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May 31, 2001

No. 3--99--0757

_______________________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

PRESIDING JUSTICE HOMER delivered the opinion of the court:

_______________________________________________________________________________________________

Pursuant to a partially negotiated plea agreement, defendantTierrion D. Caruth pled guilty to home invasion (720 ILCS 5/12--11(a)(2) (West 1996)) in case 97--CF--5224. He was subsequentlytried by a jury and found guilty of residential burglary andaggravated criminal sexual assault (720 ILCS 5/19--3, 12--14(a)(1) (West 1996)) in case 97--CF--5743. Following a jointsentencing hearing, defendant was sentenced to consecutive prisonterms of 14, 20 and 25 years, respectively. The issues on appealare (1) whether defendant was deprived of due process by thecourt's use of closed circuit television at arraignment, (2)whether the trial court mistakenly believed that consecutivesentences were statutorily mandated for all three offenses, and(3) whether the consecutive sentence imposed for home invasionviolated the rule of Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S. Ct. 2348 (2000). For reasons that follow, weaffirm defendant's convictions and sentences.

The record shows that the defendant appeared withoutobjection by closed circuit television for his arraignment incase 97--CF--5224 on October 22, 1997. He was likewise arraignedin case 97--CF--5743 on October 31, 1997. In both cases,appointed counsel entered pleas of not guilty and waived a formalreading of the indictment.

Defendant subsequently pled guilty in open court to onecount of home invasion in case 97--CF--5224 in exchange for theState's agreement to dismiss three related counts in that case. The factual basis established that on September 20, 1997,defendant broke into an apartment occupied by Shelly Wruk. Hetied Wruk's wrists and ankles together with a telephone extensioncord and stole electronic equipment, credit cards and thecontents of her wallet. Wruk suffered bruises to her wrists andankles from being bound. The court admonished defendant andaccepted his plea.

On June 8, 1999, case 97--CF--5743 proceeded to a jurytrial. The evidence established that defendant broke into thehome of Jacqueline Rizzo on August 27, 1997. He stabbed her inthe hand with a knife and forced her to perform acts of fellatioand intercourse. He then tied Rizzo's wrists and ankles togetherand proceeded to take jewelry, money, electronic equipment, videotapes and other items from her home. Rizzo reported the incidentto the police after defendant left, and a rape kit was preparedat the hospital. DNA from semen on a vaginal swab matcheddefendant's DNA. Based on the evidence, the jury found defendantguilty of aggravated criminal sexual assault and residentialburglary, as charged.

The two cases then proceeded to a joint sentencing hearing. The State urged the court to impose consecutive sentences foreach of the three offenses, and defense counsel argued forconcurrent sentences. The court imposed consecutive sentencestotaling 59 years. Defendant's posttrial and postsentencingmotions were denied, and he appeals.

Defendant first argues that his constitutional right to bepresent in person at every critical stage of his trial wasviolated by the court's use of closed circuit television duringthe proceedings to arraign him. In the alternative, he contendsthat the court erred by not complying with the statute requiringit to promulgate local rules for the use of closed circuittelevision. See 725 ILCS 5/106D--1 (West 1998).

It is well settled that a defendant in a felony case has aright to be present at his arraignment. People v. Lindsey, 309Ill. App. 3d 1031, 723 N.E.2d 841 (2000), appeal allowed, 189Ill. 2d 670 (2000). However, the right to be present may bewaived. Lindsey, 309 Ill. App. 3d 1031, 723 N.E.2d 841. Where adefendant appears by closed circuit television without objection,he is deemed to have consented to the procedure and therebywaives the issue on review unless plain error is shown. Lindsey,309 Ill. App. 3d 1031, 723 N.E.2d 841.

A procedural defect is plain error if the evidence of guiltwas closely balanced or if the defendant was deprived of asubstantial right. People v. Keene, 169 Ill. 2d 1, 660 N.E.2d901 (1995). A substantial right has been denied if the erroraffected the proceedings to such a degree that we cannotconfidently state that the defendant's trial was fundamentallyfair. Keene, 169 Ill. 2d 1, 660 N.E.2d 901. In other words,this court will act on error that is of such gravity that itthreatens the very integrity of the judicial process. People v.Blue, 189 Ill. 2d 99, 724 N.E.2d 920 (2000).

A defendant's constitutional right to appear in person isnot a substantial right in itself. People v. Bean, 137 Ill. 2d65, 560 N.E.2d 258 (1990). Rather, it is a means of securingsubstantial due process rights that may be affected by theproceeding. Bean, 137 Ill. 2d 65, 560 N.E.2d 258 (1990). Adefendant is constitutionally guaranteed the right to be presentwhenever his presence has a reasonably substantial relation tothe fulness of his opportunity to defend against the charge. People v. Lofton, 194 Ill. 2d 40, 740 N.E.2d 782 (2000). Thus,at proceedings implicating the ultimate decision of guilt orinnocence, a defendant's appearance solely by closed circuittelevision may be considered plain error, regardless of thestrength of the State's evidence. See People v. Guttendorf, 309Ill. App. 3d 1044, 723 N.E.2d 838 (2000).

In this case, defendant did not object to the use of theclosed circuit television procedure. Further, the record doesnot support defendant's claim that the use of the closed circuitprocedure was plain error. Defendant does not argue that theevidence of guilt was closely balanced, and there is noindication that defendant did not understand the charges andpenalties he faced. The arraignment proceedings were extremelybrief, consisting only of counsel's entry of not-guilty pleas andwaivers of a formal reading of the indictments. Under thecircumstances, we cannot say that the closed circuit procedureprejudiced defendant or impaired any substantial rights.

We also reject defendant's argument that the trial courtcommitted reversible error by failing to comply with section106D--1 of the Code of Criminal Procedure of 1963 (725 ILCS5/106D--1 (West 1998)). As aforesaid, defendant did not preservethe issue by objecting in the trial court. The evidence was notclosely balanced; and, without any basis upon which to find thatthe fairness of proceedings to arraign defendant was impaired,the trial court's rule-making oversight was not plain error. SeeLindsey, 309 Ill. App. 3d 1031, 723 N.E.2d 841.

In his second argument, defendant contends that the trialjudge erroneously believed that consecutive sentences for hishome invasion and residential burglary convictions weremandatory. The State argues that this argument was waived or, inthe alternative, the sentences were imposed pursuant to thecourt's discretionary authority.

Section 5--8--4 of the Unified Code of Corrections (730 ILCS5/5--8--4 (West 1998)) controls the imposition of concurrent andconsecutive sentences when a defendant is sentenced for multipleoffenses. Generally, concurrent sentences must be imposed foroffenses "committed as part of a single course of conduct duringwhich there was no substantial change in the nature of thecriminal objective." 730 ILCS 5/5--8--4(a) (West 1998). However, consecutive sentencing is mandatory for certaintriggering offenses, including aggravated criminal sexualassault. 730 ILCS 5/5--8--4(a), (b); 720 ILCS 5/12--14 (West1998). In addition, subsection 5--8--4(b) grants discretionaryauthority to impose consecutive sentences for other offenses notcommitted as part of a single course of conduct where the court"is of the opinion that such a term is required to protect thepublic from further criminal conduct by the defendant." 730 ILCS5/5--8--4(b) (West 1998).

In this case, defendant does not dispute that the statutemandated that he serve his sentence for aggravated criminalsexual assault consecutively to his sentences for residentialburglary and home invasion. However, he argues, the trialjudge's comments indicate that he believed that the sentences forresidential burglary and home invasion were mandatorilyconsecutive to each other as well. We disagree.

Prior to imposing sentence, the court commented as follows:

"In this society, in which it's kind of a dangerousplace, and when we're out on the streets, whether we'redriving on the highways or whether we're out in public,there's all kinds of dangerous things that can happen;but, the one place that most of us feel that we aresafe in is our own homes.

*** [U]ltimately we want to feel that there'ssomeplace where we can be that we are going to be safe.

And clearly Ms. Wruk and Ms. Rizzo had that right,as all of us do, *** to be safe, and it is veryimportant that there be a sentence that will deterothers from doing this kind of crime."

The court then imposed a 14-year sentence for home invasion incase 97--CF--5224. Turning next to case 97--CF--5743, the courtimposed a 25-year sentence for aggravated criminal sexualassault, noting that this sentence was required to be servedconsecutively to both residential burglary and home invasion. Finally, the court imposed a 20-year sentence for residentialburglary and stated that this sentence would be servedconsecutive for home invasion "in the other case."

Based on our careful review of the trial court's commentsand the context in which they were made, we believe that thecourt imposed consecutive sentences for residential burglary andhome invasion pursuant to its discretionary authority undersection 5--8--4(b). Prior to pronouncing sentence for homeinvasion, the court expressed great concern about the need toprotect the public from the kind of offenses defendant committedagainst the victims in these cases. Protecting the public from adefendant's criminal conduct is a consideration that comes intoplay when the court is proceeding under section 5--8--4(b). Itis not a factor under the mandatory provisions of section 5--8--4(a). The court's comments supported its decision to impose aconsecutive sentence pursuant to section 5--8--4(b). Accordingly, we reject defendant's statutory challenge to hisconsecutive sentences.

During the pendency of the appeal, the defendant was grantedleave to add an issue attacking the constitutionality of the consecutive sentencing statute. Both parties have presentedpersuasive arguments for their respective positions. Defendantargues that section 5--8--4(b) unconstitutionally allows thetrial judge to increase the penalty for multiple offenses uponfinding that consecutive sentences are required to protect thepublic. In support of his position, defendant cites Apprendi v.New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348(2000), and People v. Clifton, Nos. 1--98--2126, 1--98--2384cons. (September 29, 2000). See also People v. Wilder, No. 1--99--1425 (March 30, 2001). Defendant acknowledges that theIllinois Appellate Court has upheld consecutive sentencing undersection 5--8--4(a) in other cases. See, e.g., People v.Sutherland, 317 Ill. App. 3d 1117, 743 N.E.2d 1017 (2000), pet.for leave to appeal pending No. 90744; People v. Primm, 319 Ill.App. 3d 411 (2000); People v. Maiden, 318 Ill. App. 3d 545, 743N.E.2d 1052 (2001); see also People v. Lucas, 321 Ill. App. 3d 49(2001). However, he urges this court to follow the reasoning ofClifton and its progeny. The State, relying on the latter cases,argues that Apprendi does not apply to consecutive sentencing,and the factors that the court must find to impose adiscretionary sentence under section 5--8--4(b) are not elementsof the underlying offenses.

In Apprendi, the Supreme Court held that a New Jersey hatecrime statute violated the defendant's right to due process,because the defendant's sentence was enhanced upon the trialjudge's determination that the underlying offense was raciallymotivated. The Court ruled that, "[o]ther than the fact of aprior conviction, any fact that increases the penalty for a crimebeyond the prescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt." Apprendi, 530 U.S.at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

Subsequently, in Clifton, Apprendi was applied to Illinois'consecutive sentencing statute. At issue in Clifton was theconstitutionality of section 5--8--4(a), which mandatesconsecutive sentences where offenses are committed as part of asingle course of conduct, one of the offenses is a Class 1 orClass X felony, "and the defendant inflicted severe bodilyinjury." 730 ILCS 5/5--8--4(a) (West 1998). The Clifton courtobserved that, regardless of the propriety of each discretesentence imposed, the effect of the consecutive sentencingstatute was to increase the collective penalty based on thejudge's finding that the defendant inflicted serious bodilyinjury. Clifton, slip op. at 52-54. Pursuant to Apprendi, theClifton court ruled that consecutive sentences under section 5--8--4(a) could not be imposed unless the issue of severe bodilyinjury was submitted to a jury and proved beyond a reasonabledoubt. Clifton, slip op. at 49-55.

More recently, another panel of the Illinois Appellate Courtextended Clifton to section 5--8--4(b). Wilder, No. 1--99--1425. The Wilder court observed that to impose consecutive sentencesunder section 5--8--4(b), the court must determine: (1) that theoffenses were not carried out in a single course of conduct, and(2) considering the nature and circumstances of the offense andthe history and character of the defendant, that consecutivesentences are required to protect the public from furthercriminal conduct by the defendant. The court found that bothdeterminations were factual findings which violated the rule ofApprendi. Wilder, No. 1--99--1425.

In the meantime, other panels of the Illinois AppellateCourt have upheld the consecutive sentencing statute. InSutherland, the court first ruled that consecutive sentencing didnot increase the defendant's punishment for each offense beyondthe prescribed statutory maximum. Sutherland, 317 Ill. App. 3dat 1131, 743 N.E.2d at 1017. The court also observed that,unlike the mental element at issue in Apprendi, "severe bodilyinjury" was not an essential element of the offense. Moreover,the court noted, Sutherland did not claim that he was unawarethat he faced potential consecutive sentences. Sutherland, 317Ill. App. 3d at 1131, 743 N.E.2d at 1018. Accordingly, the courtrejected Clifton and upheld Sutherland's sentences. Sutherland,317 Ill. App. 3d at 1131, 743 N.E.2d at 1018. A Second Districtpanel of the Illinois Appellate Court subsequently appliedrationale similar to Sutherland and rejected the defendant'scontention that Apprendi applied to the finding of a "singlecourse of conduct" under section 5--8--4(a). Maiden, 318 Ill.App. 3d at 550, 743 N.E.2d at 1055.

Finally, another First District panel embraced Sutherlandand Maiden in another challenge to the trial court's finding of a"single course of conduct" under section 5--8--4(a). Lucas, 321Ill. App. 3d 49. In Lucas, the court noted that the Court inApprendi had expressly declined to consider the constitutionalityof consecutive sentencing. Unwilling to extend Apprendi beyondsentencing enhancement legislation, the Lucas court rejected thereasoning of Clifton and its progeny and concluded that thedefendant's consecutive sentences should stand. Lucas, 321 Ill.App. 3d 49.

Based on our review of the statute at issue and relevantcases, we now reject defendant's constitutional challenge to hisconsecutive sentences. In so deciding, we respectfully rejectthe court's rationale in Wilder, the only reported decisiondirectly ruling on the constitutionality of section 5--8--4(b).In our opinion, Sutherland and its progeny represent a properapplication of the Apprendi rule. While, as a practical matter,a defendant certainly is exposed to a longer period ofimprisonment when consecutive sentences are imposed based on thecourt's assessment of the relevant sentencing considerations (seeClifton, Nos. 1--98--2126, 1--98--2384 cons.; Wilder, No. 1--99--1425), we do not believe that due process guarantees are offendedby this state's consecutive sentencing statute (see Sutherland,317 Ill. App. 3d 1117, 743 N.E.2d 1007; Maiden, 318 Ill. App. 3d545, 743 N.E.2d 1052; Lucas, 321 Ill. App. 3d 49).

Enhanced sentencing factors, such as the factor consideredin Apprendi, increase the sentencing range for a particularoffense, effectively elevating the offense to a new, enhancedversion of the offense for which the defendant was convicted. According to Apprendi, due process is denied if the defendant wasnot given notice and full trial rights with respect to everyelement of the enhanced version of the offense (other thanrecidivism), including the enhancement factor. See Apprendi, 530U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); People v.Thurow, 318 Ill. App. 3d 128, 742 N.E.2d 880 (2001).

Conversely, where a defendant faces sentencing for multipleoffenses and each discrete sentence falls within the range forthe offenses of which the defendant was convicted, we see nounfairness in allowing the court to determine that the sentencesshould be served consecutively pursuant to section 5--8--4. Theconsecutive sentencing statute does not change the sentencingrange for an offense after trial. Particularly where, as here,the record does not indicate that the defendant was unaware thathe faced potential consecutive sentences, he would be hard-pressed to show that the statute deprived him of fair notice. See Sutherland, 317 Ill. App. 3d 1117, 743 N.E.2d 1007. We alsobelieve it significant that the Court could have considered, butchose not to consider, consecutive sentencing under the NewJersey statute in Apprendi. See Lucas, 321 Ill. App. 3d 49.

In sum, we decline to extend Apprendi to section 5--8--4(b).We agree with Sutherland and its progeny that extending Apprendiso as to invalidate this state's consecutive sentencing statuteis neither required nor advisable. Accordingly, we affirmdefendant's consecutive sentences.

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

Affirmed.

LYTTON, J., concurred.

JUSTICE SLATER dissenting:

I must dissent from that aspect of the majority's decisionupholding the constitutionality of section 5--8--4(b) of theUnified Code of Corrections (Code) (730 ILCS 5/5--8--4(b) (West1998)). Contrary to the majority's opinion, I do not believethat the issue before us is whether the rationale for the U.S.Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466,147 L. Ed. 2d 425, 120 S. Ct. 2348 (2000), should be extended toinvalidate the particular Code provision in controversy. Rather,I believe the question before us is whether section 5--8--4(b)can survive a faithful application of the holding in that case.

In Apprendi, the Supreme Court expressed its holding in thefollowing manner:

"Other than the fact of a prior conviction, anyfact that increases the penalty for a crime beyond theprescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt. With thatexception, we endorse the statement of the rule setforth in the concurring opinions in [Jones v. UnitedStates, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct.1215 (1999)]: '[I]t is unconstitutional for alegislature to remove from the jury the assessment offacts that increase the prescribed range of penaltiesto which a criminal defendant is exposed. It isequally clear that such facts must be established byproof beyond a reasonable doubt.'" Apprendi, 530 U.S.at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63,quoting Jones, 526 U.S. at 252-53, 143 L. Ed. 2d at332, 119 S. Ct. at 1228-29 (Stevens, J., concurring).

Section 5--8--4(b) allows the trial court to find factspermitting the imposition of consecutive sentences. Absent thispost-verdict fact finding, the defendant would receive concurrentsentences. I believe reality and logic demand that we recognizethat consecutive sentencing exposes a defendant to an increasedpenalty. Accordingly, section 5--8--4(b) permits the trialcourt, after the jury has rendered its verdict, to find factsthat expose the defendant to an increased range of punishment. Thus, section 5--8--4(b) authorizes the very thing that theApprendi court holds is contrary to a criminal defendant's rightsunder the Fifth and Sixth Amendments. Section 5--8--4(b) is,therefore, unconstitutional.

As I understand it, the majority arrives at the contraryconclusion based on the following three propositions: (1) where adefendant is sentenced for multiple offenses, the rule inApprendi is not violated so long as each term of imprisonmentfalls within the statutory sentencing range prescribed for eachcorresponding offense; (2) the Supreme Court "could have, butchose not to consider consecutive sentencing" in Apprendi; and(3) the rule of Apprendi is somehow inoperable if the defendantcannot demonstrate that he was ignorant that the trial courtmight impose consecutive sentences based on its post-verdict factfinding.

With respect to the first proposition, the majoritydiscovers a limitation to the Apprendi holding that is absentfrom the text of the Apprendi majority opinion. In addition tothe paucity of textual support, the limitation fashioned by themajority lacks a cogent rationale. Indeed, it is a strange rulethat a trial court may not impose a sentence for a single offensegreater than the statutory maximum authorized by the jury'sverdict, but the trial court may impose, through its own post-verdict fact finding, multiple consecutive sentences for multipleoffenses where the jury's verdict only authorizes concurrentsentences.

As for the second proposition, contrary to the majority'sclaim, the U.S. Supreme Court in Apprendi did not "expresslydecline[] to consider the constitutionality of consecutivesentencing." Rather, the Supreme Court was not presented withthe question. The defendant in Apprendi did not receiveconsecutive sentences. The only mention of consecutivesentencing in the Apprendi majority opinion comes in thefollowing context:

"It is appropriate to begin by explaining whycertain aspects of the case are not relevant to thenarrow issue that we must resolve. First, the Statehas argued that even without the trial judge's findingof racial bias, the judge could have imposedconsecutive sentences on counts 3 and 18 that wouldhave produced the 12-year term of imprisonment thatApprendi received; Apprendi's actual sentence was thuswithin the range authorized by statute for the threeoffenses to which he pleaded guilty. (Citationomitted). The constitutional question, however, iswhether the 12-year sentence imposed on count 18 waspermissible, given that it was above the 10-yearmaximum for the offense charged in that count. Thefinding is legally significant because it increased--indeed, it doubled--the maximum range within which thejudge could exercise his discretion, converting whatotherwise was a maximum 10-year sentence on that countinto a minimum sentence. The sentences on counts 3 and22 have no more relevance to our disposition than thedismissal of the remaining 18 counts." Apprendi, 530U.S. at 474, 147 L. Ed. 2d at 445, 120 S. Ct. at 2354.

A fair reading of the foregoing passage simply does not permit aninference that the Supreme Court was expressly reserving thequestion of how the general principles enunciated in the rest ofits opinion might apply to consecutive sentencing.

Finally, I must take issue with the third and last pillarsupporting the unstable edifice of the majority's decision. Themajority notes that "where, as here, the record does not indicatethat the defendant was unaware that he faced potentialconsecutive sentences, he would be hard-pressed to show that thestatute deprived him of fair notice." While this observation maysatisfy the majority's concerns regarding notice of the potentialpenalties, it does nothing to address the fact that defendant wasdeprived of his Sixth Amendment right to a jury determination offacts that exposed him to a substantially greater range ofpunishment. Accordingly, because I would hold that section 5--8--4(b) of the Code is unconstitutional under the U.S. SupremeCourt's decision in Apprendi, I dissent.