No. 3--01--0226

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE HOLDRIDGE delivered the opinion of the court:

The defendant, Graylin T. Douglas, pled guilty to unlawfulpossession with intent to deliver less than one gram of cocaine. 720 ILCS 570/401(d) (West 1998). He received an extended termsentence of eight years' imprisonment based on a priorconviction. 730 ILCS 5/5--5--3.2(b)(1) (West 2000). He filed apro se postconviction petition in which he argued that hisextended term sentence is unconstitutional under the SupremeCourt's holding in Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S. Ct. 2348 (2000). His petition was summarilydismissed. On appeal, the defendant argues that (1) his petitionshould not have been dismissed because his extended term sentenceis unconstitutional under Apprendi, and (2) Public Act 83--942,(Pub. Act 83--942, eff. November 23, 1983), which amended thePost-Conviction Hearing Act, violates the single subject rule ofthe Illinois Constitution. We affirm.

BACKGROUND

The defendant pled guilty to possession with intent todeliver cocaine in exchange for the State dismissing anothercharge and an agreement that the State would not seek more thanthe maximum nonextended term sentence, even though the defendantwas eligible for an extended term sentence. The defendantfurther agreed, however, that his plea would be treated as ablind plea if he failed to appear for sentencing.

The defendant failed to appear at his sentencing hearing andwas sentenced to an eight-year extended term of imprisonment. Hefiled a motion to reconsider sentence, which was denied.

The defendant filed a timely pro se postconviction petitionin which he argued that his extended term sentence wasunconstitutional under Apprendi. The trial court dismissed hispetition as frivolous and patently without merit on the groundsthat Apprendi explicitly excluded sentences based on priorconvictions from its holding. The defendant appeals from thedismissal of his postconviction petition.

ANALYSIS

Possession with intent to deliver less than one gram ofcocaine is a Class 2 felony (720 ILCS 570/401(d) (West 1998))with a sentencing range of three to seven years' imprisonment(730 ILCS 5/5--8--1(a)(5) (West 2000)). A judge may sentence adefendant to an extended term of imprisonment (730 ILCS 5/5--8--2(West 2000)) if the judge finds an aggravating factor, such as aprior felony conviction (730 ILCS 5/5--5--3.2(b)(1) (West 2000)),to be present. The extended term sentencing range for a Class 2felony is from 7 to 14 years' imprisonment. 730 ILCS 5/5--8--2(a)(4) (West 2000).

I. Apprendi

Any fact that increases the penalty for a crime beyond theprescribed statutory maximum, other than the fact of a priorconviction, must be submitted to the trier of fact and provedbeyond a reasonable doubt. Apprendi, 530 U.S. 466, 147 L. Ed. 2d435, 120 S. Ct. 2348. In People v. Childress, 321 Ill. App. 3d13, 746 N.E.2d 783 (2001), the Illinois Appellate Court, FirstDistrict, ruled that the holding of Apprendi does not apply toextended term sentences based on prior convictions under section5--5--3.2(b)(1). This court previously has rejected argumentsthat Apprendi applies to other statutes permitting sentences tobe increased based on recidivism in People v. Dixon, 319 Ill.App. 3d 881, 747 N.E.2d 1 (2001), and People v. Jones, 322 Ill.App. 3d 236, 749 N.E.2d 466 (2001). Therefore, we hold thatApprendi does not apply to this defendant's extended termsentence.

II. Single Subject Rule

The legislation the defendant challenges is section 122--2.1(a)(2) of the Post-Conviction Hearing Act (725 ILCS 5/122--2.1(a)(2) (West 2000)), under which a judge may summarily dismissa postconviction petition if he or she finds that it is frivolousor patently without merit. That section was enacted throughPublic Act 83--942 (Pub. Act 83--942, eff. November 23, 1983). According to the defendant, section 122--2.1(a)(2) is invalidbecause Public Act 83--942 violates the single subject clause ofthe Illinois Constitution (Ill. Const. 1970, art. IV,