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SECOND DIVISION
June 26, 2001

JUSTICE McBRIDE delivered the opinion of the court:

Following a bench trial, defendant Jimmie Tye was found guiltyof first degree murder and was sentenced to death. Defendant'sconviction and sentence were upheld by the Illinois Supreme Courtin People v. Tye, 141 Ill. 2d 1, 565 N.E.2d 931 (1990). Defendantsubsequently filed a petition for postconviction relief claimingthat he had received ineffective assistance of counsel at both theguilt-innocence and sentencing portions of his trial. The circuitcourt⁽¹⁾ granted the State's motion to dismiss defendant's amendedpetition for postconviction relief with regard to the guilt-innocence phase without an evidentiary hearing but granteddefendant a hearing on his claim of ineffective assistance ofcounsel at the sentencing phase of his trial. Following a hearing,the court determined that defendant was entitled to a newsentencing hearing. A new sentencing hearing was held, and,although defendant was again found eligible for the death penalty,he was sentenced to natural life in prison without the possibilityof parole. Defendant now appeals, contending the circuit courterred in dismissing his claim of ineffective assistance of counselduring the guilt-innocence portion of his trial without holding anevidentiary hearing and erred in sentencing him to natural life inprison. In addition, at the request of defendant, the parties havefiled supplemental briefs regarding the applicability of Apprendiv. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348(2000), to this case.

Defendant was charged with the murder of his three-year-olddaughter Jasmin. He retained a private attorney and a bench trialwas eventually held. The following is a summary of the relevantevidence. The details of the crime and events surrounding it areset forth in greater detail in the Illinois Supreme Court'sdecision on direct appeal. Tye, 141 Ill. 2d at 7-13.

On October 24, 1984, defendant was looking after his daughter,Jasmin, while her mother Pamela was at the hairdresser. WhenJasmin refused to go to bed after defendant instructed her to doso, defendant struck her several times with a belt. Jasmincontinued to refuse to go to bed and defendant continued to strikeher with the belt. Defendant then began to strike Jasmin with a14-foot extension cord. Defendant instructed Jasmin to put herpajamas on. When she began to put her pajamas on the wrong way,defendant began to beat her with the extension cord again. Defendant then held Jasmin up by one arm while continuing to beather. According to a statement defendant gave to police, he beatJasmin over the course of an hour on her arms, legs, back, stomach,chest, shoulders, and face.

According to defendant, he then helped Jasmin put on herpajamas and go to bed. Jasmin complained that her head hurt anddefendant got her a damp towel. Later, Jasmin began to vomit. According to defendant, he blew into Jasmin's mouth and nose at onepoint in an attempt to clear them of vomit.

By the time Pamela returned home, Jasmin was no longer moving. Because the apartment had no telephone, defendant and Pamela leftto summon help. Pamela's father came over and found that Jasmin'sbody was cold and had no pulse. He left and flagged down a policeofficer. Jasmin was transported to the hospital but was pronounceddead on arrival.

According to an investigating detective, both defendant andPamela initially told the police that it was Pamela who had whippedJasmin on October 24. Later, defendant gave a formal, court-reported statement confessing to beating Jasmin. That statementwas admitted into evidence at trial. Detectives searcheddefendant's apartment and found a belt and extension cord but noevidence of blood or vomit or a towel similar to the one defendantclaimed to have placed on Jasmin's head.

The chief medical examiner of Cook County testified that hisexternal examination of Jasmin's body revealed contusions toonumerous to count over virtually every part of her body. Theinjuries were consistent with blows inflicted by a belt, beltbuckle, or electrical cord. An internal examination of thevictim's body revealed severe hemorrhaging to the underlying fatand muscle. An X ray revealed a recent fracture of Jasmin's upperarm consistent with an upward pulling of that arm. The examineralso testified that he found partially digested food in Jasmin'sstomach and no evidence of vomit in her mouth or nostrils.

Defendant testified at trial and admitted to whipping Jasminon October 24, 1984. Defendant denied, however, that he hadpossessed any of the mental states necessary to sustain a charge ofmurder. According to defendant, he had whipped Jasmin because hewas "mad at her because she had been disobedient."

After hearing all of the evidence, the trial court founddefendant guilty of murder. The State requested a capitalsentencing hearing and defendant, as he had at trial, waived hisright to a jury for purposes of the hearing. The trial court founddefendant eligible for the death penalty because the victim wasunder the age of 12 and the death resulted from exceptionallybrutal and heinous behavior indicative of wanton cruelty. See Ill.Rev. Stat. 1983, ch. 38, par. 9-1(b)(7). Despite presenting anumber of mitigation witnesses at the sentencing hearing, defendantwas sentenced to death. In finding that there were insufficientmitigating factors to preclude the imposition of the death penalty,the trial court held:

"The Court's already made a finding that yourbehavior, Mr. Tye, on the date in question wasexceptionally brutal and heinous andindicative of wanton cruelty. I heardtestimony in this courtroom about what youdid. I also saw the photographs about whatyou did. What you did is you savagelybrutalized three, four year old child. Defenseless child, innocent child. All shedid to you was refused to go to bed, if I wereto believe that portion of your testimony. You inflicted hundreds of wounds upon herbody. You broke her arm. You dislocated hershoulder to such a degree that her little bodywent into shock. That's a mechanism the bodyhas to shut off the pain and that's whatcaused her death. And I have to consider whatyou did and contrast what you did with anymitigation that's presented here today in yourbehalf and determine whether or not thatmitigation is sufficient to preclude theimposition of the death penalty.

In evaluating your acts I, as a jury, ***have a right to draw upon my experiences inlife to determine how serious your crime was. And I'll state for the record that for aperiod of seven years I was a homicidedetective in the City of Chicago; and Iinvestigated numerous child beatings. Iinvestigated numerous child deaths. And Ispent a total 25 years in the criminal justicesystem. And I have never seen a child beatenwith such viciousness, repeatedly beaten overan hour to the extent her death was caused."

On direct appeal, defendant argued, inter alia, that the Statehad failed to prove that he acted with any of the mental statesspecified in the murder statute. The Illinois Supreme Court heldthat the trial court could have inferred, based on the evidence,that defendant acted with the necessary mental state in bringingabout Jasmin's death. Tye, 141 Ill. 2d at 16. The court alsoupheld the propriety of the trial judge's reference to his ownbackground and experience in assessing the severity of defendant'scrime. Tye, 141 Ill. 2d at 20-24. Defendant's conviction anddeath sentence were affirmed. Three justices, although theyconcurred with the majority's affirmance of the murder convictionand agreed that defendant was eligible for the death penaltybecause Jasmin's death had resulted from exceptionally brutal orheinous behavior indicative of wanton cruelty, dissented from themajority's view that death was an appropriate sentence. Tye, 141Ill. 2d at 34-40 (Ryan, J., concurring in part and dissenting inpart, joined by Clark and Calvo, JJ.).

In 1992, defendant filed a petition for postconviction relief. In 1994, defendant filed an amended petition in which he allegedthat he had received ineffective assistance of counsel at both theguilt-innocence and sentencing phases of his trial. Defendantalleged that he had received ineffective assistance of counselduring the guilt-innocence portion of his trial because, amongother things, his trial counsel failed to locate and introduce ahospital document indicating that the victim appeared to havevomited prior to her death, failed to investigate or introduce anyevidence regarding possible abuse and corporal punishment inflictedupon defendant during his childhood, and failed to either conductan investigation or employ experts to assess defendant'sintellectual capacity to waive his Miranda rights or file a motionto suppress defendant's statements to police. Defendant's claimsthat he received ineffective assistance at the death-penalty-eligibility and sentencing portions of his trial were based onallegations that his trial counsel had failed to investigate thepossibility that there was evidence that would have precluded afinding that defendant was eligible for the death penalty, failedto develop or present a defense mitigation theory at sentencing,failed to investigate or introduce evidence of defendant's mentalstate at the time of the crime, defendant's social or psychologicalhistory, or of defendant being under the influence of an extrememental or emotional disturbance at the time of the crime, andfailed to introduce records corroborating defendant's testimonythat he attempted to resuscitate the victim after finding herunconscious. Defendant's petition contained a large amount ofmaterial in support of his allegations, including an affidavitsigned by defendant's trial counsel in which counsel acknowledgedfailing to take various actions during trial and during thesentencing hearing.

The circuit court granted the State's motion to dismiss theamended petition with respect to the guilt-innocence phase withoutan evidentiary hearing. The circuit court did hold an evidentiaryhearing, however, regarding defendant's claim of ineffectiveassistance of counsel at sentencing. Following a hearing, thecircuit court found that defendant had received ineffectiveassistance of counsel at sentencing and ordered a new sentencinghearing.

A new sentencing hearing was held. At the new sentencinghearing, defendant waived his right to a jury. The State anddefendant both called a number of witnesses in aggravation andmitigation. Defendant called relatives to testify in mitigation asto his good character and difficult upbringing, which includedbeing whipped with an extension cord. Eileen McCarthy, amitigation specialist/forensic social worker with the capitallitigation division of the Illinois State Appellate Defender'soffice, testified regarding her compilation of a biographical,psychological, and social history of defendant. Among otherthings, she testified to the abuse defendant was subjected toduring his own childhood. Clinical psychologist Dr. Mark Ramsdenstated in an affidavit that, having examined defendant, he believeddefendant committed the murder while under the influence of "anextreme mental or emotional disturbance, although not such as toconstitute a defense to the prosecution," and that defendant's ownabusive childhood had led him to beat Jasmin. Dr. Ramsden alsofound that defendant was dyslexic, unable to read at a minimallyfunctional level, and had a full-scale IQ of 86. At theresentencing hearing, Dr. Michael Gelbort, a clinical psychologistpracticing in the area of neuropsychology, testified regarding aneuropsychological examination he gave to defendant. Dr. Gelbortconcluded that defendant had an "organic brain dysfunction" thatled to, among other things, a "disinhibition" that manifesteditself in an overreaction in terms of whipping the victim and aninability to fully understand the ramifications of his actions.

At the sentencing hearing, the circuit court first determinedthat defendant was eligible for the death penalty. Specifically,the court held:

"I think that the conduct in this case isbrutal and heinous indicative of wantoncruelty. And I focus on the language of theopinion of the Supreme Court that saysalthough the defendant in the present case didnot have a history of prior criminal conduct,these actions here were triggered by nothingmore *** egregious than a three-year-oldchild's refusal to go to bed when she was toldto do so, and using a belt and an extensioncord the defendant beat the young girl forabout an hour. According to the autopticevidence the child's injuries were *** toonumerous to count and were present overvirtually the entire body.

The defendant *** was 28 years old at thetime of the occurrence. And there was noshowing -- considering all the evidenceadduced in the hearing thus far, in reachingthe same conclusion there was no evidence ofdrug or alcohol use by the defendant, thatwould not excuse but explain the conduct. AndI do not find the defendant at the time waslaboring under an emotional or mentaldisturbance. And that language of the SupremeCourt also from Page 945 correctly summarizesmy feelings about the same evidence after Ihave heard the evidence in this case.

***

The mere factor of administrating CPRsubsequent to an hour of vicious flagellationof the victim is a mitigating factor but doesnot outweigh all the aggravating factors todetermine it was brutal, heinous andindicative of wanton cruelty, and the Court sofinds."

At the conclusion of the hearing, the circuit court noted thatthis case was unique because never, in its experience "as a lawyer,whether as a prosecutor, as a defender, and as a jurist," had itencountered a case where the cause of death was flagellation. Thecourt reviewed the evidence presented in mitigation and noted thatmuch of the additional evidence presented at the second sentencinghearing was "a two-edged sword." The court ultimately concurred,however, with Justice Ryan's conclusion in his dissent in Tye, 141Ill. 2d at 39 (Ryan, J., concurring in part and dissenting in part,joined by Clark and Calvo, JJ.), that defendant's murder of Jasminwas "an isolated act of supreme violence" and that defendant didnot therefore pose such a threat to society that he must beexecuted. The circuit court then sentenced defendant to naturallife in prison without the possibility of parole.

Defendant now appeals.

On appeal, defendant first contends that the circuit courterred in denying him an evidentiary hearing on his postconvictionpetition claim of ineffective assistance of counsel at the guilt-innocence phase of his trial. According to defendant, his amendedpostconviction petition demonstrated that his trial counsel failedto introduce readily available evidence that would have negated themental state element of first-degree murder.

A postconviction petition allows a defendant to challenge aconviction or sentence by showing that a substantial deprivation offederal or state constitutional rights occurred in the proceedingsthat produced the judgment being challenged. People v. Tenner, 175Ill. 2d 372, 377-78, 677 N.E.2d 859 (1997). A petitioner isentitled to an evidentiary hearing on the allegations in hispostconviction petition where he makes a substantial showing of aviolation of constitutional rights. People v. Coleman, 183 Ill. 2d366, 381, 701 N.E.2d 1063 (1998). Where the question on review iswhether defendant's allegations, liberally construed and taken astrue, were sufficient to invoke postconviction relief, our reviewis de novo. People v. Coleman, 183 Ill. 2d at 387-89.

To prove ineffective assistance of counsel under Strickland v.Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984),a defendant must show that his counsel's representation fell belowan objective standard of reasonableness as measured by prevailingprofessional norms and that his counsel's deficient performance soprejudiced him that a reasonable probability exists that, but forcounsel's deficient performance, the result of the proceeding wouldhave been different. People v. Towns, 182 Ill. 2d 491, 506, 696N.E.2d 1128 (1998).

According to defendant, where his mental state at the time ofthe crime was the determining factor in whether he was guilty offirst degree murder or involuntary manslaughter, his trial counselwas deficient in failing to present readily available evidence thatwould have negated the mental state element of first degree murder. Specifically, defendant argues his counsel was ineffective infailing to obtain experts to evaluate his mental, psychological orsocial history, failing to investigate the "abundant literature"discussing adult victims of child abuse, failing to obtain expertsto evaluate defendant's intellectual capacity, and failing toinvestigate defendant's school records to discover defendant'slimited ability to read and write. Defendant contends that hisschool records and the information regarding his mental capacityshould have been used by trial counsel to file a motion to suppressalleging that defendant did not have the capacity to waive hisMiranda rights. Defendant also contends his trial counsel wasineffective for failing to subpoena hospital records stating thatthe victim appeared to have vomited prior to her death. Accordingto defendant, that evidence would have corroborated his statementto the police that after finding the victim with vomit in her noseand mouth, he attempted to resuscitate her by blowing in her noseand mouth.

The State contends that the doctrines of res judicata andwaiver apply. "[W]here a petitioner has previously taken a directappeal from a judgment of conviction, the judgment of the reviewingcourt is res judicata as to all issues actually decided by thecourt, and any other claims that could have been presented to thereviewing court, if not presented, are waived." People v. Flores,153 Ill. 2d 264, 274, 606 N.E.2d 1078 (1992).

Defendant responds that waiver should not apply here becausehis claims of ineffective assistance of counsel are based on factsthat did not appear in the trial record and thus could not havebeen raised on direct appeal. It is true that the waiver rule maybe relaxed where the evidentiary basis for the ineffectiveassistance of counsel claims were outside the record or are newlydiscovered and could not, therefore, have been considered by areviewing court on direct appeal. People v. Daniels, 301 Ill. App.3d 87, 97, 702 N.E.2d 324 (1998).

The hospital record indicating that Jasmin appeared to havevomited prior to her death is, arguably, newly discovered. Defendant seeks to use the record, however, to support his claimthat his trial counsel was ineffective for failing to presentindependent evidence to support defendant's testimony that heattempted to resuscitate Jasmin after she vomited. At defendant'soriginal sentencing hearing, defendant's stepmother testified thatafter the victim's funeral the victim's mother gave her the pajamasthe victim wore the night of her death and that they had vomit onthem. She also testified that she did not tell defendant's trialcounsel about the pajamas until after trial. There was, therefore,evidence in the record upon which defendant could have argued ondirect appeal that his trial counsel was ineffective for failing toseek out and present evidence to support defendant's testimonyregarding the victim vomiting. Defendant also complains that histrial counsel failed to obtain information regarding defendant'smental and educational deficiencies which he then should have usedto file a motion to suppress defendant's statement to the police onthe basis that defendant was unable to knowingly and intelligentlywaive his Miranda rights. The trial record, however, contained theresults of a November 9, 1984, court-ordered examination conductedby a psychiatrist, the purpose of which was to assess defendant'smental fitness to stand trial. Among other things, the notes ofthe psychiatrist's psychological summary stated that defendant was"of estimated low average intelligence, has a moderately severereading disability and shows deficiencies in other academic skills,including writing, spelling, and vocabulary usage." The aboveinformation does not vary significantly from the information indefendant's school records and the affidavit of Dr. Ramsden, uponwhich defendant relies in his postconviction petition. The issueof trial counsel's alleged ineffectiveness in failing to file amotion to suppress based upon defendant's mental capacity andeducational background could certainly, therefore, have been raisedon direct appeal. Finally, defendant argues that his trialcounsel's failure to investigate defendant's "neurologicaldeficiencies" or social history could not have been raised ondirect appeal. In addition to the psychological assessment ofdefendant discussed above, defendant testified at his originaltrial that he had been disciplined with an extension cord as achild and that the whippings had left welts on his body. Inaddition, defendant's aunt testified at his original sentencinghearing that defendant was "whipped" from time to time as a child. So again, the record contained information upon which a claim ofineffective assistance of trial counsel could have been made ondirect appeal. Simply because a more exhaustive and thoroughdetailing of defendant's social history was collected for thepurposes of the postconviction petition does not mean that therewas no basis in the record from which to raise the issue on directappeal. Because the ineffectiveness of defendant's trial counselcould have been raised on direct appeal, his postconviction claimof ineffective assistance at the guilt-innocence portion of histrial is waived. We note also that although the doctrine offundamental fairness may justify review of an ineffectiveassistance claim where the same counsel represented a defendant attrial and on appeal (People v. DeSavieu, 256 Ill. App. 3d 731, 735,628 N.E.2d 1117 (1993)), the defendant in the instant case wasrepresented by different counsel on appeal than he was at trial.

We also agree with the State that defendant is merelyattempting to relitigate the mental state element of his murderconviction under the guise of an ineffective assistance of counselclaim. At trial, defendant maintained that he had not possessedany of the mental states necessary to sustain a charge of murderand testified that he had not intended to kill Jasmin and wasunaware that his actions created a strong probability of death. The trial court found that defendant had the requisite mental stateto be found guilty of murder. On direct appeal, defendantcontended, inter alia, that the State had failed to prove that heacted with any of the mental states specified in the murderstatute. Tye, 141 Ill. 2d at 13. The supreme court, relying onthe disparity in size between defendant and the victim, thebrutality and duration of the beating, and the severity of thevictim's injuries, concluded that the trial court could haveinferred that defendant acted with the necessary mental state inbringing about the child's death. Tye, 141 Ill. 2d at 16. Defendant, in his postconviction petition, argues that his trialcounsel could have negated any evidence that he possessed themental state necessary to sustain a murder conviction if he hadproperly investigated, gathered, and introduced evidence ofdefendant's neurological deficiencies, social history, andeducational background, and had subpoenaed and introduced ahospital record indicating that the victim may have vomited priorto her death. We find that defendant's argument amounts to nothingmore than an attempt to revisit the mental state element of hismurder conviction under the guise of an ineffective assistance ofcounsel claim. See Flores, 153 Ill. 2d at 277-78 (holding that apetitioner may not evade the operation of waiver and res judicatasimply by rephrasing previously addressed issues in constitutionalterms in his postconviction petition). In so finding, we emphasizethat little of the evidence defendant maintains his trial counselshould have gathered and introduced goes to the ultimate issue ofdefendant's mental state at the time of the killing because theevidence would not negate the evidence the supreme court hasalready found allowed the trial court to infer that defendantpossessed the necessary mental state.

Assuming, arguendo, that defendant's claims regarding theguilt-innocence phase of his trial were not either waived or barredby res judicata, we find that defendant has failed to show eitherthat his counsel's representation fell below an objective standardof reasonableness as measured by prevailing professional norms, orthat his counsel's allegedly deficient performance so prejudicedhim that a reasonable probability exists that but for the deficientperformance, the result of the proceeding would have beendifferent. See Towns, 182 Ill. 2d at 506. In considering a claimof ineffective assistance, the court must "indulge a strongpresumption that counsel's conduct falls within the wide range ofreasonable professional assistance." Strickland, 466 U.S. at 689,80 L. Ed. 2d at 694, 104 S. Ct. at 2065. In addition, wheredefendant makes an insufficient showing regarding one component ofthe inquiry, there is no need to address both components. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. 2069. We will first address counsel's alleged failure to investigatedefendant's mental and educational deficiencies and resultingfailure to file a motion to suppress defendant's statement to thepolice on the basis that defendant was unable to knowingly andintelligently waive his Miranda rights. As noted previously, thetrial record contained a court-ordered examination, conducted by apsychiatrist and dated November 9, 1984, the purpose of which wasto assess defendant's mental fitness to stand trial. Thepsychiatrist, in his notes, discussed defendant's educationalbackground, including defendant's statement that he dropped out ofhigh school because of his poor performance, and observed thatdefendant was "of estimated low average intelligence," had amoderately severe reading disability, and showed deficiencies inother academic skills, including writing, spelling, and vocabularyusage. Because that information does not vary significantly fromthe information that defendant contends an adequate investigationwould have revealed, we conclude that a reasonable investigation ofdefendant's mental and educational limitations did, therefore, takeplace. Moreover, although the affidavits and exhibits in supportof defendant's postconviction petition indicate that defendantstruggled in school, particularly in reading, and dropped out ineleventh grade, they do not either assert or establish thatdefendant was unable to knowingly waive his Miranda rights. Because there is nothing to indicate that any motion to suppressfiled would have been successful, it cannot be said that defendantwas prejudiced by his trial counsel's failure to file such amotion.

Defendant also contends that his trial counsel was ineffectivefor failing to investigate defendant's mental history in order todiscover his "neurological deficiencies." As discussed earlier, apsychological assessment of defendant was conducted to determinehis fitness to stand trial. The examiner noted, inter alia, thatdefendant was neatly dressed and groomed, was coherent andoriented, denied psychotic symptoms, displayed no psychoticbehavior, was alert, showed no confusion, and did not exhibit anygross memory problems. There is nothing in the report that wouldsuggest that defendant suffered from "organic brain dysfunction,"as Dr. Gelbort testified to at defendant's new sentencing hearing. "Where the circumstances known to counsel at the time of hisinvestigation do not reveal a sound basis for further inquiry in aparticular area, it is not ineffective for the attorney to forgoadditional investigation." People v. Orange, 168 Ill. 2d 138, 150,659 N.E.2d 935 (1995). Considering the result of defendant'spretrial examination, it cannot be said that the failure ofdefendant's trial counsel to further investigate defendant's mentalcondition fell below an objective standard of reasonableness.

Defendant further maintains that his trial counsel wasineffective in failing to investigate his social history ofcorporal punishment as a child and how his history of abuse mayhave influenced his behavior in beating the victim. Defendant,testifying at his original trial, acknowledged that he had beendisciplined with an extension cord as a child and that it had leftwelts on his body. But defendant also gave conflicting testimonyas to whether the beatings had hurt and noted that the whippingshad made him "straighten up in a lot of ways." At his originalsentencing hearing, defendant's aunt testified that althoughdefendant had been "whipped" as a child from time to time, he hada normal childhood and had not been abused. Although the materialssupporting defendant's postconviction petition assert thatdefendant was beaten frequently by his great-grandparents with anextension cord while growing up, defendant, in his originalpresentencing investigation, told the investigator that he had a"good relationship" with his great-grandparents while growing up. Considering defendant's own testimony and that his own relativestestified he was not abused while growing up, it cannot be saidthat his counsel's failure to further explore defendant's socialhistory or introduce evidence regarding adult victims of childabuse constituted deficient performance.

Nor do the allegations of ineffective assistance indefendant's petition regarding his alleged "neurologicaldeficiencies" and social history entitle him to an evidentiaryhearing where they fail to show that if evidence relating to thosesubjects had been introduced, there is a reasonable probabilitythat the final result of the trial would have been different. According to defendant, if his counsel had not failed toinvestigate, consider, or introduce evidence and expert testimonysupporting and corroborating defendant's testimony that he did notintend to or know that his actions created a strong probability ofdeath or great bodily harm, he would have been found guilty ofinvoluntary manslaughter rather than first degree murder. Wedisagree. The various judges who have examined the evidence inthis case, and whose written and spoken opinions on the evidenceare referenced throughout this opinion, have used consistentlystrong language in describing the brutality of the beating that ledto Jasmin's death. The judges making those statements made themdespite their knowledge that defendant had testified he wassubjected to whippings as a child and did not mean to hurt thevictim. While the materials supporting defendant's postconvictionpetition indicate that he was subjected to corporal punishmentwhile growing up, there was no testimony from anyone demonstratingthat what defendant experienced as a child was similar to thebeating he subjected the victim to here. Moreover, nothing in thesupporting material can begin to negate the inference thatdefendant, in beating the three-year-old victim over the course ofan hour over virtually her entire body with a belt, belt buckle,and extension cord while holding her up by her arm until the armbroke and until her body went into shock, did not know that hisacts created a strong probability of death or great bodily harm. In so ruling, we recall the Illinois Supreme Court's opinion inPeople v. Ward, 101 Ill. 2d 443, 463 N.E.2d 696 (1984), where thedefendant, like the defendant here, maintained he had not intendedto fatally beat a child to death. The court noted that evenassuming, arguendo, that the defendant's statement that he "didn'tmean to" kill the victim was considered evidence that he actedrecklessly, the severity of the beating negated any suggestion thathis conduct was only reckless. Ward, 101 Ill. 2d at 451-52. Thecourt went on to quote approvingly the words of a concurringjustice in the Fifth District's opinion regarding that same case,who stated:

"'[T]o allow an excessively savage beating ofa child to be considered "reckless" when sucha beating made on an adult would beintentional as a matter of law defies commonsense. *** I believe that the beating death ofany victim, including a child, which is soextensive as to negate any possibility it wasinflicted recklessly, is insufficient evidenceto support an involuntary manslaughterinstruction.'" Ward, 101 Ill. 2d at 452-53,quoting People v. Ward, 112 Ill. App. 3d 547,558, 445 N.E.2d 883 (1983) (Welch, J.,specially concurring).

Where the beating death of a mere infant of three occurred in themanner in which it did here, to term such a beating mererecklessness belies all reason and common sense. We note also thatdespite the fact that defendant's request for an evidentiaryhearing on his counsel's alleged ineffectiveness at the guilt-innocence portion of his trial was denied, defendant introducedextensive evidence of his mental state and social history throughthe testimony of Dr. Gelbort and various relatives at thepostconviction proceedings regarding resentencing. Despite hearingthe evidence regarding defendant's abusive childhood and "organicbrain dysfunction," the circuit court stated that it did not finddefendant was laboring under an emotional or mental disturbance atthe time of the crime. We view that finding as additional supportfor our holding that defendant's petition fails to establish that,but for counsel's deficient performance, the result of the trialwould have been different.

The only evidence that is arguably "newly discovered" or"outside the record" is a hospital record indicating that thevictim appeared to have vomited prior to her death. The trialcourt heard defendant's testimony at trial that the victim began tovomit after the beating and that at that time he attempted to helpher. The trial court also heard testimony indicating that a policeofficer found no evidence of vomit at the scene of the crime andthat the medical examiner found no evidence of vomit in Jasmin'smouth or nostrils. The hospital record arguably would havecorroborated defendant's testimony. Defendant's trial counselacknowledged in his postconviction affidavit that he was unaware ofthe hospital record and made no attempt to subpoena such records. However, the record does not support a finding that theintroduction of the corroborating evidence would have changed theresult of the trial. Again, as noted by the supreme court, theinference that defendant possessed the mental intent necessary wascreated by the size disparity between defendant and the victim, thebrutality and duration of the beating, and the severity of thevictim's injuries. Tye, 141 Ill. 2d at 16. We fail to see howcorroboration of any actions defendant took well after the beatingwould have negated any of the evidence relied upon by the court infinding he had the requisite mental state. In this respect weagree with the circuit court's rejection of defendant's sameargument. The circuit court found, in the course of thepostconviction proceedings, that evidence regarding the vomitrelated more to mitigation and did not "vitiate the evidence whichis substantial to support the conviction." Defendant argues thatthe lack of evidence corroborating the fact that the victim vomitedallowed the State to portray him as a liar. We note, however, thatit is not uncommon for the State to attack the credibility oftestifying defendants and that the State had available other meansto do so here, where defendant made initial false statements to thepolice in which he told the police that Pamela was responsible forthe victim's injuries.

In sum, we find that defendant's postconviction petitionallegations that he received ineffective assistance of counsel inthe guilt-innocence portion of his trial fail to show either thathis counsel's representation fell below an objective standard ofreasonableness as measured by prevailing professional norms or thathis counsel's deficient performance so prejudiced him that areasonable probability exists that, but for counsel's deficientperformance, the result of the proceeding would have beendifferent.

Defendant next contends that the circuit court erred insentencing him to natural life without the possibility of parole. The State argues that defendant has waived consideration ofany sentencing issues by failing to object during the sentencinghearing and failing to raise the issues in a written posthearingmotion. Defendant responds that he adequately preserved hissentencing issues by filing, in the course of the resentencingprocess, a motion to reconsider the circuit court's finding ofexceptionally brutal or heinous behavior indicative of wantoncruelty and a memorandum of law regarding statutory sentencingoptions, and by listing the resentencing as one of the grounds inhis notice of appeal filed after the resentencing.

It is well established that to preserve a sentencing issue forappeal, a defendant is required to file a written motionchallenging the aspect of his sentence with which he disagreeswithin 30 days following the imposition of such sentence. See 730ILCS 5/5-8-1(c) (West 1996); People v. Reed, 282 Ill. App. 3d 278,280, 668 N.E.2d 51 (1996). The Reed court noted that a writtenmotion pursuant to section 5-8-1(c) of the Unified Code ofCorrections (730 ILCS 5/5-8-1(c) (West 1996)) serves the importantgoal of promoting judicial economy and finality of judgments byhighlighting any alleged error for the circuit court and grantingit the opportunity to reconsider the appropriateness of thesentence imposed and to correct any errors made. Reed, 282 Ill.App. 3d at 281. Listing a sentencing issue in a notice of appealneither satisfies the written motion requirement of section 5-8-1(c) nor promotes the above goal. Nor do the motions filed bydefendant prior to the imposition of his sentence satisfy thestatutory requirement. We find that defendant has waived hisclaims of error regarding sentencing by failing to file a writtenmotion following his resentencing to life in prison.

Defendant, in his reply brief on appeal, responds that thiscourt should review the sentencing issues as plain error. Sentencing errors affecting substantial rights may be analyzedunder the doctrine of plain error, regardless of a defendant'sfailure to file a postsentencing motion under section 5-8-1(c). People v. Whitney, 297 Ill. App. 3d 965, 967, 697 N.E.2d 815(1998), aff'd, 188 Ill. 2d 91, 720 N.E.2d 225 (1999). "The plainerror rule is a limited exception to the waiver rule and may beinvoked only if the evidence is closely balanced, or where thealleged error is so fundamental that it may have deprived thedefendant of a fair sentencing hearing." People v. Beals, 162 Ill.2d 497, 511, 643 N.E.2d 789 (1994). Defendant, while maintainingthat a plain error analysis is applicable here, merely argues thatthe trial court committed plain error by abusing its discretion insentencing. Where defendant neither argues the evidence wasclosely balanced nor explains why the errors were so severe thatthey must be remedied to preserve the integrity of the judicialprocess, he has waived any argument that plain error should apply. See People v. Nieves, 192 Ill. 2d 487, 503, 737 N.E.2d 150 (2000).

Waiver aside, a sentence will be disturbed on appeal only ifthe sentencing court abused its discretion. People v. Perruquet,68 Ill. 2d 149, 153, 368 N.E.2d 882 (1977). Defendant contendsthat the circuit court abused its discretion when it found, inresentencing defendant to natural life in prison, that defendant'sactions were exceptionally brutal and heinous and indicative ofwanton cruelty.

The sentencing statute in effect at the time of the crime,stated, in pertinent part:

"(1) for murder, (a) a term shall be not lessthan 20 years and not more than 40 years, or(b) if the court finds that the murder wasaccompanied by exceptionally brutal or heinousbehavior indicative of wanton cruelty or thatany of the aggravating factors listed insubsection (b) of Section 9-1 of the CriminalCode of 1961 are present, the court maysentence the defendant to a term of naturallife imprisonment ***." Ill. Rev. Stat. 1983,ch. 38, par. 1005-8-1(a)(1).

Section 9-1(b) of the Criminal Code of 1961 contained aggravatingfactors which, if proved beyond a reasonable doubt, would allow adefendant to be sentenced to death. Ill. Rev. Stat. 1983, ch. 38,pars. 9-1(b),(f). Thus, where the murdered individual was under 12years of age and the death resulted from exceptionally brutal orheinous behavior indicative of wanton cruelty, a defendant foundguilty of first degree murder could be sentenced to death ornatural life imprisonment. Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(b)(7), 1005-8-1(a)(1).

Defendant contends that the circuit court abused itsdiscretion in finding defendant's actions to be exceptionallybrutal and heinous and indicative of wanton cruelty where there wasno evidence indicating that the killing of Jasmine was premeditatedor that he intended to cause death. Defendant also relies on thefact that he has expressed remorse for his acts, had no priorcriminal history, and cooperated with the police. Finally,defendant maintains that he attempted to help the victim after itbecame evident she was severely injured by attempting toresuscitate her and by seeking help.

Defendant cites to various cases in which a lack ofpremeditation, an attempt to aid, a showing of remorse, and a lackof prior criminal history were named as factors considered bycourts in reaching a determination as to whether an offense wasaccompanied by exceptionally brutal or heinous behavior indicativeof wanton cruelty. See People v. Andrews, 132 Ill. 2d 451, 466,548 N.E.2d 1025 (1989) (relying on the lack of previous violentcrimes committed by defendant, lack of premeditation, anddefendant's expression of remorse in finding that the defendant'sacts were not exceptionally brutal or heinous); People v. Taylor,278 Ill. App. 3d 696, 699, 663 N.E.2d 1126 (1996) (noting thatcourts, in determining whether an offense was accompanied byexceptionally brutal or heinous behavior, have considered evidenceof a defendant's premeditation, his behavior at the time of theoffense, an expression of remorse for his conduct, and a priorcriminal history); People v. Mangum, 260 Ill. App. 3d 631, 642, 632N.E.2d 1097 (1994) (cited for its observation that "[i]t would seemthat a defendant acting with wanton cruelty toward his victim wouldnot bother to go to the aid of that victim").

Defendant's lack of premeditation, lack of prior criminalhistory, and alleged attempt to aid the victim when the severity ofher condition became apparent were all mentioned by the circuitcourt in the course of making its finding that defendant's conductwas brutal and heinous indicative of wanton cruelty. The circuitcourt determined, however, that the defendant's use of a belt andextension cord to brutally beat his three-year-old daughter for anhour simply because she refused to go to bed when told, and whichresulted in injuries too numerous to count over virtually herentire body, outweighed any of the factors cited by defendant. Thecircuit court noted that never "in [its] experience as a lawyer,whether as a prosecutor, as a defender, and as a justice, [had it]ever encountered a case where the cause of death was flagellation." The circuit court, in determining that defendant's behavior wasbrutal, heinous, and indicative of wanton cruelty, also found thatdefendant's attempt to aid the victim "subsequent to an hour ofvicious flagellation" was a mitigating factor but failed tooutweigh all the aggravating factors. A different judge, inoriginally sentencing defendant, noted that in his 25 years in thecriminal justice system as a homicide detective and judge, he had"never seen a child beaten with such viciousness." The IllinoisSupreme Court, in People v. Tye, 141 Ill. 2d at 30-32, similarlyfound that the evidence established defendant's conduct wasexceptionally brutal and heinous indicative of wanton cruelty.⁽²⁾ Aside from a hospital document indicating that the victim appearedto have vomited before her death, no significant new evidenceregarding the essential nature of the beating and manner in whichJasmin died was introduced at the resentencing. The circuit courtdid not abuse its discretion in finding that defendant's conductwas exceptionally brutal and heinous indicative of wanton cruelty.

Defendant next maintains that in sentencing him to naturallife in prison, the circuit court failed to consider the evidenceestablishing his rehabilitative potential. Defendant specificallyrefers to the testimony of Dr. Gelbort, a clinical psychologistspecializing in neuropsychology, who testified regardingdefendant's "organic brain dysfunction" and stated that "given avery supportive environment with a lot of remedial education,"persons with such a dysfunction may be able to overcome such adefect to some degree. Defendant also relies on the testimony ofEileen McCarthy, a forensic social worker who had examineddefendant's social and family history and testified that defendanthad tried to better himself while in prison. Finally, defendantcites the testimony of Ravinia Jones-Owusu, a divinity student whohad ministered to defendant in prison and who testified thatdefendant had "a great sense of personal responsibility" and "thespirit of a repentant heart."

Defendant maintains that the circuit court's failure tocomment on the above evidence of defendant's rehabilitativepotential, along with the severity of the sentence handed down,indicates that the circuit court failed to account for defendant'srehabilitative potential in sentencing.

In determining a sentence, the trial court must balance theinterests of society against the ability of a defendant to berehabilitated. People v. Banks, 241 Ill. App. 3d 966, 982, 609N.E.2d 864 (1993). Although the sentencing court was required toconsider defendant's rehabilitative potential, it was not requiredto give greater weight to that factor than to the seriousness ofthe offense or other aggravating factors. People v. Fort, 229 Ill.App. 3d 336, 341-42, 592 N.E.2d 1205 (1992); People v. Brajcki, 150Ill. App. 3d 506, 515, 501 N.E.2d 774 (1986). In fact, theseriousness of the crime committed is considered the most importantfactor in fashioning an appropriate sentence. People v. Adamcyk,259 Ill. App. 3d 670, 681, 631 N.E.2d 407 (1994). A court is notrequired to set forth every reason or the weight it gave eachfactor considered in determining a defendant's sentence. Brajcki,150 Ill. App. 3d at 515. Where evidence in mitigation is beforethe court, it is presumed that the court considered the evidence,absent some indication, other than the sentence imposed, to thecontrary. People v. Morgan, 306 Ill. App. 3d 616, 633, 713 N.E.2d1203 (1999). Further, "[a] sentence is presumptively correct, andonly where such a presumption has been rebutted by an affirmativeshowing of error will a reviewing court find that the trial courthas abused its discretion." Fort, 229 Ill. App. 3d at 340. Nosuch showing has been made here.

Defendant cites to a number of child homicide cases in whichlesser sentences than life without the possibility of parole weregiven, and attempts to distinguish child homicide cases in which asentence of life without parole was imposed. The practice ofcomparing a sentence to sentences imposed in unrelated cases hasbeen explicitly rejected by the Illinois Supreme Court in People v.Fern, 189 Ill. 2d 48, 55, 723 N.E.2d 207 (1999), on the basis thatsuch an analysis does not comport with Illinois' sentencingscheme's goal of individualized sentencing and would undulyinterfere with the sentencing discretion vested in the trialcourts.

There is no indication in the record that the circuit courtconsidered any improper factors or failed to take defendant'srehabilitative potential into account. The circuit court did notabuse its discretion in imposing a sentence of natural life inprison without the possibility of parole.

The parties have filed supplemental briefs on appeal followingthe Supreme Courts' opinion in Apprendi v. New Jersey, 530 U.S.466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). In Apprendi, 530U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63, theSupreme Court held that "[o]ther than the fact of a priorconviction, any fact that increases the penalty for a crime beyondthe prescribed statutory maximum must be submitted to a jury, andproved beyond a reasonable doubt."

As noted earlier, the sentence for first degree murder at thetime of the crime here was 20 to 40 years, or, if the court found"that the murder was accompanied by exceptionally brutal or heinousbehavior indicative of wanton cruelty or that any of theaggravating factors listed in subsection (b) of Section 9-1 of theCriminal Code of 1961" were present, the court could sentence thedefendant to a term of natural life imprisonment. Ill. Rev. Stat.1983, ch. 38, par. 1005-8-1(a)(1).

Defendant challenges the constitutionality of section 5-8-1(a)(1), arguing that pursuant to Apprendi, the section isunconstitutional in that it fails to afford a defendant the optionto elect a jury to determine whether a murder was accompanied byexceptionally brutal or heinous behavior indicative of wantoncruelty.

We find that there was no Apprendi violation in sentencingdefendant. At both defendant's original sentencing and the newsentencing hearing granted following the filing of hispostconviction petition, the State sought the death penalty. Atboth sentencing hearings, defendant waived his right to have a jurydetermine his eligibility for the death penalty. At bothsentencing hearings, defendant was found eligible for the deathpenalty based on an aggravating factor in section 9-1 of theCriminal Code of 1961. Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(7). Specifically, it was found that "the murdered individualwas under 12 years of age and the death resulted from exceptionallybrutal or heinous behavior indicative of wanton cruelty." Ill.Rev. Stat. 1983, ch. 38, par. 9-1(b)(7). Pursuant to statute, theexistence of the above aggravating factor was required to beestablished by the State beyond a reasonable doubt. Ill. Rev.Stat. 1983, ch. 38, par. 9-1(f). Although defendant was notultimately sentenced to death upon his resentencing, he had, butwaived, the opportunity to have a jury make a determination as towhether the aggravating factor had been established beyond areasonable doubt, and, following his jury waiver, the circuit courtfound that the State had proved the aggravating factor necessaryfor the imposition of any penalty up to and including death beyonda reasonable doubt. Thus, no violation of the rule set forth inApprendi occurred. Moreover, Apprendi does not apply here because,where defendant's acts made him eligible for the death penalty, theimposed sentence of natural life imprisonment was not beyond thestatutorily provided maximum.

In reaching our decision, we find People v. Williams, 317 Ill.App. 3d 945, 742 N.E.2d 774 (2000), to be instructive. There, thedefendant, who had been sentenced to natural life in prison, alsochallenged section 5-8-1(a)(1) (730 ILCS 5/5-8-1(a)(1) (West 1994)(formerly Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1(a)(1))), asviolating the rule announced in Apprendi. The court first notedthat section 9-1(b) of the Criminal Code of 1961 allows the deathpenalty to be imposed if one of the aggravating factors therein isfound and that the State had the burden of proving the aggravatingfactor beyond a reasonable doubt. Williams, 317 Ill. App. 3d at957. In Williams, as here, the trier of fact found beyond areasonable doubt that one of the aggravating factors existed andthe defendant was eligible for the death penalty. After thenhearing evidence in aggravation and mitigation, the trial court inWilliams imposed a sentence of natural life imprisonment ratherthan death. On appeal, the court concluded that because theaggravating factor relied upon in imposing a term of natural lifeimprisonment was proved beyond a reasonable doubt, there was noviolation of the rule set forth in Apprendi. Williams, 317 Ill.App. 3d at 958. The court in Williams, 317 Ill. App. 3d at 958,also went on to hold that the Supreme Court had excluded capitalpunishment sentencing schemes from Apprendi analysis.

Accordingly, the denial of defendant's postconviction petitionon the guilt-innocence portion of his trial is affirmed, as isdefendant's sentence of life imprisonment without the possibilityof parole, imposed upon resentencing following defendant's filingof a postconviction petition.

Affirmed.

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

1. Throughout the opinion, Judge John J. Mannion, who presidedover defendant's original trial, will be referred to as the "trialcourt," while Judge Michael B. Bolan, who presided over defendant'spostconviction proceedings, will be referred to as the "circuitcourt."

2. We note further that Justice Ryan, at the outset of hispartial dissent, joined by Justices Clark and Calvo, noted that thevictims death was "shocking and tragic" and that he did not disputethat her death resulted from exceptionally brutal or heinousbehavior indicative of wanton cruelty. Tye, 141 Ill. 2d at 34(Ryan, J., concurring in part and dissenting in part, joined byClark and Calvo, JJ.). Thus, the trial court's finding thatdefendant's acts were exceptionally brutal or heinous behaviorindicative of wanton cruelty was unanimously affirmed by thesupreme court.