3d 343, 349, 813 N.E.2d 1004 (2004) (Cummings)); however, that impropriety is not present in the case at bar since petitioner\u2019s conviction for armed violence was predicated on aggravated battery, not armed robbery. To qualify as an included offense, the instrument charging the greater offense must, at a minimum, set out the main outline of the lesser offense. People v. McLaurin, 184 Ill. 2d 58, 104-05, 703 N.E.2d 11 (1998); People v. Kolton, 347 Ill. App. 3d 142, 149, 806 N.E.2d 1175 (2004).\nThe indictment here charged petitioner with armed robbery \u201cin that he, by the use of force and by threatening the imminent use of force while armed with a dangerous weapon, took United States currency from the person and presence of Yung Joo.\u201d This charge does not include an essential element of armed violence, i.e., the commission of any felony defined by Illinois law except armed robbery. Ill. Rev. Stat. 1981, ch. 38, par. 33A \u2014 2; Cummings, 351 Ill. App. 3d at 349. The indictment also charged petitioner with armed violence \u201cin that he, while armed with a dangerous weapon, to wit: a gun, committed a felony defined by Illinois Law, to wit: aggravated battery, in that he, in committing a battery on Yung Joo, intentionally and knowingly without legal justification caused great bodily harm to said Yung Joo by kicking him about the body with his feet.\u201d This charge does not include an essential element of armed robbery, i.e., the taking of property from the person or presence of another. Ill. Rev. Stat. 1981, ch. 38, pars. 18 \u2014 1, 18 \u2014 2. Neither offense is a lesser-included offense of the other. See, e.g., People v. White, 311 Ill. App. 3d 374, 386-87 (2000); Pearson, 331 Ill. App. 3d at 322-23.\nTherefore, in this case, where the State brought separate charges, each of which would support a separate conviction and was not a lesser-included offense of the other, petitioner\u2019s convictions for armed robbery and armed violence were proper and must stand.\nFor the reasons set forth above, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nGREIMAN and THEIS, JJ, concur.\nPetitioner states that he \u201cis not asserting an Apprendi claim that the \u2018brutal and heinous\u2019 enhancing factor must be proven to the jury beyond a reasonable doubt; to the contrary, he asserts that even if it had been proven at trial beyond a reasonable doubt, an extended-term sentence based thereupon could not stand because it represents an offense for which he was not charged, and thus cannot be sentenced.\u201d Ring, however, did not address the sufficiency of an indictment, thereby making petitioner\u2019s attempt to have this nuance differentiate his Ring argument from an Apprendi argument unavailing. Petitioner\u2019s argument also is not supported by Ring to the extent that petitioner here was not sentenced to death as was defendant in Ring.\nPetitioner argues that when Ring is applied to Illinois\u2019 homicide statute, as opposed to Arizona\u2019s statute, it not only requires a jury to find the existence of an aggravating factor, but additionally imposes the requirement that the finding be made beyond a reasonable doubt. The same, however, remains true upon application of Apprendi to Illinois\u2019 homicide statute, which requires that the finding be made both by a jury and beyond a reasonable doubt. Petitioner\u2019s Ring argument is no different than a challenge under Apprendi.\nThe court in People v. Swift, 202 Ill. 2d 378, 388, 781 N.E.2d 292 (2002), stated:\n\u201cIn essence, the State contends that Illinois has a \u2018unitary\u2019 sentencing scheme for first degree murder. The State urges us to read all of the statutes as a whole and conclude that any sentence the legislature has authorized to be imposed on a defendant convicted of first degree murder is part of the sentencing range.\nWe reject this argument. A defendant commits first degree murder when he kills an individual, intending or knowing that he is likely to cause death or great bodily harm, or when he commits the killing in the attempt or commission of a felony other than second degree murder. See 720 ILCS 5/9 \u2014 1(a) (West 1998). See also Illinois Pattern Jury Instructions, Criminal, No. 7.02 (4th ed. 2000). According to the plain language of the statutes we set out above, if only these facts are proven, the sentence imposed must be between 20 and 60 years\u2019 imprisonment. See 730 ILCS 5/5 \u2014 8\u20141(a)(1)(a) (West 1998). For any other sentence to be imposed, be it an extended-term sentence of 60 to 100 years (730 ILCS 5/5 \u2014 8\u20142(a)(1) (West 1998)), life imprisonment (730 ILCS 5/5 \u2014 8\u20141(a)(1)(b), (a)(1)(c) (West 1998)), or the death penalty (720 ILCS 5/9 \u2014 1(g), (h) (West 1998)), additional facts must be proven. Thus, according to the plain language of the statutes, 20 to 60 years\u2019 imprisonment is the sentencing range for first degree murder. This is the only range of sentence authorized for the basic elements of the crime.\u201d\nEffective June 27, 2002, section 5 \u2014 8\u20142 of the Unified Code of Corrections, governing \u201cextended term\u201d sentences, provides that \u201c(a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 \u2014 8\u20141 [730 ILCS 5/5 \u2014 8\u20141] for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 \u2014 5\u20143.2 [730 ILCS 5/5 \u2014 5\u20143.2] were found to be present. If the pre-trial and trial proceedings were conducted in compliance with subsection (c \u2014 5) of Section 111 \u2014 3 of the Code of Criminal Procedure of 1963 [725 ILCS 5/111 \u2014 3], the judge may sentence an offender to the following: (1) for first degree murder, a term shall be not less than 60 years and not more than 100 years ***.\u201d 730 ILCS 5/5-\u2014 8 \u2014 2 (West 2002).\nEffective February 23, 2001, section 111 \u2014 3(c\u20145), governing the \u201cform of charges,\u201d provides that \u201cin all cases in which the imposition of the death penalty is not a possibility, if an alleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be included in the charging instrument or otherwise provided to the defendant through a written notification before trial, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt. Failure to prove the fact beyond a reasonable doubt is not a bar to a conviction for commission of the offense, but is a bar to increasing, based on that fact, the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for that offense.\u201d 725 ILCS 5/111 \u2014 3(c\u20145) (West 2002).\nThe circuit court necessarily found the death-eligible factor of felony murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 \u2014 1(b)) beyond a reasonable doubt, even though the finding was made by the court and not a jury. See Ill. Rev. Stat. 1981, ch. 38, par. 9 \u2014 1(d)(3). Under section 9 \u2014 1(f) (Ill. Rev. Stat. 1981, ch. 38, par. 9 \u2014 -1(f)), \u201c[t]he burden of proof of establishing the existence of any of the factors set forth in subsection (b) is on the State and shall not be satisfied unless established beyond a reasonable doubt.\u201d See also People v. Ford, 198 Ill. 2d 68, 77, 761 N.E.2d 735 (2001) (Harrison, J., dissenting) (defendant \u201ccannot complain that the standard of proof was too lax because under section 9 \u2014 1(f) of the Criminal Code of 1961 (720 ILCS 5/9 \u2014 1(f) (West 1998)), the death-eligibility factors must be proven beyond a reasonable doubt even where the proceedings are before the court sitting without a jury\u201d).", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Michael J. Pelletier and Robert Hirschhorn, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb and Alan J. Spellberg, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. MICHAEL SCHRADER, Petitioner-Appellant.\nFirst District (3rd Division)\nNo. 1\u201402\u20141565\nOpinion filed September 30, 2004.\nModified on denial of rehearing December 8, 2004.\nMichael J. Pelletier and Robert Hirschhorn, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb and Alan J. Spellberg, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0684-01", "first_page_order": 704, "last_page_order": 719 }