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THIRD DIVISION
March 21, 2001     

No. 1-99-2623

JUSTICE WOLFSON delivered the opinion of the court:

Once again we are called on to determine the authority of a trial judge toimpose lengthy prison sentences.

The defendant, Donald Lucas, was charged with committing a vicious sexualassault on a female victim. There was a bench trial. The judge found thedefendant guilty of attempt first degree murder, aggravated criminal sexualassault, and aggravated kidnapping. The trial court, using extended term andconsecutive sentence statutes, sentenced the defendant to a total of 120 years.

On appeal, the defendant relies on Apprendi v. New Jersey, 530 U.S.466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). He contends the statutesauthorizing the trial court to impose extended term and consecutive sentencesare unconstitutional. See 730 ILCS 5/5-5-3.2(b)(2) (West 1998), and 730 ILCS5/5-8-4(a) (West 1998).

We conclude Apprendi requires us to vacate the extended termsentences, but we do not believe Apprendi's grasp reaches consecutivesentences.

While the issues on appeal relate only to sentencing, the factual setting ofthis case sheds light on the trial court's decision to impose extended term andconsecutive sentences.

On June 27, 1998, the victim was at the corner of 22nd and State streets inChicago, trying to buy drugs from the defendant. She told the defendant she hadonly four or five dollars. The defendant said if she gave him the money, hewould let her smoke drugs with him. She agreed, and they walked to a secludedwooded area at 22nd and Wabash.

When they reached the wooded area, the defendant grabbed the victim by herthroat and started choking her. She tried to fight back, but he started punchingher face. The defendant punched her in the face several times, causing her tofall to the ground unconscious.

When the victim regained consciousness, she was lying on the ground, her bareback on broken glass. The defendant had removed all of her clothes and was ontop of her. While the defendant was sexually assaulting her, he called her"black bitch" and told her to "be still." The defendant toldher he was going to kill her.

The victim was unable to move. The defendant, realizing his victim wasconscious, continued to punch her in the face, beating her unconscious again.When the victim regained consciousness, the defendant was still on top of her,sexually assaulting her. Seeing the victim awake, the defendant punched her inthe face again, causing her to lose consciousness again.

The victim then awoke to a very sharp pain in her vagina. At the time, thedefendant was still on top of her. She passed out for a moment and awoke againto the very sharp pain. She did not know what caused the sharp pain, but thistime she saw the defendant standing between her legs pushing something into hervagina.

While the defendant stood above her, pushing an object into her vagina, hesaid "be still, you bitch." The victim, unable to move, passed outagain. When she awoke, the defendant was gone, but she could not move. She couldfeel something was still inside her vagina.

Evidence at trial showed the defendant used a tree limb, approximately 30inches long and approximately 2 inches in diameter, to impale the victim'svagina. She suffered multiple blunt head trauma, conjunctival hemorrhages, anopen wound to her vagina, and laceration to her iliac vein -- the second largestvein in the body.

The parties stipulated that if Doctor John Barrett were called to testify, hewould have testified he was one of the emergency room doctors who treated thevictim on June 27, 1998. According to Doctor Barrett, in the 24 years he workedin the emergency room of Cook County Hospital, the defendant's attack on thevictim was "the most significant impalement [I have] seen performed byanother human being."

After a hearing in aggravation and mitigation, the trial judge imposed thefollowing sentences:

(1) Attempt first degree murder -- an extended term of 50 years;

(2) Aggravated criminal sexual assault -- an extended term of 50 years;

(3) Aggravated kidnapping -- a term of 20 years.

The sentences were to run consecutively, adding up to a 120-year term.

The two extended sentences were based on the trial court's finding that thecrimes were accompanied by exceptionally brutal and heinous behavior indicativeof wanton cruelty. See 730 ILCS 5/5-5-3.2(b)(2) (West 1998).

Each sentence was to run consecutive to the other, the trial court finding"these were all conducted as part of the same course of conduct." See730 ILCS 5/5-8-4(a) (West 1998).

As a threshold matter, the State contends the defendant waived his challengesto the statutes that authorize imposition of extended term and consecutivesentences because he failed to raise the issues in his post-trial sentencingmotion, as required by section 5-8-1(c) of the Unified Code of Corrections. 730ILCS 5/5-8-1(c) (West 1998). See People v. Reed, 177 Ill. 2d 389, 393-94,686 N.E.2d 584 (1997)(defendant must raise sentencing issues in post-sentencingmotion to preserve issues for review).

This court has repeatedly declined to find waiver of a defendant's Apprendichallenge to his sentence imposed pursuant to the mandatory Class X sentencingscheme found in section 5-5-3.2 of the Unified Code of Corrections, despite thatchallenge being raised for the first time by defendant on appeal. See Peoplev. Armstrong, No. 1--98--4278, slip op. at 15 (December 29,2000)("Challenges to a trial court's statutory authority to impose aparticular sentence are not subject to waiver"). See also People v.Harden, __ Ill. App. 3d __, __, 741 N.E.2d 1063, 1065 (2000). We will,therefore, address the merit of the issues.

The defendant was convicted of three Class X felonies: attempt first degreemurder, aggravated criminal sexual assault, and aggravated kidnapping.Ordinarily, these felonies carry a term of 6 to 30 years imprisonment (730 ILCS5/5-8-1(a)(3) (West 1998)), but an offender may be sentenced to 30 to 60 yearsimprisonment if the trial court finds a statutory aggravating factor thatsubjects the defendant to an extended term sentence under section 5-8-2 of theCode of Corrections (730 ILCS 5/5-8-2(a)(2) (West 1998)).

Here, the trial court sentenced the defendant to an extended term of 50 yearsimprisonment for attempt first degree murder and to an extended term of 50 yearsimprisonment for aggravated criminal sexual assault because the crimes wereexceptionally brutal and heinous (730 ILCS 5/5-5-3.2(b)(2) (West 1998)). Thedefendant contends his extended term sentences must be vacated in light of Apprendi.We agree.

No reasonable construction of our extended term sentencing statute (see 730ILCS 5/5-8-2 (West 1998)) would allow us to avoid the broad constitutional ruleof Apprendi. See People v. Chanthaloth, No. 2--98--1247, slip op.at 15-16 (January 12, 2001), citing People v. Joyner, 317 Ill. App. 3d93, 109, 739 N.E.2d 594 (2000); People v. Beachem, 317 Ill. App. 3d 693,707, 740 N.E.2d 389 (2000); People v. Clifton, Nos. 1--98--2126,1--98--2324 (cons.), slip op. at 55 (September 29, 2000); and People v.Carney, 317 Ill. App. 3d 806, 812, 740 N.E.2d 435 (2000), pet. for leaveto appeal granted No. 90549.

Any fact, other than a prior conviction, that increases the maximum penaltyfor a crime must be charged in an indictment, submitted to a fact-finder, andproved beyond a reasonable doubt. Apprendi, 530 U.S. at , 147 L. Ed. at447, 120 S. Ct. at 2354.

At the defendant's sentencing hearing, the trial court found the crime wasexceptionally brutal and heinous, indicative of wanton cruelty. The trial courtsaid it based its imposition of the extended term sentences on that finding. Asa result, the defendant received two extended term sentences totaling 100 years-- 40 years greater than the maximum Class X sentences permitted under section5-8-1(a)(3) (730 ILCS 5/5-8-1(a)(3) (West 1998)).

The State does not respond to the defendant's claim that his extended termsentences violated the holding in Apprendi.

Because Apprendi required that the indictment in this case set forththe enhancing element, that is, heinous and brutal conduct indicative of wantoncruelty, and that the fact-finder find those sentence-enhancing facts beyond areasonable doubt, the sentences for attempt first degree murder and aggravatedcriminal sexual assault cannot be extended beyond the statutory limitations of30 years for each offense. See Apprendi, 530 U.S. at , 147 L. Ed. at 447,120 S. Ct. at 2354. Therefore, we vacate the defendant's extended term sentencespursuant to the United State Supreme Court's holding in Apprendi.

The defendant contends section 5-8-4(a) of the Unified Code of Corrections(730 ILCS 5/5-8-4(a) (West 1998)) is unconstitutional. Section 5-8-4(a)provides, in relevant part:

"The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, *** the defendant was convicted of a violation of Section 12-13 [criminal sexual assault] or 12-14 [aggravated criminal sexual assault] of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively." 730 ILCS 5/5-8-4(a)(West 1998).

The trial court sentenced the defendant pursuant to this section and orderedall three terms to run consecutively. Relying on Apprendi, the defendantcontends section 5-8-4(a) is unconstitutional because it allows a trial court tomake factual findings -- such as the finding in this case that the offenses ofattempt first degree murder, aggravated criminal sexual assault, and aggravatedkidnapping were committed as part of a single course of conduct -- that increasethe permissible range of penalties by requiring the defendant's sentences to runconsecutively.

The State asserts Apprendi does not apply to section 5-8-4(a) of theUnified Code of Corrections because that section does not authorize theimposition of a sentence which is beyond the prescribed statutory maximum forany particular offense. Rather, the State contends, an order that multiplesentences run consecutively pursuant to section 5-8-4(a) affects only the mannerin which the sentences will be served, not the length of those sentences.

Three divisions of the First District have held that section 5-8-4(a) isunconstitutional because it allows the trial court to impose consecutivesentences upon making one or more factual findings, specifically, whetheroffenses were committed as part of a single course of conduct and, in somecases, whether the defendant inflicted severe bodily harm. Clifton, Nos.1--98--2126, 1--98--2384 (cons.), slip op. at 49-55 (2nd Div.); Carney,317 Ill. App. 3d at 812-13 (5th Div.); Harden, __ Ill. App. 3d at __, 741N.E.2d at 1065-67 (4th Div.).

The courts in Clifton, Carney, and Harden acknowledgedthat an order that sentences run consecutively does not enhance any individualsentence beyond the prescribed statutory maximum. However, the courts concluded,under Apprendi, it is the effect of a statute, rather than its form,which controls, and the effect of an order requiring sentences to runconsecutively is to increase the defendant's sentence. Clifton, Nos.1--98--2126, 1--98--2384 (cons.), slip op. at 52-54; Carney, 317 Ill.App. 3d at 812; Harden, __ Ill. App. 3d at __, 741 N.E.2d at 1065-66.

After the decisions in Clifton and Carney, the sixth divisionof the First District held, in People v. Sutherland, 317 Ill. App. 3d1117, 1130-31, __ N.E.2d __ (2000), People v. Primm, No. 1--97--3685,slip op. at 26-27 (December 29, 2000), and People v. Hayes, No. 1-