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Docket No. 90083-Agenda 35-May 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ERIC FORD, Appellant.

Opinion filed October 18, 2001. - Modified upon denial ofrehearing December 3, 2001

JUSTICE THOMAS delivered the opinion of the court:

The issue presented is whether defendant's 100-yearextended-term sentence for the commission of first degree murderis constitutional under the United States Supreme Court's decisionin Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120S. Ct. 2348 (2000). We hold that it is.

BACKGROUND

The facts are not in dispute. On February 17, 1995, a tugboatcaptain found Tommy Glass' body lying on the bank of theCalumet Sag Channel. The body was lacerated, badly decomposed,and missing several parts. Due to the condition of Glass' body,which had been immersed in the channel for several weeks, theoriginal autopsy report listed the cause of death as"indeterminate."

On April 5, 1995, defendant confessed to participating inGlass' murder. According to defendant's statement, on December27, 1994, defendant and three fellow gang members grabbed Glassoff the street and dragged him into a nearby apartment to questionhim concerning the murder of their friend James Chapman. WhenGlass denied any involvement in Chapman's murder, all four menrepeatedly punched him in the face. Attempting to protect himself,Glass curled up into a ball on the floor. One of defendant's cohortssummoned a fifth member of defendant's gang, Altai Thornton,who was passing on the street. Thornton entered the apartment andbegan beating Glass' head and body with a paint can. Accordingto defendant, "It was kind of funny at that point." Thornton thenentered the kitchen, removed all four heated burners from thestove, and seared Glass' face with each of the burners. Eachsearing lasted "like thirty seconds," and defendant "could hear hisface sizzling." Defendant and Thornton then used duct tape to bindGlass' ankles, knees, arms, and mouth. Once Glass was bound,Thornton heated a metal rake on the stove and again seared Glass'head.

At this point, Thornton suggested tossing Glass into theCalumet Sag Channel. Defendant objected, noting that Glass"would float up to the top." Defendant was outvoted, however,and the five men carried Glass to a nearby hill, where defendantand Thornton rolled Glass' body to the water's edge. Glass wasstill alive at this point, so, while defendant watched, Thornton heldGlass under the water for about 10 minutes. Finally, defendant"saw [Thornton] push down one last time and come back to theshore."

Following a bench trial, defendant was convicted of firstdegree murder (720 ILCS 5/9-1(a)(1) (West 1998)). The Statesought imposition of the death penalty, and defendant waived ajury for both phases of the capital sentencing hearing. The trialcourt found defendant eligible for the death penalty both becausethe murder was committed in the course of another felony (720ILCS 5/9-1(b)(6) (West 1998)) and because the murder wasintentional and involved the infliction of torture (720 ILCS5/9-1(b)(14) (West 1998)). The trial court declined to impose thedeath penalty, however, noting that defendant was young, hadconfessed to the crime, had cooperated with the police, and lackeda significant criminal record. The trial court instead imposed anextended-term sentence of 100 years based upon its finding thatthe murder "was accompanied by exceptionally brutal or heinousbehavior indicative of wanton cruelty." See 730 ILCS5/5-5-3.2(b)(2), 5-8-2(a)(1) (West 1998).

Defendant appealed his conviction and sentence, and theappellate court affirmed in an unpublished order. No. 1-99-0104(unpublished order under Supreme Court Rule 23). Two monthslater, defendant filed a petition for rehearing in which he arguedfor the first time that his 100-year extended-term sentence wasunconstitutional under Apprendi. The appellate court denied thepetition "for want of jurisdiction." Defendant then filed a motionfor leave to file a late petition for leave to appeal, and this courtgranted both the motion and the petition. 177 Ill. 2d Rs. 315(a),(b).

ANALYSIS

Defendant argues that his 100-year extended-term sentence isunconstitutional under the United States Supreme Court's decisionin Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120S. Ct. 2348 (2000). According to defendant, under section5-8-1(a)(1) of the Unified Code of Corrections (the Code) (730ILCS 5/5-8-1(a)(1) (West 1998)), the maximum sentence for firstdegree murder in Illinois is 60 years. Although sections5-5-3.2(b)(2) and 5-8-2(a)(1) of the Code (730 ILCS5/5-5-3.2(b)(2), 5-8-2(a)(1) (West 1998)) authorize theimposition of an extended-term sentence of between 60 and 100years if the trial court finds that the murder "was accompanied byexceptionally brutal or heinous behavior indicative of wantoncruelty," that finding need not be based upon proof beyond areasonable doubt. Rather, that finding need only be based upon apreponderance of the evidence. This, defendant insists, violatesApprendi's mandate that "any fact that increases the penalty for acrime beyond the prescribed statutory maximum must besubmitted 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.⁽¹⁾ In response, the State argues that Apprendi does notapply to Illinois' first degree murder statute because the maximumpenalty authorized by that statute is death.

Before reaching the merits of defendant's argument, we notethat, although it was announced after the appellate court issued itsopinion in this case, the decision in Apprendi nevertheless appliesto this case. As this court consistently has held, judicial opinionsannouncing new constitutional rules applicable to criminal casesare retroactive to all cases-like this one-pending on direct reviewat the time the new constitutional rule is declared. See People v.Hudson, 195 Ill. 2d 117, 126 (2001); see also People v. Erickson,117 Ill. 2d 271, 288 (1987), citing Griffith v. Kentucky, 479 U.S.314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987).

That said, we need not decide whether the maximum sentenceauthorized by the Illinois first degree murder statute is 60 years, asdefendant contends, or death, as the State contends. This isbecause, under the particular facts presented in this case,defendant's 100-year extended-term sentence clearly complieswith the rule announced in Apprendi.

In Apprendi, the United States Supreme Court invalidatedNew Jersey's hate crime statute, which allowed the sentencingjudge to increase the sentence for a particular offense beyond thestatutory maximum if the judge found, by a preponderance of theevidence, that the defendant, in committing the offense, acted witha purpose to intimidate an individual or group of individuals onthe basis of, inter alia, race. Apprendi, 530 U.S. at 468-69, 147 L.Ed. 2d at 442, 120 S. Ct. at 2351. In doing so, the Court held that,under the due process clause of the fourteenth amendment to theUnited States Constitution (U.S. Const., amend. XIV), "[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 this case, defendant was convicted of first degree murder,and the State-as it is entitled to do-sought imposition of the deathpenalty based upon that conviction. Defendant waived a jury forboth phases of the capital sentencing hearing, and the trial courtfound, by proof beyond a reasonable doubt, that defendant waseligible for the death penalty. At this point, and based exclusivelyupon facts that were proved beyond a reasonable doubt, defendantfaced a prescribed statutory maximum sentence of death. Thesentence actually imposed-100 years in prison-does not exceedthis maximum.

That the aggravating factor used to impose defendant's 100-year sentence-i.e., that the murder "was accompanied byexceptionally brutal or heinous behavior indicative of wantoncruelty"-was not proved beyond a reasonable doubt is immaterial.Apprendi does not require that every fact related to sentencing beproved beyond a reasonable doubt. On the contrary, Apprendirequires that only those facts that increase the penalty for a crimebeyond the prescribed statutory maximum be proved beyond areasonable doubt. As Apprendi explains:

"We should be clear that nothing *** suggests that it isimpermissible for judges to exercise discretion-takinginto consideration various factors relating both to offenseand offender-in imposing a judgment within the rangeprescribed by statute. We have often noted that judges inthis country have long exercised discretion of this naturein imposing sentence within statutory limits in theindividual case." (Emphases in original.) Apprendi, 530U.S. at 481, 147 L. Ed. 2d at 449, 120 S. Ct. at 2358 .

Here, the maximum sentence facing defendant (i.e., death) wasestablished when the trial court found, by proof beyond areasonable doubt, that the murder both was committed in thecourse of another felony and involved the infliction of torture. Thetrial court's subsequent finding that the murder "was accompaniedby exceptionally brutal or heinous behavior indicative of wantoncruelty" did nothing to increase the penalty that defendant wasfacing. Rather, it simply guided the trial court in fashioning anappropriate sentence that was both specifically authorized bystatute and below the prescribed statutory maximum. This isprecisely the type of judicial fact finding that Apprendi permits.

We therefore hold that, as in this case, when a defendant isfound eligible for the death penalty by proof beyond a reasonabledoubt, the imposition of an extended-term prison sentence undersections 5-5-3.2(b)(2) and 5-8-2(a)(1) of the Code complies withthe rule announced in Apprendi. Indeed, to hold otherwise wouldbe to construe the due process clause of the fourteenth amendmentas authorizing the ordering of a man's death but prohibiting thesentencing of that same man to a term of years in prison. Apprendidoes not compel such an absurdity.

CONCLUSION

For the foregoing reasons, the judgment of the appellate courtis affirmed.

Affirmed.

I agree that the United States Supreme Court's decision inApprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.Ct. 2348 (2000), applies retroactively and that the matter before usis subject to the principles decided in that case. Contrary to themajority, however, I believe that Apprendi requires us to vacateFord's extended-term sentence.

Apprendi holds 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 490,147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Under this rule, theprescribed maximum sentence is the maximum sentence a courtcould impose based on the jury's verdict of guilty. It does notinclude enhanced sentences which require findings in addition tothe determination of guilt. If an additional finding is required toimpose a more severe sentence than would be authorized based onthe guilty verdict alone, Apprendi holds that the finding must bemade by a jury based on facts proved by the State beyond areasonable doubt. Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455,120 S. Ct. at 2362-63.

The prescribed statutory maximum for first degree murder, thecrime for which Ford was convicted, is 60 years' imprisonment.730 ILCS 5/5-8-1(a)(1)(a) (West 1998); see People v. Beachem,317 Ill. App. 3d 693, 706-08 (2000); People v. Kaczmarek, 318 Ill.App. 3d 340, 350 (2000). That is the highest punishment that canbe imposed based solely on the facts reflected in the jury's verdictof guilty. Additional imprisonment is possible, but the 60-yearmaximum cannot be exceeded without an additional finding thatthe murder was accompanied by "exceptionally brutal or heinousbehavior indicative of wanton cruelty" (730 ILCS5/5-8-1(a)(1)(b), 5-8-2(a), 5-5-3.2(b)(2) (West 1998)) or one ofvarious other enumerated statutory aggravating factors (730 ILCS5/5-8-2(a), 5-5-3.2(b) (West 1998)). If a finding of"exceptionally brutal or heinous behavior indicative of wantoncruelty" is made, a defendant convicted of first degree murder issubject to an extended term of not less than 60 years and not morethan 100 years (730 ILCS 5/5-8-2(a)(1), 5-5-3.2(b)(2) (West1998)) or natural life (730 ILCS 5/5-8-1(a)(1)(b) (West 1998)).

Under a plain reading of Apprendi, such a sentencing schemeis valid only if the existence of the aggravating factor is made bythe jury, and the State has the burden of proving the aggravatingfactor beyond a reasonable doubt. The Illinois statutes, however,expressly provide that the aggravating factor necessary to supportan enhanced sentence is to be made by the court, not a jury, andthe law contains no requirement that the aggravating factor beproved by the State beyond a reasonable doubt. See 730 ILCS5/5-8-1(a)(1)(b), 5-8-2(a) (West 1998).⁽²⁾ Because of thosedeficiencies, extended terms imposed under the statutes cannot, asa general rule, pass constitutional muster under Apprendi. SeePeople v. Swift, 322 Ill. App. 3d 127, 130 (2001); People v. Lee,319 Ill. App. 3d 289, 307-08 (2001); People v. Chanthaloth, 318Ill. App. 3d 806, 816-18 (2001); People v. Kaczmarek, 318 Ill.App. 3d 340, 353 (2000); People v. Lee, 318 Ill. App. 3d 417, 422(2000); People v. Beachem, 317 Ill. App. 3d 693, 708 (2000);People v. Joyner, 317 Ill. App. 3d 93, 109-10 (2000).

An exception to this rule applies where the State seeks thedeath penalty, but the defendant waives a jury for capitalsentencing. If the circuit court finds the defendant eligible fordeath, but instead of death, imposes an extended term based on thesame aggravating factor on which the finding of death eligibilitywas predicated, no Apprendi violations occurs. See People v. Tye,323 Ill. App. 3d 872 (2001). The reason is this: the defendantcannot complain that he was denied the right to a jury because heaffirmatively waived a jury, and he cannot complain that thestandard of proof was too lax because under section 9-1(f) of theCriminal Code of 1961 (720 ILCS 5/9-1(f) (West 1998)), thedeath-eligibility factors must be proven beyond a reasonable doubteven where the proceedings are before the court sitting without ajury. Accordingly, the concerns underlying Apprendi are notimplicated.

This exception is inapplicable to the case before us becausethe trial court did not rely on the same factor to support the 100-year extended term as it used to find Ford death eligible. Ford wasfound death eligible because the murder was committed in thecourse of another felony and because the murder was intentionaland involved the infliction of torture. While the trial court wasrequired to find those eligibility factors beyond a reasonable doubt,it had no similar requirement under the law then in effect withrespect to the question of whether the offense was accompanied by"exceptionally brutal or heinous behavior indicative of wantoncruelty" (730 ILCS 5/5-5-3.2(b)(2) (West 1998)), which was theaggravating factor invoked by the trial court to justify the 100-yearextended term under section 5-8-2(a)(1) (730 ILCS 5/5-8-2(a)(1)(West 1998)). Because the court was not required to find thataggravating factor beyond a reasonable doubt, the extended termcannot stand under Apprendi. The extended-term portion of Ford'ssentence should therefore be vacated.

1. ¹Defendant also suggests that, under Apprendi, any fact thatincreases the penalty for a crime beyond the prescribed statutorymaximum must be charged in the indictment. However, the Court inApprendi specifically declined to address the indictment question,noting that (1) Apprendi did not assert a constitutional claim based uponthe indictment's failure to charge the extended-term sentencing factors,and (2) the due process clause of the fourteenth amendment, upon whichApprendi exclusively relied, has never been construed to make the fifthamendment right to " 'presentment or indictment of a Grand Jury' "applicable to the states. Apprendi, 530 U.S. at 477 n.3, 147 L. Ed. 2d at447 n.3, 120 S. Ct. at 2355 n.3.

2. ²Public Act 91-953,