People v. Thompson

773 N.E.2d 15 | Ill. App. Ct. | 2002

773 N.E.2d 15 (2002) 331 Ill. App. 3d 948 265 Ill. Dec. 653

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Tommy THOMPSON, Defendant-Appellant.

No. 1-99-4230.

Appellate Court of Illinois, First District, Third Division.

June 12, 2002.

Michael Pelletier, Erin Stone, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney, County of Cook, Chicago (Renee Goldfarb; Mary L. Boland; Alan J. Spellberg; Catherine M. Malloy, of counsel), for Appellee.

Justice CERDA delivered the opinion of the court:

Defendant, Tommy Thompson, whose convictions and sentences for first degree murder and armed robbery were affirmed by this court on direct appeal, appeals the order of the circuit court summarily dismissing his second petition for relief under the Post Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)) as procedurally barred. In his second petition, defendant asserts a speedy trial violation as well as various claims of ineffective assistance of trial counsel and assertions of evidentiary errors committed by the circuit court during the course of his trial proceedings. Defendant abandons those claims on appeal and, instead, challenges for the first time (1) the validity of Public Act 83-942, which effectively amended the Act to provide for, inter alia, summary dismissals of postconviction petitions after an initial review by the circuit court, (2) the propriety of the circuit court's order directing that his sentences for murder and armed robbery run consecutively, and (3) the constitutionality of his sentences as violative of his constitutional rights guaranteed under the fourteenth amendment of the federal constitution (U.S. Const., amend.XIV). Defendant has also filed a pro se supplemental brief on appeal, raising additional arguments concerning the effectiveness of his trial counsel and the fairness of both his trial and sentencing proceedings.

For the following reasons, we affirm.

BACKGROUND

Following a jury trial in mid-1995, defendant was convicted of three counts of first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 1994)), and two counts of armed robbery (720 ILCS 5/18-2 (West 1994)), in connection with the shooting death of Chicago cab driver James Dryer. The evidence introduced at trial established that in the early morning hours of July 22, 1992, defendant and his accomplice, Amir Richardson,^[1] devised a plan to either rob someone or steal a car. Richardson, whom defendant knew was armed with a handgun, eventually flagged down a cab being driven by Dryer. Defendant and Richardson entered the vehicle and instructed Dryer to drive to an address near 119th and Lowe streets in Chicago.

Upon arriving at the foregoing address, Richardson shot Dryer once in the back of the head. Defendant then exited the vehicle, opened the driver's side door, and took $23 from Dryer's front pocket.

For his role in the incident, defendant was sentenced to extended terms of 70 years' imprisonment for murder and 35 years' imprisonment for armed robbery, the enhancement of each sentence being predicated upon the elderly age of the victim. Defendant was further ordered to serve his sentences consecutively to one another.

On direct appeal, we affirmed defendant's convictions but vacated the judgments on two of the murder counts and on one of the armed robbery counts. We further vacated defendant's sentence for armed robbery and imposed a term of 30 years' imprisonment. People v. Thompson, No. 1-95-4424, 294 Ill.App.3d 1104, 242 Ill. Dec. 574, 721 N.E.2d 853 (March 12, 1998) (unpublished order pursuant to Supreme Court Rule 23). Defendant's leave for appeal with our supreme court was thereafter denied on September 12, 1998.

On December 4, 1998, defendant filed pro se for postconviction relief under the Act, alleging various claims of ineffective assistance of both trial and appellate counsel. Finding defendant's postconviction allegations to be frivolous and patently meritless, the circuit court dismissed defendant's petition on January 28, 1999. While he initially sought review with this court in February 1999, defendant voluntarily abandoned his appeal on September 21, 1999.

While his original appeal was pending, defendant filed a second postconviction petition, again asserting ineffective assistance on the part of his trial attorney as well claims that he was denied his constitutional right to a speedy trial and that he was deprived of a fair trial by the introduction of improper and highly inflammatory evidence. Finding defendant's postconviction claims procedurally barred, the circuit court dismissed defendant's second petition as frivolous on September 20, 1999. Defendant's timely appealed followed.

ANALYSIS

I.

We initially address the State's motion to strike defendant's supplemental pro se brief, which was ordered taken with the case. Defendant is presently represented by the State Appellate Defender, which has submitted opening and reply briefs on defendant's behalf raising and briefing several assertions of error which purportedly entitle defendant to relief. By his pro se brief, defendant raises points that are not presented and argued by his appointed counsel.

As the State observes, a defendant has no right to both self-representation and the assistance of counsel. People v. McDonald, 168 Ill. 2d 420, 435, 214 Ill. Dec. 125, 660 N.E.2d 832, 838 (1995); People v. Lighthall, 175 Ill.App.3d 700, 704-05, 125 Ill. Dec. 163, 530 N.E.2d 81, 84 (1988). If a defendant is represented by appellate counsel, whether appointed or privately retained, he has no right to a "hybrid appeal" in which he alternates between being represented by counsel and proceeding pro se through the filing of a supplemental pro se brief. People v. Woods, 292 Ill.App.3d 172, 179, 226 Ill. Dec. 57, 684 N.E.2d 1053, 1058 (1997). Defendant, therefore, has no right to present his pro se arguments to this court (see McDonald, 168 Ill.2d at 435, 214 Ill. Dec. 125, 660 N.E.2d at 838; Woods, 292 Ill.App.3d at 179, 226 Ill. Dec. 57, 684 N.E.2d at 1053; Lighthall, 175 Ill.App.3d at 705, 125 Ill. Dec. 163, 530 N.E.2d at 81), and accordingly we grant the State's motion and strike defendant's supplemental pro se brief.

II.

A claim for postconviction relief under the Act is not an appeal from the underlying trial proceedings but, rather, represents a collateral attack on the earlier judgment of conviction or sentence in which the defendant seeks to establish federal or state constitutional violations that escaped earlier review. People v. Henderson, 171 Ill. 2d 124, 131, 215 Ill. Dec. 147, 662 N.E.2d 1287, 1292 (1996).

As noted, defendant appeals from the dismissal of his second postconviction petition. As such, defendant faces a daunting procedural hurdle in seeking relief. People v. Jones, 191 Ill. 2d 354, 358, 247 Ill. Dec. 518, 732 N.E.2d 573, 575 (2000). That is because the Act contemplates the filing of only one postconviction petition. People v. Flores, 153 Ill. 2d 264, 273, 180 Ill. Dec. 1, 606 N.E.2d 1078, 1082 (1992).

The scope of postconviction relief is limited, through considerations of waiver and res judicata, "to constitutional matters that neither have been, nor could have been, previously adjudicated." People v. Hudson, 195 Ill. 2d 117, 122, 253 Ill. Dec. 712, 745 N.E.2d 1246, 1250 (2001). All issues that were actually decided on direct appeal are res judicata (People v. Orange, 195 Ill. 2d 437, 456, 255 Ill. Dec. 450, 749 N.E.2d 932, 938 (2001); People v. Mahaffey, 194 Ill. 2d 154, 170, 252 Ill. Dec. 1, 742 N.E.2d 251, 261 (2000)), and those issues that could have been raised on review, but were not, are deemed waived. People v. Owens, 129 Ill. 2d 303, 315, 135 Ill. Dec. 780, 544 N.E.2d 276, 281 (1989); Flores, 153 Ill.2d at 274, 180 Ill. Dec. 1, 606 N.E.2d at 1083. Further, issues raised in an original or amended postconviction petition and decided by the circuit court have res judicata effect, precluding reconsideration of those points in a subsequent postconviction proceeding. Orange, 195 Ill.2d at 449, 255 Ill. Dec. 450, 749 N.E.2d at 939. Similarly, any claims not raised in the original or amended petition are deemed waived. 725 ILCS 5/122-3 (1996); Jones, 191 Ill.2d at 358, 247 Ill. Dec. 518, 732 N.E.2d at 575.

On appeal, defendant argues: certain legislation that amended the Act, P.A. 83-942, violates the single subject rule of Article IV, section 8 of the Illinois Constitution (Ill. Const.1870, art. IV, § 8); the circuit court had no basis upon which to order his sentences to run consecutively; and his extended term and consecutive sentences, if properly imposed, offend the constitutional mandates expressed in Apprendi These issues are not presented in the postconviction petition subject to this appeal and were neither raised on direct appeal nor in defendant's original postconviction petition.

As recently explained by our supreme court, the determination of claims raised in a successive postconviction petition that are barred by waiver and res judicata are to be considered in terms of cause-and-prejudice. People v. Pitsonbarger, No. 89368, slip op. at 10, ___ Ill.2d ___, ___, ___ Ill.Dec. ___, ___ N.E.2d ___ (May 23, 2002). Where no claim is made that the petitioner suffers from a miscarriage of justice, i.e. actual innocence, the petitioner must show good cause for failing to raise his claims in the initial postconviction proceeding and actual prejudice resulting from the claimed errors. Pitsonbarger, slip op. at 13, ___ Ill.2d ___, ___, ___ Ill.Dec. ___, ___ N.E.2d ___; Jones, 191 Ill.2d at 358, 247 Ill. Dec. 518, 732 N.E.2d at 575-76. "Cause," in this context, "refers to any objective factors, external to the defense, which impeded the petitioner's ability to raise a specific claim in the initial post-conviction proceeding." Pitsonbarger, slip op. at 13, ___ Ill.2d ___, ___, ___ Ill.Dec. ___, ___ N.E.2d ___. That is, the petitioner "must show how the deficiency in the first proceeding affected his ability to raise each specific claim." Pitsonbarger, slip op. at 14, ___ Ill.2d ___, ___, ___ Ill.Dec. ___, ___ N.E.2d ___.

At no point does defendant here ever attempt to explain how he was precluded from raising his claims during his initial postconviction proceeding. This is not surprising since defendant never addresses the principles regarding the filing of successive postconviction petitions. Defendant's failure to demonstrate cause for not raising his postconviction claims earlier justifies affirmance of the circuit court's judgment. This procedural default aside, we will nonetheless address the merits of defendant's claims.

A.

Defendant initially contends P.A. 83-942, which, as noted, amended the Act to allow for the summary dismissal of postconviction petitions following initial review by the circuit court, was enacted in violation of the single subject rule. As defendant concedes, this contention has been considered and expressly rejected by this court in People v. Roberts, 318 Ill.App.3d 719, 252 Ill. Dec. 869, 743 N.E.2d 1025 (2000), as well as by all other courts that have confronted this issue. See People v. Stewart, 326 Ill.App.3d 933, 939, 261 Ill. Dec. 35, 762 N.E.2d 604, 609 (2001); People v. Vilces, 321 Ill.App.3d 937, 944, 255 Ill. Dec. 149, 748 N.E.2d 1219, 1226 (2nd Dist.2001); People v. Sharpe, 321 Ill. App. 3d 994, 997, 255 Ill. Dec. 331, 749 N.E.2d 432, 434 (3rd Dist.2001); People v. Jones, 318 Ill.App.3d 1189, 1192, 253 Ill. Dec. 62, 744 N.E.2d 344, 347 (4th Dist. 2001). We adhere to Roberts and progeny and, accordingly, reject defendant's single subject challenge.

B.

Defendant next challenges the propriety of his extended term for murder and the imposition of consecutive sentences. At the time of the commission of defendant's offenses, first degree murder^[2] carried a prison term of not less than 20 years and not more than 60 years (730 ILCS 5/5-8-1(a)(1) (West 1994)). To enhance defendant's murder sentence, the circuit court invoked section 5-8-2(a) of the Unified Code of Corrections (730 ILCS 5/5-8-2(a) (West 1994)), which authorizes an extended term of not less than 60 years and not more than 100 years in prison where it finds any of the aggravating factors listed in section 5-5-3.2(b) of the Corrections Code to be present. 730 ILCS 5/5-8-2(a) (West 1994). One of the aggravating factors listed takes into consideration the elderly age of the victim and specifically suggests a more severe punishment for an offense committed "against a person 60 years of age or older or such person's property." 730 ILCS 5/5-5-3.2(b)(4)(ii) (West 1994). Finding the victim in the present case to be 62 years of age at the time he was killed, the circuit court enhanced defendant's sentence for murder to 70 years.

While the circuit court further ordered defendant's sentences to run consecutively, the basis of the court's order is not clear from the record. At all relevant times, section 5-8-4(a) of the Corrections Code stated in relevant part:

"The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objection, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of Section 12-13 [criminal sexual assault] or 12-14 [aggravated criminal sexual assault] of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutive." 730 ILCS 5/5-8-4(a) (West 1994).

Paragraph (b) of the same section provided:

"The court shall not impose a consecutive sentence except as provided for in subsection (a) unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant the basis for which the court shall set forth in the record." 730 ILCS 5/5-8-4(b) (West 1994).

The basis of the court's order of consecutive sentences was not stated by the judge at the court's sentencing hearing and is not specified in the formal sentencing mittimus. As defendant notes, the circuit court at one point during the sentencing hearing specifically cited section 5-8-4(a) and stated that consecutive sentences were mandated under certain circumstances. At a later point, however, the court commented that defendant needed "to be segregated from society for society's protection," a finding, according to the court, that was a "factor[ ] of consideration in sentencing." Hence, as defendant asserts, it is not entirely clear under what paragraph of section 5-8-4 consecutive sentences were imposed. In any event, defendant claims his consecutive sentences cannot stand under either sentencing provision and invites us to analyze this issue under both sections.

i.

The version of section 5-8-4(a) involved here mandates the imposition of consecutive sentences where the offenses were committed by the defendant in a single course of conduct and one of the offenses was a triggering offense as delineated by statute. People v. Whitney, 188 Ill. 2d 91, 96-97, 241 Ill. Dec. 770, 720 N.E.2d 225, 228 (1999); People v. Carney, 327 Ill.App.3d 998, 1000-01, 262 Ill. Dec. 420, 765 N.E.2d 1028, 1030 (2002). In the present case, if the circuit court proceeded to impose consecutive sentences under section 5-8-4(a), the triggering offense was a Class X or Class 1 felony where defendant inflicted severe bodily injury. See 730 ILCS 5/5-8-4(a) (West 1994). Defendant's conviction of armed robbery, a Class X felony, is a proper triggering offense as delineated by the statute.

Defendant maintains consecutive sentences under section 5-8-4(a) are not permitted since the victim's death "was not proximately caused by or related to the Class X felony of armed robbery." Rather, according to defendant, the victim's death "was proximately caused by or related to the offense of first degree murder," which, defendant correctly notes, is not a triggering offense under the sentencing statute.^[3] The "proximate cause/related to" test espoused by defendant, however, is not the applicable standard employed for purposes of section 5-8-4(a).

Our supreme court in Whitney examined the question of whether the triggering felony must involve the infliction of severe bodily harm to the victim of that felony to require consecutive sentences under section 5-8-4(a). After noting a split among the districts concerning this issue, and particularly noting this court's position as expressed in People v. Medrano, 282 Ill. App. 3d 887, 896-97, 218 Ill. Dec. 383, 669 N.E.2d 114 (1996), that the bodily harm be "proximately connected" to the triggering crime (Whitney, 188 Ill.2d at 96, 241 Ill. Dec. 770, 720 N.E.2d at 227), the Whitney court stated section 5-8-4(a) mandates consecutive sentences "where the defendant has been convicted of either a Class X or Class 1 felony and where he had inflicted severe bodily injury during the commission of that felony." (emphasis added.) 188 Ill. 2d at 98-99, 241 Ill. Dec. 770, 720 N.E.2d at 229.

In People v. Sample, 326 Ill.App.3d 914, 926, 260 Ill. Dec. 643, 761 N.E.2d 1199, 1209 (2001), this court examined Whitney in discussing the precise definition of the supreme court's phrase "during the commission" of the triggering felony. In fixing a definition, the Sample court found significant the supreme court's treatment of Medrano and like cases employing a proximate connection test. "Although the Whitney court recognized that several appellate courts had used the language of `proximate connection' between the triggering felony and the injury, its adoption of the phrase `during the commission' of the felony indicates that this is the preferred vocabulary." Sample, 326 Ill. App.3d at 926, 260 Ill. Dec. 643, 761 N.E.2d at 1209. The Sample court then specifically drew upon death sentence jurisprudence regarding the timing of the offense for felony murder purposes to give some meaning to the "during the commission" standard. Sample, 326 Ill.App.3d at 927-28, 260 Ill. Dec. 643, 761 N.E.2d at 1209. From this body of law the court concluded the standard announced in Whitney is met where commission of the triggering offense and infliction of the bodily harm, the precise timing of which not being dispositive, occurred "essentially simultaneously." Sample, 326 Ill.App.3d at 927-28, 260 Ill. Dec. 643, 761 N.E.2d at 1210.

In the present case, the requirement that the bodily injury be inflicted on the victim of the triggering felony is satisfied since there was only one victim. With regards to the necessary connection between the triggering offense and the victim's bodily harm, the evidence shows defendant and Richardson planned to rob the victim prior to entering the victim's cab. Upon being driven to the designated address, Richardson shot the victim in the head, prompting defendant to take a small amount of money from the victim's person and then flee the scene with his accomplice. Notably, this court has recognized that while murder itself is not a triggering felony under the version of section 5-8-4(a) applicable here, the death of a victim during the commission of the triggering offense may provide the basis for a finding of severe bodily injury. Carney, 262 Ill. Dec. 420, 765 N.E.2d at 1031; People v. Sergeant, 326 Ill.App.3d 974, 990, 260 Ill. Dec. 859, 762 N.E.2d 518, 532 (2001). Based on the evidence, we conclude the victim's death, i.e., the severe bodily injury, occurred essentially simultaneously with the armed robbery and, hence, the victim's death occurred during the commission of the triggering crime as directed by Whitney. See Carney, 262 Ill. Dec. 420, 765 N.E.2d at 1031 (finding victim's death occurred during the commission of the triggering offense of armed robbery to the victim where the defendant, while attempting to steal a small amount of money, briefly struggled with the victim, during which the victim was shot).

Defendant cites People v. Strickland, 154 Ill. 2d 489, 182 Ill. Dec. 551, 609 N.E.2d 1366 (1992), and Medrano to support of his position. We find defendant's reliance on Strickland misplaced since the link between the triggering felony and the bodily injury necessary under section 5-8-4(a) was never addressed in that case. Indeed, the Strickland court never discussed the injury having to be proximately caused by the triggering offense. Rather, the court limited its consideration to whether the offenses for which defendant was convicted were committed as a part of a single course of conduct during which there was no substantial change in the nature of the criminal objective. Strickland, 154 Ill.2d at 540-41, 182 Ill. Dec. 551, 609 N.E.2d at 1389. See Carney, 262 Ill. Dec. 420, 765 N.E.2d at 1031-32 (distinguishing Strickland on this basis in response to same argument advanced by defendant this case); Sample, 326 Ill.App.3d at 928, 260 Ill. Dec. 643, 761 N.E.2d at 1210 (same).

We are also unpersuaded by defendant's reliance on Medrano. In Medrano, the court held in part that consecutive sentences imposed pursuant to section 5-8-4(a) could not stand where the evidence did not establish a "proximate connection" between defendant's armed robbery and kidnaping of the victim and the injuries sustained by the victim as a result of the defendant's later attempt to murder her. While, as noted in Carney and Sample, the Medrano court provided no explanation or factual basis for its holding (Carney, 262 Ill. Dec. 420, 765 N.E.2d at 1032; Sample, 326 Ill.App.3d at 928, 260 Ill. Dec. 643, 761 N.E.2d at 1210), it did explain in a footnote that "[a]lthough section 5-8-4(a) does not specifically indicate that there must be a proximate connection between the Class X or Class 1 felony and the `grievous bodily injury' suffered by the victim," * * * "such is a reasonable interpretation of the statute's plain language[.]" Medrano, 282 Ill.App.3d at 896 n. 1, 218 Ill. Dec. 383, 669 N.E.2d at 120 n. 1. Thus, perhaps more noteworthy than Medrano's failure to elaborate on his holding is the fact the Medrano court's interpretation of section 5-8-4(a) conflicts with the subsequent and recent construction given that provision by the supreme court in Whitney. In our view, Medrano is no longer persuasive authority regarding the requisite connection between the triggering offense and the victim's injury.

Because the victim's death was sufficiently connected to the commission of the armed robbery of that victim, and since defendant concedes the offenses for which he was convicted were committed in a single course of conduct, consecutive sentences were mandated under section 5-8-4(a) of the Corrections Code. We therefore uphold defendant's consecutive sentences under that sentencing provision and, accordingly, need not consider whether consecutive sentences would have been proper under section 5-8-4(b).

ii.

Defendant additionally contends, citing People v. Miller, 193 Ill.App.3d 918, 142 Ill. Dec. 247, 552 N.E.2d 988 (1989), and People v. Biggs, 294 Ill.App.3d 1046, 229 Ill. Dec. 112, 691 N.E.2d 48 (1998), his consecutive sentences constitute impermissible double enhancement because the victim's death was used to support both his murder conviction and the circuit court's order that his sentences be served consecutively. As applicable to defendant's argument, double enhancement occurs when a single factor is used both as an element of an offense and as an aggravating factor to warrant the imposition of a harsher sentence than might otherwise have been imposed. People v. Gonzalez, 151 Ill. 2d 79, 83-84, 175 Ill. Dec. 731, 600 N.E.2d 1189, 1191 (1992); People v. Watkins, 325 Ill. App. 3d 13, 18-19, 258 Ill. Dec. 732, 757 N.E.2d 117, 122 (2001).

This court has recently discussed the issue of whether consecutive sentences imposed pursuant to section 5-8-4(a) implicate double enhancement concerns. In both Carney and Sample, the courts, construing our supreme court's recent decisions in People v. Carney, 196 Ill. 2d 518, 256 Ill. Dec. 895, 752 N.E.2d 1137 (2001), and People v. Wagener, 196 Ill. 2d 269, 256 Ill. Dec. 550, 752 N.E.2d 430 (2001), as well as the court's decision in Whitney, indicated that consecutive sentencing does not constitute improper double enhancement. As explained by the supreme court, consecutive sentences constitute separate sentences for each crime of which the defendant has been convicted and affect only the manner in which the sentences are served; they do not alter the range of punishment for a given crime. Carney, 196 Ill.2d at 529-35, 256 Ill. Dec. 895, 752 N.E.2d at 1143-44; Wagener, 196 Ill.2d at 286, 256 Ill. Dec. 550, 752 N.E.2d at 430; see also Watkins, 325 Ill.App.3d at 20, 258 Ill. Dec. 732, 757 N.E.2d at 123. Since the imposition of consecutive sentences does not constitute an increase in penalty, the courts reasoned that such sentences do not "enhance" punishment at all. Carney, 262 Ill. Dec. 420, 765 N.E.2d at 1032; Sample, 326 Ill.App.3d at 931, 260 Ill. Dec. 643, 761 N.E.2d at 1212. The courts further noted Whitney supports the position that any triggering offense as delineated by section 5-8-4(a), irrespective of the particular elements, that results in severe bodily injury being inflicted on the victim of that offense could be used to trigger mandatory consecutive sentences. Carney, 262 Ill. Dec. 420, 765 N.E.2d at 1033; Sample, 326 Ill. App.3d at 931, 260 Ill. Dec. 643, 761 N.E.2d at 1212.

The court in People v. Phelps, 329 Ill. App. 3d 1, 263 Ill. Dec. 408, 768 N.E.2d 168 (2002) recently took issue with the holdings of Carney and Sample that consecutive sentencing under section 5-8-4(a), no matter the triggering offense, never implicate double enhancement concerns. The Phelps court believed the double enhancement principles set forth in People v. Ferguson, 132 Ill. 2d 86, 97, 138 Ill. Dec. 262, 547 N.E.2d 429 (1989), where it was stated that while the legislature has the power to authorize further punishment based on an inherent element of an offense, it must clearly and unambiguously express that intention, could not be ignored. According to the court, section 5-8-4(a) did not expressly indicate the legislature's intent to require consecutive sentences for Class X or Class 1 felonies that include severe bodily injury as an element of an offense. Phelps, 329 Ill.App.3d at 11, 263 Ill. Dec. 408, 768 N.E.2d 168.

The differences in opinion expressed by the foregoing cases does not impact our decision concerning the propriety of defendant's consecutive sentences in this case. Regardless of whether we adopt the reasoning of the Carney and Sample opinions, or follow the position of the court in Phelps, defendant's consecutive sentences do not violate principles of double enhancement. The version of the armed robbery statute under which defendant was convicted does not include the infliction of severe bodily injury as an element of the crime. See 720 ILCS 5/18-2(a) (West 1995) ("[a] person commits armed robbery when he or she violates Section 18-1" [the robbery statute, which is violated when a person "takes property from the person or presence of another by the use of force or by threatening the imminent use of force] while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon"). Indeed, the court in Phelps expressly recognized that section 5-8-4(a) requires consecutive sentencing where the defendant causes severe bodily harm in the course of committing a triggering offense that does not include severe bodily injury as an element of the offense, such as armed robbery. 329 Ill.App.3d at 11, 263 Ill. Dec. 408, 768 N.E.2d 168. Because severe bodily injury to the victim in this case was not an element of the triggering offense of armed robbery, defendant's consecutive sentences do not constitute impermissible double enhancement.

C.

Defendant lastly challenges the validity of his extended term sentence for murder and his consecutive sentences under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Pursuant to Apprendi, federal due process (U.S. Const., amend.XIV) mandates that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L. Ed. 2d at 455.

The record before us indicates that defendant's second postconviction petition was not filed within the applicable filing period set forth by the Act. Indeed, defendant acknowledged at oral argument that his petition was untimely.

We note the first (People v. Kizer, 318 Ill.App.3d 238, 252, 251 Ill. Dec. 925, 741 N.E.2d 1103, 1115 (2000)), second (People v. Scullark, 325 Ill.App.3d 876, 892, 259 Ill. Dec. 785, 759 N.E.2d 565, 581 (2001)), fifth (People v. Coulter, 321 Ill.App.3d 644, 659, 254 Ill. Dec. 794, 748 N.E.2d 240, 251 (2001)), and sixth (People v. Montgomery, 327 Ill.App.3d 180, 190-91, 261 Ill. Dec. 399, 763 N.E.2d 369 (2001)) divisions of this court have found Apprendi inapplicable to collateral proceedings. However, this particular division in People v. Beachem, 317 Ill.App.3d 693, 706, 251 Ill. Dec. 308, 740 N.E.2d 389, 397 (2000), as well as the fourth division in People v. Burns, 332 Ill.App.3d 189, 265 Ill. Dec. 639, 773 N.E.2d 1 (2001), have determined that Apprendi applies retroactively to cases pending on collateral review.

Significantly, we stated in Beachem that "Apprendi applies to a timely-filed postconviction petition." (emphasis added.) 317 Ill.App.3d at 706, 251 Ill. Dec. 308, 740 N.E.2d at 397. Recently, in People v. Walker, 331 Ill.App.3d 335, 265 Ill. Dec. 387, 772 N.E.2d 758 (2002), we noted our consideration of Apprendi's retroactive application in Beachem was limited to timely, first petitions for postconviction relief and, thus, we did not directly confront the issue of whether Apprendi's ruling extends to an untimely-filed petition. In Walker, we shed some light on this matter, holding that Apprendi may apply retroactively to an untimely-instituted postconviction petition where the defendant's delay in filing for relief was not occasioned by his culpable negligence as provided for by section 122-1 of the Act. 331 Ill.App.3d at 957-58, 265 Ill. Dec. at 661-62, 773 N.E.2d at 23-24.

The instant case presents the question of whether an Apprendi claim should be recognized in an untimely and successive postconviction proceeding. This issue was resolved in People v. Jones, 321 Ill.App.3d 515, 523, 254 Ill. Dec. 662, 747 N.E.2d 1074, 1081 (2001), where this court held that Apprendi has no application to untimely, successive postconviction proceeding. We recognize the Third District appellate court has expressed a different view in People v. Lee, 326 Ill.App.3d 882, 260 Ill. Dec. 752, 762 N.E.2d 18 (2001), appeal granted 198 Ill. 2d 625, 264 Ill. Dec. 328, 770 N.E.2d 222 (2002). There, the reviewing court found an Apprendi challenge cognizable despite defendant first raising his challenge in an untimely, successive post-conviction petition. We reject Lee and adhere to the ruling in Jones that Apprendi claims are not cognizable to untimely, successive postconviction petitions. Accordingly, defendant's Apprendi challenges to his extended-term and consecutive sentences are not cognizable on this appeal.

CONCLUSION

For the foregoing reasons, the order of the circuit court summarily dismissing defendant's second petition for postconviction relief is affirmed.

Affirmed.

WOLFSON and SOUTH, JJ., concur.

NOTES

[1] Richardson was convicted of first-degree murder and armed robbery in a simultaneous severed bench trial.

[2] While the circuit court entered judgment on the jury's general verdict for the State's charges of intentional, knowing and felony murder, this court on defendant's original appeal vacated the latter two murder convictions and allowed only defendant's conviction for intentional murder, the most serious of the offenses, to stand. Thompson, slip op. at 15.

[3] Effective January 1, 2000, the General Assembly amended section 5-8-4(a) to include first degree murder as a triggering offense. 730 ILCS 5/5-8-4(a) (West 2000).