¶ 7 The Illinois Supreme Court denied petitioner's petition for leave to appeal the appellate court's judgment, affirming the denial of postconviction relief (see People v. Kizer, 195 Ill.2d 588, 755 N.E.2d 480 (2001) (table) (unpublished order under Supreme Court Rule 23)), and petitioner's petition for writ of certiorari was denied by the United States Supreme Court in Kizer v. Illinois, 534 U.S. 1029 (2001). Petitioner was then unsuccessful in seeking federal habeas corpus relief on the basis his consecutive sentences were unlawful.
This court affirmed his conviction and sentence on direct appeal in an unpublished order pursuant to Supreme Court Rule 23 (166 Ill.2d R. 23). People v. Ledbetter, No. 4-99-0943, 319 Ill.App.3d 1128, 274 Ill.Dec. 653, 791 N.E.2d 745 (April 16, 2001) (unpublished order under Supreme Court Rule 23), appeal denied, 195 Ill.2d 588, 258 Ill.Dec. 97, 755 N.E.2d 480 (2001). On May 19, 2000, defendant filed a petition for relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8(West 2000)).
Even in Illinois, the intermediate appellate courts do not agree on the question and the state supreme court has not resolved the conflict. See, e.g., People v. Kizer, 318 Ill. App.3d 238, 741 N.E.2d 1103 (2000), appeal den, 195 Ill.2d 588, 755 N.E.2d 480 (2001), cert den, 534 U.S. 1029 (2001) (decision of first district, first division, disagreeing with Beachem and concluding that Apprendi does not apply retroactively on collateral review); People v. Gholston, 332 Ill. App.3d 179, 772 N.E.2d 880 (2002), appeal pending (decision of first district, fourth division, following Kizer and summarizing the split among Illinois courts). The Supreme Court has identified Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which declared for the first time that representation by counsel is fundamental to a fair criminal trial, as the kind of watershed holding that meets the Teague v. Lane exception.
Other states have applied the harmless error analysis to an Apprendi violation. See State v. Cody, 27 Kan. App. 2d 1037, 10 P.3d 789 (2000) (Apprendi does not apply because the defendant admitted "to all of the facts that provided the basis for the sentencing court's departure");Clark v. State, supra (Apprendi does not warrant remand because the use of a firearm was never an issue; the defendant alleged that he fired in self-defense); State v. Greenwalt, [No. 00AP090061, January 11, 2001] (Ohio Ct. App. 2001) (unpublished) (Apprendi is not applicable to sex-offender registration because the requirement that a sex offender register is not a penalty); People v. Maiden, 318 Ill. App.3d 545, 743 N.Ed.2d 1052, 252 Ill. Dec. 896 (2001), appeal denied, 195 Ill.2d 588, 755 N.E.2d 481 (2001) (sentence did not exceed statutory maximum; thus,Apprendi did not apply). See also State v. Palermo, 765 So.2d 1139 (La.Ct.App. 2000); Kijewski v. State, 773 So.2d 124 (Fla.Dist.Ct.App. 2000); People v. Whitaker, 32 P.3d 511 (Colo.App. 2000); United States v. Garcia-Guizar, 234 F.3d 483 (9th Cir. 2000), cert. denied, 532 U.S. 984, 121 S.Ct. 1629 (2001); United States v. Nance, 236 F.3d 820 (7th Cir. 2000); United States v. Nealy, 232 F.3d 825 (11th Cir. 2000).