Opinion
No. 1-00-1432
July 29, 2002 Modified Upon Denial of Petition Rehearing
Appeal from the Circuit Court of Cook County, No. 87 CR 660946, Honorable John A. Wasilewski, Judge, presiding.
ORDEROn November 28, 1989, Benjamin Valentine was convicted of home invasion, aggravated criminal assault, and attempt criminal sexual assault after a jury trial. Valentine was sentenced to 25 years' imprisonment for home invasion, 55 years' imprisonment for aggravated criminal sexual assault, and seven years' imprisonment for attempt criminal sexual assault. His convictions were affirmed on direct appeal. People v. Valentine, 221 Ill. App.3d 1082, 582 N.E.2d 1338 (1991). Valentine's subsequent postconviction petition for relief was dismissed as frivolous. This dismissal of Valentine's postconviction petition was affirmed on appeal People v. Valentine, No. 1-95-1782 (1996) (unpublished order under Supreme Court Rule 23).
On January 23, 1998, Valentine filed a pro se motion for DNA testing. That motion asserted that identity was an issue at his trial and the DNA technology available in 1998 was not available at the time of his 1989 trial. The State argued that identity was not an issue in the case and there was no material from the "Vitullo kit" to test. Valentine's motion was denied on April 5, 2000. He filed a notice of appeal on April 20, 2000. The notice of appeal indicated that he was appealing the April 5, 2000, order and referenced his previous "Motion to allow DNA testing 725 ILCS 5/116-5 (1998)/postconviction."
However, on appeal, Valentine addresses only one issue. He asserts that, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348 (2000), his 55 year extended-term sentence for aggravated criminal sexual assault, based on the judge's findings that the offense was brutal and heinous and/or the complainant was younger than 18 years of age, was unconstitutional because the facts that increased the prescribed range of penalties were not charged in the indictment and proved beyond a reasonable doubt.
In his brief on appeal Valentine writes:
"Under Apprendi the statutes under which Mr. Valentine was sentenced are unconstitutional because the factors relied upon to increase the applicable maximum sentence were not required to be charged in the indictment submitted to the jury, or proved beyond a reasonable doubt. Because the statutes are unconstitutional, they are void ab initio, i.e., it `as though no such law ever had been passed.'"
Additionally, Valentine, citing People v. Beachem, 317 Ill. App.3d 693, 740 N.E.2d 389 (2000), contends that Apprendi implicates procedures implicit in ordered liberty and is applicable to cases on collateral review.
The State, citing People v. Kizer, 318 Ill. App.3d 238, 741 N.E.2d 1103 (2000), responds that Apprendi does not apply because it is a new rule of law which cannot be applied retroactively to cases no longer on direct appeal. The State further asserts that if Apprendi did apply retroactively, Valentine's 55 year conviction should be affirmed because any error that may have occurred pursuant to Apprendi was harmless beyond a reasonable doubt.
The facts relevant to Valentine's trial and conviction for aggravated criminal sexual assault are set forth in Valentine, 221 Ill. App.3d 1082, and need not be recounted here. Also, the background analysis and affirmance of the denial of a previous postconviction petition filed by Valentine are set forth in Valentine, No. 1-95-1782 (1996) (unpublished order under Supreme Court Rule 23) and need not be set forth here.
We are mindful that a split over the retroactivity of Apprendi exists among our state's five appellate districts and within the six divisions of the First Judicial District. However, in Kizer we held that Apprendi does not apply retroactively to postconviction petitions. Kizer, 318 Ill. App.3d at 252. We continue to adhere to that view.
For the forgoing reasons, the judgment of the trial court dismissing the postconviction petition is affirmed.
Affirmed.
COUSINS, J., with TULLY and McNULTY, JJ., concurring.