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SECOND DIVISION
August 21, 2001

JUSTICE McBRIDE delivered the opinion of the court:

Following a bench trial, defendant Taki Peacock was foundguilty of first degree murder, aggravated vehicular hijacking,armed robbery, and aggravated kidnapping. Defendant was given anextended-term sentence of 80 years for first degree murder and 30years on each of the other offenses, to run concurrent with the 80-year term.

The evidence at trial showed that on August 31, 1995, thevictim, 60-year-old Rufus Taylor, was confronted in his garage at6937 South Merrill Avenue in Chicago by defendant and LawrenceWallace. According to a written statement defendant later gave toan assistant State's Attorney, he and Wallace had planned to takethe victim's car the day before but had decided against it afterseeing someone sitting on a porch near the victim's garage. OnAugust 31, when the victim got out of his car, Wallace put a .25caliber gun to his head. Defendant had obtained the gun earlierfrom his sister-in-law. Defendant drove the victim's car to anarea near 131st Street and Halsted Street while Wallace held thevictim at gunpoint in the backseat. On the way, the victim askedto be dropped off and Wallace said they could not drop him offbecause he had seen their faces. Defendant, in his statement,acknowledged that he then "figured Wallace was going to kill Mr.Taylor." Upon arriving at 131st and Halsted, defendant located asecluded spot on property belonging to the Cook County ForestPreserve. According to defendant's statement, they got out of thecar and Wallace then shot the victim in the face. Defendant, afterunjamming the gun, fired a single shot at the victim but missed. Wallace then shot the victim again. Defendant and Wallace left thewounded victim and drove to Gary, Indiana, in the victim's car. Wallace gave defendant $200 that they had taken from the victim. When defendant and Wallace were told the "chop-shop" they werelooking for was closed, they went to a fast-food restaurant drive-up window and bought a bucket of chicken. The drive-throughattendant testified at trial that defendant, who was driving, askedher what time she was going to get off work and offered to comeback and pick her up later.

After being left to die by defendant and Wallace, the victimmanaged to get to Halsted Street, where civilians came to his aidand called the police. Police and paramedics arrived on the scene. The victim was initially conscious and told an officer that his carhad been taken by two black males, one tall, one short, and thatthe shorter one (Wallace) had shot him. One of the civilians whohad stopped to help contacted the victim's wife. The officerslearned that the victim's car was a black Jaguar with vanityplates.

Following a message sent out over the Illinois State PoliceEmergency Network, defendant and Wallace were apprehended in thevictim's car by Lake County, Indiana, sheriff's police. Defendantsubsequently met with assistant State's Attorneys from Cook Countyand gave a signed statement detailing the above events.

The victim was taken to a hospital, where he died several dayslater. The cause of death was a single gunshot wound to the head.

Defendant's case was set for a jury trial on July 13, 1998. On that day, defense counsel stated that after extensive discussionwith his client, defendant had decided to waive his right to a jurytrial. Counsel also informed the court that defendant haddiscussed the matter with his mother. Defense counsel tendered tothe court a jury waiver signed by defendant in open court. Thetrial court then admonished defendant regarding his right to a jurytrial and ruled that defendant had knowingly waived his right to ajury. Defendant's counsel stated that it was his understandingthat the trial would commence the next day. The State acknowledgedthat it had "all the witnesses on line for tomorrow as if it was ajury trial." After determining a starting time for the nextafternoon, the trial court stated: "Gentlemen, will that be byagreement hold on call to tomorrow?" The State then entered anolle prosequi on 14 of the counts against defendant, leaving 8counts for trial. The court then stated: "Okay, gentlemen, trialwill stand recessed until tomorrow."

The following day, the following colloquy took place:

"THE COURT: Please be seated. *** Readyfor trial?

[DEFENSE COUNSEL]: Yes, Judge. For therecord, I would like to spread of record thatearlier today around 12:30, I had anopportunity to come here to speak to my clientand I was alerted by the court personnel thatmy client had an urgent request to speak tome.

Upon speaking with my client, he hasinstructed me at this time that he wouldrespectfully like to withdraw his jury waiverthat he tendered and entered before this Courtyesterday. I discussed the matter with himextensively, Judge, and I feel that it is myduty to relay to the Court his request at thistime to withdraw the waiver that he hadentered yesterday, so we will be moving towithdraw said waiver, and ask for a juryinstead.

THE COURT: Thank you, Mr. Wilson. Mr.Lynn.

[STATES ATTORNEY]: Judge, it is myunderstanding of the law in Illinois that ajury waiver that has been knowingly andvoluntarily entered should stand, absent someshowing as to that it was given under somemisapprehension of the facts or the law. There is no indication that the defendant wasimproperly admonished in any fashion as to thefacts or the consequences, or as to the law.

I believe therefore it is within thediscretion of the Court as to whether theCourt feels the defendant was properlyadmonished and whether the waiver wasvoluntarily and knowingly made. Andtherefore, Judge, I believe it is within YourHonor's decision, and absent any showing, Ibelieve the defendant cannot now afterknowingly waiving, with all witnesses presentin court, I don't believe he can not [sic]waive it.

THE COURT: The waiver was executedyesterday and filed, and the defendant wasappropriately admonished, and knowingly waivedhis right to jury, and with the assurance thatnumber one, the defendant will have a fairtrial.

Number two, the only evidence which willbe considered will be the evidence which isbrought out in open court in this trial, andthat the defendant will have a fair trial, andif, if found guilty, a fair sentencing.

With my thanks Mr. Wilson, the waiverwill stand."

After hearing the evidence, the trial court found defendantguilty of first degree murder, aggravated vehicular hijacking,armed robbery, and aggravated kidnapping. After hearing evidencein aggravation and mitigation, the trial court sentenced defendantto an extended term of 80 years on the murder based on findingsthat the offense was accompanied by heinous behavior indicative ofwanton cruelty and was committed against a person 60 years of ageor older. The court also sentenced defendant to 30 years on theother three counts, to run concurrent to the 80-year sentence formurder.

Defendant now appeals.

Defendant first contends that he was deprived of hisfundamental right to trial by jury when the trial court denied hisrequest to withdraw his jury waiver prior to trial. According todefendant, in denying his request, the court failed to considerwhether granting the motion would result in a delay of the trial,impede justice, prejudice the State, or inconvenience thewitnesses.

Although a defendant has a right to a trial by jury, once hehas voluntarily waived that right he cannot then withdraw hiswaiver as a matter of right. People v. Catalano, 29 Ill. 2d 197,202, 193 N.E.2d 797 (1963). Whether a defendant may withdraw hiswaiver is a matter that is ordinarily within the discretion of thetrial court unless the circumstances indicate the defendant failedto realize the consequences of his waiver. Catalano, 29 Ill. 2d at202. Defendant's waiver was knowingly and understandingly made inopen court and the validity of that waiver is not in dispute here. The question before us is whether the trial court abused itsdiscretion in denying defendant's motion to withdraw his validlyentered jury waiver.

Although not raised by the parties on appeal, defendant'sclaim of error has been waived. Defendant's motion to withdraw hiswaiver was made orally by defense counsel. Upon denial of themotion, defense counsel did not object and instead simply statedthat defendant was ready for trial. Defendant did not raise theissue of the denial of his motion to withdraw in a posttrialmotion. The issue has therefore been waived. People v. Enoch, 122Ill. 2d 176, 186, 522 N.E.2d 1124 (1988).

Nor do we find defendant's claim of error reviewable as plainerror. Pursuant to Supreme Court Rule 615(a), issues affectingsubstantial rights are reviewable as plain error even where suchissues were not properly preserved for review. 134 Ill. 2d R.615(a). The plain error rule may be invoked only where either theevidence is closely balanced or the errors are of such magnitudethat defendant was denied a fair and impartial trial and remedyingthe error is necessary to preserve the integrity of the judicialprocess. People v. Williams, 193 Ill. 2d 306, 348-49, 739 N.E.2d455 (2000); People v. Nieves, 192 Ill. 2d 487, 502-03, 737 N.E.2d150 (2000). Having reviewed the record, we cannot say that theevidence in this case was closely balanced. Nor can we say thatthe claimed error either affected a substantial right or was ofsuch magnitude that defendant was denied a fair and impartialtrial. A defendant has a constitutional right to a jury trialunless he understandingly waives the right in open court and signsa valid jury waiver. People v. Stokes, 281 Ill. App. 3d 972, 977,667 N.E.2d 600 (1996). As noted previously, there is no questionthat defendant validly waived his right to a jury trial and, havingdone so, he was not in a position to demand the withdrawal of thatwaiver as a matter of right. See Catalano, 29 Ill. 2d at 202. Wenote that defense counsel provided the court with no explanationfor defendant's request to withdraw the waiver and assume thatdefendant simply changed his mind. Defendant has made no claimthat he did not receive a fair and impartial trial and, upon reviewof the record, we find that defendant received a fair trial. Defendant's claim of error is not, therefore, subject to plainerror review.

Even if we were to consider the merits of defendant's claim,he would not prevail. Defendant contends that the supreme court,in Catalano, 29 Ill. 2d at 203, set out a timeliness test fordetermining whether a motion to withdraw a jury waiver should begranted and that the trial court here abused its discretion infailing to apply that test in ruling on defendant's motion towithdraw his waiver. In Catalano, 29 Ill. 2d at 203, the courtstated that the question of whether a defendant's motion forwithdrawal of a jury waiver is timely made "involves the questionof whether such motion may be made after the commencement of thetrial and it also involves the question whether such motion,although made prior to the actual commencement of trial, was madeat a time when the granting thereof would result in delay of thetrial, would impede justice or prejudice the State, or wouldinconvenience the witnesses." We find that the supreme court, inCatalano, was not enunciating a timeliness test that was to bestrictly applied each time a defendant sought to withdraw a validlyentered waiver but was merely providing guidance to trial courtsregarding determinations on such requests. We note that defendanthas not cited, and we have not found, any cases that have portrayedthe above language in Catalano in the manner argued by defendant. Certainly, the timeliness of a motion to withdraw has not beenanalyzed in every case denying such motions in the years sinceCatalano was issued. In People v. Chapple, 291 Ill. App. 3d 574,578-79, 683 N.E.2d 1001 (1997), the reviewing court upheld thedenial of a motion to withdraw a validly executed jury waiver eventhough the request to withdraw was made one month prior to trial. In Chapple, 291 Ill. App. 3d at 578-79, the court found the motionto withdraw the jury waiver analogous to a request to withdraw aguilty plea, where the defendant has a burden of demonstrating tothe trial court the necessity of withdrawing the plea. The factthat the request to withdraw came a month prior to the commencementof trial was not discussed. Likewise, in People v. Flores, 245Ill. App. 3d 149, 153-54, 613 N.E.2d 1372 (1993), the reviewingcourt affirmed the trial court's pretrial refusal to permit thedefendant to withdraw his jury waiver. The court, in so ruling,found that the claimed change of circumstance defendant wasasserting had not invalidated defendant's waiver. Despite the factthat the request to withdraw the jury waiver was made prior totrial, the timeliness of the request was never addressed. We notethat in the instant case, defense counsel, in making his oralmotion to withdraw the jury waiver, made no claim regarding achange of circumstance and did not even provide an explanation fordefendant's request.

Defendant also argues that the trial court's remarks, indenying the motion, indicate the court "was operating under themisapprehension that the only inquiry necessary for ruling on themotion was whether the jury waiver was knowing and voluntary." Having reviewed the record in this case, we find it does notsupport defendant's argument. Although the court commented onwhether the waiver had been validly executed, that was a necessaryruling in denying defendant's motion to withdraw his jury waiver. The court's mere failure to comment on the timeliness of the motionto withdraw does not indicate that it was operating under amisapprehension regarding its discretion to allow the motion towithdraw. Nor does the trial court's ruling persuade us that thecourt necessarily failed to consider the timeliness of the motion.

Finally, even assuming that application of the factors setforth in Catalano was required, the trial court did not abuse itsdiscretion in denying defendant's motion to withdraw. We disagreewith defendant's assertions that the record is "devoid of anyindication" that granting the motion to withdraw would have delayedthe trial and "is free of any suggestion" that the State would havebeen prejudiced or witnesses inconvenienced were the withdrawal ofthe jury waiver allowed. The record indicates that the State'switnesses were present and waiting for the bench trial to begin at1 p.m. on July 14, 1998, when defense counsel, without stating areason, informed the trial court that defendant had requested thathis validly executed jury waiver be withdrawn. Defendant concedes,in his reply brief on appeal, that if the motion to withdraw hadbeen allowed, jury selection would have probably taken up theremainder of the afternoon. The witnesses waiting to testify wouldthus have been inconvenienced by being forced to return thefollowing day. Further, following defendant's jury waiver theprevious day, the State entered a nolle prosequi on 14 of the 22counts against defendant. The nolle prosequi terminated allfurther prosecution of the dismissed counts and the State wouldhave had to file a new charging instrument to reinstate theaffected counts. See People v. Woolsey, 139 Ill. 2d 157, 168, 564N.E.2d 764 (1990). It is unclear whether the State would haveproceeded with the same course of action if defendant had notwaived his right to a jury trial.

The trial court had discretion in ruling on defendant's motionto withdraw his validly executed jury waiver and the court was notrequired to apply a specific "timeliness test" or to enunciatefindings regarding timeliness in so ruling. Further, under thecircumstances present here, we cannot say the trial court abusedits discretion in denying defendant's motion to withdraw hisvalidly executed jury waiver immediately prior to the commencementof trial where granting the motion arguably would have resulted ina delay of the trial, prejudice to the State, and inconvenience tothe witnesses.

Defendant next contends that his extended-term sentence of 80years was an abuse of discretion. Where a trial court finds thatone of the factors set forth in section 5-5-3.2(b) of the UnifiedCode of Corrections (730 ILCS 5/5-5-3.2(b) (West 1994)) exists, itmay sentence a defendant to an extended-term sentence under section5-8-2 (730 ILCS 5/5-8-2(a) (West 1994)). In the instant case thetrial court found both that defendant's conduct was accompanied byexceptionally brutal or heinous behavior indicative of wantoncruelty, and that the victim was 60 years old. 730 ILCS 5/5-5-3.2(b)(2), (b)(4)(ii) (West 1994).

Defendant contends that the trial court erred in finding thatthe offense supported a finding of exceptionally brutal or heinousbehavior indicative of wanton cruelty. Initially, we note that thefinding of brutal and heinous behavior was unnecessary to theimposition of an extended-term sentence in this case. Defendantconcedes that the victim was 60 years old at the time of his deathand that defendant was therefore qualified for an extended-termsentence. Because a trial court need find only a single statutoryfactor in aggravation to impose an extended sentence (People v.Benkowski, 215 Ill. App. 3d 615, 621, 575 N.E.2d 587 (1991)), the finding regarding the victim's age standing alone was a sufficientbasis upon which to impose an extended-term sentence.

Moreover, we find no merit to defendant's contention that thetrial court's finding regarding the brutal and heinous nature ofthe offense was in error. It is within the trial court'sdiscretion to determine what constitutes exceptionally brutal andheinous behavior indicative of wanton cruelty for the purpose ofimposing an extended-term sentence, and absent an abuse of thatdiscretion the sentence of the trial court may not be altered onreview. People v. Edens, 174 Ill. App. 3d 1033, 1045, 529 N.E.2d617 (1988).⁽¹⁾ "Brutal" includes conduct that is grossly ruthless,devoid of mercy or compassion, or cruel and cold-blooded, while"heinous" conduct is conduct that is hatefully or shockingly evil,grossly bad, or enormously and flagrantly criminal. People v.Abernathy, 189 Ill. App. 3d 292, 316, 545 N.E.2d 201 (1989).

Briefly, we note that the course of criminal conduct embarkedupon by defendant and Wallace was premeditated. Defendant obtainedthe murder weapon in advance with the intent to use it to commitcriminal acts. Wallace and defendant chose the victim and lay inwait. Although defendant, in allocution, stated that he neverplanned for the victim to die, he acknowledged in his statementthat, as they were driving, he knew Wallace was planning to killthe victim. Defendant, with that knowledge, chose a secluded spotwhere the execution of the victim could take place. The victim wasshot in the face. Defendant unjammed the gun and took a turn inattempting to shoot the victim. The two then left the victim todie and drove the victim's car to Indiana, where they spent moneythey had taken from the dying victim and defendant attempted topick up a woman working at a fast-food restaurant. The trialcourt's finding that the murder of the victim was accompanied bybrutal and heinous conduct indicative of wanton cruelty was not anabuse of discretion.

Defendant also contends that, regardless of his eligibilityfor an extended-term sentence, the trial court abused itsdiscretion in imposing an extended-term by failing to take intoaccount the objective of restoring him to useful citizenship. Specifically, defendant submits that the trial court failed toconsider the fact that he was only 17 years old at the time of theoffense, had no criminal background, was found guilty under atheory of accountability, and expressed deep remorse over hisactions. A trial court is not required to set forth every reasonor the weight it gave each factor considered in determiningdefendant's sentence. People v. Brajcki, 150 Ill. App. 3d 506,515, 501 N.E.2d 774 (1986). Absent evidence to the contrary, atrial court is presumed to have considered any mitigating factorsbrought before it. People v. Wright, 272 Ill. App. 3d 1033, 1046,651 N.E.2d 758 (1995). Further, a sentence is presumptivelycorrect and only where that presumption has been rebutted by anaffirmative showing of error will a reviewing court find that thetrial court has abused its discretion. People v. Fort, 229 Ill.App. 3d 336, 340, 592 N.E.2d 1205 (1992). No such showing has beenmade here.

Although the trial court was required to consider defendant'srehabilitative potential and other relevant sentencing factors, thecourt was not required to give greater weight to those factors thanto the seriousness of the offense. Fort, 229 Ill. App. 3d at 341-42; Brajcki, 150 Ill. App. 3d at 515. There is no indication inthe record that the trial court, in sentencing defendant, failed toconsider any relevant sentencing factors, including defendant'slack of criminal background, age, alleged remorse, and the factthat he was found guilty of first degree murder under a theory ofaccountability. In fact, in sentencing defendant, the court madespecific mention of defendant's lack of criminal history and thefact that defendant was guilty of the murder on an accountabilitytheory. Considering the nature and seriousness of the crime andevidence presented in aggravation and mitigation, we find that thetrial court did not abuse its discretion in imposing an extended-term sentence of 80 years.

After the United States Supreme Court issued its decision inApprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct.2348 (2000), the parties were given permission to file supplementalbriefs in this appeal addressing the application of Apprendi to theinstant case. In Apprendi, the Supreme Court held unconstitutionala New Jersey statute which allowed a judge to increase thesentencing range for an offense where the court found, based on apreponderance of the evidence, that the defendant in committing thecrime did so with the purpose of intimidating an individual orgroup on the basis of a particular characteristic possessed by theindividual or group. In so ruling, the Supreme Court held that"[o]ther than the fact of a prior conviction, any fact thatincreases the penalty for a crime beyond the prescribed statutorymaximum [for the relevant offense] must be submitted to a jury, andproved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 147L. Ed. 2d at 445, 120 S. Ct. at 2362-63.

As noted earlier, the trial court found defendant subject toan extended-term sentence based on findings that the murder wasaccompanied by exceptionally brutal or heinous behavior indicativeof wanton cruelty and that the victim was 60 years old at the timeof the offense. In his supplemental brief, defendant maintainedthat a violation of the rule set forth in Apprendi occurred herewhere the aggravating factors used to impose an extended-termsentence were not pled in the indictment, submitted to the jury,and proven beyond a reasonable doubt.

The State argues that the sentencing range for first degreemurder is anywhere from 20 years in prison up to and including thedeath penalty. A number of Illinois cases have rejected that sameargument. Those cases have held that the maximum statutory penaltyfor first degree murder is that set forth in section 5-8-1(a)(1)(a)of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(a) (West1994) (stating that a term shall be not less than 20 years and notmore than 60 years)), and that the imposition of an extended-termsentence based on a finding by the trial court that the offense wasaccompanied by exceptionally brutal or heinous behavior indicativeof wanton cruelty violates Apprendi where such findings are basedon a relaxed evidentiary standard. See, e.g., People v. Beachem,317 Ill. App. 3d 693, 708, 740 N.E.2d 389 (2000) (holding that 60years is "the prescribed maximum sentence for first degree murderin this State" and that an extended-term sentence of more than 60years that is based on a finding of exceptionally brutal andheinous behavior "clearly offends" Apprendi). We note that anotherdivision of this court, in People v. Vida, No. 1-99-2922, slip op.at 15-25 (June 22, 2001), recently held instead that the statutorysections regarding extended-term sentencing and sentences ofimprisonment for a felony should be read together as part of anoverall sentencing scheme for murder when determining the statutoryrange of possible penalties for first degree murder. Under such anapproach, an extended-term sentence imposed upon a judicial findingat sentencing that a statutory aggravating factor existed would notnecessarily violate Apprendi. Thus, there is a split in authorityin this district regarding how the maximum statutory penalty forfirst degree murder is to be determined. We need not adopt eitherof the approaches taken by the above cases, however, because evenassuming an Apprendi violation occurred, we find it to be harmlesserror.

In United States v. Nance, 236 F.3d 820, 825 (7th Cir. 2000),the court found an Apprendi violation where the defendant wassubjected to a sentence in excess of the default statutory maximumbased on a finding by the trial court at sentencing regarding theamount of drugs involved. The court went on to hold that thefailure to include an amount of drugs in the indictment and tosubmit that issue to a jury for proof beyond a reasonable doubt wassubject to a harmless error analysis. Nance, 236 F.3d at 825-26. The question to be asked, the court held, was whether it was clearbeyond a reasonable doubt that a rational jury would have found thedefendant guilty absent the error. Nance, 236 F.3d at 825. Thecourt answered this inquiry in the affirmative and upheld thedefendant's sentence. Nance, 236 F.3d at 826.

Similarly, in United States v. Anderson, 236 F.3d 427 (8thCir. 2001), the defendant was found guilty of conspiring tomanufacture methamphetamine based on an instruction that told thejury it need only find a "measurable amount" of methamphetamine toconvict, rather than a specific amount. At sentencing, the trialcourt made a finding that the conspiracy intended to manufacturemore than 50 grams of methamphetamine. Based on its finding, thecourt sentenced the defendant to 30 years, more than the maximum20-year sentence allowed where only a "measurable amount" ofmethamphetamine was involved. On review, the court concluded thatalthough the imposition of the 30-year sentence contravened therule of Apprendi, it was harmless beyond a reasonable doubt whereno rational jury could have found the appellants guilty of thesubstantive offense and at the same time found the amount ofmethamphetamine the conspiracy sought to produce was less than theamount necessary to support the sentence ultimately imposed by thecourt. Anderson, 236 F.3d at 429-30.

Finally, in People v. Rohlfs, 322 Ill. App. 3d 965 (2001), thedefendant argued that his extended-term sentence violated Apprendiwhere it was imposed based on the age of the victim and that factwas not submitted to a jury and proved beyond a reasonable doubt. The Fourth District held that the failure to ask the jury todetermine the victim's age may have been harmless error where thevictim testified she was 93 years old, there was no disputeregarding her age, and no reasonable jury could have found her tobe under the age of 60. Rohlfs, 322 Ill. App. 3d at 972. Althoughthe court in Rohlfs ultimately affirmed the extended-term sentenceon a different basis, we find its analysis of the age issue to berelevant to our decision.

In the instant case, defendant was given an extended-termsentence by the trial court based on two different aggravatingfactors: that the victim was 60 years of age or older and that themurder was committed in an exceptionally brutal and heinous manner. "A trial court need find only a single statutory factor inaggravation to impose an extended sentence." People v. Benkowski,215 Ill. App. 3d 615, 621, 575 N.E.2d 587 (1991). During thetrial, the victim's wife testified that they had been married for37 years and that the victim was 60 years old at the time of hisdeath. In addition, the parties stipulated at trial that if CookCounty Medical Examiner Dr. Lawrence Cogan had been called as awitness, he would have testified that upon examining the victimafter his death, he found him to be, among other things, "thestated age of sixty years of age." In this case, the finding bythe trial court regarding the victim's age did not involve aweighing of evidence or examination of defendant's mental state. Indeed, the parties basically stipulated to the victim's age duringthe course of the trial. Moreover, defendant, in his originalbrief on appeal, conceded "that the deceased in this case, RufusTaylor, had just turned 60 years old at the time of the offense." We find, therefore, that had the issue of the victim's age beenpled in the indictment and submitted to a jury, there is noquestion a jury still would have found defendant guilty beyond areasonable doubt. Accordingly, although a violation of Apprendimay have occurred here where the age of the victim was notpresented to the trier of fact as part of the indictment⁽²⁾ andsubjected to proof beyond a reasonable doubt, any violation thatdid occur was harmless error and defendant's extended-term sentenceof 80 years is affirmed.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

CAHILL, P.J., and GORDON, J., concur.

1. We note that the constitutionality of imposing an extended-term sentence in instances where a court finds the presence ofbrutal and heinous behavior under a standard of proof of less thanreasonable doubt is presently the subject of a split in authoritywithin the divisions of the First District. Compare, e.g., Peoplev. Beachem, 317 Ill. App. 3d 693, 740 N.E.2d 389 (2000), withPeople v. Vida, No. 1-99-2922 (June 22, 2001).

2. Although the record on appeal indicates that none of thecounts of the indictment pled as an element of the offense the ageof the victim being 60 years, one of the original complaints forpreliminary examination charged defendant with aggravated vehicularhijacking based on the victim being 60 years of age. See 720 ILCS5/18-4 (West 1994). Thus, at the commencement of the prosecution,defendant was on notice of the fact that the victim in this casewas 60 years of age.