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Docket No. 90549-Agenda 15-March 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BARNETT CARNEY, Appellee.

Opinion filed June 21, 2001.

JUSTICE GARMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County,defendant Barnett Carney was convicted of first degree murder(720 ILCS 5/9-1(a) (West 1996)) and armed robbery (720 ILCS5/18-2 (West 1996)). Defendant had been charged with intentionalmurder (720 ILCS 5/9-1(a)(1) (West 1996)), knowing murder(720 ILCS 5/9-1(a)(2) (West 1996)), and felony murder (720ILCS 5/9-1(a)(3) (West 1996)), with the armed robbery count asthe predicate felony. The circuit court sentenced defendant toconsecutive terms of 29 years' imprisonment for murder and 10years' imprisonment for armed robbery. The consecutive sentenceswere imposed pursuant to section 5-8-4(a) of the Unified Code ofCorrections (Code) (730 ILCS 5/5-8-4(a) (West 1996)).

The appellate court affirmed defendant's convictions (317 Ill.App. 3d 806, 817), but vacated his sentences and ordered them torun concurrently, finding section 5-8-4(a) of the Codeunconstitutional under the decision of the United States SupremeCourt in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,120 S. Ct. 2348 (2000), and the First District decision in People v.Clifton, 321 Ill. App. 3d 707 (2000). Defendant advanced otherarguments on appeal that were not addressed by the appellatecourt. We granted the State's petition for leave to appeal (177 Ill.2d R. 315). Consistent with our decision in People v. Wagener,No. 88843 (May 24, 2001), we now reverse the appellate court andremand for consideration of these issues.

BACKGROUND

Defendant and a codefendant, Sean Tucker, were chargedwith the murder and armed robbery of Richard Frazier. On theevening of September 26, 1997, Frazier and Charles Epps wereplaying a game of dice outside a residence in Chicago. Epps'girlfriend, Tamika Johnson, was standing nearby watching out forpolice. Three men approached Frazier and Epps. One of the menwore a Halloween mask and the other two wore hoodedsweatshirts pulled tightly around their faces. Johnson, who wasapproximately 15 feet from the group, saw the man with the masktake money from Frazier, while holding a gun on him. She sawFrazier struggle with the man and then heard a shot. Frazier fell tothe ground and the men ran away. Frazier died two weeks laterfrom complications of the gunshot wound he sustained.

Police officers recovered a shell casing from the crime sceneand spoke with Johnson and Epps. Defendant's mother gaveconsent to a search of her home. In defendant's bedroom, officersfound a Halloween mask that belonged to defendant's sister. Theyrecovered a handgun and clip from Tucker's home. A firearmsexpert testified that the shell casing found at the scene of theshooting had been fired by the gun retrieved from Tucker's home.

Defendant testified that after he was arrested, he declined tospeak to the officers or to a woman who identified herself as anattorney. In rebuttal, Assistant State's Attorney Kathleen Muldoontestified that defendant agreed to speak to her on the day he wasarrested. He told her that he and Tucker were driving around onthe night of the shooting. They had a Halloween mask and a gunwith them in the car. They saw the dice game between Frazier andEpps and stopped. Epps walked up to the car and told defendantand Tucker that Frazier was "sweet," meaning that he was an easytarget. Defendant parked the car and he and Tucker walked overto the dice game. Tucker was wearing the mask and had the gun.Defendant pretended to rob Epps, while Tucker held the gun onFrazier. Defendant saw the two men struggle with each other andthen Tucker shot Frazier.

The jury returned verdicts of guilty on first degree murder andarmed robbery, using general verdict forms. The circuit courtentered judgment on the counts of intentional murder and armedrobbery. At the sentencing hearing, the circuit court found thatdefendant had inflicted severe bodily injury on Frazier. Noting thatdefendant had been convicted of armed robbery, a Class X felony,the court imposed consecutive sentences.

ANALYSIS

Section 5-8-4(a) of the Code provides in pertinent part:

"When multiple sentences of imprisonment areimposed on a defendant at the same time, or when a termof imprisonment is imposed on a defendant who is alreadysubject to sentence in this State or in another state, or fora sentence imposed by any district court of the UnitedStates, the sentences shall run concurrently orconsecutively as determined by the court. *** The courtshall not impose consecutive sentences for offenses whichwere committed as part of a single course of conductduring which there was no substantial change in thenature of the criminal objective, unless, one of theoffenses for which defendant was convicted was a ClassX or Class 1 felony and the defendant inflicted severebodily injury *** in which event the court shall entersentences to run consecutively." 730 ILCS 5/5-8-4(a)(West 1996).

The appellate court relied on Apprendi in finding section 5-8-4(a)of the Code unconstitutional. In Apprendi, pursuant to a pleaagreement, the defendant pleaded guilty to two counts of seconddegree possession of a firearm for an unlawful purpose and onecount of third degree unlawful possession of an antipersonnelbomb. The first offense carried a sentence of 5 to 10 years inprison, while the second offense carried a penalty range of 3 to 5years in prison. New Jersey's hate crime statute allowed thesentencing judge to increase the sentence for a particular offensebeyond the statutory maximum if the judge found, by apreponderance of the evidence, that the defendant, in committingthe offense, acted with a purpose to intimidate an individual orgroup of individuals on the basis of, inter alia, race. Apprendi, 530U.S. at 468-69, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351. The pleaagreement permitted the State to request imposition of a highersentence on the second degree offense on the ground thatdefendant had acted with a biased purpose, as described in the hatecrime statute. Defendant reserved the right to challenge the hatecrime sentence enhancement on constitutional grounds. Followingan evidentiary hearing, the circuit court found, by a preponderanceof the evidence, that defendant's crime was motivated by racialbias and that defendant's actions were taken with a purpose tointimidate. The circuit court rejected defendant's constitutionalchallenge to the hate crime statute and imposed a 12-year prisonterm on the second degree offense, a sentence equivalent to thatpermitted for commission of a first degree offense. This decisionwas upheld by the appellate division of the New Jersey superiorcourt and affirmed by the New Jersey Supreme Court. Apprendi,530 U.S. at 471-72, 147 L. Ed. 2d at 443-44, 120 S. Ct. at 2352-53.

The United States Supreme Court reversed, holding thesentence enhancement provisions of New Jersey's hate crimestatute unconstitutional under the due process clause of thefourteenth amendment to the United States Constitution. U.S.Const., amend. XIV. Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at446, 120 S. Ct. at 2355. In doing so, the Court held that "[o]therthan the fact of a prior conviction, any fact that increases thepenalty for a crime beyond the prescribed statutory maximum mustbe 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.

In addition to Apprendi, the appellate court in the instant caserelied on its decision in People v. Clifton, 321 Ill. App. 3d 707(2000). There, the defendant was sentenced to consecutive prisonterms of 55 years for murder and 25 years for attempted murder.The consecutive sentences were imposed under section 5-8-4(a)of the Code. On appeal, defendant argued that this section isunconstitutional under the rationale of Apprendi, because thefinding of severe bodily injury must be made by a jury and not thecircuit court. The appellate court agreed, observing that it wouldbe "anomalous" to hold that a statute that enhances a sentencebased upon certain factors comes within the purview of Apprendi,while a statute that requires an extended period of imprisonmentbased upon the existence of certain factors does not. Section5-8-4(a) of the Code, while not enhancing the sentence for anyparticular offense, has the effect of increasing the total amount oftime a defendant will serve in prison. The practical effect of theapplication of section 5-8-4(a) is that a factual finding of severebodily injury by a circuit court will increase the actual sentencewhich a defendant may receive for "a given course of conduct."Clifton, 321 Ill. App. 3d at ___. According to the Clifton court,this is precisely the type of result the Apprendi holding wasintended to encompass. The court noted that the focus in Apprendiwas on the effect of the statute, rather than its form.

The Clifton court also noted that the penalties for thedefendant's "collective offenses" were increased when the circuitcourt made the finding of severe bodily injury. With that finding,consecutive sentences were mandated. The court concluded thatthe stigma and loss of liberty are greater where section 5-8-4(a)of the Code applies and it would be "unduly narrow and arbitrary"to hold that Apprendi does not apply to section 5-8-4(a) of theCode.

Our appellate court is divided on the question of whetherApprendi applies to consecutive sentences under section 5-8-4(a)of the Code. In addition to Clifton, other cases have held thatsection 5-8-4(a) of the Code is unconstitutional under Apprendi.See, e.g., People v. Harden, 318 Ill. App. 3d 425 (2000); Peoplev. Mason, 318 Ill. App. 3d 314 (2000); People v. Waldrup, 317 Ill.App. 3d 288 (2000). Other cases have held that Apprendi does notapply to consecutive sentences. See, e.g., People v. Primm, 319 Ill.App. 3d 411 (2000); People v. Lucas, 321 Ill. App. 3d 49 (2001);People v. Hayes, 319 Ill. App. 3d 810 (2001); People v. Maiden,318 Ill. App. 3d 545 (2001).

In Primm, defendant was convicted of first degree murder,attempt (first degree murder), and aggravated battery with afirearm. Primm, 319 Ill. App. 3d at 414. The circuit courtsentenced him to 50 years on the first degree murder conviction,but did not impose sentence on the attempt (first degree murder)conviction. Primm, 319 Ill. App. 3d at 414.

Defendant appealed and the State cross-appealed. In its cross-appeal, the State argued that the circuit court erred in failing toimpose consecutive sentences under section 5-8-4(a) of the Code.Noting that this section requires imposition of consecutivesentences under the factors set forth therein, the appellate courtfound the factors to apply. It vacated the 50-year sentence andremanded for imposition of consecutive sentences for first degreemurder and attempt (first degree murder). Primm, 319 Ill. App. 3dat 429. Defendant argued that section 5-8-4(a) is unconstitutionalunder Apprendi. Primm, 319 Ill. App. 3d at 427. The appellatecourt rejected this argument, noting that consecutive sentencesdetermine only the manner in which the sentences for eachindividual offense will be served and do not increase themaximum sentence that may be imposed for each separate offense.The court followed its decision in People v. Sutherland, 317 Ill.App. 3d 1117, 1131 (2000), where it held that Apprendi does notapply to consecutive sentencing under section 5-8-4(a) of theCode. The appellate court also cited our decision in Thomas v.Greer, 143 Ill. 2d 271, 278 (1991) (Primm, 319 Ill. App. 3d at428), where we stated that when consecutive sentences areimposed, a new single sentence is not formed under section5-8-4(e) of the Code (730 ILCS 5/5-8-4(e) (West 1998)). Whilenoting the opposite result reached in Clifton, the appellate courtdeemed itself bound by this court's Thomas decision. Primm, 319Ill. App. 3d at 428.

In the instant case, the State argues that Apprendi does notapply to consecutive sentences, noting this court's previousstatements that such sentences do not form a single sentence, butmerely determine the manner in which a defendant will serve thesentences.

We first note that the question of whether a statute isconstitutional is subject to de novo review. People v. Malchow,193 Ill. 2d 413, 418 (2000). Statutes carry a strong presumption ofconstitutionality and the party asserting the unconstitutionality ofa statute has the burden of rebutting this presumption. People v.Maness, 191 Ill. 2d 478, 483 (2000)."[I]t is our duty to construeacts of the legislature so as to uphold their constitutionality andvalidity if it can reasonably be done, and, further, that if theirconstruction is doubtful, the doubt will be resolved in favor of thevalidity of the law attacked." Illinois Crime Investigating Comm'nv Buccieri, 36 Ill. 2d 556, 561 (1967).

Apprendi does not proscribe all judicial fact finding atsentencing, even though it may result in an increase in adefendant's punishment, provided the statutory maximumsentence for the offense is not exceeded. Indeed, the ApprendiCourt recognized that judges have long exercised discretion inconsidering various factors relative to both the offense and theoffender in imposing sentence within the range prescribed bystatute. Apprendi, 530 U.S. at 481, 147 L. Ed. 2d at 449, 120 S. Ct.at 2358.

Section 5-5-3.2(a) of the Code (730 ILCS 5/5-5-3.2(a) (West1998)) identifies several aggravating factors that the circuit courtmay consider in imposing a more severe sentence on an offender.Some of these statutory factors involve a determination by thejudge of the nature or seriousness of the defendant's conduct.Examples include where (1) the defendant's conduct caused orthreatened serious harm (730 ILCS 5/5-5-3.2(a)(1) (West 1998));(2) in committing certain delineated offenses when the victim wasunder the age of 18 years, the defendant held a position of trust orsupervision, such as, but not limited to, family member, teacher,scout leader, baby-sitter, or day care worker (730 ILCS5/5-5-3.2(a)(14) (West 1998)); and (4) the defendant committedan offense related to the activities of an organized gang (730 ILCS5/5-5-3.2(a)(15) (West 1998)).

The fact-finding process implicated by these aggravatingfactors does not offend the constitutional protections identified inApprendi because, in applying the factors, the judge may notimpose a sentence that exceeds the prescribed statutory maximumfor each offense. 730 ILCS 5/5-8-1(a) (West 1996). Thus, thedefendant is not subjected to additional punishment notcontemplated by the substantive offense statute or the sentencingstatute associated therewith. The Supreme Court in Apprendiexplicitly recognized the legitimacy of such judicial fact findingwhen it noted that "nothing in [the] history [of the common law]suggests that it is impermissible for judges to exercisediscretion-taking into consideration various factors relating bothto offense and offender-in imposing a judgment within the rangeprescribed by statute." (Emphasis in original.) Apprendi, 530 U.S.at 481, 147 L. Ed. 2d at 449, 120 S. Ct. at 2358.

The New Jersey sentencing scheme invalidated in Apprendiinvolved more than simple judicial fact finding. The factdetermined by the sentencing judge in that case involved thedefendant's intent or purpose in committing the offense. TheApprendi Court noted that a defendant's intent in committing anoffense "is perhaps as close as one might hope to come to a corecriminal offense 'element.' " Apprendi, 530 U.S. at 493, 147 L.Ed. 2d at 457, 120 S. Ct. at 2364. The sentencing judge's factfinding resulted in the defendant's being sentenced to a longerprison term than allowed by the statute defendant was convictedof violating. A second degree offense was, in effect, transformedinto a first degree offense. Apprendi, 530 U.S. at 491, 147 L. Ed.2d at 455-56, 120 S. Ct. at 2363. Yet, the jury had convicteddefendant of only the second degree offense. The Supreme Courtcharacterized such judicial fact finding as " 'a tail which wags thedog of the substantive offense.' " Apprendi, 530 U.S. at 495, 147L. Ed. 2d at 458, 120 S. Ct. at 2365, quoting McMillan v.Pennsylvania, 477 U.S. 79, 88, 91 L. Ed. 2d 67, 77, 106 S. Ct.2411, 2417 (1986). The Court noted that when a defendant issubjected to additional punishment beyond that provided by statutewhere the offense was committed under certain specifiedcircumstances, "it is obvious that both the loss of liberty and thestigma attaching to the offense are heightened." Apprendi, 530U.S. at 484, 147 L. Ed. 2d at 451, 120 S. Ct. at 2359.

The appellate court in this case rejected the State's argumentthat Apprendi only applies to facts that increase the penalty for anoffense beyond the statutory maximum sentence. In doing so, thecourt relied on statements made by the Supreme Court in Apprendithat "[d]espite what appears to us the clear 'elemental' nature ofthe factor here, the relevant inquiry is one not of form, but ofeffect-does the required finding expose the defendant to a greaterpunishment than that authorized by the jury's guilty verdict?"Apprendi, 530 U.S. at 494, 147 L. Ed. 2d at 457, 120 S. Ct. at2365. The appellate court read this passage to mean that it is theeffect of the statute, not its form, that controls in any inquiry intowhether consecutive sentences increase a defendant's punishment.317 Ill. App. 3d at 813.

However, reading the quoted statements in context makesclear that the Apprendi Court was referring to the "constitutionallynovel and elusive distinction" (Apprendi, 530 U.S. at 494, 147 L.Ed. 2d at 457, 120 S. Ct. at 2365) between elements of an offenseand sentencing factors. Thus, it is the effect of the particular factto be decided by the judge on a defendant's punishment and notthe label attached to the fact that controls in any inquiry underApprendi. Nowhere in Apprendi did the Supreme Court state orimply that the determination of a fact that does not result in adefendant's being sentenced in excess of the statutory maximummust be decided by a jury.

This court has long held that consecutive sentences constituteseparate sentences for each crime of which a defendant has beenconvicted. In People v. Elliott, 272 Ill. 592 (1916), we upheld theimposition of consecutive sentences of a fine and imprisonmentfor 70 separate convictions of unlawful sale of intoxicating liquor(Elliott, 272 Ill. at 600), finding the individual sentences not to bedisproportionate to the nature of the offenses. We held that theIllinois constitutional provision requiring that all penalties shall beproportionate to the nature of the offense does not apply to theaggregate of the punishments inflicted for different offenses. Wethere stated:

"The only reason that the fines aggregate a large sum andthe imprisonment is for a long period is because therewere so many violations of the law prosecuted under oneindictment, but the punishment under each count must beconsidered by itself. The state may join misdemeanors ofthe same character in the same indictment and the courtmay fix separate punishment upon each count on whichthere is a conviction. [Citations.] This practice has beenapproved by this court rather than to require separateindictments for each offense. The constitutional provisiondoes not apply in any manner to the aggregate of thepunishments inflicted for different offenses." Elliott, 272Ill. at 600.

More recently, we held in Thomas, 143 Ill. 2d at 278-79, that whenconsecutive sentences are imposed, they do not form a singlesentence for any purpose other than determining the manner inwhich the sentences are to be served for the purpose ofdetermining an offender's eligibility for parole.

In People v. Kilpatrick, 167 Ill. 2d 439 (1995), the circuitcourt imposed consecutive sentences of nine and six years'imprisonment for two separate offenses. On defendant's motion toreconsider, in which he argued that consecutive sentences were notwarranted, the circuit court vacated the sentences and imposed asingle sentence of 15 years in prison on the two offenses.Kilpatrick, 167 Ill. 2d at 441. On appeal to this court, we notedthat section 5-8-1(c) of the Code (730 ILCS 5/5-8-1(c) (West1994)) prohibits circuit courts from increasing a sentence once ithas been imposed. Kilpatrick, 167 Ill. 2d at 442. We held that,although the total number of years defendant would beincarcerated was unchanged, consecutive sentences are not treatedas a single sentence. Thus, the circuit court's action effectivelyincreased defendant's sentences for each offense to 15 years.Kilpatrick, 167 Ill. 2d at 446-47.

Our jurisprudence, therefore, makes it clear that consecutivesentences do not constitute a single sentence and cannot becombined as though they were one sentence for one offense. Eachconviction results in a discrete sentence that must be treatedindividually. Though section 5-8-4(e) of the Code (730 ILCS5/5-8-4(e) (West 1998)) instructs the Department of Corrections(Department) to treat consecutive sentences as a single sentencefor purposes of determining the manner in which those sentenceswill be served, we held in People v. Goffman, 65 Ill. 2d 296, 302(1976), that this provision is directed to the Department and not tothe judiciary.

Defendant argues here that the proper inquiry is not whetherconsecutive sentences form a single discrete sentence, but ratherwhether consecutive sentences constitute increased punishmentunder the rationale of Apprendi. In support, defendant cites theApprendi Court's concern with the heightened loss of liberty andheightened stigma attached to an offense where a defendant issubjected to increased punishment. However, the ApprendiCourt's concern was limited to situations in which a defendant issentenced to a punishment that exceeds the statutory maximumsentence. Apprendi, 530 U.S. at 484, 147 L. Ed. 2d at 451, 120 S.Ct at 2359. It is not the increased punishment itself that triggersthe constitutional protections of Apprendi; rather, the fact must besubmitted to a jury and proved beyond a reasonable doubt onlywhen the punishment exceeds the statutory maximum for theparticular offense. A holding that the mere fact of increasedpunishment implicates Apprendi would place in jeopardy the useby judges of aggravating factors to increase a defendant's sentencebeyond the statutory minimum, even though the punishment doesnot exceed the maximum permissible for the offense. The holdingof Apprendi clearly does not extend to this situation.

We also reject defendant's argument that consecutivesentences must now, under Apprendi, be treated as a singlesentence. We are unwilling to cast aside established case lawholding that each consecutive sentence constitutes a distinctsentence for one particular offense and that consecutive sentencesmay not be lumped together as one. Nothing in Apprendi mandatessuch a result. While, undeniably, a defendant who receivesconsecutive sentences will serve a longer period of imprisonmentthan a defendant who receives identical concurrent sentences, thisfact alone does not make Apprendi applicable. The application bya judge of the factors identified in section 5-8-4(a) of the Codedetermines only the manner in which a defendant will serve hissentences for multiple offenses. The defendant is not exposed topunishment beyond that authorized by the jury's verdict, providedthat the sentence for each separate offense does not exceed themaximum permitted by statute for that offense.

Defendant contends that our decisions in Kilpatrick andPeople v. Jones, 168 Ill. 2d 367 (1995), support, rather than refute,his argument that imposition of consecutive sentences can resultin an unlawful increase in sentence. He asserts that, in these cases,we did not decide that imposition of consecutive sentences couldnever be interpreted to constitute an increase in penalty. Defendantnotes that, in reaching our decision in Kilpatrick that defendant'snew 15-year sentence circumvented the language of section5-8-4(c) of the Code, we discussed People v. Muellner, 70 Ill.App. 3d 671 (1979). Kilpatrick, 167 Ill. 2d at 444. In Muellner,defendant was convicted of two counts of rape and two counts ofdeviate sexual assault. The circuit court sentenced him toconcurrent terms of four to eight years in prison. However, severaldays later, the circuit court ordered that the sentences for the rapeconvictions be served consecutively to the sentences for thedeviate sexual assault convictions. Muellner, 70 Ill. App. 3d at673. The appellate court rejected the State's argument that thecircuit court did not increase defendant's sentence, but merelymodified it. The court held that the resentencing to consecutiveterms was, for practical purposes, an increase in the length ofdefendant's sentence, because his earliest possible parole releasewould thereby be delayed to a later point in time. Muellner, 70 Ill.App. 3d at 683.

The statement by the Muellner court that an order imposingconsecutive sentences on resentencing constituted an increase inthe length of defendant's sentence was dictum, as such an orderwas not at issue in Kilpatrick. The citation to Muellner served onlyto illustrate the conflict among the districts of the appellate courton the issue addressed in Kilpatrick.

Of more significance is Kilpatrick's citation with approval ofthe appellate court's decision in People v. Rivera, 212 Ill. App. 3d519 (1991). There, on resentencing after defendant violated hisprobation, the circuit court divided defendant's six burglaryconvictions into three groups and imposed concurrent terms offour years' imprisonment on each conviction in each group. Thecourt also imposed a four-year prison term for an escapeconviction. The four-year terms on each group of burglaryconvictions were to run consecutively, as was the prison term onthe escape conviction, for a total of 16 years' imprisonment. Upona motion for reconsideration, the circuit court divided the burglaryconvictions into two groups and imposed concurrent terms of sixyears' imprisonment for each conviction in each group. The four-year term for the escape conviction remained. All three groups ofsentences were to run consecutively to one another for a total of 16years' imprisonment. Rivera, 212 Ill. App. 3d at 520-21. Theappellate court noted that, although the total number of years forall sentences remained unchanged, the sentences in eachconsecutive group did not constitute one sentence. The fact thatthe total number of years for all convictions remained the samedue to their consecutive nature does not alter the fact that eachindividual sentence within the groups was increased. Thus, thecircuit court impermissibly increased defendant's sentences undersection 5-8-4(c) of the Code. Rivera, 212 Ill. App. 3d at 525.

Similarly, in Jones, the defendant was sentenced toconsecutive prison terms of 25 years on two felonies. Upondefendant's motion to reconsider the sentences, the circuit courtdetermined that it had neglected to admonish defendant of thepossibility of consecutive sentences. The court vacated thesentences and resentenced defendant to a single term of 30 yearson one of the felony convictions. On appeal, defendant argued thatthe circuit court was not authorized to increase the term ofimprisonment from 25 years to 30 years. The appellate courtaffirmed the circuit court's decision. Jones, 168 Ill. 2d at 370.Relying on Kilpatrick, we held that the imposition of the 30-yearsentence constituted an impermissible increase in defendant'ssentence, even though the total amount of prison time wasdecreased. Jones, 168 Ill. 2d at 371-72. While it is true that inneither Kilpatrick nor Jones did we decide that consecutivesentences can never constitute an increased penalty, this fact doesnot assist defendant. In those cases, we were concerned with the"improper chilling effect" that an increased sentence for aparticular offense would have on a defendant's decision tochallenge a consecutive sentence. Kilpatrick, 167 Ill. 2d at 447.

Defendant further argues that section 5-8-4(a) of the Codedoes more than lengthen the time of a defendant's imprisonment.In addition, he says, it extends the maximum penalties to which adefendant can be exposed for a given course of conduct bycontrolling whether the defendant will serve his sentencesconcurrently or consecutively. However, Apprendi, as defendantnotes, applies only where a legislature removes from the jury theassessment of facts that increase the " 'prescribed range ofpenalties to which a criminal defendant is exposed.' " Apprendi,530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2363, quotingJones v. United States, 526 U.S. 227, 252-53, 143 L. Ed. 2d 311,332, 119 S. Ct. 1215, 1228 (1999) (Stevens, J., concurring). Theprescribed range of penalties is that set forth in the statute definingeach separate offense of which a defendant has been convicted orthe associated sentencing statute. Consecutive sentences, takentogether, do not constitute a "range of penalties" to whichApprendi applies.

In McMillan, the Supreme Court considered a challenge toPennsylvania's mandatory minimum sentencing statute. Pursuantto this statute, a person convicted of certain felonies was subjectto a mandatory minimum sentence of five years' imprisonment ifthe sentencing judge found, by a preponderance of the evidence,that the person visibly possessed a firearm during commission ofthe offense. McMillan, 477 U.S. at 80-81, 91 L. Ed. 2d at 73, 106S. Ct. at 2413. Defendant was convicted of aggravated assault. TheState gave notice of its intent to invoke the statute. However, thecircuit court found the statute to be unconstitutional. McMillan,477 U.S. at 82, 91 L. Ed. 2d at 73-74, 106 S. Ct. at 2414. Thestate's highest court found the statute constitutional. McMillan,477 U.S. at 83, 91 L. Ed. 2d at 74, 106 S. Ct. at 2414. TheSupreme Court agreed, noting, as to defendant's complaint that thestatute increased the punishment for the offense, that the statute"neither alters the maximum penalty for the crime committed norcreates a separate offense calling for a separate penalty; it operatessolely to limit the sentencing court's discretion in selecting apenalty within the range already available to it without the specialfinding of visible possession of a firearm." McMillan, 477 U.S. at87-88, 91 L. Ed. 2d at 77, 106 S. Ct. at 2417.

Defendant asserts that section 5-8-4(a) of the Code is notsubject to the "limited holding" of McMillan because the SupremeCourt emphasized there that the statute did not expose thedefendant to greater or additional punishment. Defendant insiststhat section 5-8-4(a) of the Code does indeed expose a defendantto greater punishment by altering the maximum penalty availableby requiring consecutive sentences. However, McMillan, as wellas Apprendi, spoke in terms of exposing a defendant to a greaterpunishment than that authorized for the particular offense.Consecutive sentences do not expose a defendant to punishmentexceeding the statutory maximum for each conviction.

On a final note, the State has filed a motion for leave to citeadditional authority, citing two very recent cases that it believesare relevant to our inquiry here. We now allow this motion. Thecases are Buford v. United States, 532 U.S. ___, 149 L. Ed. 2d197, 121 S. Ct. 1276 (2001), and United States v. White, 240 F.3d127 (2d Cir. 2001). We have reviewed these cases and, becausethey do not add to our analysis of the instant case, we will notcomment on them.

CONCLUSION

In summary, we hold that consecutive sentences imposedunder section 5-8-4(a) of the Code do not violate the due processrights of defendants and that the Supreme Court's Apprendidecision does not apply to such sentences. We therefore reversethe decision of the appellate court and affirm the circuit court asto this issue. We remand this cause to the appellate court forconsideration of other issues raised there by defendant and notaddressed by that court.

Appellate court reversed,

circuit court affirmed in part;

cause remanded.