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Defendant Barnett Carney was convicted of first degree murder and armed robberyafter a jury trial. The State charged defendant with three counts of first degreemurder for the killing of the decedent, Richard Frazier. The three counts werefor violation of section 9-1(a)(1) of the Illinois Criminal Code for intentionalmurder, section 9-1(a)(2) knowing murder, and section 9-1(a)(3) felony murder. 720 ILCS 5/9-1(a)(1), (a)(2) (West 1998). The predicate felony for the felonymurder count was armed robbery (720 ILCS 5/18-2 (West 1998)), a crime with whichdefendant was charged in a fourth count. The trial court sentenced defendant toconsecutive terms of 29 years for first degree murder and 10 years for armedrobbery.

Defendant appeals, arguing: (1) that he was denied his right to effectiveassistance of counsel because his attorney failed to request a separate juryverdict form for the offense of felony murder; (2) that the trial court erred whenit imposed consecutive sentences for first degree murder and armed robbery undersections 5-8-4(a) and (b) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a),(b) (West 1998)); and (3) that the trial court abused its discretion in imposingits sentences without properly considering all mitigating circumstances. Defendant filed a supplemental brief arguing that the Illinois consecutivesentencing scheme is unconstitutional because it violates the defendant's dueprocess and trial by jury rights. For the reasons that follow, we affirm in partand reverse in part.

On September 26, 1997, the decedent, Frazier, was shooting dice with Charles Eppsin front of the residence of 6401 South Maryland. Tamika Johnson, Epps' girlfriend, stood nearby watching for the police. After approximately 10 minutes, thegame was interrupted by three people. Johnson testified that one of theindividuals was wearing a Halloween mask and that the others wore hooded sweatshirts pulled tightly around their faces. She also testified that one of thehooded men and the masked man stopped where Frazier and Epps were shooting dice,and that the third man walked to the corner some 20 feet away. She stated thatafter seeing this, she ran toward the porch of the residence at 6401 SouthMaryland and got down on the ground. She was about 15 feet away from Frazier,Epps, and the two individuals.

Johnson testified that she heard the unknown men tell Frazier and Epps to get onthe ground and to surrender their money. She stated that, after both men got totheir knees, the man with the mask held a gun close to Frazier and took money fromhis pocket. After he retrieved the money, she saw Frazier try to fight with hisassailant. Johnson then heard a loud shot, and Frazier fell to the ground. Paramedics arrived shortly thereafter and administered first aid to Frazier. Frazier died 15 days later in the hospital as a result of complications arisingfrom the gunshot wound.

Officer Milton Owens, who was assigned to investigate the incident, interviewedJohnson and Epps. After the interview, he began looking for three men: defendant, Sean Tucker, and Kendall Morgan. A search of defendant's homeuncovered a Halloween mask in his bedroom. Police discovered a black handgunduring a search of Tucker's house. A later analysis of the weapon and a shellcasing found at the scene revealed that the casing had been fired from thatweapon.

Defendant later spoke to Assistant State's Attorney Muldoon, who reporteddefendant's account of what occurred on September 26, 1997, at trial. Accordingto Muldoon, defendant stated that he and Sean Tucker were driving in defendant'scar and that Tucker had the mask and the gun. When they arrived at 64th andMaryland, they saw a dice game in progress. Defendant indicated that Epps walkedover to their vehicle and told them that Frazier was "sweet," meaning that he wasan easy target for a robbery. At this point, they made a plan to rob the dicegame. Defendant stated that Tucker wore the mask and had the gun, and thatdefendant had a skull cap pulled over his head. Defendant and Tucker decided topretend to rob Epps and then take Frazier's money. Defendant stated that, whilehe pretended to pat down Epps, Tucker forced Frazier to the ground and took hismoney. Defendant then observed a struggle between the two, and Tucker shotFrazier. They took $4 from Frazier, Tucker ran home with the gun and mask, anddefendant went to run and hide. Defendant went to Tucker's house the next day toretrieve the mask.

In closing argument, the State argued that it did not have to prove that defendanthad any intent to kill the deceased and that, in order to find him guilty, thejury only needed to find that a murder had occurred during the course of a felony. The trial court then instructed the jury as to the charge of first degree murder:

"To sustain the charge of first degree murder, the State must prove the followingpropositions:

First: That the defendant, or one for whose conduct he is legally responsible,performed the acts which caused the death of Richarde Frazier; and

Second: That when the defendant, or one for whose conduct he is legallyresponsible, did so,

he intended to kill or do great bodily harm to Richarde Frazier;

or

he knew that his acts would cause death to Richarde Frazier;

or

he knew that his acts created a strong probability of death or great bodily harmto Richarde Frazier;

or

he was committing the offense of armed robbery.

If you find from your consideration of all the evidence that each one of thesepropositions has been proved beyond a reasonable doubt, you should find thedefendant guilty.

If you find from your consideration of all the evidence that any one of thesepropositions has not been proved beyond a reasonable doubt, you should find thedefendant not guilty."

Thereafter the State tendered and the court gave the jury general verdict formsfor first degree murder and armed robbery. The jury returned a verdict of guiltyon both offenses, and the court imposed consecutive sentences of 29 years for theoffense of first degree murder and 10 years for armed robbery.

On appeal, defendant first argues that the trial court erred in imposingconsecutive sentences for first degree murder and armed robbery under sections 5-8-4(a) and (b) of the Unified Code of Corrections. The applicable part of section5-8-4(a) states:

"The court shall not impose consecutive sentences for offenses which werecommitted as part of a single course of conduct during which there was nosubstantial change in the nature of the criminal objective, unless one of theoffenses for which defendant was convicted was a Class X or Class 1 felony and thedefendant inflicted severe bodily injury, *** in which event the court shall entersentences to run consecutively." 730 ILCS 5/5-8-4(a) (West 1996).

The meaning and application of section 5-8-4(a) and the exceptions containedtherein have been the subject of much litigation resulting in disagreement amongthe districts on various issues. In recent years, our supreme court has resolvedmany of these divisions. Most recently, the court found section 5-8-4(a) to beambiguous because it is susceptible to two equally reasonable and conflictinginterpretations. People v. Whitney, 188 Ill. 2d 91, 98, 720 N.E.2d 225, 229(1999). The court then interpreted section 5-8-4(a) and held section 5-8-4(a) torequire consecutive sentences where the defendant was convicted of either a ClassX or Class 1 felony and where he inflicted severe bodily injury during thecommission of that felony. Whitney, 188 Ill. 2d at 98-99, 720 N.E.2d at 229.⁽¹⁾ Relying on Whitney, defendant claims the trial court improperly imposedconsecutive sentences because the severe bodily injury, Frazier's death, wasproximately related to the murder count, not the Class X offense of armed robbery.

In his supplemental brief and argument, defendant contends section 5-8-4(a) isunconstitutional under Apprendi v. New Jersey because it violates the right of adefendant to due process and trial by jury by subjecting him to increasedpunishment without notice or a jury finding upon proof beyond a reasonable doubtof the facts qualifying defendant for the increased sentence. Apprendi v. NewJersey, 530 U.S. ___, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For thefollowing reasons, we find the statute unconstitutional and reverse the trialcourt on the sentencing issue.

The State argues in its supplemental brief and argument that the defendant waivedthis issue by not raising it in a timely filed post-sentencing motion. However,defendant could not have raised this issue in a timely fashion because Apprendi,the case upon which defendant primarily relies, was not decided until June 2000,over a year and a half after sentencing. Regardless of whether defendant waivedthe issue, we choose to address it under the plain-error doctrine becausesentencing issues are excepted from the doctrine of waiver when they affect adefendant's substantial rights. People v. Brials, 315 Ill. App. 3d 162, 170, 732N.E.2d 1109, 1116 (2000).

In Apprendi v. New Jersey, a New Jersey statute provided that the possession of afirearm for an unlawful purpose was a "second-degree" offense, punishable byimprisonment for between five and ten years. Apprendi, 530 U.S. at ___, 147 L.Ed. 2d at ___, 120 S. Ct. at 2351. Another statute, described as a "hate crime"law, provided for an extended term of imprisonment if the trial judge found by apreponderance of the evidence that the defendant acted with the purpose ofintimidating an individual based on race, color, gender, handicap, religion,sexual orientation or ethnicity. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at___, 120 S. Ct. at 2351. This hate crime statute extended the sentence for asecond-degree offense for between ten and twenty years. Apprendi, 530 U.S. at___, 147 L. Ed. 2d at ___, 120 S. Ct. at 2351. Thus, the trial judge unilaterallydetermined if the crime was motivated by bias based on race, etc. and thenincreased the sentence.

The Supreme Court found this statutory scheme violated the defendant's dueprocess rights and stated that "[o]ther than the fact of a prior conviction, anyfact that increases the penalty for a crime beyond the prescribed statutorymaximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at ___, 120 S. Ct. at 2362-63. The Courtfurther found that it was "unconstitutional for a legislature to remove from thejury the assessment of facts that increase the prescribed range of penalties towhich a criminal defendant is exposed. It is equally clear that such facts mustbe established by proof beyond a reasonable doubt." Apprendi, 530 U.S. at ___,147 L. Ed. 2d at ___, 120 S. Ct. at 2363.

After Apprendi, the law is clear that a jury must decide beyond a reasonable doubtany facts which would increase the range of defendant's sentence. Apprendi leftunanswered, however, the question of whether it applied to consecutive sentencing.

The Illinois Appellate Court recently addressed this issue and held that Apprendidoes apply to consecutive sentences and specifically, section 5-8-4(a). People v.Clifton, Nos. 1-98-2126 & 1-98-2324 (Cons.), slip op. at 52 (September 29, 2000). This court found that 5-8-4(a) operates differently from the extended sentencingstatute ruled unconstitutional in Apprendi. Clifton, slip op. at 52. Instead ofincreasing the range of sentences for a certain crime, our statute mandates when adefendant who is being sentenced for multiple convictions resulting from the samecourse of conduct will serve sentences concurrently or consecutively. The statuteworks to extend the range of sentences to which a defendant may be exposed for agiven course of conduct. Clifton, slip op. at 52-53.

If the court does not find that the defendant inflicted severe bodily injury, thesentences must run concurrently. Effectively, then, the maximum penalty would bethe longest sentence for the most serious offense. Clifton, slip op. at 53. Ifthe court found that the defendant caused severe bodily injury, the sentences mustrun consecutively. In that case, the defendant could be imprisoned for the sum ofthe maximum penalties for the two most serious felonies involved. Clifton, slipop. at 53.

The court followed Apprendi and agreed that "the relevant inquiry is one not ofform, but of effect "does the required finding expose the defendant to a greaterpunishment than that authorized by the jury's guilty verdict?" Apprendi, 530 U.S.at ___, 147 L. Ed. 2d at ___, 120 S. Ct. at 2365. The Clifton court found theeffect of section 5-8-4(a) "is that a factual finding of serious bodily injury bya judge will increase, even to the point of doubling, the actual and potentialsentence which the defendant may receive for a given course of conduct." Clifton,slip op. at 54. Clifton found the effect of the statute to violate the sameconstitutional principles the Supreme Court found so fundamental in Apprendi. Clifton, slip op. at 54. Therefore, Clifton held the consecutive sentencingscheme under section 5-8-4(a) to be unconstitutional. Clifton, slip op. at 55.

In this case, the judge determined the factual issue of whether the severe bodilyinjury to Richarde Frazier occurred during the commission of the armed robbery. The jury was never asked to decide these facts. Therefore, we hold that theimposition of consecutive sentences for the convictions of first degree murder andarmed robbery in this case under section 5-8-4(a) is unconstitutional underApprendi, Clifton and Whitney.

The State argues in its supplemental brief and argument that Apprendi only appliesto facts which increase the penalty for a crime beyond the prescribed statutorymaximum and therefore is not applicable to the present case. However, Apprendimakes clear that it is the effect of the statute, not the form, that controls. Weagree with Clifton that the effect of section 5-8-4(a) is that a factual findingby the judge as to severe bodily injury will increase the defendant's sentence. The effect of section 5-8-4(a), then, is very similar to the effect of the NewJersey statute the Supreme Court found unconstitutional in Apprendi. The State'sattempts to distinguish Apprendi from the present case are unpersuasive and weaccordingly reject them.

Defendant next asserts that section 5-8-4(b) does not apply to this case becausethe offenses occurred within a single course of conduct and, therefore,consecutive sentences were unwarranted. The State concedes this point as itfailed, both in its briefs and in oral arguments, to dispute defendant's claim. Therefore, we need not discuss this issue. Based on our determination, we neednot discuss defendant's other sentencing issues.

Defendant next claims that he was denied effective assistance of counsel at trial. In order to establish ineffective assistance of counsel, a defendant must proveboth prongs of the Strickland v. Washington test, deficiency and prejudice. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984);People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984). First, the defendantmust prove that counsel's performance was so deficient that defendant was deprivedof counsel as guaranteed by the sixth amendment. "A court measures counsel'sperformance by an objective standard of competence under prevailing professionalnorms." People v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163 (1999).

Second, the defendant must establish prejudice. The defendant must demonstrate"that there is a reasonable probability that, but for counsel's unprofessionalerrors, the result of the proceeding would have been different." Strickland, 466U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A reasonable probability isa probability sufficient to undermine confidence in the outcome and is more thanan "outcome-determinative" test. "The defendant must show that counsel'sdeficient performance rendered the result of the trial unreliable or theproceeding fundamentally unfair." Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1164. A defendant must satisfy both prongs of the Strickland test. Therefore, "failureto establish either proposition will be fatal to the claim." People v.Richardson, 189 Ill. 2d 401, 409, 727 N.E.2d 362, 369 (2000), quoting People v.Sanchez, 169 Ill. 2d 472, 487, 662 N.E.2d 1199, 1208 (1996).

Defendant argues that his attorney's performance was deficient because he failedto tender a separate felony murder verdict form. While the issues instructiondefined first degree murder under any one of four theories, the general verdictform submitted allowed the jury to find the defendant guilty of first degreemurder without specifying the theory upon which they relied.

When deciding whether counsel was competent, we must look to the state of the lawat the time of trial. The law in Illinois was well settled at that time thatseparate verdict forms were not mandatory. In People v. Travis, 170 Ill. App. 3d873, 890, 525 N.E.2d 1137, 1147 (1988), the court rejected the argument thatdistinctions between the various methods of the charge were required in juryverdict forms. It believed the best rule to be "that the jury need only beunanimous with respect to the ultimate question of defendant's guilt or innocenceof the crime charged, and unanimity is not required concerning the alternate waysin which the crime can be committed, and accordingly, we so hold." Travis, 170Ill. App. 3d at 890, 525 N.E.2d at 1147; see also People v. Diaz, 244 Ill. App. 3d268, 614 N.E.2d 268 (1993).

The committee note to the general verdict form in the Illinois Pattern JuryInstructions, Criminal, supports the holding in Travis. The committee commentedthat "distinguishing among the various ways in which a given charge is brought isnot required by law" and is "not mandatory." Illinois Pattern Jury Instructions,Criminal, No. 26.01, Committee Note (4d ed. 2000) (hereinafter IPI Criminal 4th). Therefore, defendant's claims that he and the jury were entitled to a separatejury verdict form are meritless.

The committee further states that the court "has the discretion" to use theseparate verdict form "whenever the court believes such use would assist the jury"in deciding guilt or innocence. IPI Criminal 4th No. 26.01, Committee Note. Defendant does not assert that a separate verdict form for felony murder wouldhave assisted the jury in his case. Although committee comments are not the law,the trial judge may deviate from the suggested format only where it is necessaryto conform to unusual facts or new law. People v. Banks, 287 Ill. App. 3d 273,280, 678 N.E.2d 348, 353 (1997). We do not find either situation here requiring adeviation from the committee notes. We therefore find that defense counsel'sperformance was not deficient and did not constitute ineffective assistance ofcounsel.

We further reject defendant's argument that counsel's failure to request aseparate verdict form demonstrated a failure to know the law. Under Illinois law,when a defendant is charged with several counts arising out of a single act and ageneral verdict is returned, sentence is imposed on the most serious offense. People v. Cardona, 158 Ill. 2d 403, 411, 634 N.E.2d 720, 723 (1994). Here,defendant was sentenced on the most serious crime of intentional first degreemurder and also on the armed robbery conviction. With the separate verdict form,defendant argues, the jury could have specifically chosen felony murder, therebyprecluding sentencing on the underlying felony of armed robbery.

Under People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977), multiple convictionsare improper if they are based on lesser-included offenses. See also People v.Smith, 183 Ill. 2d 425, 432, 701 N.E.2d 1097, 1100 (1998). Armed robbery is theunderlying felony of felony murder in this case and is, therefore, a lesser-included offense of felony murder. As such, the included offense of armed robberycannot support a separate conviction and sentence. People v. Coady, 156 Ill. 2d531, 537, 622 N.E.2d 798, 801 (1993), citing People v. Donaldson, 91 Ill. 2d 164,170, 435 N.E.2d 477, ___ (1982) ("defendant correctly notes that armed robbery wasthe offense underlying the felony murder charge and, as an included offense, willnot support a separate conviction and sentence"). Therefore, if the jury foundthe defendant guilty of felony murder, defendant could only be sentenced on thefelony murder conviction and not on the lesser-included offense of armed robbery. Defendant suggests counsel must have failed to recognize the potential fordisparate sentences.

Without addressing the substance of defendant's argument, we find that defendantcannot demonstrate any prejudice from the failure of defense counsel to request aseparate jury verdict form for felony murder based upon our decision to vacatedefendant's consecutive sentences. We hold, therefore, based on the above-mentioned committee note and case law, that the failure to tender a separatefelony murder jury instruction did not fall below an objective standard ofcompetence or constitute deficient performance at the time of trial. AfterApprendi v. New Jersey, however, the law may change with regard to juryinstructions and jury verdicts. Apprendi, 530 U.S. ___, 147 L. Ed. 2d 435, 120 S.Ct. 2348. Nevertheless, this is not the issue in the present case. Defendantcannot, therefore, establish either prong of the Strickland test and hisineffective assistance of counsel claim fails.

Defendant further argues that the trial court abused its discretion in sentencinghim to consecutive sentences of 29 years for first degree murder and 10 years forarmed robbery. To be properly preserved on appeal, an issue must be raised bothat trial and in a post-trial motion. People v. Enoch, 122 Ill. 2d 176, 186, 522N.E.2d 1124, 1129 (1988). Defendant did not raise this issue at the time ofsentencing or in a post-sentencing motion. Therefore, we find that the defendantwaived this argument.

However, we will briefly address the argument. Defendant argues that the sentencedoes not adequately take into account defendant's young age, lack of significantprior criminal history, rehabilitative potential and that he was found guilty on atheory of accountability.

"A reviewing court gives great deference to the trial court's judgment regardingsentencing because the trial judge, having observed the defendant and theproceedings, has a far better opportunity to consider these factors than thereviewing court, which must rely on the 'cold' record." People v. Fern, 189 Ill.2d 48, 53, 723 N.E.2d 207, 209 (1999). When a trial court sentences a defendantto a term of imprisonment within the statutory range, we will not disturb thatsentence absent an abuse of discretion. People v. Goyer, 265 Ill. App. 3d 160,169, 638 N.E.2d 390, 396 (1994). The trial court is the proper place to balancethe factors in mitigation and aggravation and make a reasoned decision as to theappropriate sentence. People v. Bell, 313 Ill. App. 3d 280, 282, 729 N.E.2d 531,534 (2000). This court presumes the trial court took the mitigating evidence intoconsideration, absent evidence to the contrary. People v. Zarka-Nevling, 308 Ill.App. 3d 516, 526, 720 N.E.2d 334, 341 (1999).

In this case, all of the factors the defendant raises were included in thepresentence investigation report, most of which were also discussed during thesentencing proceeding. The trial judge stated that she considered all of thefactors in aggravation and mitigation, together with all of the evidence and thepresentence investigation report, in formulating the sentence. The sentence of 29years for first degree murder was well within the statutory range for that crimeof 20 to 60 years. 730 ILCS 5/5-8-1(a)(1) (West 1998). Defendant's 10-yearsentence for armed robbery was also within the statutory range of 6 to 30 years. 730 ILCS 5/5-8-1(a)(3) (West 1998). Therefore, we find there was no abuse ofdiscretion in sentencing and the sentences were not excessive.

For the reasons set forth above, we thereby affirm Barnett Carney's convictionsfor first degree murder and armed robbery, but vacate his sentences and order hissentences to run concurrently.

Affirmed in part and vacated in part.

GREIMAN, J., and ZWICK, J., concur.

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