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SECOND DIVISION
April 24, 2001

SUPPLEMENTAL OPINION ON REHEARING

JUSTICE GORDON delivered the opinion of the court:

In these two consolidated cases, co-defendants MelvinClifton and Vincent Galloway appeal from the contemporaneousrespective judgments of the trial court convicting them each offirst degree murder, attempted first degree murder and aggravatedbattery with a firearm. Galloway argues on appeal that portionsof the gang-related testimony presented at trial were hearsay;both he and Clifton argue that such testimony was irrelevant andprejudicial, and was offered solely to inflame the jury. Cliftonargues that because the name of one of the witnesses providingthat testimony was submitted on the eve of trial, the statethereby committed a discovery violation. Clifton also arguesthat he was not tried within 120 days as required by the speedytrial statute (725 ILCS 5/103-5 (West Supp. 2000)), and thereforehis counsel's failure to move for dismissal for lack of a speedytrial denied him effective assistance of counsel. Finally,Clifton argues that there was insufficient evidence to prove himguilty beyond a reasonable doubt either as a principal or on anaccountability theory. For the reasons set forth below, weaffirm the judgment of the trial court as to each defendant.

Following simultaneous but severed jury trials, Galloway andClifton were found guilty of the first degree murder of LeonHolton (also known as Milkman) and of attempted first degreemurder and aggravated battery with a firearm in the shooting ofEddie Brown. Galloway was sentenced to prison terms of 80 yearsfor first degree murder and 40 years for attempted first degreemurder, to be served consecutively. Clifton received sentencesof 55 years for first degree murder and 25 years for attemptedfirst degree murder, also to be served consecutively.

Prior to trial, defendants, who were members of the GangsterDisciples street gang, moved in limine to bar the state fromintroducing evidence of their gang affiliation on the ground thatit would be more prejudicial than probative. The state hadsought to introduce testimony by Tom Richardson, a Chicago PoliceDepartment gang crimes specialist, to help establish what thestate asserted was the gang-related motive for the crime. According to the state, because of an alleged leadership vacuumin the Gangster Disciples resulting from the federal indictmentof 39 gang members on August 31, 1995, there was jockeying amongremaining gang members for leadership positions. As a result, agang leader named Chuck Dorsey was killed in January 1996, andHolton was suspected of having killed him. The state's theorywas that Gangster Disciples leader Larry Hoover was angry thatDorsey had been killed, and Galloway and Clifton, who heldsubordinate leadership positions in the gang, killed Holton inretaliation.

On February 5, 1998, the court heard argument and granteddefendants' motion in limine, stating that there would be nomention of gang affiliation. On February 19, the date that juryselection was scheduled to begin, the state submitted a motion toallow gang-related evidence as motive, including the testimony ofgang crimes specialist Richardson and of Philander Jenkins, acooperating witness in a concurrent federal investigation of theGangster Disciples. The state also filed a supplemental answerto discovery adding Jenkins' name to its list of potentialwitnesses. The case was continued on that date and on subsequentdates thereafter, with jury selection ultimately commencing onMarch 10, 1998. Jenkins testified at a pre-trial hearing onMarch 3, 1998, and on March 6, the trial court granted thestate's motion as to Jenkins, concluding that his testimony wassufficiently relevant to be presented to the jury, and that therewas no discovery violation even though Jenkins was not listed asa potential witness until February 19. The court subsequentlystated on March 11 that Richardson could testify as to theleadership structure of the Gangster Disciples and as to which ofits leaders were in federal custody, but he could not state thereason for the shootings.

The following evidence was adduced at trial. Eddie Browntestified for the state that on March 10, 1996, he and the murdervictim, Leon Holton, were driving around in Brown's car whenHolton called someone on his cell phone and then said he had togo and meet someone. Brown drove Holton to 78^th Street whereHolton saw a maroon Oldsmobile with the person he was to meetinside. Brown honked at the car, and the two cars pulled to theside of the road, with Brown's car behind the Oldsmobile. Brownsaid the two men in the Olds got out of their car and approachedhis car. He identified (in court) the man who got out on thepassenger side as Galloway, who he knew at the time as LegsDiamond, a member of the Gangster Disciples. The man who got outon the driver's side was hopping on a crutch and had a cast onhis leg. Brown said that man entered Brown's car and sat behindBrown in the back seat, and Galloway entered and sat in the backseat on the passenger side behind Holton. Galloway told Brownthe other man's name was Melvin, and Brown identified him incourt as Clifton. Brown said once the two men were in the car,he and Galloway talked about the Chicago Bulls basketball gamethat day. Holton then asked Clifton what was up, and Cliftonsaid he had paged someone and was waiting for a call back on hiscell phone.

Brown testified further that as he was about to turn aroundand say something, he noticed out of the corner of his right eyewhat looked like a silver tube extension behind him, and thenheard a "poof sound" like a gun with a silencer, and felt a painin his neck and knew he had been shot. Brown then grabbed thedoor handle, and as he was trying to get out of the car he felt asharp pain in his right hip and another in his back on the rightside. Brown got out of the car and tried to run but fell becausehe had been shot in the hip. As he was lying in front of his car,

Brown said he saw Galloway get out of the car on the passengerside, walk toward him and stand directly over him, pointing a gunat his head. Galloway then and there shot Brown in the foreheadand the upper right chest, and thereupon turned to Clifton, whohad exited the car and was standing nearby, and told him he wasout of bullets. Galloway and Clifton then ran to the maroonOlds, with Clifton hopping on his crutch, and the car took off.

Brown stated that he next called his sister on his cellphone, and his niece, Asunta Saddler, answered. Brown told herwho had shot him and where he was, and subsequently the policeand an ambulance arrived. Brown talked to a police officer whilehe was in the ambulance, and told him who shot him. Brown wasthen taken to a hospital.

The next afternoon, March 11, 1996, Brown said he talked totwo detectives, a male and a female, while he was in thehospital. They showed him four or five photos, from which heidentified Galloway. About two weeks later, on April 4, 1996,Brown went to the police station and viewed a series of photosfrom which he identified Clifton, whom he also identified incourt. On May 1, 1996, Brown went back to the police station andviewed a lineup from which he identified Galloway. Three dayslater he viewed another lineup and identified Clifton.

On cross-examination by Clifton's counsel, Brown concededthat he had not seen Clifton with a gun. Brown also said helearned when he was in the hospital that Holton had been shot butthat he did not know which of them was shot first. According toBrown, when he talked to his niece on his cell phone after theshooting he told her that Galloway had shot him, but he concededthat he did not remember "saying another guy." On March 12,1996, two days after the shooting, Brown spoke in the hospital toan assistant state's attorney (ASA) and a Chicago homicidedetective, and gave them an eight-page statement. Brown toldthem it was Galloway who shot him, but admitted in his testimonythat although he told the ASA there was a second person, he didnot remember telling them the second person's name was Melvin. The parties stipulated that in Brown's eight-page statement hedid not mention the name Mel or Melvin as being the second personwho was with Galloway.

On redirect, Brown stated that the first time he met Cliftonwas on March 10, 1996, and that if he did not mention Clifton'sname when he talked to the ASA and the police detective two dayslater, it was probably because he had forgotten it. Brown alsotestified that on April 4, 1996, after he identified Clifton'sphoto in a photo array, he asked the police detective what theperson's name was and the detective told him. Brown then toldthe detective that he remembered that the person who was withGalloway was named Melvin. In addition, Brown said he told agrand jury on April 12, 1996, that when he talked to his niece onthe night of the shooting, he told her that "Legs Diamond andMelvin" shot him.

Brown's niece, Asunta Saddler, testified for the state thatBrown called her at about 8:45 p.m. on March 10, 1996, saying hehad been shot and needed help. She asked him who had done it,and he told her "Melvin and Legs Diamond." On cross-examinationby Clifton's counsel, Saddler said that is what she told thepolice when she subsequently spoke to them on the telephone: that"Legs Diamond and Melvin" had done this.

The state's next witness, Chicago Police Sergeant JamesJackson, testified that when he arrived at the scene of theshooting on the night of March 10, 1996, he went to the ambulanceand talked to Brown, who told him that Legs Diamond had shot himand that there was another person with him but he did not knowhis name. Jackson also said he saw a black male with a fatalgunshot wound at the back of his head seated in the frontpassenger seat of a car parked on the south side of the street. Jackson later learned that the man was Holton. On cross-examination by Clifton's counsel, Jackson conceded that duringthe conversation in the ambulance Brown told him that Galloway"pulled a handgun" and shot Holton in the head, and that Gallowayshot Brown several times when he tried to flee from the car.

Chicago Police Detective Linda Drozdek stated that she andher partner, Detective George Carl, went to Christ Hospital thenight of March 10, 1996, to check on Brown's condition. Whilethey were there, hospital personnel gave Detective Carl a bulletthat had been recovered from Brown's clothes. The next day(March 11), Drozdek and Carl went back to the hospital and showedBrown a series of five photographs from which he identifiedGalloway as Legs Diamond. Brown told them that (unlike thephoto) Galloway at present had no hair.

Delilah Hunt next testified for the state. She stated thatin March 1996 Holton was her boyfriend. She testified that onthe morning of March 10, she and Holton drove to a restaurant andparked next to a car in which Galloway was sitting in thedriver's seat. She said Holton got out of their car and got intothe front seat of Galloway's car, and the two men talked for 10to 15 minutes. Hunt said she and Holton then returned to theirhouse, and at some point later he left. Hunt subsequentlylearned what had happened to Holton. The next morning, March 11,she met with Chicago Police Detective John Hamilton who showedher a series of photographs from which she identified Galloway. Hunt said she noticed that (unlike the photo) Galloway was "baldheaded" when she had seen him (the day before) in the restaurantparking lot. About four days after the shooting, Hunt sawGalloway and Clifton sitting together in a car. She said as sherode past, Clifton looked up and pointed at her, but she keptgoing and went home. About three hours later, Galloway came toher house and asked if Holton or Holton's son, Del, lived there,to which she answered "no." A week or so later, Clifton came toHunt's house and asked her if someone new had moved onto theblock. About three days after that, Galloway returned to Hunt'shouse and also asked if someone new had moved onto the block. Hunt said because she was "scared," she called the detectives whowere in charge of the case "sometime after that." On April 12,1996, while testifying before a grand jury, Hunt viewed a seriesof photos and identified Clifton.

The state also called Philander Jenkins, who testified thathe had been a member of the Gangster Disciples. Jenkins statedthat he was arrested by federal authorities on November 6, 1997,after having sold $4,500 worth of cocaine to a federal informant. Because he was facing a possible penalty of up to life in prisonwithout possibility of parole, Jenkins said he began cooperatingwith federal authorities. Jenkins also stated that the firsttime he said anything about the instant case was in mid-February1998 when he talked to ASA Brian Sexton about it. According toJenkins, though he spoke to federal authorities several timesfollowing his arrest in November 1997, they did not ask him aboutthis case.

Jenkins testified further that he was a Gangster Disciple onAugust 31, 1995, when 39 members of the gang were indicted infederal court. (Neither Jenkins nor any of the principals inthis case were among those indicted.) Jenkins named three of the39 who he said were board members, which is the rank just belowLarry Hoover, the head of the Gangster Disciples. In addition,Jenkins named another of the 39 who he said was a governor, whichis the next rank below a board member. Following the August 31indictments, Jenkins became a regent, which is below a governor. Jenkins identified Clifton in court and said Clifton was hisgovernor.

Jenkins also averred that around September 1995, a man namedChuck was running the Gangster Disciples for the entire city. InJanuary 1996, Chuck was murdered, and Jenkins said hesubsequently learned that there had been friction between Chuckand Holton, who held the rank of board member. According toJenkins, Holton "felt that he should have had the city and notChuck."

About two months later, in March 1996, Jenkins saw Cliftonwith a man he subsequently learned was Galloway. A couple ofdays after that, about four days before Holton's murder, Jenkinsattended a Gangster Disciples meeting which he said was called toreassure the members that, despite the previous indictments, "thegang was still going strong." Both Clifton and Galloway were atthe meeting. Galloway introduced himself as a (GangsterDisciples) board member, and Clifton, who Jenkins said had a castand was using crutches, introduced himself as a governor. According to Jenkins, at one point Clifton asked those present ifthey would kill a board member or governor if they were requiredto, and they answered yes.

A couple of days later (about two days before Holton'smurder), Jenkins said he met with Clifton in response to a pagefrom a gang member named Onion, and Clifton told Jenkins he was"having a problem" and "needed a couple of units," meaning guns. Jenkins obtained a .380 automatic and a Tech 9, and gave them toClifton. About two weeks after Holton's murder, Jenkins said hegave $500 to a board member named "Godfather," and gave as hisreason: "so Melvin [Clifton] could leave town."

Prior to cross-examination by Clifton's counsel, the partiesstipulated that Jenkins was debriefed by federal law enforcementofficials five times between November 6, 1997, and February 9,1998. On cross-examination, Jenkins reasserted that during thosedebriefings, he never told federal authorities that he had anyinformation about Holton's murder. On redirect, Jenkins statedthat no one ever identified for him the kind of weapon that wasused in Holton's murder.

The state also called Dr. Thamrong Chira, a Cook Countymedical examiner, who performed an autopsy on Holton on March 11,1996. Dr. Chira testified that Holton had a single gunshot woundentering at the back of his neck on the left side. There was noevidence of close-range firing, which meant that the muzzle ofthe gun had to be more than 18 inches from the entry wound. Dr.Chira also said the bullet traveled from left to right and fromback to front, and was found on the right side of Holton's neck. Given those two factors, Dr. Chira said it was more likely thatthe shooter was in the back seat behind the driver (Clifton'sposition) rather than on the passenger side. On cross-examination by Clifton's counsel, Dr. Chira conceded that if theperson on the passenger side had leaned forward and shot thedriver first and then turned and shot Holton on an angle fromwhere the driver was located, it was possible that Holton couldhave been shot by someone in the rear passenger seat. Dr. Chirasaid the shot had to have come from a little to the left andbehind the victim.

The parties stipulated that if Robert Smith, a ChicagoPolice Department firearms examiner, were called, he wouldtestify that in his opinion the fired bullet recovered fromChrist Hospital (from Brown's clothes) had the same classcharacteristics as having been fired from a .380 automaticpistol. Smith would testify that in his opinion the same wastrue of a fired bullet recovered from Holton's body, and of fivecartridge casings recovered from the scene of the shootings.

The state next called Thomas Richardson, a detective in theChicago Police Department's gang crimes unit who also wasdetailed to an ongoing federal investigation of the GangsterDisciples. Richardson's testimony corroborated that of PhilanderJenkins as to the gang's leadership hierarchy and the August 31,1995, federal indictments of 39 Gangster Disciples. Richardsonalso stated that Holton, the murder victim, had been a boardmember for two to three years prior to the August 31 indictmentsand that he was elevated to that position because he was "a veryprosperous narcotics dealer on the South Side" and had "a lot ofmoney" and "a lot of power." According to Richardson, after the39 were indicted, Chuck Dorsey "was given the OK" by GangsterDisciples leader Larry Hoover to take control of the city for thegang. On January 4, 1996, Dorsey was shot and killed.

The state's next witness, Chicago Police Detective JohnHamilton, testified that on April 26, 1996, the FBI notified himthat Clifton had been taken into custody in Fort Wayne, Indiana. Hamilton and his partner, Detective Timothy Bagdon, went to FortWayne and talked to Clifton that evening in an office in theAllen County Jail. Upon being asked if he knew where Gallowaywas, Clifton said he had not seen Galloway since "that date,"which he explained was the day Holton was killed.

Galloway was arrested in Chicago on April 30, 1996, andHamilton said he and Bagdon spoke with him that day. After beingadvised of his rights, Galloway told them he was a board memberwith the Gangster Disciples and that he had known Clifton forseveral years and they were friends. Galloway also said he knewHolton (the murder victim) but that he and Holton were "notclose." According to Galloway, Holton had not earned his way upthrough the ranks as others in the gang had but instead was givenhis position as board member "because of his money." Gallowaysaid Holton was not well liked for that reason and "because hethrew his weight around." Galloway also denied any knowledge ofor involvement in Holton's murder.

Hamilton testified further that he and Bagdon returned toFort Wayne, Indiana, on May 3, 1996, to bring Clifton back toCook County. During the drive back to Chicago, Clifton askedHamilton what was up with his case, and Bagdon advised Clifton ofhis rights. Hamilton said Clifton then had a conversation withthem, stating that he was a governor in the Gangster Disciplesand that he knew Galloway and had known him for several years. Clifton also said he knew Holton and knew that he was a boardmember in the gang. Clifton also denied any knowledge of orparticipation in Holton's murder.

On cross-examination by Clifton's counsel, Hamilton concededthat when he showed Eddie Brown a photo array which includedClifton's photo, Brown never told him that he saw Clifton with agun.

The juries found each defendant guilty of the first degreemurder of Holton and of attempted first degree murder andaggravated battery with a firearm in the shooting of Brown. Asnoted previously, Galloway was sentenced to a total of 120 yearsin prison, and Clifton received sentences totaling 80 years. These two consolidated appeals followed.

Galloway argues on appeal that portions of the testimonygiven by Philander Jenkins and Detective Thomas Richardson werehearsay and that the trial court abused its discretion byadmitting that testimony. We agree in part with Galloway thatportions of the testimony to which he objected were hearsay, butwe conclude that as to those portions, any error in admittingthem was harmless.

According to Galloway, the following portions of testimonygiven by Jenkins over objection constituted inadmissible hearsay:(1) that after Chuck Dorsey's murder, Jenkins learned fromtalking to other Gangster Disciples that there had been tensionbetween Holton and Dorsey and that Holton felt he should havebeen running the gang's Chicago operation instead of Dorsey; (2)that during a Gangster Disciples meeting that Jenkins attendedshortly before the shootings, Clifton asked those present if theywould kill a board member or governor; and (3) that Clifton toldJenkins two days before the shootings that he needed "units,"meaning guns.

The first of the foregoing statements is clearly based oninadmissible hearsay. Jenkins testified that he did not knowHolton personally and that he learned of the conflict betweenHolton and Dorsey from talking to other gang members. ThusJenkins described a conflict of which he had no personalknowledge and about which he learned from others who were notsubject to cross-examination at trial. This meets the definitionof rank hearsay. See People v. Rogers, 81 Ill. 2d 571, 577, 411N.E.2d 223, 226 (1980) (hearsay defined as "testimony of an out-of-court statement offered to establish the truth of the matterasserted therein, and resting for its value upon the credibilityof the out-of-court asserter"). The mere fact that the sourcesof his information refer to more than one person does not changethe character of this testimony as rank hearsay. Cf. Galindo v.Riddell, Inc., 107 Ill. App. 3d 139, 145, 437 N.E.2d 376, 381(1982) (testimony about results of survey held to be inadmissiblehearsay where survey not shown to have used methods generallyaccepted in scientific community to produce statisticallyaccurate results). Furthermore, there can be no question thatthe statement was offered for the truth of the matter asserted:namely, that Holton was in a power conflict with Dorsey as abasis upon which Clifton and Galloway presumed Holton to beDorsey's killer. See Rogers, 81 Ill. 2d at 577, 411 N.E.2d at 226. As the trial court noted in a conference out of thepresence of the juries, that testimony was "classic hearsay."

The second of the foregoing statements, namely Clifton'squestion about killing a board member or a governor, is alsoinadmissible hearsay with respect to Galloway. The state arguesthat the question is admissible because it was offered not forthe truth of the matter asserted but "for the purpose of showingthat defendant Galloway was on notice and had knowledge ofcertain events that took place before the crime." See People v.Sanchez, 189 Ill. App. 3d 1011, 1016, 546 N.E.2d 268, 271 (1989). We disagree. If the question were offered to show that Gallowaywas hatching a plot or attempting to recruit gang members toparticipate in the killing of a gang official, it clearly wouldbe inadmissible in that it was being offered for the truth of itscontent. If on the other hand it is offered, as the statecontends, to show that Galloway was put on notice that some sortof recruitment was being mounted, such notice on Galloway's partis insufficiently relevant even as part of the chain of evidencenecessary to establish Galloway's culpability. Since it wasestablished by direct testimonial evidence at trial that Gallowaywas present when the crime took place and that he shot EddieBrown, the only question as to Galloway upon which there wasmerely circumstantial evidence was whether it was Galloway orClifton who shot Holton. Thus the only apparent purpose as toGalloway for the state to offer Clifton's question would betowards establishing the accountability of Galloway for Holton'smurder even if the actual shooting were done by Clifton. Asshall be discussed later, accountability can be shown by a numberof factors including the defendant's presence during the planningof the crime. See People v. Walker, 230 Ill. App. 3d 377, 388,594 N.E.2d 1252, 1259 (1992). However, establishing thatGalloway had notice of Clifton's possible recruitment of fellowgang members to kill a gang official is too remote to helpestablish Galloway's involvement in that killing, even inconjunction with other evidence. See People v. Floyd, 117 Ill.App. 3d 168, 173, 453 N.E.2d 30, 33 (1983) (state-of-mindexception to hearsay rule applies only where declarant's state ofmind is relevant to a material issue in the case).

The third statement, Clifton's telling Jenkins that heneeded guns, is on its face rank hearsay being introduced for thetruth of its content. The state presents no argument to suggestthat this statement is admissible under any exception to thehearsay rule or that it can be viewed as a verbal act. We do notmean to imply, however, that Jenkins' testimony that he gave twoguns to Clifton was hearsay. That statement was clearly based onJenkins' personal knowledge, and no statement by an out-of-courtdeclarant was involved.

According to Galloway, the following testimony by DetectiveRichardson was hearsay: 1. that Galloway was a board member inthe Gangster Disciples in late 1995 or early 1996; 2. testimonyas to the internal organization of the Gangster Disciples: thatLarry Hoover was the leader, and that below him, in rank order,were the board members, governors, regents, coordinators, andsoldiers; 3. that 39 members of the Gangster Disciples wereindicted on August 31, 1995, including some board members andgovernors; 4. that the murder victim, Holton, was a board member,a position he held for two or three years prior to August 31,1995, and that he became a board member because he was a "veryprosperous narcotics dealer on the South Side" and thus had "alot of money" and "a lot of power"; and 5. that after the 39 wereindicted in August 1995, Hoover gave "the OK" for Chuck Dorsey totake control of the city of Chicago for the gang, and that Dorseywas murdered on January 4, 1996.

Police testimony regarding gang activity is admissible if 1.it qualifies as expert opinion, 2. it is relevant, and 3. itsprejudicial effect does not outweigh its probative value. Peoplev. Cruzado, 299 Ill. App. 3d 131, 141, 700 N.E.2d 707, 714-15(1998); People v. Davenport, 301 Ill. App. 3d 143, 150, 702N.E.2d 335, 341 (1998). Regarding the first prong of this test,a witness qualifies as an expert if "because of his skill,training, or experience, he is better able to form a moreaccurate opinion as to the matter under consideration than is anordinary person." People v. Ayala, 208 Ill. App. 3d 586, 593,567 N.E.2d 450, 455 (1990). Specialized formal training isunnecessary, and experience alone can qualify a witness as anexpert. Ayala, 208 Ill. App. 3d at 593, 567 N.E.2d at 455. Solong as the testimony is based upon information "of a typereasonably relied upon by experts in the field," it is proper"even though the information may not be admissible in evidence." People v. Jackson, 145 Ill. App. 3d 626, 634, 495 N.E.2d 1207,1214 (1986).

Detective Richardson clearly qualifies as an expert. Hetestified at trial that he had been a Chicago police officer for27 years and a gang specialist for 18. His main function as agang specialist was to monitor and obtain information aboutstreet gangs, including the Gangster Disciples. Further, since1992 he had been detailed to an investigation with federalauthorities into the Gangster Disciples. See Ayala, 208 Ill.App. 3d at 590, 593-94, 567 N.E.2d at 453, 455 (holding qualifiedas expert a gang crimes specialist with two years experience inneighborhood where crime occurred); Jackson, 145 Ill. App. 3d at634, 495 N.E.2d at 1214 (gang specialist with five yearsexperience in investigation of gangs in the area held qualifiedas expert).

However, it still must be determined whether the testimonythat Richardson gave at trial qualified as expert opinion. Forpurposes of our analysis, Richardson's testimony can be dividedroughly into two categories: (1) that dealing with the internalhierarchy and structure of the Gangster Disciples, and (2)testimony dealing with more specific matters such as that Holtonacquired his board-member position because of his money andpower, or that Chuck Dorsey "was given the OK by Larry Hoover" totake control of the city for the gang. As to the first category,there is little question that it qualifies as expert opinion. InPeople v. Cruzado, 299 Ill. App. 3d 131, 700 N.E.2d 707 (1998), agang crimes specialist's testimony as to matters such as gangstructure was held to qualify as expert opinion where there was"no showing that the average layperson has any understanding ofthe inner workings of gangs *** or of the jury's common knowledgeof them." Cruzado, 299 Ill. App. 3d at 141, 700 N.E.2d at 715. There was no such showing in the instant case. See also Peoplev. Davenport, 301 Ill. App. 3d 143, 150, 702 N.E.2d 335, 341(1998) (holding that it was reasonable to conclude that"layperson does not have the same opportunity to observe andlearn about the detailed hierarchy and activities of street gangsas did [gang specialist who testified]").

Richardson's more detailed testimony also qualifies asexpert opinion. Similar testimony has been held by other courtsto be admissible. In Jackson, for example, a gang specialist notonly explained the "organizational structure of the 'BlackDisciples' around 4410 South State [in Chicago]," he also"identified Ricky Knight as the leader of the unit at 4410 SouthState, defendant as second in command, and Fields, known as'Stokes' or 'Boo Boo,' as the number three man in the unit." Jackson, 145 Ill. App. 3d at 630-31, 495 N.E.2d at 1212. Thattestimony was held admissible, with the court emphasizing that itwas based "on many different sources, including personalobservation and gang infiltration, and [the gang specialist's]testimony that he verified and investigated information learnedfrom others." Jackson, 145 Ill. App. 3d at 634, 495 N.E.2d at1214; cf. People v. Washington, 127 Ill. App. 3d 365, 386-87, 468N.E.2d 1285, 1300-01 (1984) (investigator's testimony regardingdefendant's gang membership held inadmissible where based solelyon information from one unnamed informant). The court in Jacksonconcluded that the gang specialist's testimony "appear[ed] to bebased on facts or data reasonably relied upon by experts in thefield of street gangs" (Jackson, 145 Ill. App. 3d at 634, 495N.E.2d at 1214), explaining that:

"[a]s a matter of practicality, the method ofinformation-gathering used by [the gang specialist] isprobably the only way a non-gang member can accumulatedetails of gang activity and membership rank. Furthermore, [the gang specialist's] testimony is basedon more data than are available to an averagelayperson" (Jackson, 145 Ill. App. 3d at 634, 495N.E.2d at 1214-15).

Thus the Jackson court stressed the pragmatic necessity foraccessing a number of different sources, as well as the gangspecialist's superior capability (compared to that of thelayperson) in accessing those sources.

Similarly, in People v. Mendez, 221 Ill. App. 3d 868, 871,582 N.E.2d 1265, 1267 (1991), a Chicago police gang crimesspecialist testified that two rival gangs existed in the areawhere a shooting took place and that the petitioner was a memberof one of them. The court held that the testimony was properlyadmitted. Mendez, 221 Ill. App. 3d at 874, 582 N.E.2d at 1270.

Likewise, the California decision in People v. Gamez, 286Cal. Rptr. 894 (Cal. Ct. App. 1991), is instructive. In thatcase, which involved a drive-by shooting arising from a disputebetween the rival Southside and Highland Street gangs, one gangexpert "opined [that] the shooting was a 'pay-back' for a priorshooting by Highland Street against Southside." Gamez, 286 Cal.Rptr. at 896. Another expert "opined [that] defendant was amember of Southside." Gamez, 286 Cal. Rptr. at 896. Thedefendant argued that such testimony was nothing more thanhearsay, but the court disagreed, explaining that:

"[w]e fail to see how the officers could profferan opinion about gangs, and in particular about gangsin the area, without reference to conversations withgang members. *** To know about the gangs involved, theofficers had to speak with members and their rivals. Furthermore, the officers did not simply regurgitatethat which they had been told. Rather, they combinedwhat they had been told with other information,including their observations, in establishing afoundation for their opinions." Gamez, 286 Cal. Rptr.at 899-900.

The method described by the Gamez court is essentially the sameas the one approved in Jackson: talking to gang members and theirrivals, and combining that information with information fromother sources in arriving at the expert's testimony. Seegenerally Note, The Limitations of Daubert and its Misapplicationto Quasi-Scientific Experts, 35 Washburn L.J. 134, 140-47 (1995)(discussing the inappropriateness of applying the Daubert factorsto nonscientific testimony such as that of a police gang crimesexpert).

In the instant case, Richardson's testimony also was drawnfrom a variety of sources. Early in his testimony, he describedthe various ways in which he was able to monitor the GangsterDisciples:

"The best way is to get out on the street and you getin with the gang, the gang members. You talk to them. You talk to rival gang members. We go to differentpenitentiaries. You talk to members that areincarcerated. We work with C/Is, that's confidentialinformants, concerned citizens. We deal with the Boardof Education, the CAPS program. We deal with outsideagencies. Like I said before, the federal government,DEA, FBI, Secret Service, Immigration. We deal withall the suburban police departments. I have contactsin New York, L[os] A[ngeles], Florida, and Texas. Wekeep in contact with all the gang agencies throughoutthe United States."

Unlike the investigator in Washington, Richardson drew on avariety of sources including conversations on the street withGangster Disciples and rival gang members, talks withincarcerated gang members, information gleaned from confidentialinformants, and contacts with outside agencies such as the FBIand suburban police departments. Because of his role as a gangcrimes specialist, he was able to access those sources using amethod which, as the Jackson court noted, "is probably the onlyway a non-gang member can accumulate details of gang activity andmembership rank." Jackson, 145 Ill. App. 3d at 634, 495 N.E.2dat 1215. Accordingly, consistent with established precedent, webelieve that Richardson's evidence qualified as expert testimony. As to the second prong of the admissibility test,Richardson's testimony is relevant to the state's gang-relatedmotive. "Relevant evidence is that which has any tendency tomake the existence of a fact of consequence to the determinationof the action more or less probable than it would be without theevidence." Davenport, 301 Ill. App. 3d at 150-51, 702 N.E.2d at341-42. Further, though courts acknowledge that there may bestrong prejudice against street gangs, particularly inmetropolitan areas, it is nevertheless well-established that"[g]ang-related evidence is admissible to show common purpose ordesign, or to provide a motive for an otherwise inexplicableact." Davenport, 301 Ill. App. 3d at 151, 702 N.E.2d at 342;Cruzado, 299 Ill. App. 3d at 142, 700 N.E.2d at 715. "However,such evidence must relate to the crime charged." Davenport, 301Ill. App. 3d at 151, 702 N.E.2d at 342.

Here, as noted, Richardson's testimony is relevant to thestate's gang-related motive, and it is thereby related to thecrime charged. His testimony about the indictment of the 39Gangster Disciples (including some high-ranking members) helpedsupport the state's claim that there was a leadership vacuum inthe gang. Richardson also testified that Hoover had named Dorseyto his city-wide leadership post and that Dorsey was subsequentlykilled, that Holton attained his board member position primarilybecause of his money and power (and, by implication, not becauseof merit), and that Galloway and Clifton held leadershippositions in the gang below Hoover. If Hoover named Dorsey tohis post, it is not unlikely that he would be angry that Dorseywas killed, nor is it unlikely that Galloway and Clifton, as gangleaders below Hoover, might be motivated to kill Holton inretaliation. Thus Richardson's testimony tended to show thatdefendants had a motive for killing Holton and shooting Brown,and his testimony thus is relevant because it rendered it morelikely that they did commit those crimes. See People v. Smith,141 Ill. 2d 40, 56, 565 N.E.2d 900, 906 (1990). The samereasoning applies to the testimony of Jenkins, which also wasclearly relevant.

It is also manifestly apparent that Richardson's testimonyis more probative than prejudicial, thus satisfying the thirdprong of the test. As noted, gang-related evidence, even thoughit might be prejudicial, is admissible "to provide a motive foran otherwise inexplicable act." Davenport, 301 Ill. App. 3d at151, 702 N.E.2d at 342. Here, were it not for the gang-relatedevidence, the killing of Holton and the shooting of Brown wouldbe inexplicable. According to the competent evidence presentedat trial, the shootings occurred shortly after Galloway andClifton entered Brown's car. Sitting in the back seat, Gallowaytalked briefly with Brown, the driver, about the Chicago Bullsgame earlier that day. Then, in response to a question fromHolton, Clifton said he was waiting for a call on his cell phone. Shortly thereafter, Holton was killed and Brown was shot fivetimes and apparently left for dead. There was no evidencesuggesting that this was a drug deal gone sour or indeedsuggesting any other motive at all for the shootings. Richardson's gang-related evidence helped establish a motive forthese otherwise inexplicable acts, and therefore was not moreprejudicial than probative. See Cruzado, 299 Ill. App. 3d at142, 700 N.E.2d at 715; Davenport, 301 Ill. App. 3d at 151, 702N.E.2d at 342. The same is true of Jenkins' testimony, and wetherefore reject the argument that it was more prejudicial thanprobative, and offered solely to inflame the jury.

Even if Richardson's testimony were inadmissible hearsay, itwould not necessitate reversal. As previously noted, any errorin admitting hearsay testimony was harmless in view of theoverwhelming, non-hearsay evidence against Galloway. See Peoplev. Grant, 69 Ill. App. 3d 940, 944, 387 N.E.2d 1087, 1091 (1979)(trial error deemed harmless where evidence supportingdefendant's conviction is so overwhelming that the convictionwould result even if the error was eliminated); Davenport, 301Ill. App. 3d at 153, 702 N.E.2d at 343 (error deemed harmlesswhere court is satisfied beyond reasonable doubt that it did notcontribute to defendant's conviction).

Here, Eddie Brown, the surviving victim, identified Gallowayas the man who shot him five times, three of them while Brown wasstill in the car where Holton was killed. Brown also identifiedClifton as the man accompanying Galloway. Thus Galloway wasplaced by competent testimony with Clifton in the car where (andwhen) the murder and attempted murder took place, and holding(and firing) a gun of the same caliber as one of the guns thatPhilander Jenkins testified he gave Clifton a couple of daysearlier. As to the gang-related testimony of Jenkins andRichardson, Galloway himself admitted to Detective Hamilton thathe was a board member in the Gangster Disciples; that he hadknown Clifton for several years; and that he knew Holton, whoGalloway said had gotten his position as a board member becauseof his money instead of earning his way up through the ranks. Hence, even if any error in admitting hearsay testimony wereeliminated, the evidence remaining against Galloway would stillhave been overwhelming. Thus Galloway suffered no manifestprejudice (see People v. Lucas, 151 Ill. 2d 461, 489, 603 N.E.2d460, 473 (1992)), and it would be reasonable to conclude that anyerror in admitting hearsay would not have contributed to hisconviction (see Davenport, 301 Ill. App. 3d at 153, 702 N.E.2d at343.⁽¹⁾

[Non-publishable material under Supreme CourtRule 23 omitted here.]

Finally, while this cause was pending on appeal, the UnitedStates Supreme Court issued its decision in the case of Apprendiv. New Jersey, ___ U.S. ___, 147 L.Ed.2d 435, 120 S.Ct. 2348(2000). In a supplemental brief, Clifton contends⁽²⁾ that Apprendirenders section 5-8-4(a) of the Unified Code of Corrections (730ILCS 5/5-8-4(a)(West 1997)), unconstitutional because thatsection imposes consecutive sentences if, inter alia, the courtmakes a factual finding that severe bodily injury occurred duringthe commission of the crimes in question. Clifton argues thatpursuant to Apprendi such a factual determination must be made bya jury and not by the court. Since he was sentenced toconsecutive sentences pursuant to this provision, Cliftoncontends that his sentences must be changed to run concurrently. Also in a supplemental brief, the State contends that Clifton haswaived this issue on appeal and that Apprendi does not apply tothe consecutive sentencing statute.

We will first address the State's waiver argument. TheState contends that Clifton has waived consideration of thismatter on appeal by failing to raise it in a timely post-sentencing motion, based on our supreme court's decision inPeople v. Reed, 177 Ill. 2d 389, 686 N.E.2d 584 (1997)(sentencing issues must be raised in a post-sentencing motion topreserve them for appellate review). However, we find that thisissue is controlled by our supreme court's subsequent decision inPeople v. Wilson, 181 Ill. 2d 409, 413, 692 N.E.2d 1107, 1108(1998) ("We find that under [People v. Williams, 179 Ill. 2d 331,688 N.E.2d 1153 (1997)], a challenge to a trial court's statutoryauthority to impose a particular sentence is not waived when adefendant fails to withdraw his guilty plea and vacate thejudgement"). The clear implication of Wilson is that whenever adefendant challenges the trial court's statutory authority toimpose a particular sentence, those contentions are not subjectto waiver. Here Clifton argues that his sentence was imposedpursuant to an unconstitutional statute.⁽³⁾ We will thus addressClifton's substantive arguments based on Apprendi.

In Apprendi the supreme court held that "[o]ther that thefact of a prior conviction, any fact that increases the penaltyfor a crime beyond the prescribed statutory maximum must besubmitted to a jury and proved beyond a reasonable doubt." Apprendi, ___ U.S. at ___, 147 L.Ed.2d at 455, 120 S.Ct. at 2362-63. The court further endorsed the statement that it "isunconstitutional for a legislature to remove from the jury theassessment of facts that increase the prescribed range ofpenalties to which a criminal defendant is exposed. It isequally clear that such facts must be established by proof beyonda reasonable doubt." Apprendi, ___ U.S. at ___, 147 L.Ed.2d at455, 120 S.Ct. at 2363. The Apprendi court held unconstitutionala New Jersey statute which increased the range of sentence forsecond degree offenses where the court found that the crime wasmotivated by bias based on, inter alia, race. Apprendi, ___ U.S.at ___, 147 L.Ed.2d at 456, 120 S.Ct. at 2364-65. Apprendi,however, did not address the issue of consecutive sentences.

We are thus presented with the novel question of whether theApprendi regime applies to section 5-8-4(a). If the statute inquestion increased the penalty range or the maximum penalty for aparticular crime, it would seem that the statute wouldunquestionably be within the scope of Apprendi. However, section5-8-4(a), operates differently from the sort of extendedsentencing statute found unconstitutional in Apprendi. Ratherthan increasing the range of sentence for a particular crime, itcontrols, inter alia, when a defendant who is being sentenced formultiple convictions resulting from the same course of conductwill serve those sentences concurrently and when he will servethose sentences consecutively.

While there are formal distinctions between the types ofstatutes involved in Apprendi and in this case, we find itdifficult to distinguish between a statute enhancing anindividual sentence from a statute requiring an extended periodof incarceration, albeit through the stacking of two non-enhancedsentences. It would be anomalous to hold that where a statutemandates the enhancement of an individual sentence theenhancement factors must be tried by the jury while a statuterequiring an extended period of service by requiring consecutivesentences would remain outside the purview of the Apprendirationale. While section 5-8-4(a) does not affect the range ofsentence for any particular crime, it does, obviously, have agreat effect on the amount of time a given defendant will spendin the penitentiary. Normally, sentences are to be servedconcurrently when a defendant is sentenced for multiple crimeswhich were part of the same course of conduct. Section 5-8-4(a)states:

"The court shall not impose consecutive sentences foroffenses which were committed as part of a singlecourse of conduct during which there was no substantialchange in the nature of the criminal objective, unless,one of the offenses for which defendant was convictedwas a Class X or Class 1 felony and the defendantinflicted severe bodily injury." 730 ILCS 5/5-8-4(a)(West Supp. 1997).

However, if the court finds that the defendant inflicted severebodily injury, the sentences will run consecutively. Thus, whilesection 5-8-4(a) does not enhance the sentence for any particularcrime, it does extend the range of sentence to which a defendantmay be exposed for a given course of conduct.

If the court does not make a finding that the defendantinflicted severe bodily injury the maximum penalty to which thedefendant is exposed for a given course of conduct is effectivelythe maximum penalty for the offense with the longest possiblesentence because any other sentences will run concurrently. Thusthe defendant would not be incarcerated for longer than thatperiod. However, if the court finds that the defendant inflictedsevere bodily injury the sentences run consecutively. Then thedefendant could potentially be incarcerated for the aggregate ofthe maximum penalties for the two most serious felonies involved. 730 ILCS 5-8-4(c)(2)(West Supp. 1997). Thus, the practicaleffect of section 5/5-8-4(a) is that a factual finding of seriousbodily injury by a judge will increase, even to the point ofdoubling, the actual and potential sentence which the defendantmay receive for a given course of conduct.

This is precisely the type of result which the supreme courtmeant its holding in Apprendi to encompass. In deciding to holdthe New Jersey statute unconstitutional the court focused on theeffect of the statute, not its form. Apprendi, ___ U.S. at ___,147 L.Ed.2d at 457, 120 S.Ct. at 2365 ("the relevant inquiry isnot one of form, but of effect-does the required finding exposethe defendant to greater punishment than is authorized by thejury's guilty verdict?"). The court also explained the reasoningbehind its holding, stating that if:

"a defendant faces punishment beyond that provided bystatute when an offense is committed under certaincircumstances but not others, it is obvious that boththe loss of liberty and the stigma attaching to theoffense are heightened; it necessarily follows that thedefendant should not-at the moment the State is put toproof of those circumstances-be deprived of theprotections that have, until that point, unquestionablyattached." Apprendi, ___ U.S. at ___, 147 L.Ed.2d at451, 120 S.Ct. at 2359.

Here, as we have shown, the penalties for Clifton's collectiveoffenses were heightened when the judge made a finding ofinfliction of severe bodily injury. The stigma and loss ofliberty attached to a set of offenses wherein the defendantinflicted serious bodily harm are unquestionably greater than thestigma and loss of liberty attached to a set of offenses where nosuch bodily harm occurred. Consequently, we find that it wouldbe unduly narrow and arbitrary to hold that Apprendi should notattach to the imposition of consecutive sentences requiring as apre-condition such a factual determination in addition to thosefacts necessary to obtain a conviction for the crime charged.⁽⁴⁾

Thus we hold that the requirement of section 5-8-4(a) of theUnified Code of Corrections that a defendant be sentenced toconsecutive sentences for crimes arising out of the same courseof conduct when the court makes a finding that he inflictedsevere bodily injury is unconstitutional under Apprendi. Ifconsecutive sentences are to be imposed pursuant to a factualfinding that severe bodily injury occurred, then severe bodilyinjury will have to be submitted to a jury and proved beyond areasonable doubt.

SUPPLEMENTAL OPINION UPON GRANTING OF DEFENDANT GALLOWAY'SPETITION FOR REHEARING

After we issued our initial opinion in this case onSeptember 29, 2000, defendant Galloway filed a petition forrehearing in which he raised an Apprendi challenge to hissentences. We allowed the State to file a response and Gallowayto file a reply. We then granted the petition for rehearing andwe now address the substantive arguments contained within it.

The State first argues that Galloway may not raise anApprendi challenge to his sentence for the first time in apetition for rehearing. We disagree.

While Supreme Court Rule 341(e)(7) states that "[p]oints notargued are waived and shall not be raised *** on petition forrehearing" (177 Ill. 2d R. 341(e)(7)), waiver is notjurisdictional and the waiver rule may be relaxed to maintain auniform body of precedent or where the interests of justice sorequire. American Federation of State, County & MunicipalEmployees, Council 31 v. County of Cook, 145 Ill. 2d 475, 480,584 N.E.2d 116, 118-19 (1991). Furthermore, "Rule 615(a) and(b)(4) [citation] empowers the appellate court to review anycriminal sentence even though the issue [was] not raised onappeal." People v. Weiss, 263 Ill. App. 3d 725, 734, 635 N.E.2d635, 641 (1994) (addressing sentencing issues raised for thefirst time in a timely petition for rehearing); People v. White,5 Ill. App. 3d 205, 207, 282 N.E.2d 467, 468 (1972); 134 Ill. 2dR. 615; cf. People v. Kaczmarek, 318 Ill. App. 3d 340, 348, 741N.E.2d 1131, 1139 (2000). Consequently, we will address theApprendi arguments raised by Galloway for the first time in hispetition for rehearing. This is particularly cogent with respectto this case since, it would be wholly incongruous to grantrelief based on Apprendi to Clifton, but not to his co-defendantGalloway.

Galloway first argues that his consecutive sentences violateApprendi for the same reason that Clifton's consecutive sentencesviolate Apprendi. Galloway thus asks us to vacate the orderrequiring his sentences to run consecutively and order that theyrun concurrently, as we did in Clifton's case. We agree. Galloway was sentenced to consecutive sentences under section 5-8-4(a) of the Unified Code of Corrections after the court made afactual finding that he inflicted severe bodily injury during thecommission of the offenses. As we discussed above, underApprendi, such a factual finding must be submitted to the jury.⁽⁵⁾

Galloway next argues that his extended sentences of 80 yearsfor first degree murder and 40 years for attempted first degreemurder are also unconstitutional under Apprendi and must bereduced to their statutory maximums. The State argues inopposition that the sentence imposed for first degree murder isnot unconstitutional under Apprendi because it is less than themaximum sentence of death. The State also contends that thesentence of 40 years for attempt first degree murder is notunconstitutional because the enhancement was imposed upon afactual finding that the defendant had prior convictions, whichis permissible under Apprendi.

Galloway first argues that his sentences of 80 years forfirst degree murder and 40 years for attempted first degreemurder exceed the maximum sentences within the statutorily setrange for those crimes. In support, Galloway argues that thesentencing range for first degree murder is 20 to 60 years (730ILCS 5/5-8-1(a)(1)(a)(West Supp. 1995)) and that the range forattempted first degree murder (a class X felony (720 ILCS 5/8-4(c)(1))) is 6 to 30 years (730 ILCS 5/5-8-1(a)(3)(West Supp.1995)). The State contends that the 80-year sentence is withinthe sentencing range for first degree murder which runs from 20years in prison up to and including the death penalty. We agreewith Galloway.

As we have previously discussed under Apprendi, it "isunconstitutional for a legislature to remove from the jury theassessment of facts that increase the prescribed range ofpenalties to which a criminal defendant is exposed." Apprendi,___ U.S. at ___, 147 L.Ed.2d at 455, 120 S.Ct. at 2363. However,the Apprendi court noted that nothing in its analysis "suggeststhat it is impermissible for judges to exercise discretion --taking into consideration various factors relating both tooffense and offender -- in imposing a judgement within the rangeprescribed by statute." Apprendi, ___ U.S. at ___, 147 L.Ed.2dat 449, 120 S.Ct. at 2358. Thus to determine if Galloway'ssentences violate Apprendi, we must first determine if hissentences fall within the prescribed range of penalties for hiscrimes.

The primary sentencing statute for first degree murder,Section 5-8-1(a)(1)(a) of the Unified Code of Corrections,provides that the sentence for first degree murder shall be aterm "not less than 20 years and not more than 60 years." 720ILCS 5/5-8-1(a)(1)(a)(West Supp. 1995). If certain aggravatingfactors are found, a sentence of life in prison (720 ILCS 5/5-8-1(a)(1)(b)(West Supp. 1995)) or the death penalty (720 ILCS 5/5-8-1(a)(1)(c)(West Supp. 1995)) may be imposed. Galloway,however, was sentenced under section 5-8-2(a)(1) of the UnifiedCode of Corrections (730 ILCS 5/5-8-2(a)(1)(West 1994)) whichprovides that if aggravating factors enumerated in section 5-5-3.2(b) of the Code (730 ILCS 5/5-5-3.2(b)(West Supp. 1995)) arefound, an extended sentence of 60 to 100 years may be imposed forfirst degree murder.

It is clear from this statutory scheme that the statutoryrange of sentence for first degree murder is 20 to 60 years. Thedeath penalty cannot, as the State suggests, be the maximumpenalty within the range because the statute does not permitpenalties between 60 years in prison and life in prison. While asentence of 80 years may be greater than 20 years in prison andless severe than the death penalty, section 5-8-1 makes noprovision for such a sentence and thus such a sentence cannot besaid to be within the statutory sentencing range for first degreemurder in a non-capital case.

This court rejected the argument that the maximum sentencefor murder is life in prison or the death penalty in People v.Kaczmarek, 318 Ill. App. 3d 340, 741 N.E.2d 1131 (2000), and inPeople v. Lee, 318 Ill. App. 3d 417, ___ N.E.2d ___ (2000). TheKaczmarek court held that 60 years is the prescribed maximumpenalty for first degree murder. The court reasoned that "forany punishment exceeding 60 years, including either a term oflife or the death penalty, to be imposed, additional aggravatingfactors must be found to exist." Kaczmarek, 318 Ill. App. 3d at350, 741 N.E.2d at 1141 (citing People v. Beachem, 317 Ill. App.3d 693, 707, 740 N.E.2d 389, 398-99 (2000)). The court thusfound that 60 years is the maximum sentence for murder. Kaczmarek, 318 Ill. App. 3d at 350, 741 N.E.2d at 1141 (sentenceof life in prison exceeded maximum sentence for murder).

Nor do we find that the range of sentences for first degreemurder is 20 to 100 years. The legislature clearly provided twosentencing ranges for first degree murder. The statutes providefor a range of 20 to 60 years under normal circumstances and asecond and distinct range of 60 to 100 years for extendedsentences. The 60 to 100-year range is provided for in adistinct section of the Unified Code of Corrections, labeled"extended sentences" and nowhere does the Code on its faceprovide for a range of 20 to 100 years for first degree murder. Beachem, 317 Ill. App. 3d at 707, 740 N.E.2d at 398-99 (90-yearsentence exceeded maximum sentence of 60 years for murder). ThusGalloway's 80-year sentence for first degree murder represents anextension of the prescribed statutory range and clearly fallswithin the parameters of Apprendi. Kaczmarek, 318 Ill. App. 3dat 350, 741 N.E.2d at 1141; Lee, 318 Ill. App. 3d at 422, ___N.E.2d at ___.

Each of the cases cited by the State are distinguishable, inthat in each of them the enhancement which the state contendstakes place without the need for a finding by the trier of fact,occurs within the unextended range. In United States v. Smith,et al., 223 F.3d 554 (7^th Cir., 2000) the court held that wherethe sentencing range for a given crime was 30 years to life, astatute which eliminated all sentences below a life sentence uponthe court's finding of certain facts, was permissible underApprendi. The critical distinction between Smith and the case atbar is that in Smith any sentence between 30 years and life waspossible within the unextended range. Under the sentencingstatutes governing the case at bar, a sentence between 20 and 30years is encompassed within the unextended range. 730 ILCS 5/5-8-1(a)(1)(a)(West Supp. 1995). Any sentence beyond 60 years iscontrolled by a statute specifically providing for an extendedsentence upon the fulfillment of certain criteria. 730 ILCS 5/5-8-2(a)(1)(West 1994). The same is true with respect to Hernandezv. United States, 226 F.3d 839 (7^th Cir. 2000), where the courtfound that a sentence of 200 months imposed after a factualfinding by the trial court did not violate Apprendi where thestatutory range was "any term of years or for life." Likewise inState v. Conley, ___ Kan. ___, 11 P.3d 1147 (2000), the courtfound that where the defendant was sentenced to life in prison, asentencing enhancement such that he would not be eligible forparole until after 40 years, rather than the usual 25, did notviolate Apprendi.

Thus, since the range of sentence for first degree murder ina non-capital case is 20 to 60 years, any sentence imposed undersection 5-8-2(a) which provides for an extended sentence of 60 to100 years, may only be imposed if the factual determinationstriggering enhancement (other than prior convictions) are foundby a jury beyond a reasonable doubt. People v. Armstrong, No. 1-98-4278, slip op. at 22 (December 29, 2000) (aggravating factorsin section 5-5-3.2(b) must be proved beyond a reasonable doubt). Thus we hold that to the extent that section 5-8-2(a) permits anextended term to be imposed for first degree murder when a judge,rather than a jury, finds the presence of factors enumerated insection 5-5-3.2(b) (other than prior convictions), it isunconstitutional under Apprendi. Cf. People v. Thurow, No. 3-99-0784, slip op. at 11 (January 5, 2001) (holding section 5-5-3.2(b)(4)(i) of the Unified Code of Corrections (730 ILCS 5/5-5-3.2(b)(4)(i)(West 1998)) unconstitutional "to the extent itallows an increase in punishment for a felony based on the age ofthe victim where that specific finding is not charged to thejury").

The forgoing analysis applies equally to Galloway's sentenceof 40 years for attempted first degree murder. Attempted firstdegree murder is a Class X felony which carries a sentence of 6to 30 years. 730 ILCS 5/5-8-1(a)(3)(West Supp. 1995). Galloway,however, was sentenced under section 5-8-2(a)(2) which providesfor an extended sentence of 30 to 60 years if the court findsaggravating factors enumerated in section 5-5-3.2. We havealready held that section 5-8-2(a) is unconstitutional to theextent that it permits an extended sentence to be imposed whenthe court finds the existence of an aggravating factor other thanprior convictions.

The State contends, however, that the enhancement ofGalloway's sentence for attempted first degree murder was made onthe basis of Galloway's prior convictions, a basis forenhancement which need not be submitted to the jury underApprendi.⁽⁶⁾ Since it is not clear from the record what factorsthe trial judge used in finding that Galloway was eligible for anextended sentence, such a determination should be moreappropriately made on remand. People v. Myers, 292 Ill. App. 3d757, 760, 686 N.E.2d 363, 366 (1997) (cause remanded for re-sentencing where it was unclear how improper consideration ofaggravating factors influenced the trial court's sentence). Ifthe extended sentence was imposed based on Galloway's priorconvictions, then it may stand, as the fact of prior convictionsneed not be found by a jury and proved beyond a reasonable doubtunder Apprendi. Apprendi, ___ U.S. at ___, 147 L.Ed.2d at 454-55, 120 S.Ct. at 2362. However, if the judge imposed theextended sentences after making other factual findings which arenot exempt from the Apprendi regime, then the extended sentencescannot stand.⁽⁷⁾

As to both defendants, we affirm the judgements ofconviction and vacate the orders requiring their sentences to runconsecutively and order their sentences to run concurrently. Additionally, as to defendant Galloway, we vacate his extended sentences of 80 years for first degree murder and 40 years forattempted first degree murder and remand this cause to thecircuit court of Cook County for an new sentencing hearing, notinconsistent with this opinion.

Affirmed in part; reversed in part; cause remanded.

McNULTY and McBRIDE, JJ., concur.

1. Due to the page limitations imposed under revised SupremeCourt Rule 23 (166 Ill. 2d R. 23), we are compelled to deletefrom the published portion of this opinion our findings that thetrial court did not abuse its discretion when it held that therewas no discovery violation and our finding that the failure ofClifton's counsel to move for dismissal for lack of a speedytrial did not deny him effective assistance of counsel. We mustalso delete from our discussion our rejection of Clifton'sargument that the evidence was insufficient to establishClifton's guilt either as a principal or on an accountabilitytheory. Our discussion of these issues in included in the full,unabridged text of this opinion which is on file with the clerkof this court under docket nos. 1-98-2126, 1-98-2384(consolidated).

2. Defendant Galloway did not participate in the supplementalappeal.

3. Moreover, while new constitutional rules of criminalprocedure are not to be applied retroactively to post-convictionproceedings, that restriction does not apply to matters stillpending on direct appeal. Teague v. Lane, 489 U.S. 288, 109S.Ct. 1060 (1989); People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d674 (1990).

4. Because we hold that Clifton's sentences must runconcurrently due to the unconstitutionality of the consecutivesentencing statute we need not address the issue of whetherApprendi requires that the facts upon which sentence enhancementdepends must be pled in the indictment or information.

5. We note that the court in Apprendi apparently had anopportunity to address the issue of the applicability of theApprendi rule to consecutive sentences, but declined to do so. Apprendi, ___ U.S. at ___, 147 L.Ed.2d at 445, 120 S.Ct. at 2354. This occurred when the New Jersey prosecutor sought to contendthat an extended sentence should be permissible since the trialcourt had the alternative to sentence the defendantconsecutively. Since the original decision in this case wasissued, another division of this court in People v. Lucas, No. 1-99-2623, slip op. at 11-12 (March 21, 2001), sought to findsupport from the supreme court's silence in the face of thatcontention to exclude consecutive sentences from the ambit ofApprendi. As we discussed above, we find no logic or utility inan attempt to restrict the holding of Apprendi to extendedsentences but not to consecutive sentences. Such sentencesengender the same "loss of liberty" resulting from "punishmentbeyond that provided by statute when an offense is committedunder certain circumstances but not others" which Apprendi soughtto address. To distinguish between the findings necessary toimpose consecutive sentences and the findings necessary to imposean extended sentence would reduce Apprendi to a mere technicalexercise without a meaningful basis for any such distinction. Thus, to draw any support from Apprendi's failure to address theNew Jersey prosecutor's hypothetical argument raising such adistinction is at best tenuous and precarious.

We also note that, the New Jersey consecutive sentencingscheme is quite different from the one employed in Illinois. TheNew Jersey consecutive sentencing scheme does not statutorilyprovide for aggravating factors which must be satisfied to imposeconsecutive sentences. Rather, those factors are a matter of NewJersey common law and they do not include a finding of severebodily injury as is required by Illinois law. State v. Yarbough,100 N.J. 627, 644, 498 A.2d 1239, 1247-48 (1985); N.J. Stat. Ann