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No. 2--01--1382

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

A jury convicted defendant, Artarius Jett, of first degreemurder (720 ILCS 5/9--1(a) (West 2000)). Defendant received asentence of natural life in prison. On appeal, defendantchallenges the charging instrument and the jury instructions,arguing that they improperly included, as an element of firstdegree murder, "that the offense was accompanied by exceptionallybrutal or heinous behavior indicative of wanton cruelty." Defendant further contends that he received ineffective assistanceof counsel. We affirm.

On October 4, 1999, Michelle Monachello, defendant's formergirlfriend and the mother of his child, was stabbed, doused withgasoline, and set on fire while she was still alive. She diedlater that day. On October 27, 1999, defendant was charged byindictment with seven counts of first degree murder, two counts ofarmed robbery, and one count of arson, all arising fromMonachello's death. In an effort to comply with the United StatesSupreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466,147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the State filedadditional indictments on September 28, 2000, alleging that theaforementioned offenses were accompanied by exceptionally brutal orheinous behavior indicative of wanton cruelty. Defendant moved todismiss the indictments on speedy trial grounds, and the trialcourt denied his motion. Defendant's trial ensued. As theevidence presented at trial is well known to the parties anddefendant raises no evidentiary issues on appeal, we will dispensewith a detailed recitation of the trial testimony and refer torelevant evidence as our discussion demands.

At the instructions conference, the State proposed to providethe jury with an issues instruction for first degree murder and aseparate instruction asking the jury to decide whether defendant'sactions constituted exceptionally brutal or heinous behaviorindicative of wanton cruelty. The court disagreed and expressedits belief that the instructions would be clearer to the jury ifthe "brutal and heinous" instruction were included in the issuesinstruction. Defense counsel agreed with the court. Consequently,the jury received an instruction directing it, if it found that theState had proved the elements of first degree murder beyond areasonable doubt, to "continue [its] deliberations to determinewhether or not the State has proven beyond a reasonable doubt thatthe murder was accompanied by exceptionally brutal or heinousbehavior indicative of wanton cruelty." The jury was provided withthree verdict forms: "not guilty," "guilty of first degree murderwhich was not accompanied by exceptionally brutal or heinousbehavior indicative of wanton cruelty," and "guilty of first degreemurder which was accompanied by exceptionally brutal or heinousbehavior indicative of wanton cruelty." The verdict form signed bythe jury stated as follows:

"We, the jury, find the defendant, Artarius Jett, guiltyof First Degree Murder and that the murder was accompanied byexceptionally brutal or heinous behavior indicative of wantoncruelty."

Defendant argues on appeal that including the "brutal andheinous" factor in the indictments and the jury instructionseffectively added an element to the first degree murder offense,thereby creating a new offense. To facilitate our analysis of thisissue, a brief synopsis of the relevant statutes and case law is inorder.

Section 9--1 of the Criminal Code of 1961 defines first degreemurder as follows:

"A person who kills an individual without lawful justificationcommits first degree murder if, in performing the acts which causethe death:

(1) he either intends to kill or do great bodily harm tothat individual or another, or knows that such acts will causedeath to that individual or another; or

(2) he knows that such acts create a strong probabilityof death or great bodily harm to that individual or another;or

(3) he is attempting or committing a forcible felonyother than second degree murder." 720 ILCS 5/9--1(a) (West2000).

The sentence for first degree murder shall be not less than 20years and not more than 60 years (730 ILCS 5/5--8--1(a)(1)(a) (West2000)), but a defendant may be eligible for an enhanced sentence ifcertain factors apply. In June 2000, the United States SupremeCourt, in Apprendi, 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." Apprendi, 530 U.S. at 490, 147L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Consequently, thelegislature amended section 5--8--1(a)(1)(b) of the Unified Code ofCorrections to provide that a defendant convicted of first degreemurder may receive an enhanced sentence of natural life in prison"if a trier of fact finds beyond a reasonable doubt that the murderwas accompanied by exceptionally brutal or heinous behaviorindicative of wanton cruelty." 730 ILCS 5/5--8--1(a)(1)(b) (West2000).

Following Apprendi, the legislature also amended section 111--3 of the Code of Criminal Procedure of 1963 to allow the State toamend the charge at any time before trial to include those factsthat would increase a defendant's sentence beyond the statutorymaximum term. 725 ILCS 5/111--3(c-5), (d) (West 2000). Thisstatute was not yet in effect at the time the additionalindictments against defendant were filed.

Defendant contends that principles of separation of powers,due process, and ex post facto application of laws require us toreverse his conviction. Defendant bases all of these arguments onthe premise that he was charged with and convicted of an offenseother than first degree murder, namely, first degree murderaccompanied by brutal or heinous behavior indicative of wantoncruelty. Defendant's argument does not withstand scrutiny.

Under defendant's reasoning, the mere inclusion of the "brutaland heinous" factor in the indictments violated his constitutionalrights. We disagree. The inclusion of this factor did not alterthe elements of first degree murder. It simply put defendant onnotice that the State would be seeking to prove beyond a reasonabledoubt that defendant acted brutally or heinously and, therefore,was eligible for an enhanced sentence. The indictments set forththe elements of first degree murder and then separately allegedthat defendant acted in an exceptionally brutal or heinous mannerindicative of wanton cruelty. The plain language of theindictments simply does not support defendant's contention that theState improperly added an element to the offense of first degreemurder.

Likewise, the record is clear that defendant was convicted offirst degree murder, and the jury made the additional finding thatthe murder was accompanied by brutal or heinous behavior indicativeof wanton cruelty. The jury was instructed to first determinewhether the State had proved the elements of first degree murderbeyond a reasonable doubt. The issues instruction directed thejury to decide whether the murder was accompanied by exceptionallybrutal or heinous behavior only after it had determined that theState met its burden of proving defendant guilty of first degreemurder. The "brutal and heinous" factor was not included as one ofthe elements of the offense.

Pursuant to section 5--8--1(a)(1)(b) of the Unified Code ofCorrections, the State was entitled to seek an enhanced sentencebased on the brutal or heinous nature of the offense. Insubmitting the determination of this factor to the jury, the Statefollowed the Supreme Court's directive in Apprendi. There was noprejudice whatsoever to defendant's constitutional rights.

Moreover, defendant made no objection in the trial court tothe additional indictments on the grounds he asserts here, nor didhe object to the jury instructions at issue. In fact, defensecounsel advocated using the instructions as given. Defendant nowasserts ineffectiveness of counsel.

The standard for determining whether defense counsel wasineffective is well established. A defendant must show both thathis counsel's performance fell below an objective standard ofreasonableness and that he suffered prejudice as a result ofcounsel's errors. Strickland v. Washington, 466 U.S. 668, 687, 80L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); People v.Albanese, 104 Ill. 2d 504, 525 (1984). To establish prejudice, adefendant must demonstrate a reasonable probability that, but forcounsel's unprofessional errors, the outcome of the proceedingwould have been different. Strickland, 466 U.S. at 694, 80 L. Ed.2d at 698, 104 S. Ct. at 2068; Albanese, 104 Ill. 2d at 525. Acourt need not examine the reasonableness of counsel's performanceif it is easier to dispose of an ineffectiveness claim on lack ofprejudice grounds. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at699, 104 S. Ct. at 2069; Albanese, 104 Ill. 2d at 527.

In the case at bar, the evidence overwhelmingly showed thatdefendant murdered Monachello and did so in an exceptionally brutalor heinous manner. As the facts are well known to the parties, itis not necessary to set forth in detail all of the evidencepresented against defendant. Suffice it to say that, despitesuffering third and fourth degree burns over approximately 75% ofher body and losing 40% of her blood from the stab wound to herabdomen, Monachello identified defendant as her attacker to apolice officer, a paramedic, and a physician on duty at Glen OaksHospital before she died. Defendant did not present any evidenceon his own behalf. The trial court stated at defendant'ssentencing hearing that the evidence of his guilt was "absolutelyoverwhelming" and that "words were insufficient to describe thehorrific nature of this crime." We agree and hold that areasonable jury could not have come to any other conclusion.

For the foregoing reasons, we affirm the judgment of thecircuit court of Du Page County.

Affirmed.

GROMETER and CALLUM, JJ., concur.