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SECOND DIVISION

September 18, 2001

No. 1-99-4064

JUSTICE McBRIDE delivered the opinion of the court:

Following a bench trial, defendant, Marcus Blackwell, wasfound guilty of first degree murder and attempted murder. He wassentenced consecutively to 84 years' imprisonment for the firstdegree murder conviction and to 27 years' imprisonment for theattempted murder conviction. The trial court imposed anextended-term sentence for the murder under section 5-5-3.2(b)(4)(ii) of the Unified Code of Corrections on the basisthat the murder victim was 71 years old. 730 ILCS 5/5-5-3.2(b)(4)(ii) (West 1998). The trial court also determined thatdefendant was eligible for consecutive sentences under section 5-8-4(b) of the Unified Code of Corrections because defendantinflicted severe bodily harm on the attempted murder victim. 730ILCS 5/5-8-4(b) (West 1998).

Defendant appeals on the grounds that his extended-term sentence and consecutive sentences are unconstitutional underApprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S. Ct.2348 (2000). Defendant further claims that his sentences wereexcessive based on his young age, lack of criminal record, andrehabilitative potential.

The record below revealed the following facts. On July 9,1997, Mary Harris, age 71, was shot in front of her home locatedat 1608 South 19^th Street, Maywood, Illinois. Kerry Rouse, ateenager, was also shot in his side during the same shooting. Asa result of the gunshots, Harris died and Rouse was severelyinjured.

The record further indicated that the shots were fired bydefendant, who along with three other black males, conducted adrive-by-shooting in the intersection of 19^th and Van BurenStreets in Maywood. Testimony in the record revealed that theshooting was motivated by a rivalry between two gangs known asthe Four Corner Hustlers and the Blackstones.

Brian Holmes testified that he and defendant were bothmembers of the Four Corner Hustlers. On July 7, 1997, Holmesstated that he, Walter Blount, Keshan Huston, and defendant weredriving around Maywood when they saw Brian Moore, a fellow FourCorner Hustler. Blount, who was driving the car, pulled the carover so that they could converse with Moore. Moore claimed tohave been shot at by the Blackstones. After conversing withMoore, Holmes testified that the same four drove off to retrievea gun. According to Holmes, defendant retrieved a .380 caliberhand gun from the bushes in the alley at 16^th Street. Defendantput the weapon under his shirt and got back into the car. Holmessaid that the gun was retrieved in order to shoot at theBlackstones who hung out at the corner of 20^th and Van BurenStreets.

Holmes testified that the four drove by the intersection of19^th and Van Buren Streets several times as they examined a crowdof eight or nine people standing south of the intersection. Rouse testified that the crowd was about ten feet away from thefront door of Mary Harris' residence. On the fifth pass, Blountslowed the vehicle down and stated, "I think that's them." Atthat time, defendant fired five or six shots at the crowd fromthe vehicle's window. After the shots were fired, the four spedaway rapidly from the scene.

Rouse testified that, prior to the shooting, Harris wasstanding in her doorway and was attempting to move the crowd awayfrom the front of her home. Samuel Davis, Harris' common lawhusband, stated that Harris was 71 years old. He further saidthat late in the evening on July 9, 1997, Harris came into thebedroom and told him that she had been shot. She then fell tothe floor and was taken to the hospital where she was pronounceddead of a gunshot wound to the chest. Rouse stated that he wasshot in the side of his body and that he spent approximately sixweeks in the hospital recovering from the gunshot wound.

The police ultimately arrested defendant, Blount, andHolmes. In exchange for his testimony against defendant andBlount, Holmes received a six year prison sentence. Defendantand Blount were tried separately. After hearing all of theevidence, the trial judge found defendant guilty of first degreemurder and attempted murder. Defendant was sentencedconsecutively to 84 years' imprisonment for the first degreemurder conviction and to 27 years' imprisonment for the attemptedmurder conviction. As noted above, the trial court imposed anextended-term sentence for the murder under section 5-5-3.2(b)(4)(ii) of the Unified Code of Corrections on the groundthat the murder victim was 71 years old. 730 ILCS 5/5-5-3.2(b)(4)(ii) (West 1998). The trial court also concluded thatdefendant was eligible for consecutive sentences under section 5-8-4(b) of the Unified Code of Corrections because defendantinflicted severe bodily harm on the attempted murder victim. 730ILCS 5/5-8-4(b) (West 1998). We affirm the trial court for thefollowing reasons.

The constitutionality of extended-term sentencing under theApprendi decision was recently addressed by this court in Peoplev. Vida, No. 1-99-2922 (June 22, 2001). In Vida, the State firstargued, as it does here, that defendant waived the issue byfailing to raise it in the trial court. The Vida court disagreedciting People v. Wright, 194 Ill. 2d 1, 23, 740 N.E.2d 755, 766(2000)(holding that defendants' argument was not waived becausethe constitutionality of a statute may be raised at any time). People v. Vida, slip op. at 16. Thus, we conclude that defendanthas not waived the issue.

We note that in Apprendi, cited above, the Supreme Courtheld a New Jersey statute unconstitutional that allowed a judgeto increase the sentencing range for an offense where the courtfound that the defendant committed the crime with the purpose ofintimidating an individual or group based on a particularcharacteristic. Specifically, the Supreme Court stated, "[o]therthan the fact of a prior conviction, any fact that increases thesentence for a crime beyond the prescribed statutory maximum forthe relevant offense must be submitted to a jury and provedbeyond a reasonable doubt." Apprendi, 530 U.S. at 490, 147 L.Ed. 2d at 442, 120 S.Ct. at 2362-63.

As pointed out above, the trial court in the instant caseimposed an extended-term sentence based on the fact that thevictim's age exceeded 60 years at the time of the offense. Inhis brief, defendant maintains that the trial court's failure tosubmit to a jury the question of the victim's age as it pertainedto extended-term sentencing was unconstitutional under Apprendi.

The State maintains that the sentencing range for firstdegree murder can be 20 years' imprisonment up to and includingthe death penalty. Several Illinois cases have rejected thatsame argument. Those cases have held that the maximum statutorypenalty for first degree murder is that provided in section 5-8-1(a)(1)(a) of the Unified Code of Corrections (930 ILCS 5/5-8-1(a)(1)(a) (West 1994)(stating that a term shall be not less than20 years and not more than 60 years)), and that the imposition ofan extended-term sentence based on a finding by the trial courtthat the offense was accompanied by exceptionally brutal orheinous behavior indicative of wanton cruelty violates Apprendiwhere such findings are based on a relaxed evidentiary standard. See e.g., People v. Beachem, 317 Ill. App. 3d 693, 708, 740N.E.2d 389 (2000) (holding that 60 years is the "the prescribedmaximum sentence for first degree murder in this State" and thatan extended-term sentence of more than 60 years that is based ona finding of exceptionally brutal and heinous behavior "clearlyoffends" Apprendi).

We also recognize that another division of this court inVida, slip op. at 15-25, recently held instead that the statutorysections regarding extended-term sentencing and sentences ofimprisonment for a felony should be read together as part of anoverall sentencing scheme for murder when determining thestatutory range of possible penalties for first degree murder. Under such an approach, an extended-term sentence imposed upon ajudicial finding at sentencing that a statutory aggravatingfactor existed would not necessarily violate Apprendi. Thus,there is a split in authority in this district regarding how themaximum statutory penalty for first degree murder is to bedetermined. We need not adopt either of the approaches taken inthe above cases, however, because even assuming an Apprendiviolation occurred, we find it to be harmless error.

We have recently addressed whether the failure to presentproof of the victim's age under Apprendi could be subject to theharmless error rule in People v. Taki Peacock, No. 1-98-3552(August 21, 2001). We concluded in that case that, although an Apprendi violation may have occurred where the age of the victimwas not presented to the trier of fact as part of the indictmentand subjected to proof beyond a reasonable doubt, any violationthat did occur was harmless error and defendant's extended-termsentence was affirmed. Peacock, slip op. at 21. Our reasoningwas based on a review of the following cases.

In United States v. Nance, 236 F. 3d 820, 825, (7^th Cir.2000), the court found an Apprendi violation where the defendantwas subjected to a sentence in excess of the default statutorymaximum based on a finding by the trial court at sentencingregarding the amount of drugs involved. The court went on tohold that the failure to include an amount of drugs in theindictment and to submit that issue to a jury for proof beyond areasonable doubt was subject to harmless error analysis. Nance,236 F.3d at 825-26. The question to be asked, the court held,was whether it was clear beyond a reasonable doubt that arational jury would have found the defendant guilty absent theerror. Nance, 236 F.3d at 825. The court answered this inquiryin the affirmative and upheld defendant's sentence. Nance, 236F.3d at 826.

Likewise, in People v. Anderson, 236 F.3d 427 (8^th Cir.2001), the defendant was found guilty of conspiring tomanufacture methamphetamine based on an instruction that told thejury it need only find a "measurable amount" of methamphetamineto convict, rather than a specific amount. At sentencing, thetrial court made a finding that the conspiracy intended tomanufacture more than 50 grams of methamphetamine. Based on itsfinding, the court sentenced the defendant to 30 years'imprisonment, more than the maximum 20-year sentence allowedwhere only a "measurable amount" of methamphetamine was involved. Upon review, the court determined that although the imposition ofthe 30 year sentence contravened the rule in Apprendi, it washarmless beyond a reasonable doubt where no rational jury couldhave found the appellants guilty of the substantive offense andat the same time found that amount of methamphetamine theconspiracy sought to produce was less than the amount necessaryto support the sentence ultimately imposed by the court. Anderson, 236 F.3d at 429-30.

Finally, in People v. Rohlfs, No. 4-99-0048 (June 14, 2001),the defendant contended that his extended-term sentence violatedApprendi where it was imposed based on age of the victim and thatfact was not submitted to a jury and proved beyond a reasonabledoubt. The Fourth District held that the failure to ask the juryto determine the victim's age may have been harmless error wherethe victim testified she was 93 years old, there was no disputeregarding her age, and no reasonable jury could have found her tobe under the age of 60. Rohlfs, slip op. at 10-11. Although thecourt in Rohlfs ultimately affirmed the extended-term sentence ona different basis, we conclude its analysis of the age issue tobe relevant to our decision.

In the instant case, an extended-term was imposed based onat least one aggravating factor that the deceased victim was 60years of age or older. "A trial court need only a singlestatutory factor in aggravation to impose an extended sentence." People v. Benkowski, 215 Ill. App. 3d 615, 621, 575 N.E.2d 587(1991). During the trial in the instant case, Davis testifiedthat Harris was 71 years old at the time of her death. Such factwas undisputed by the parties and the finding by the trial courtdid not involve a weighing of evidence or an examination ofdefendant's mental state. We determine, therefore, that had theissue of the victim's age been submitted to a jury, a jury wouldhave still found defendant guilty beyond a reasonable doubt. As aresult, although an Apprendi violation may have occurred herewhere the age of the victim was not submitted to a jury, suchviolation amounted to harmless error and defendant's extended-term sentence for first degree murder is affirmed.

Defendant next claims that the consecutive sentences imposedby the trial judge were unconstitutional under Apprendi. Theconstitutionality of the consecutive sentencing statute under theApprendi decision was addressed by our supreme court in People v.Wagener, No. 88843 (Ill. Sup. Ct., June 1, 2001). See section 5-8-4(b) of the Unified Code of Corrections, 730 ILCS 5/5-8-4(b)(West 1998). As we noted above, "a party may challenge theconstitutionality of a statute at any time. [Citation.]" Wagener, slip op. at 9. Thus, defendant has not waived thisquestion based on his failure to raise it in the trial court assuggested by the State.

In Wagener, the court observed that, "Apprendi explicitlydisclaimed any holding regarding consecutive sentencing," andthat "decisions holding that consecutive sentencing triggersApprendi concerns are extending that case beyond its facts ***." Wagener, slip op. at 13-14. The court further recognized that,"[i]t is a well settled rule in this state that sentences whichrun consecutively are not transmuted thereby into a singlesentence. [Citations]." Wagener, slip op. at 14-15. Thus, wefind that Apprendi, which only addressed sentences for individualcrimes, is not implicated in the instant case. Wagener, slip op.at 14-15.

Defendant here was sentenced to an extended term of 84years' imprisonment for murder. We concluded above that suchsentence was within the proper sentencing range. The applicablesentencing range for attempted murder is not less than six yearsand not more than 30 years. 730 ILCS 5/5-8-1(3) (West 1998). The trial judge sentenced defendant to 27 years for attemptedmurder. The judge further found that, based on the severe harmcaused to the injured victim,a consecutive sentence for attemptedmurder was proper. See 730 ILCS 5/5-8-4(b) West 1998. We notethat the trial judge's sentences for murder and for attemptedmurder were within the statutory sentencing range. That is allthat is required by Apprendi. Wagener, slip op. at 16. Thus,the trial court's judgment is affirmed on the question ofconsecutive sentencing.

Defendant next claims that his sentences were excessive onthe grounds that he was young at the time of the offense, did nothave a significant criminal record, was enrolled in school,maintained strong family connections, and possessed a strongpotential for rehabilitation. We apply an abuse of discretionstandard when evaluating a sentencing order. People v.Maldonado, 240 Ill. App. 3d 470, 485, 608 N.E.2d 499 (1992). The supreme court has stated, "[o]ur decisions have firmlyestablished that the imposition of a sentence is a matter ofjudicial discretion and that, absent an abuse of discretion, thesentence of the trial court may not be altered on review.[Citations.]" People v. Perrequet, 68 Ill. 2d 149, 153, 368N.E.2d 882 (1977). Moreover, when the sentence chosen by thetrial court falls within the statutory range permissible for thepertinent criminal offense for which the defendant has beenconvicted, the sentence will not be disturbed absent an abuse ofdiscretion. People v. Jones, 168 Ill. 2d 367, 373, 659 N.E.2d1306 (1995). "The reviewing court will find an abuse ofdiscretion 'only if the judgment of the trial court is manifestlyunjust or palpably erroneous.' [Citation.]" People v. Dotson,214 Ill. App. 3d 637, 648, 574 N.E.2d 143 (1991).

Defendant claims that the trial court abused its discretionin imposing sentences on defendant because it failed to considermitigating factors such as defendant's age, absence ofsignificant criminal record, matriculation in school, closefamily ties, and rehabilitative potential. The record reveals,however, that the trial court did consider factors in mitigationand allowed the mitigation testimony of defendant's mother,brother, cousin, and attorney.

We note that, "the seriousness of the crime is the mostimportant factor in determining an appropriate sentence, not thepresence of mitigating factors such as the lack of prior record,and the [sentencing] statute does not mandate that the absence ofaggravating factors requires the minimum sentence be imposed.[Citation.]" People v. Redmond, 265 Ill. App. 3d 292, 307, 637N.E.2d 526 (1994). "Nor is the trial court required to accordgreater weight to defendant's potential for rehabilitation thanthe seriousness of the crime. [Citations.]" People v. Boclair,225 Ill. App. 3d 331, 335-36, 587 N.E.2d 1221 (1992). In thiscase, the trial court did consider mitigating factors which wereweighed against the severity of defendant's crimes which resultedin the death of a senior citizen and severe injury to a youngman. Based on the facts in this case, we do not find thesentences imposed upon defendant to be manifestly unjust orpalpably erroneous. Thus, we conclude that the trial court didnot abuse its discretion in regard to sentencing defendant.

Moreover, we are not persuaded by the sentences imposed uponother criminal defendants in the unrelated authority relied on bydefendant. The supreme court has stated that, "[i]f a sentenceis appropriate given the particular facts of that case, it maynot be attacked on the ground that a lesser sentence was imposedin a similar, but unrelated, case." People v. Fern, 189 Ill. 2d48, 62, 723 N.E.2d 207 (1999). We also note that the trial judgesentenced defendant within the applicable range for theconvictions of first degree murder and attempted murder.

The judgment of the trial court is affirmed.

Affirmed.

GORDON and COUSINS, JJ., concur.