People v. Kaczmarek
Case Date: 12/27/2000
Court: 1st District Appellate
Docket No: 1-97-2557 Rel
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THIRD DIVISION DECEMBER 27, 2000 No. 1-97-2557
JUSTICE CERDA delivered the opinion of the court: Following a jury trial in July 1989, defendant, HenryKaczmarek, was convicted of murder, residential burglary, homeinvasion, and armed robbery and was sentenced to a term ofnatural life imprisonment on the murder conviction. Defendantappealed, and on March 31, 1993, this court reversed the murderconviction and remanded for a new trial.(1) People v. Kaczmarek,243 Ill. App. 3d 1067, 1082, 613 N.E.2d 1253, 1264 (1993)(Kaczmarek I). Prior to the start of his second trial in November 1996,defendant unsuccessfully moved to dismiss the State's charges onthe grounds that his constitutional and statutory rights to aspeedy trial had been violated. Following a retrial by jury,defendant was again found guilty of murder and, following afinding by the sentencing judge that the victim's murder was"exceptionally brutal or heinous," defendant received an enhancedterm of natural life in prison under section 5-8-1(a)(1)(b) ofthe Unified Code of Corrections (Corrections Code) (Ill. Rev.Stat. 1985, ch. 38, par. 1005-8-1(a)(1)(b)). Defendant appeals, arguing (1) the trial court erred indenying his motion for speedy-trial dismissal of the State'scharges, and (2) he was denied a fair trial when the court (a)accepted a State witness as an expert in the area of chemicalluminol testing and interpretation; (b) refused to accept adefense witness as an expert in the fields of luminolinterpretation and blood splatter analysis; and (c) precluded thetestimony of a defense witness concerning certain physicalaltercations defendant had been involved in with otherindividuals prior to the victim's murder. Defendant additionallychallenges the validity of this life sentence, claiming thepenalty enhancing scheme provided by section 5-8-1(a)(1)(b) ofthe Corrections Code is constitutionally infirm in light of inlight of the United States Supreme Court's recent decision inApprendi v. New Jersey, 530 U.S. __, 147 L. Ed. 2d 435, 120 S.Ct. 2348 (2000). For the following reasons, we reject, in an unpublishedportion of this opinion, defendant's speedy trial and trial errorclaims and affirm defendant's conviction for murder. However,because the penalty scheme set forth in section 5-8-1(a)(1)(b) ofthe Corrections Code offends the constitutional principlesannounced in Apprendi, we vacate defendant's life sentence andremand for resentencing. The primary issue presented by defendant's appeal is whetherthe sentencing scheme set forth in section 5-1-8(a)(1)(b) ofCorrections Code, which allows for an enhanced sentence for firstdegree murder under certain court-determined circumstances,offends the constitutional mandates announced by the SupremeCourt in Apprendi v. New Jersey, 530 U.S. __, 147 L. Ed. 2d 435,120 S. Ct. 2348 (2000). At sentencing in May 1997, the State urged the court toimpose a life sentence based on its contention that the victim'smurder was "exceptionally brutal" and "heinous" within themeaning of section 5-8-1(a)(1)(b) contained in the 1985 versionof the Corrections Code. That version of section 5-8-1 generallyenumerates the imprisonment terms for felony offenses andspecifically sets forth a sentence of "not less than 20 years andnot more than 40 years" in prison for the offense of first degreemurder. Ill. Rev. Stat. 1985 ch. 38, par. 1005-8-1(a))(1)(a).(5) Under paragraph (1)(b) of this provision, a sentence of naturallife is authorized where the sentencing judge finds that "themurder was accompanied by exceptionally brutal or heinousbehavior indicative of wanton cruelty." Ill. Rev. Stat. 1985 ch.38, par. 1005-8-1(a)(1)(b). The sentencing judge in the instant case agreed with theState's characterization of the crime and, specifically drawingupon his recollection of the evidentiary proofs adduced at trial,he found the conduct of defendant accompanying the murder of Ms.Nielsen to be brutal and heinous as contemplated by theCorrections Code. Based on its finding, the court sentenceddefendant to life in prison. In Apprendi, the accused, Charles Apprendi, pled guilty to,among other offenses, two counts of second degree possession of afirearm for an unlawful purpose. Under New Jersey's sentencingscheme, a second-degree offense carried a penalty range of 5 to10 years in prison. As part of the plea agreement, theprosecution reserved the right, however, to seek a greatersentence on one of the two firearm possession counts under a hatecrime statute that allowed for an enhanced sentence where theoffense was committed with a biased purpose. For a second-degreeoffense, the hate crime law provided for a prison term of between10 and 20 years. Following a hearing, the sentencing court found, by apreponderance of the evidence, that the firearm possessionoffense committed by Apprendi was motivated by a racial bias. Relying on the hate crime enhancement provision, the courtsentenced Apprendi to a term of 12 years, two years beyond thestatutory maximum penalty for such an offense. Apprendi challenged the validity of his sentence to thestate appellate and supreme courts, arguing that the sentencingscheme provided in the hate crime law was unconstitutional. Thestate courts disagreed and upheld Apprendi's sentence. TheSupreme Court reversed, finding that New Jersey's sentencingscheme infringed upon the due process and notice and right tojury clauses of the Constitution by impermissibly allowing thesentencing judge, rather than the jury, to determine, under arelaxed evidentiary standard, a fact which is most appropriatelycharacterized as an element of the underlying offense. After discussing at length the constitutional rights ofevery defendant in a criminal case to a trial by jury in whichthe State is required to prove every element of the offensecharged beyond a reasonable doubt (U.S. Const. amends. V, VI,XIV; Apprendi, 530 U.S. at __, 147 L. Ed. 2d at 446-48, 120 S.Ct. at 2355-56), the Court examined the term "sentencing factor,"a term it first coined in McMillan v. Pennsylvania, 477 U.S. 79,91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986), in light of the noveltyof legislative schemes, referred to as "sentence enhancements,"that remove from the jury the determination of a fact that, iffound, exposes a defendant to a penalty exceeding the maximum hewould receive if punished according to the facts reflected by thejury verdict alone. Apprendi, 530 U.S. at __, 147 L. Ed. 2d at448-52, 120 S. Ct. at 2356-60. According to the Court, a"sentencing factor" is "a circumstance, which may be eitheraggravating or mitigating in character, that supports a specificsentence within a range authorized by the jury's finding that thedefendant is guilty of a particular offense." (Emphasisomitted.) 530 U.S. at __ n.19, 147 L. Ed. 2d at 457 n.19, 120 S.Ct. at 2365 n.19. A "sentence enhancement," on the other hand,refers to a factual determination that results in "an increasebeyond the maximum authorized statutory sentence." Apprendi, 530U.S. at __ n.19, 147 L. Ed. 2d at 457, n.19, 120 S. Ct. at 2365,n.19. The Court explicitly recognized that the effect of sentenceenhancement legislation on a defendant's punishment raisesserious constitutional concerns in light of its prior precedentin the area and the history upon which those decisions rely. Apprendi, 530 U.S. at __, 147 L. Ed. 2d at 452, 120 S. Ct. at2360. For the first time, the Court squarely confronted theissue of whether such enhancement schemes run afoul of well-established constitutional principles. Traditionally, accordingto the Court, any circumstance that exposed an accused to ahigher degree of punishment had to be pled in the charginginstrument and presented and proven to the jury beyond areasonable doubt. Apprendi, 530 U.S. at __, 147 L. Ed. 2d at449, 120 S. Ct. at 2357. Further, the fact that judges havehistorically enjoyed the discretion of fixing a punishment withina prescribed statutory range (Apprendi, 530 U.S. at __, 147 L.Ed. 2d at 449-50, 120 S. Ct. at 2358) demonstrated that theirrole in sentencing was "constrained at its outer limits by thefacts alleged in the indictment and found by the jury. ***[F]acts that expose a defendant to a punishment greater than thatotherwise legally prescribed were by definition 'elements' of aseparate legal offense." Apprendi, 530 U.S. at __ n.10, 147 L.Ed. 2d at 451 n.10, 120 S. Ct. at 2359 n.10. The Courtexplained: "If a defendant faces punishment beyond thatprovided by statute when an offense iscommitted under certain circumstances but notothers, it is obvious that both the loss ofliberty and the stigma attaching to theoffense [and suffered by the defendant] areheightened; it necessarily follows that thedefendant should not - at the moment theState is put to proof of those circumstances- be deprived of protections that have, untilthat point, unquestionably attached." Apprendi, 530 U.S. at __, 147 L. Ed. 2d at451, 120 S. Ct. at 2359. Relying on the principles established by its priordecisions, the Court concluded the Constitution forbids "'alegislature [from] remov[ing] from the jury the assessment offacts that increase the prescribed range of penalties to which acriminal defendant is exposed.'" Apprendi, 530 U.S. at __, 147L. Ed. 2d at 455, 120 S. Ct. at 2363, quoting Jones v. UnitedStates, 526 U.S. 227, 252, 143 L. Ed. 2d 311, 332, 119 S. Ct.1215, 1228 (1999). (Stevens, J. concurring). According to theCourt, the Constitution mandates that "'such facts *** beestablished by proof beyond a reasonable doubt.'" Apprendi, 530U.S. at __, 147 L. Ed. 2d at 455, 120 S. Ct. at 2363, quotingJones, 526 U.S. at 253, 143 L. Ed. 2d at 332, 119 S. Ct. at 1229. (Stevens, J., concurring). The Court held that "any fact [otherthan the fact of a prior conviction] that increases the penaltyfor a crime beyond the prescribed statutory maximum must besubmitted to a jury, and proved beyond a reasonable doubt."(6) Apprendi, 530 U.S. at __, 147 L. Ed. 2d at 455, 120 S. Ct. at2362-63.(7) In applying its ruling, the Court explained the relevantinquiry does not depend on the formal structure of the statute atissue, but of the statute's effect on the defendant's sentence -that is, "does the required finding expose the defendant to agreater punishment than that authorized by the jury's guiltyverdict?" Apprendi, 530 U.S. at __, 147 L. Ed. 2d at 457, 120 S.Ct. at 2365. If so, then the fact upon which the enhancement isbased must be alleged in the charging instrument and provenbefore the jury beyond a reasonable doubt. In such cases, theenhancement factor is the "functional equivalent of an element ofa greater offense than the one covered by the jury's verdict"(Apprendi, 530 U.S. at __ n.19, 147 L. Ed. 2d at 457 n.19, 120 S.Ct. at 2365 n.19), and as such becomes the "'tail which wags thedog of the substantive offense.'" Apprendi, 530 U.S. at __, 147L. Ed. 2d at 458, 120 S. Ct. at 2365, quoting McMillan, 477 U.S.at 88, 91 L. Ed. 2d at 77, 106 S. Ct. at 2417. Conversely, sinceApprendi's holding is expressly limited to instances where theenhancing factor has the effect of increasing the penalty beyondthe prescribed statutory maximum set, a court-determined fact maypermissibly alter a defendant's sentence within the rangeprovided for by the applicable statute. The Apprendi ruling marks a stark departure from theapproach the Court has traditionally employed in differentiatingbetween an element of an offense and a sentencing factor. TheApprendi Court explicitly recognized for the first time that anaccused criminal has the constitutional right to have anystatutory enhancement fact that, if found, increases the penaltyfor a crime beyond the prescribed maximum to be treated as anelement of the underlying offense. In previous decisions, theCourt did not concern itself with the constitutional implicationsof sentencing enhancement schemes but, rather, resorted toprinciples of statutory interpretation. In those cases, theCourt undertook a microanalysis of the relevant statute'slanguage, structure and history in an effort to determine whetherit defined a distinct offense or whether it merely set forth afactor that could be properly considered in imposing an enhancedpunishment. Within its analysis, the Court also frequentlyconsidered the related matter of whether the particularenhancement factor at issue was traditionally or typicallyconsidered by the courts as a sentencing factor. See Castillo v.United States, 530 U.S. __, __, 147 L. Ed. 2d 94, 98-103, 120 S.Ct. 2090, 2092-96 (2000) (in a case decided three weeks beforeApprendi was issued, the Court, in determining whether a federalstatute which dramatically increased the penalty for the use orpossession of a firearm when the weapon at issue is a"machinegun" constituted a separate offense, concerned itselfprimarily with the intent of Congress, examining the literallanguage the statute and the statute's legislative history; theCourt also considered whether the type of firearm in question hadbeen typically or traditionally viewed as a sentencing factor);Jones, 526 U.S. at 232-40, 251-52, 143 L. Ed. at 319-24, 331, 119S. Ct. at 1219-22, 1228 (in determining whether the federalcarjacking statute, which increased the maximum punishment of 15years where either "serious bodily injury" or "death" resultedfrom the offense, constituted a single offense or three distinctcrimes, the Court turned to statutory interpretation to ascertainCongress' intent and specifically relied on the statutoryconstruction principle of constitutional doubt to construe thestatute as establishing three separate offenses; the Courtfurther considered whether the facts of "serious bodily injury"and "death" had been traditionally considered sentencingfactors); Almendarez-Torres v. United States, 523 U.S. 224, 229-35, 140 L. Ed. 2d 350, 359-63, 118 S. Ct. 1219, 1224-26 (1998)(the Court resorted to principles of statutory interpretation,and specifically looked to the statute's language, structure,subject matter, context, and history, to determine whetherCongress intended a federal law, which elevated the maximumpenalty for a deported alien reentering the country beyond a two-year prison term if the alien's initial deportation resulted froman aggravated felony conviction, to define a separate crime orsimply an enhanced penalty; the Court also examined whetherrecidivism was a typical sentencing factor). Turning to the case at hand, we initially consider theState's argument that defendant has waived the matter of hissentence's validity for our review. As the State notes,defendant did not raise his Apprendi challenge in his originalappeal and raised that matter for the first time in his timelyfiled rehearing petition. As a general rule, parties may notargue new points in a petition for rehearing. People v. Wright,No. 8711, slip op. at 17 (February 17, 2000). In Wright, thesupreme court has recognized an exception to this rule where thenew matter raised attacks the constitutionality of a criminalstatute. Wright, slip op. at 17. According to the court, suchchallenges may be raised at any time because it would befundamentally unfair to uphold a criminal conviction pursuant toan unconstitutional statute. Wright, Slip Op. at 17. We believe Wright, while involving a challenge to thevalidity of a criminal statute, equally applies to cases, likethe instant matter, where a defendant attacks his sentence on thebasis that it was imposed pursuant to an unconstitutionalsentencing procedure set forth in the Corrections Code. Thefundamental unfairness to a defendant explicitly recognized byWright would similarly be present in such instances. This court,in fact, has recently declined to find waiver of a defendant'sApprendi challenge to his sentence imposed pursuant to themandatory Class X sentencing scheme found in section 5-5-3(c)(8)of the Corrections Code despite that challenge being raised forthe first by defendant in his rehearing petition. People v.Lathon, 1-99-0261, slip op. at 5 (November. 6, 2000); see alsoPeople v. Wooters, 188 Ill. 2d 500, 510, 722 N.E.2d 1102, 1108(1999) (permitting defendant's challenge on appeal to validity ofsection 5-8-1(a)(1)(c)(ii) of the Corrections Code where thatattack, asserted for the first time on appeal, warrantedconsideration given its constitutional dimension). We further note Apprendi had yet to be released when weissued our original decision in the matter. Defendant thus didnot have the benefit of Apprendi during the original portion ofhis appeal. Notwithstanding, the State argues the ruling inApprendi is nothing new but, rather, is a restatement of theholdings announced earlier by the Court in Jones and Almendarez-Torres. The State unsuccessfully asserted the same argumentbefore this court in Lathon, slip op. at 5 (noting Jones andAlmendarez-Torres were each decided as a matter of statutoryinterpretation of federal sentencing guidelines, where Apprendiapplied the principles established by those cases for the firsttime to state prosecutions), and more recently in People v.Sutherland, 1-98-3802, slip op. at 15 (December. 1, 2000). Welikewise reject the State's argument here, and declining to applywaiver, we will address the merits of defendant's challenge tohis sentence. We must next resolve the question of Apprendi'sapplicability to defendant's case. The law provides that ajudicial decision announcing a new constitutional rule applicableto criminal cases is to be applied retroactively to all casespending on direct review at the time the new constitutional ruleis declared. People v. Erickson, 117 Ill. 2d 271, 288, 513N.E.2d 267, 374 (1987), citing Griffith v. Kentucky, 479 U.S.314, 328, 93 L. Ed. 2d 649, 661, 107 S. Ct. 708, 716 (1987). Inparticular, for retroactivity to be triggered, two factors mustbe present: (1) the case to which the new rule is to be appliedwas pending on direct review or was otherwise not final when therule was declared and (2) the rule to be applied retroactively isof constitutional dimension. People v. Dean, 175 Ill. 2d 244,253, 677 N.E.2d 947, 951 (1997); Erickson, 117 Ill. 2d at 289,513 N.E.2d at 374. We find both factors present in the instant case. Defendant's case was still pending on direct review and was notyet final when Apprendi was decided. The term "final" has beendefined in the retroactivity context as "'a case in which ajudgment of conviction has been rendered, the availability ofappeal exhausted, and the time for a petition for certiorarielapsed or a petition for certiorari finally denied.'" People v.Holman, 132 Ill. 2d 128, 141, 547 N.E.2d 124, 128 (1989), quotingGriffith, 479 U.S. at 321 n.6, 93 L. Ed. 2d at 657 n.6, 107 S.Ct. at 712 n.6. Defendant raised his Apprendi challenge in atimely filed rehearing petition and at the earliest possibleopportunity. Defendant's case, while at the rehearing stage,nonetheless remains before this court on direct review. Secondly, the Supreme Court's ruling clearly announced a newrule of constitutional dimensions. Such a finding is readilyapparent from the Apprendi opinion itself, as well as from theCourt's break from its past method of resolving the propercharacterization of a particular penalty enhancement statute. The Apprendi Court expressly predicated its holding on theConstitution's due process clauses of the fifth and fourteenthamendments and the notice and jury trial guarantees of the sixthamendment. The right of a criminal defendant to have all facts,except the fact of a prior conviction, that increase thestatutory maximum penalty for an offense pled in the indictmentand proved to a jury beyond a reasonable doubt is, according tothe Court, deeply rooted in the Constitution and itsjurisprudence. Furthermore, in determining the validity of the New Jerseysentencing scheme under which Apprendi was punished, the Courtdid not seek to ascertain the state legislature's intent inenacting the statute by examining its language, structure,subject matter, context, and history. Neither did the Courtplace any weight on whether the enhancement fact at issue, i.e.,a biased purpose on the part of the offender, has beentraditionally or typically viewed as a sentencing factor. Rather, the Court concerned itself solely with the principlesthat have developed in light of the rights guaranteed by thefifth and sixth amendments and the limits those constitutionalprovisions place on a legislature's ability to remove thedetermination of certain facts from the province of the jurywhich, if found, would elevate the penalty for a particularoffense above its statutorily prescribed maximum.(8) Because defendant's case remains pending, and since Apprendireflects the establishment of a new constitutional principle, wefind Apprendi applicable to the instant matter. Lathon, slip op.at 5 (applying Apprendi retroactively where defendant raisedissue in petition for rehearing); People v. Clifton, Nos. 1-98-2126, 1-98-2384 cons., slip op. at 51 n.6 (September 29, 2000)(applying Apprendi retroactively to case pending on review). Pursuant to Apprendi, the question presented here is whethersection 5-8-1(a)(1)(b) defines a separate, aggravated offense ofmurder or whether that provision merely represents a factor thata court may properly consider in imposing a sentence. Inresolving this question, our duty is to ascertain the effectsection 5-8-1(a)(1)(b) has on the statutory prescribed maximumimposed for a murder offense as set forth in paragraph (a)(1)(a)of that provision. The State makes several attempts to demonstrate that theinstant case is not covered by Apprendi. Each of the State'sclaims is based on the contention that defendant's life sentenceis not beyond, but rather falls within, the prescribed statutorymaximum for first degree murder. The State first contends thatsection 5-8-1(a)(1)(a) simply provides the "typical" sentencingrange for murder, and that the statutory maximum is actually lifeimprisonment or the death penalty as provided in section 9-1(b)of the Criminal Code of 1963 (Criminal Code) (Ill. Rev. Stat.1985 ch. 38, par. 9-1(b)). Based on its reading of theCorrections Code, the State asserts the applicable sentencingrange should be referred to as 20 years in prison up to andincluding the death penalty. The position posited by the State has been recently rejectedby this court in People v. Beachem, No. 1-99-0852, slip op. at 21(November. 8, 2000). There, the defendant, who was convicted offirst degree murder, argued that her extended-term sentence of 90years' imprisonment imposed under section 5-8-2(a) of theCorrections Code (730 ILCS 5/5-8-2(a) (West 1996)) ran afoul ofthe mandates of Apprendi. In asserting Apprendi'sinapplicability, the State claimed, like here, that thedefendant's 90-year sentence did not exceed the maximum penaltyfor first degree murder, which, according to the State, was lifeor the death penalty. This court rejected the State's reading of the CorrectionsCode, finding the current version of section 5-8-1(a)(1)(a),which provides a sentencing range of 20 to 60 years, reflects theprescribed statutory maximum penalty for a first degree murderoffense. Beachem, slip op. at 23-24. The court noted 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. Beachem, slip op. at 21-22. Thecourt's conclusion was further buttressed by the specificlanguage of the extended-term provision, which explicitlyprovides that "'a judge shall not sentence an offender to a termof imprisonment in excess of the maximum sentence authorized bySection 5-8-1'" unless certain aggravating factors are present. (Emphasis in original.) Beachem, slip op. at 22, quoting 730ILCS 5/5-8-2(a)(1) (West 1996). Beachem commands rejection of the State's contention in thepresent case. The predecessor version of section 5-1-8(a)(1),which is at issue here, expressly provides for a prison term of20 to 40 years' imprisonment for first degree murder. Like thestatutory schemes examined in Beachem, the 1985 version of thesentencing laws similarly authorizes a sentence in excess of 40years only upon additional findings. See Ill Rev. Stat. 1985 ch.38, par. 1005-8-1(a)(1)(b) (term of life imprisonment permittedif offense was "exceptionally brutal or heinous," or where anyaggravating factors specified in section 9-1 of the CriminalCode, which lists the eligibility factors for a penalty of death,are present); Ill. Rev. Stat. 1985 ch. 38, par. 1005-8-1(a)(1)(c)(term of life authorized where defendant has previously beenconvicted of murder or where he was found guilty of murderingmore than one victim); Ill. Rev. Stat. 1985 ch. 38, par. 1005-8-2(a)(1) (extended term of 40 to 80 years' imprisonment allowedwhere aggravating factors set forth in section 5-5-3.2 ofCorrections Code are found to be present); Ill. Rev. Stat. 1985ch. 38, par. 9-1(b) (death penalty warranted where defendant hasbeen convicted of murder while 18 years of age or older and wherecertain statutory aggravating factors are found). Additionally,the 1985 version of the extended-term provision found in section5-8-2(a) sets forth verbatim the sentencing limitation found inthe current legislation and discussed by the Beachem court. SeeIll. Rev. Stat. 1985 ch. 38, par. 1005-8-2(a) (expresslyreferring to section 5-8-1 as setting forth the maximumpunishment for first degree murder). The State alternatively contends that Apprendi stands forthe proposition that the prescribed statutory maximum for firstdegree murder, from a constitutional standpoint, and seeminglynotwithstanding the express language of the enhanced penaltyprovision at issue in the case, must be viewed in all instancesas the imposition of the death penalty. In this regard, theState argues "as the elements of first degree murder are the sameregardless of whether a defendant is facing the death penalty***, it would be absurd to find that a murder defendant facingthe death penalty has no sixth amendment right to have a juryfind the statutory aggravating eligibility factors, while allother murder defendants have the constitutional right to have ajury *** find the statutory factors authorizing an extended termsentence or natural life imprisonment." The State essentially maintains that the dictates ofApprendi must apply equally to capital and noncapital defendants. The Supreme Court, however, specifically limited its holding inApprendi to noncapital cases and was careful to note that itsdecision does not disturb its earlier ruling in Walton v.Arizona, 497 U.S. 639, 639-40, 111 L. Ed. 2d 511, 519-20, 110 S.Ct. 3047, 3049-50 (1990), where the Court rejected the argumentthat the Constitution mandated that judge-authorized findings ofaggravating factors necessary for the imposition of the deathpenalty be made by a jury, and further dismissed the contentionthat those factors were "elements" of the underlying offense,which, according to the Court, merely represented standards toguide the decision of choosing between verdicts of death oranother lesser form of punishment. Apprendi, 530 U.S. at __, 147L. Ed. 2d at 459, 120 S. Ct. at 2366. Thus, while it appearsApprendi extends greater constitutional protections tononcapital, rather than capital, defendants, the Court hasendorsed this precise principle, and we are in no position tosecondguess that decision here.(9) In a final attempt to show that the statutory maximum wasnot exceeded in this case, the State relies on the SeventhCircuit's recent decision in United States v. Smith, 223 F.3d 554(7th Cir. 2000), for the proposition that the theoreticalpossibility of a certain statutory penalty of a given offenserepresents that offense's maximum punishment. Because aconviction of first degree murder carries the theoreticalpossibility of either a sentence of death or life in prison underIllinois law, the State maintains that death or life is themaximum penalty for murder. We do not share the State's reading of Smith. Contrary tothe State's contention, nothing in Smith suggests that thehighest theoretical punishment for a particular crime constitutesthe statutory maximum for purposes of applying Apprendi. Moreover, the sentencing statute in Smith concerned theimposition of a mandatory minimum under certain circumstances. See Smith, 223 F.3d at 562-63 (statute authorized range of 30years' imprisonment to life upon a finding that the defendantparticipated in a continuing criminal enterprise, but set forth amandatory minimum sentence of life for any defendant who, interalia, was a principal or otherwise was a leader in suchenterprise). The Smith court specifically indicated thatApprendi did not apply, and noted that the Supreme Court, inMcMillan, expressly upheld the validity of such mandatory minimumsentencing legislation. Smith, 223 F.3d at 565-66. Thesentencing scheme in this case does not involve the imposition ofa mandatory minimum punishment but, rather, authorizes anenhanced penalty upon the finding of certain specified factualcircumstances. We must now decide whether that enhancement procedure isconstitutional under Apprendi and must specifically considerwhether the sentencing factor reflected in section 5-8-1(a)(1)(b), i.e., whether the murder was accompanied by"exceptionally brutal or heinous behavior indicative of wantoncruelty," represents a factual determination, and, if so, whetherthat determination increases the maximum penalty for murder. Certainly, the question of whether a particular murder wasaccompanied by "exceptionally brutal or heinous behavior"necessarily involves an examination of, and is based upon, thefactual circumstances presented by the evidentiary proofs. Further, a court's finding that a murder was accompanied by suchbehavior significantly increases the statutory maximum penaltyfrom a term of 40 years' imprisonment to a term of natural life. Based on the foregoing, the "exceptionally brutal or heinous"inquiry presented by section 5-8-1(a)(1)(b) is most accuratelycharacterized for constitutional purposes as an element of agreater crime, rather than a mere factor to be considered atsentencing. Accordingly, if the State wishes to seek an enhancedsentence for murder on the grounds that the offense was"exceptionally brutal or heinous," it must allege that factualcircumstance in the relevant charging instrument and prove it toa jury beyond a reasonable doubt.(10) We note that a differentdivision of this court in People v. Lee, Nos. 1-98-3631, 1-99-2203 cons., slip op. at 9 (December. 14, 2000), and the SecondDistrict Appellate Court in People v. Joyner, No. 2-99-0433, slipop. at 22 (November. 8, 2000), have recently determined thatsection 5-8-1(a)(1)(b) is constitutionally infirm under Apprendi. Considering the merits of defendant's challenge, the crimeof murder as defined in section 9-1 of the Criminal Code did notrequire a finding by the jury that defendant's conductaccompanying the victim's murder was "exceptionally brutal orheinous." It is of no surprise then that the State's charginginstruments make no mention of such circumstances. Further, therecord is clear that defendant's jury made no finding concerningthe nature of the victim's murder and specifically reveals thatthe jurors never considered and passed on the question of whetherdefendant acted brutally or heinously. The highest punishment defendant could receive based solelyon the facts reflected by the jury's verdict was the maximum termof 40 years' imprisonment. The jury's verdict authorized nogreater penalty. Only when the sentencing judge, proceedingunder a relaxed evidentiary standard, found an additional factualcircumstance related to the crime did defendant become subject toa prison term well in excess of the maximum. That procedure, asApprendi dictates, offends constitutional principles and isinvalid as applied to defendant in this case. See Beachem, slipop. at 25 (noting the Apprendi Court never declared the NewJersey statute void on its face but, rather, referred to it ascreating an unconstitutional procedure). Since the State never alleged and proved to the jury beyonda reasonable doubt that defendant acted in an "exceptionallybrutal or heinous" fashion when he murdered the victim, we vacatedefendant's life sentence and remand for a sentence that isconsistent with this opinion. We affirm defendant's conviction for murder based on thereasons expressed in the unpublished portion of this opinion. Wefurther vacate defendant's sentence of life and remand for theimposition of a new prison term that is consistent with thisopinion. Affirmed in part and reversed in part; cause remanded withdirections. CAHILL, P.J., and WOLFSON, J., concur. 1. Defendant also challenged his convictions for burglary,home invasion and armed robbery on the basis of insufficientevidence. Because no sentence was imposed on these verdicts,this court dismissed defendant's appeals for want of finality. Kaczmarek I, 243 Ill. App. 3d at 1082, 613 N.E.2d at 1264. 2. The State asserts defendant never raised hisconstitutional speedy-trial claim before the trial court, andmaintains that this issue is thus waived for our review. TheState, however, ignores defendant's speedy-trial motion, filedNovember 18, 1996, which specifically contains a claim based onthe constitutional speedy-trial clause. 3. The time in which the State's appeal was underconsideration by the supreme court fully justifies the first twomonths of delay. See Crane, 307 Ill. App. 3d at 818, 719 N.E.2dat 141. 4. The trial court should not have permitted defendant tofile his pro se motion because defendant was represented bycounsel at the time. The law is clear that a criminal defendanthas no right to both self-representation and the assistance ofcounsel (People v. Williams, 97 Ill. 2d 252, 267, 454 N.E.2d 220,227 (1983)), and thus has no right to some sort of hybridrepresentation, whereby he is allowed to accept his attorney'sservices and still be permitted to file pro se motions. Peoplev. Handy, 278 Ill. App. 3d 829, 836, 664 N.E.2d 1042, 1046(1996). 5. In its response brief, the State indicates thatdefendant is subject to a prison sentence of between 20 and 60years. The murder of the victim in the instant matter occurredin April 1997. At that time, section 5-8-1 provided a sentencingrange for first degree murder of 20 to 40 years. By amendmenteffective January 1, 1988, this sentencing range was increased tothe current term of 60 years. Contrary to the State's suggestion, the amended version ofsection 5-8-1 that became effective in January 1988, or thecurrent version of that provision, cannot be retroactivelyapplied to defendant's case because such an application would beviolative of the ex post facto clauses of the United States andIllinois Constitutions (U.S. Const., art. I, |
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