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JUSTICE KNECHT delivered the opinion of the court:

A jury convicted defendant, Ricky Callahan, of firstdegree murder and four counts of armed violence. The trial courtsentenced him to a term of natural life imprisonment for themurder conviction and 30 years for each conviction for armedviolence, to be served consecutively to each other and to thesentence of natural life. Defendant appeals, raising the following contentions: (1) the trial court erred in allowing the Stateto file additional charges on the eve of trial and defensecounsel was ineffective in failing to object to the filing of thearmed violence charges on speedy-trial grounds; (2) defensecounsel was ineffective for failing to tender a jury instructiondefining "recklessness" after tendering a jury instruction forinvoluntary manslaughter; (3) the record shows no valid waiver ofdefendant's Miranda rights (see Miranda v. Arizona, 384 U.S.436,16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)); (4) imposition of anatural life sentence under section 5-8-1(a)(1)(b) of the UnifiedCode of Corrections (Unified Code) (730 ILCS 5/5-8-1(a)(1)(b)(West 1996)) violated defendant's right to due process underApprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.Ct. 2348 (2000)); (5) the mandatory consecutive sentencingprovisions under section 5-8-4(a) of the Unified Code (730 ILCS5/5-8-4(a) (West 1996)) are unconstitutional under Apprendi; (6)the discretionary consecutive sentencing provisions under section5-8-4(b) of the Unified Code (730 ILCS 5/5-8-4(b) (West 1996))are unconstitutional under Apprendi; (7) the truth-in-sentencingprovision contained in section 3-6-3(a) of the Unified Code (730ILCS 5/3-6-3(a)(iii) (West 1996) (requiring trial court to findconduct resulted in great bodily harm to a victim)) is unconstitutional under Apprendi; (8) imposing consecutive sentences on anatural life sentence was improper as a matter of law; and (9) asentence of natural life was excessive and inappropriate as amatter of law. We affirm defendant's conviction for first degreemurder but modify his sentence; we reverse his convictions forarmed violence; and we remand with directions.

I. FACTS

In January 1998, the State charged defendant by indictment with first degree murder (720 ILCS 5/9-1(a)(2) (West 1996))for the December 27, 1997, stabbing death of Ronald Haenitsch,the attempt (first degree murder) of Steven Garrett, DavidAlmasey, Jennifer Williams, and Michael Talley (720 ILCS 5/8-4(a), 9-1(a)(2) (West 1996)), and criminal damage to state-supported property (720 ILCS 5/21-4(A) (West 1996)). In May1999, the State also charged him with eight counts of armedviolence (720 ILCS 5/33A-2 (West 1996)) for stabbing injuriesthat same day to Steven Garrett, David Almasey, Jennifer Williams, and Michael Talley; eight counts of aggravated battery(720 ILCS 5/12-4(a), (b)(8) (West 1996)); and two counts ofattempt (first degree murder) (720 ILCS 5/8-4(a), 9-1(a)(1) (West1996)) based on the same series of events. A jury trial was heldin July 1999 on the murder charge and the four counts of armedviolence.

Shortly after 12 a.m. on December 27, 1997, Jerseyvillepolice responded to a call concerning an altercation at Lorton'sHotel Restaurant and Bar in Jerseyville. Officers arrived tofind a scuffle outside the bar involving defendant and severalother men and placed defendant in custody in a squad car. Insidethe bar, they found a large crowd of people, several of whom wereinjured. Haenitsch, the murder victim, lay on the floor of thebar. A knife was found on the ground outside near the entranceto the bar.

Defendant, a patron of the bar, was rebuffed by a womanwith whom he wished to dance. The woman's brother intervened andtold defendant, "Hey, man she said no." Defendant withdrew tohis table but then approached the brother and scratched him twiceon the neck with the tip of a knife. In response to the bartender's request, two patrons then escorted defendant to the exitdoor of the bar. Defendant appeared willing to leave but thenturned back into the crowd and, in a punching motion, stabbedfour other patrons. One died and the other three were injured.

Defendant then left the bar, ran across the street, andreturned still carrying a bloody knife in his hand, with theblade sticking between his fingers and the palm of his hand. Several patrons struggled with defendant, took him to the pavement, and disarmed him. The police then arrived.

Twelve witnesses testified in varying detail to theseevents. None of the witnesses knew defendant prior to December27, 1997, and none testified to anyone provoking defendant.

The parties stipulated deoxyribonucleic acid (DNA)testing revealed blood on the knife was Talley's and blood ondefendant's jeans was Jennifer Williams'. A fingerprint on theknife was Zachariah Czaia's. The parties also stipulated medicalevidence indicated wounds found on Almasey, Williams, Talley, andGarrett were consistent with stab wounds inflicted by a knife. An autopsy on Haenitsch indicated the cause of death to be asingle stab wound to the chest, which perforated his heart.

Several witnesses testified for defendant about theamount of alcohol he consumed on December 26 and his actions thatafternoon and evening. Defendant asserted a defense of voluntaryintoxication and presented an expert psychologist, Dr. RichardWetzel, who testified that, on the night in question, defendantdid not have the ability to form the intent to kill or seriouslyharm someone. The State called a psychiatrist, Dr. Kevin Miller,in rebuttal. Dr. Miller testified he did not believe defendantto have been legally intoxicated on the night in question, and heopined that defendant's actions were intentional and purposeful.

Jerseyville police officer Frank Scoggins testified heinterviewed defendant at the police station after his arrest. Defendant told him he was in the front bar area and rest room ofLorton's but never in the nightclub area where the crimes occurred and he had no problem with anyone there. Defendant toldScoggins he drank four to five Crown and Coke beverages thatevening. He twice inquired whether Scoggins had "pulled a knifeoff of him" when he was arrested.

The jury deliberated on the foregoing evidence andreturned verdicts of guilty on one count of first degree murderand four counts of armed violence.

The trial court held a sentencing hearing on September2, 1999. The court found no factors in mitigation. In aggravation, the court noted defendant's conduct caused serious harm; hehad a history of criminal activity; he inflicted severe bodilyinjury; he attacked five people in the span of only a few seconds, causing death to one and great bodily harm to the otherfour; the attacks occurred in a public place against unsuspectingindividuals minding their own business; the attacks were randomand without reason; defendant was not subject to rehabilitation;defendant did not exhibit any remorse; defendant offered no helpto his victims but fled the scene; and the randomness of themurder was indicative of brutal and heinous behavior indicatingwanton cruelty. It then sentenced defendant to natural life forthe murder conviction and consecutive 30-year prison terms oneach of the four armed violence offenses, to be served consecutively to the term of natural life.

Defendant filed a motion to reduce sentence on September 21, 1999, which the trial court denied on December 21, 1999. This appeal followed.

II. ANALYSIS

A. Ineffectiveness of Counsel in Failing To Move To Dismiss Late 
Filed Additional Charges on Speedy-Trial Grounds

Defendant remained in custody from his arrest onDecember 27, 1997, until his trial. A speedy-trial demandpursuant to section 103-5(a) of the Code of Criminal Procedure of1963 (725 ILCS 5/103-5(a) (West 1996)) was filed by defensecounsel on January 6, 1998, requiring defendant be brought totrial within 120 days of the date he was taken into custody. Numerous continuances occurred, and trial was finally set for May25, 1999. At a pretrial hearing on May 13, 1999, the Stateindicated it would be filing additional charges later that date. The 20 new charges were brought to the attention of the trialcourt at the next pretrial hearing on May 20, 1999. The trialcourt noted these charges could have been filed over a yearbefore as they were based on the same actions as the originalcharges of first degree murder and attempt (first degree murder)which were filed in early 1998. Both the State and defensecounsel agreed with the court. The State also agreed with thetrial court's assessment the charges were not included offensesand defendant would be entitled to a preliminary hearing.

Defense counsel made no objection to the filing of thecharges despite being filed on the eve of trial. The trial courtallowed them to be filed. After they were filed, defense counselmade no motion to dismiss the new charges on speedy-trialgrounds. The trial was continued until July 19, 1999.

On appeal, defendant argues defense counsel was ineffective for failing to move to dismiss the newly filed charges onspeedy-trial grounds. The standard of review for assessingineffective assistance of counsel is the two-pronged test setforth in Strickland v. Washington, 466 U.S. 668, 687-88, 80 L.Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984), as adopted byPeople v. Albanese, 104 Ill. 2d 504, 526-27, 473 N.E.2d 1246,1255-56 (1984), in which a defendant must show counsel's performance was objectively deficient and defendant was prejudiced bysuch deficiency. He must show counsel made errors so serious hewas not functioning as the "counsel" guaranteed under the sixthamendment. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104S. Ct. at 2064. To establish prejudice, a defendant must show areasonable probability that, but for counsel's unprofessionalerrors, the result would have been different. Strickland, 466U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

The rule regarding speedy-trial considerations onlater-filed charges was set forth in People v. Williams, 94 Ill.App. 3d 241, 248-49, 418 N.E.2d 840, 846 (1981):

"Where new and additional charges arisefrom the same facts as did the originalcharges and the State had knowledge of thesefacts at the commencement of the prosecution,the time within which trial is to begin onthe new and additional charges is subject tothe same statutory limitation that is appliedto the original charges. Continuances obtained in connection with the trial of theoriginal charges cannot be attributed todefendants with respect to the new and additional charges because these new and additional charges were not before the court whenthose continuances were obtained."

Counsel's failure to move for a speedy-trial discharge of the newand additional charges under these circumstances may constituteineffective assistance of counsel. People v. Stanley, 266 Ill.App. 3d 307, 310, 641 N.E.2d 1224, 1226 (1994).

Where charges are required to be brought in a singleprosecution under the compulsory-joinder provisions of section 3-3(b) of the Criminal Code of 1961 (720 ILCS 5/3-3(b) (West1996)), the speedy-trial period begins to run when the speedy-trial demand is filed even if the State brings some charges at alater date. People v. Quigley, 183 Ill. 2d 1, 13, 697 N.E.2d735, 741 (1998). The later filing date for some charges cannotbe used to "restart" the speedy-trial period, and any delayoccasioned by the late filing is not attributable to the defendant. The State is required to bring a defendant to trial on allcharges within the original speedy-trial term. The new charges"relate back" to the date the original charges were filed. People v. Gooden, 189 Ill. 2d 209, 222, 725 N.E.2d 1248, 1255(2000).

Included offenses that are charged later are notsubject to the Williams rule. An indictment for a particularoffense serves as an indictment for all included offenses, andthe later-filed included offenses are not "new and additional"charges. They are deemed to have been before the court whenearlier continuances were granted. People v. Dressler, 317 Ill.App. 3d 379, 387, 739 N.E.2d 630, 637 (2000) (Third District).

The State elected to go to trial on just four of thelater-filed charges, armed violence, and the original firstdegree murder charge. The armed violence counts arose from thesame acts as the original charges and the facts were long knownby the State. The armed violence counts were filed after the 120days of the speedy-trial term had expired. None of the continuances granted prior to filing of the armed violence charges wouldthen be attributable to defendant under the Williams rule, andthe charges would be amenable to dismissal on speedy-trialgrounds unless the later-filed charges were included offenses.

The State argues armed violence is an included offenseof attempt (first degree murder) and, as such, is not barred bythe speedy-trial rule set forth in Williams.

To determine whether an offense is an included offenseof another, the supreme court has endorsed the "charging-instrument" approach. People v. McLaurin, 184 Ill. 2d 58, 104, 703N.E.2d 11, 33 (1998). The instrument charging the greateroffense must, at a minimum, set out the main outline of thelesser offense. McLaurin, 184 Ill. 2d at 104-05, 703 N.E.2d at33; People v. White, 311 Ill. App. 3d 374, 386, 724 N.E.2d 572,582 (2000). A charging instrument setting forth the "mainoutline" of an offense includes allegations of all the essentialelements of that offense. See McLaurin, 184 Ill. 2d at 105, 703N.E.2d at 33; White, 311 Ill. App. 3d at 386-87, 724 N.E.2d at582.

Where the State has charged two different offenses andis required to prove an additional element to obtain a convictionof one of the offenses as alleged in the charging instrument,that offense cannot be an included offense of the other. Peoplev. Lindsey, 324 Ill. App. 3d 193, 201, 753 N.E.2d 1270, 1277(2001). Even though the language of the two offenses as chargedmay be similar, the presence of an element found in one offensebut not in the other prevents one from being an included offenseof the other. People v. Priest, 297 Ill. App. 3d 797, 804, 698N.E.2d 223, 228 (1998).

The State cites People v. Bowens, 307 Ill. App. 3d 484,718 N.E.2d 602 (1999) (First District), in support of its argument that armed violence is an included offense of attempt (firstdegree murder). In Bowens, the court found armed violence, ascharged by the State, is an included offense of attempt (firstdegree murder). Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at610. In Bowens, both charges stated the defendant, while armedwith a knife, stabbed the victim in the throat and repeatedlykicked the victim about the head and neck. For the armed violence charge, the aggravated battery on which it was predicatedwas based on defendant's alleged intent and knowledge his actionswould cause bodily harm and permanent disability to the victim. Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at 610-11.

Specifically, the attempt (first degree murder) chargein Bowens alleged:

"'[H]e without legal justification [and] withintent to commit the offense of first degreemurder intentionally and knowingly attemptedto kill [the victim] by cutting [the victim]on or about the throat area with a knife andkicked [the victim] repeatedly about thehead, face[,] and neck area.'" Bowens, 307Ill. App. 3d at 495, 718 N.E.2d at 610-11(quoting count I of indictment).

The armed violence charged in Bowens alleged:

"'[W]hile armed with a dangerous weapon, towit: a knife, [he] committed the offense ofaggravated battery' by 'kicking [the victim]repeatedly about the head, face[,] and neckarea and stabbing [the victim] in the neckwith a knife *** without legal justification'and with the intent and knowledge that hisactions would cause 'bodily harm and permanent disability' to the victim." Bowens, 307Ill. App. 3d at 495, 718 N.E.2d at 611 (quoting counts IV and V of indictment).

The court in Bowens noted that to allege the offense ofarmed violence, all that was needed was to substitute the defendant's "intent and knowledge" his actions would cause bodily harmin the armed violence count for his intent to kill his victim inthe attempt (first degree murder) count. The fact the victimwould have suffered bodily injury as a result of the defendant'sactions was implicit in the attempt (first degree murder) charge. Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at 611.

In this case, the State added two sets of armed violence charges after the speedy-trial date had passed. The firstset of armed violence charges alleged as follows:

"[D]efendant, while armed with a knife with a blade of at least three inches in length,performed an act prohibited by Illinois Compiled Statutes [,] Chapter 720, Act 5[,]Section 12-4(a), being Aggravated Battery, inthat defendant struck [the victim] in [theneck/lower abdomen/posterior lower back] withsaid knife, thereby causing great bodily harmto [the victim]." (Emphasis added.)

The other set of armed violence charges alleged:

"[D]efendant, while armed with a knife with ablade of at least three inches in length,performed an act prohibited by Illinois Compiled Statutes [,] Chapter 720, Act 5 [,] section 12-4(b)(8), being Aggravated Battery,in that defendant struck [the victim] in [theneck/lower abdomen/posterior lower back] withsaid knife, while [the victim] was at theLorton's Hotel Restaurant & Bar, a publicplace of amusement." (Emphasis added.)

The attempt (first degree murder) charge in this case alleged:

"[D]efendant, with the intent to commit theoffense of Murder in violation of section 9-1(a)(2) of Act 5 of Chapter 720 of the Illinois [C]ompiled Statutes, performed a substantial step toward the commission of theoffense, in that said defendant, withoutlawful justification, struck [the victim] in[the neck/lower abdomen/posterior lower back]with a knife, knowing such act created astrong probability of death to the [the victim], thereby causing great bodily harm to[the victim], in violation of Chapter 720,Act 5, Section 8-4(a) of the Illinois Compiled Statutes." (Emphases added.)

The State elected to go to trial solely on the armedviolence counts predicated on aggravated battery alleging defendant struck the victims with a knife in excess of three incheswhile in a public place of amusement. These armed violencecharges contained the elements "armed with a knife with a bladeof at least three inches in length" and that the acts of defendant occurred "while [the victim] was at *** a public place ofamusement." These elements were not contained in the attempt(first degree murder) charge and, thus, were not required to beproved for a conviction of attempt (first degree murder). Therefore, armed violence was not an included offense of attempt(first degree murder) as charged by the State.

Because the charging-instrument approach is the analysis endorsed by the supreme court in determining whether anoffense is included in another offense, it does not matterwhether those additional elements were actually at issue attrial.

Failure to move to dismiss the armed violence counts onspeedy-trial grounds was prejudicial to defendant because dismissal on that ground would properly have been granted, anddefendant would not have been convicted of four counts of armedviolence. Therefore, he received ineffective assistance ofcounsel, and his convictions on four counts of armed violence arereversed.

B. Ineffectiveness of Counsel for Failure To Tender Jury Instruction Defining Recklessness

The jury instruction for involuntary manslaughter(Illinois Pattern Jury Instructions, Criminal, No. 7.07 (3d ed.1992) (hereinafter IPI Criminal 3d)) was tendered by the Stateand given by the court. That instruction reads:

"A person commits the offense of involuntary manslaughter when he unintentionallycauses the death of an individual *** by actswhich are performed recklessly and are likelyto cause death or great bodily harm to another." IPI Criminal 3d No. 7.07, at 168.

The committee note beneath this instruction states thatIPI Criminal 3d No. 5.01 defining "recklessness" is to be givenwith IPI Criminal 3d No. 7.07. IPI Criminal 3d No. 7.07, Committee Note, at 168. No instruction defining "recklessness" wastendered by either party or given by the court.

Defendant argues defense counsel was ineffective infailing to tender IPI Criminal 3d No. 5.01, defining the mentalstate of recklessness, one of the essential elements of involuntary manslaughter, as the failure to do was prejudicial error. Defendant cites People v. Howard, 232 Ill. App. 3d 386, 597N.E.2d 703 (1992), and People v. Bolden, 103 Ill. App. 2d 377,243 N.E.2d 687 (1968).

In Howard, reversible error was found where the juryinstruction for involuntary manslaughter was given but not theinstruction defining recklessness. Howard, 232 Ill. App. 3d at392-93, 597 N.E.2d at 708. However, the court also found theevidence was closely balanced and the prosecutor made an improperclosing argument. Howard, 232 Ill. App. 3d at 392, 597 N.E.2d at708.

In Bolden, 103 Ill. App. 2d at 379-80, 243 N.E.2d at689, the involuntary manslaughter instruction itself omitted anyreference to the act having to be performed recklessly. TheBolden court found the failure to mention and define the mentalstate of recklessness, one of the essential elements of involuntary manslaughter, was prejudicial error. Bolden, 103 Ill. App.2d at 382, 243 N.E.2d at 690. The court also found the evidenceto have been closely balanced.

Where the evidence is not closely balanced, no prejudice could have resulted, and defense counsel's failure to tenderthe jury instruction defining recklessness has been found not tobe ineffective representation. People v. Lake, 298 Ill. App. 3d50, 54-55, 697 N.E.2d 1147, 1150-51 (1998).

The evidence here was not closely balanced. Defendant's actions were not reckless but voluntary and willful withthe natural tendency to cause death or great bodily harm. Afterbeing rebuffed in attempting to dance with a woman, defendantreturned to his table. After some time passed, he cut thewoman's brother twice in the neck and started to leave. Instead,he returned quickly through the bar and stabbed people along theway. He held his knife against the palm of his hand with theblade between his fingers. He did not swing wildly with theknife, but punched his victims with great force. The fatal blowto Haenitsch sank five inches into his chest and penetrated hisheart.

Despite defendant's assertion on appeal that theprimary issue at trial was whether his actions were reckless orintentional, the focus at trial was on his affirmative defense ofvoluntary intoxication. The case did not hinge on which mentalstate defendant possessed but on whether he was intoxicated andwithout the requisite mental state.

Defendant did not seriously contest the issue ofwhether his actions constituted involuntary manslaughter or firstdegree murder. We find defense counsel's failure to tender thejury instruction defining recklessness along with the tenderedinstruction for involuntary manslaughter was harmless beyond areasonable doubt.

C. Valid Waiver of Defendant's Miranda Rights

After defendant was arrested, he was interrogated atthe police station. Officer Scoggins read him his Mirandarights. Defendant acknowledged he understood his rights. Officer Scoggins did not read the last item on the "Mirandarights" card prepared by the Jerseyville police department: "Knowing these rights, do you want to talk to me without having alawyer present? You may stop talking to me at any time and youmay also demand a lawyer at any time."

Defendant argues he did not waive his rights before hespoke to Officer Scoggins because he was not asked if he wishedto waive them and he did not otherwise state he was waiving them. He does not contend he was not advised of his rights or that hedid not understand them. He asserts only that he made no validwaiver because it was not expressed.

The trial court denied defendant's motion to suppressthe statements made to Officer Scoggins. The State contendsdefendant waived this argument on appeal as he did not include itin a posttrial motion, as required by People v. Enoch, 122 Ill.2d 176, 186, 522 N.E.2d 1124, 1130 (1988). We agree and find theargument has been waived.

D. Imposition of Natural Life Sentence Under
Section 5-8-1(a)(1)(b) of the Unified Code Violated
Defendant's Right to Due Process Under Apprendi

The trial court sentenced defendant to natural life inprison for first degree murder and consecutive terms on each offour counts of armed violence. Under Illinois law, punishmentfor first degree murder is normally imprisonment for a term ofnot less than 20 nor more than 60 years. 730 ILCS 5/5-8-1(a)(1)(a) (West 1996). However, the trial court can sentence adefendant to natural life if it finds the offense was accompaniedby exceptionally brutal or heinous behavior indicative of wantoncruelty. 730 ILCS 5/5-8-1(a)(1)(b) (West 1996).

Defendant argues this sentencing procedure is unconstitutional because the enhancing factor (brutality and wantoncruelty) was not charged, submitted to the jury, and provedbeyond a reasonable doubt. In support of his position he relieson Apprendi, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348.

The general rule of Apprendi is as follows:

"Other than the fact of a prior conviction,any fact that increases the penalty for acrime beyond the prescribed statutory maximummust be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S.at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at2362-63.

Defendant asserts the first degree murder charge ofwhich he was convicted did not include the additional "facts" or"elements" of brutality and wanton cruelty found by the trialcourt and used to enhance his sentence beyond the normal, statutory maximum penalty. Thus, the imposition of his sentence ofnatural life in prison violated Apprendi.

The majority of Illinois Appellate Court decisions haveheld Apprendi prohibits a trial court in a noncapital case fromimposing a sentence beyond the normal range merely because itfinds the defendant engaged in exceptionally brutal or heinousbehavior if that aggravating factor is not submitted to a juryand proved beyond a reasonable doubt. See People v. Johnson, No.5-99-0637, slip op. at 7-8 (October 23, 2001), ___ Ill. App. 3d___, ___, ___ N.E.2d ___, ___ (Fifth District); People v. Bryant,325 Ill. App. 3d 448, 457, 758 N.E.2d 430, 437-38 (2001) (FirstDistrict, Fourth Division); People v. Nitz, 319 Ill. App. 3d 949,968, 747 N.E.2d 38, 54 (2001) (Fifth District); People v.Chanthaloth, 318 Ill. App. 3d 806, 816, 743 N.E.2d 1043, 1050(2001) (Second District). In these cases, the findings ofbrutality and wanton cruelty improperly increased the defendants'exposure to greater punishment. As noted by the court in Nitz,the trial judge made a factual finding that increased the rangeof penalties, thus increasing defendant's exposure to punishment. Nitz, 319 Ill. App. 3d at 967, 747 N.E.2d at 53.

In addition, a majority of decisions have applied thisreasoning to first degree murder cases where the death penaltywas not sought by the State. See People v. Reynolds, 327 Ill.App. 3d 1027, 1034-35, 764 N.E.2d 1135, 1140-41 (2002) (FirstDistrict, Fifth Division); People v. Lee, 319 Ill. App. 3d 289,307-08, 745 N.E.2d 78, 93 (2001) (First District, Third Division); People v Armstrong, 318 Ill. App. 3d 607, 619, 743 N.E.2d215, 224 (2000) (First District, Second Division); People v.Kaczmarek, 318 Ill. App. 3d 340, 353-54, 741 N.E.2d 1131, 1143(2000) (First District, Third Division); People v. Lee, 318 Ill.App. 3d 417, 422-23, 743 N.E.2d 1019, 1023 (2000) (First District, Fourth Division).

We recognize at least two courts have used a differentanalysis and found the sentencing scheme in Illinois not to beviolative of Apprendi. Following a jury trial, the defendant in People v. Vida, 323 Ill. App. 3d 554, 557, 752 N.E.2d 614, 618(2001) (First District, Sixth Division), was convicted of firstdegree murder and was sentenced by the court to an extended termof 100 years in prison under section 5-8-2(a)(1) of the UnifiedCode (730 ILCS 5/5-8-2(a)(1) (West 1998)). The Vida court foundthe maximum sentence for first degree murder, absent specialfindings necessary to impose the death penalty, is natural lifein prison. Vida, 323 Ill. App. 3d at 569, 752 N.E.2d at 627. The court in Vida criticized other courts for holding 60 yearswas the maximum allowable sentence for first degree murderbecause those courts failed to read sections 5-8-1(a)(1)(a), 5-8-1(a)(1)(b), and 5-8-2(a)(1) of the Unified Code together as partof a complete sentencing scheme that provides for natural lifeand extended-term sentences for first degree murder, with naturallife as the statutory maximum sentence for first degree murder. Vida, 323 Ill. App. 3d at 570, 752 N.E.2d at 628. Thus, afinding of exceptional brutality does not increase a punishment'srange beyond the maximum statutory penalty. Vida, 323 Ill. App.3d at 572, 752 N.E.2d at 630. The 100-year sentence imposed wasnot beyond the statutory maximum and, hence, not violative ofApprendi. Vida, 323 Ill. App. 3d at 572-73, 752 N.E.2d at 630;see also People v. Rivera, No. 2-98-1662, slip op. at 12-14(December 5, 2001), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___,___ (Second District); contra People v. Joyner, 317 Ill. App. 3d93, 110, 739 N.E.2d 594, 606-07 (2000) (Second District (Rapp,J., joined by Geiger and Colwell, JJ.), overruled in relevantpart in Rivera, No. 2-98-1662 (December 5, 2001), ___ Ill. App.3d ___, ___ N.E.2d ___.

We agree with the court in Johnson and find the analysis of Vida less than convincing. A defendant's guarantee of atrial by jury requires the facts necessary to the determinationof a statutory maximum penalty are required to be submitted to ajury. The question of whether a crime is accompanied by exceptionally brutal or heinous behavior calls for the determinationthat the defendant's crime is qualitatively different from thecrime charged. A trial judge can consider the nature of anindividual's offense in exercising sentencing discretion but itis an entirely different question when the sentencing law requires a judge to make an additional finding of fact aboutbehavior accompanying an offense that renders it deserving ofmore punishment. Johnson, slip op. at 3, ___ Ill. App. 3d at___, ___ N.E.2d at ___.

We hold the trial judge's finding that defendant'sbehavior was exceptionally brutal and indicative of wantoncruelty was an element that should have been charged and submitted to the jury. The State needed to allege it in the charginginstrument and prove it beyond a reasonable doubt. Accordingly,we modify defendant's sentence for first degree murder to a 60-year determinate prison term, the maximum sentence the law allowson the facts charged and proved beyond a reasonable doubt.

III. CONCLUSION

As we have reversed defendant's convictions for armedviolence, his 30-year consecutive sentences for those convictionsare also reversed. Thus, defendant's arguments regarding theapplication of Apprendi to consecutive sentencing, the application of Apprendi to truth-in-sentencing provisions, and thepropriety of imposing consecutive sentences on natural lifesentences are moot. Since we have also reduced defendant'ssentence from natural life to a determinate 60-year prison term,defendant's final argument on his sentence of natural life beingexcessive and inappropriate is also moot.

We affirm defendant's conviction for first degreemurder but modify the sentence of natural life imprisonment to 60years' imprisonment, we reverse defendant's convictions for armedviolence, and we remand for issuance of an amended writtenjudgment of sentence.

Affirmed in part as modified and reversed in part;cause remanded with directions.

McCULLOUGH, P.J., concurs.

STEIGMANN, J., specially concurs in part and dissentsin part.

JUSTICE STEIGMANN, specially concurring in part anddissenting in part:

I agree with the majority's decision except its conclusion that defendant received ineffective assistance of counselwhen his trial counsel failed to move for dismissal of the armedviolence counts on speedy-trial grounds. In fact, had counselmade such a motion, the trial court should have denied it. Asthe State correctly points out, that ruling would have beenappropriate because the armed violence charges were lesserincluded offenses of the attempt (first degree murder) chargesthe State originally filed.

The majority cites Dressler, which states that the so-called Williams rule does not apply where later-filed chargesdescribe lesser included offenses. Dressler, 317 Ill. App. 3d at387, 739 N.E.2d at 637. That is exactly what happened in thiscase.

In Bowens, 307 Ill. App. 3d at 487, 718 N.E.2d at 605,the First District Appellate Court needed to determine whetherthe entry of multiple convictions against the defendant wasproper where those convictions included attempt (first degreemurder) and armed violence. As in this case, the convictionsarose out of a stabbing incident. The First District concludedthat the multiple convictions could not stand because the armedviolence counts were lesser included offenses of attempt (firstdegree murder). Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at610-11. The analysis in Bowens is sound, and this court shouldfollow it here.

Further, it must be remembered that this matter comesbefore us on a claim of plain error (that the trial court erredby permitting the State to file the four new counts of armedviolence) or, alternatively, ineffective assistance of counsel(because defendant's trial counsel failed to object to theState's request to file these additional charges). I concludeneither applies.

From trial counsel's point of view, he was assertingthe only available defense (voluntary intoxication), given theoverwhelming case against his client. The State had alreadycharged his client with attempt (first degree murder) concerningthe four victims who were similarly named in the newly addedarmed violence counts. It is certainly not clear to me that noreasonable lawyer would have failed to object to the filing ofthese new counts. Similarly, I have serious difficulty findingany prejudicial effect since, as earlier stated, the State wasentitled to file these charges because they were lesser includedoffenses.

Accordingly, I respectfully dissent from the majority'sdecision to vacate defendant's convictions for armed violence.