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Docket No. 95725-Agenda 2-January 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
DENNIS TOWNSELL, Appellee.

Opinion filed April 15, 2004.
 

JUSTICE THOMAS delivered the opinion of the court:

The issue presented is whether an Apprendi claim that is waivedpursuant to a guilty plea may nevertheless be considered on appeal underthe plain error exception to the waiver rule. We hold that it may not.

BACKGROUND

In exchange for the State seeking neither the death penalty nor amandatory life sentence, defendant, Dennis Townsell, pleaded guilty tofirst degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(a)(1)). Asentencing hearing was held, and the circuit court of Rock Island Countyimposed an extended-term sentence of 100 years in prison. Theextended-term sentence was based on the trial court's finding thatdefendant's offense was "accompanied by exceptionally brutal or heinousbehavior indicative of wanton cruelty" (Ill. Rev. Stat. 1991, ch. 38, par.1005-5-3.2(b)(2)).

On appeal, the appellate court reduced defendant's sentence to 60years, finding that the imposition of an extended-term violated the UnitedStates Supreme Court's decision in Apprendi v. New Jersey, 530 U.S.466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). 336 Ill. App. 3d 340.In so ruling, the appellate court initially acknowledged that, under thiscourt's decision in People v. Jackson, 199 Ill. 2d 286, 302 (2002),defendant's guilty plea waived any Apprendi-based claims. 336 Ill. App.3d at 343. The court then held, however, that an Apprendi violation is sosignificant as to constitute plain error, which is an exception to the waiverrule under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)).Consequently, the appellate court reached the merits of defendant'sApprendi claim, vacated his extended-term sentence, and imposed anonextended term of 60 years in prison. 336 Ill. App. 3d at 346.

We allowed the State's petition for leave to appeal. 177 Ill. 2d R.315(a).

ANALYSIS

It is well established that a voluntary guilty plea waives allnonjurisdictional errors or irregularities, including constitutional ones.People v. Peeples, 155 Ill. 2d 422, 491 (1993). In People v. Jackson,199 Ill. 2d 286 (2002), this court was asked to decide whether the"errors or irregularities" waived by a guilty plea include Apprendi-basedsentencing claims. In answering this question, Jackson began byacknowledging that, under Apprendi, "[e]very fact necessary to establishthe range within which a defendant may be sentenced is an element of thecrime and thus falls within the constitutional rights of a jury trial and proofbeyond a reasonable doubt." Jackson, 199 Ill. 2d at 296. Nevertheless,by pleading guilty, "a defendant waives exactly those rights." (Emphasisin original.) Jackson, 199 Ill. 2d at 296. Indeed, "[a] knowingrelinquishment of the right to a trial by jury is the sine qua non of a guiltyplea." Jackson, 199 Ill. 2d at 296. Jackson therefore concluded that"Apprendi-based sentencing claims cannot be heard on appeal from aguilty plea." Jackson, 199 Ill. 2d at 296.

In rejecting Jackson's seemingly unequivocal holding, the appellatecourt expressed its discomfort with the fact that, under Jackson, adefendant can be deemed to have waived an Apprendi-based claim eventhough he entered his guilty plea long before Apprendi was decided.According to the appellate court:

"Townsell would prevail on his Apprendi claim if he hadproceeded to trial rather than pleading guilty. He would prevailbecause extension of his sentence offended substantialconstitutional rights. We cannot in good conscience reach adifferent result merely because he pled guilty. We realize that herelinquished the rights upon which Apprendi is based when heentered his plea. However, the dispositive nature of thatrelinquishment is questionable because the plea occurred longbefore Apprendi was decided. How can we say that Townsellreally waived his right to a procedure that remained unprescribedfor another decade?" 336 Ill. App. 3d at 345-46.

For these reasons, the appellate court "opt[ed] to forgo the administrativeconvenience of a waiver" and addressed defendant's Apprendi argumenton the merits. 336 Ill. App. 3d at 346.

The fatal flaw in the appellate court's analysis rests in the assumptionthat the procedures outlined in Apprendi "remained unprescribed" untilApprendi was decided in 2000. Nothing could be further from the truth.In Jackson, this court clearly explained that:

"Apprendi did not deal with novel constitutional rights. Rather,the Court was concerned with the applicability and reach of thewell-established constitutional rights to a jury trial and proofbeyond a reasonable doubt, rights which a guilty plea isspecifically designed to waive." (Emphasis added.) Jackson,199 Ill. 2d at 302.

Similarly, in Hill v. Cowan, 202 Ill. 2d 151 (2002), this court specificallyrejected "the complaint that a defendant did not 'know' that he waswaiving the right to have the State prove enhancing factors beyond areasonable doubt, because by pleading guilty the defendant releases theState from proving anything beyond a reasonable doubt." (Emphasis inoriginal.) Hill, 202 Ill. 2d at 154. Again, "[a] knowing relinquishment ofthe right to a trial by jury is the sine qua non of a guilty plea." Jackson,199 Ill. 2d at 296. Accordingly, "Apprendi-based sentencing objectionscannot be heard on appeal from a guilty plea." Jackson, 199 Ill. 2d at296.

It is worth noting that, whatever the merits of its Apprendi analysis,the appellate court's invocation of Supreme Court Rule 615(a) is entirelyout of place in this context. Rule 615(a) is concerned with waivers thatresult from failing to bring an error to the trial court's attention. Under thatRule, "[p]lain errors or defects affecting substantial rights may be noticed[on appeal] although they were not brought to the attention of the trialcourt." 134 Ill. 2d R. 615(a). In relation to a guilty plea, by contrast,"waiver" refers to the " 'voluntary relinquishment of a known right.' " Hill,202 Ill. 2d at 158-59. Thus, in Jackson and Hill, the defendants'Apprendi claims were deemed waived not because the defendants failedto bring those claims to the trial court's attention but because thedefendants voluntarily relinquished all of the constitutional rights uponwhich those claims are based. Hill, 202 Ill. 2d at 158-59. Significantly,Rule 615(a) in no way speaks to waivers of the Jackson and Hillvariety-i.e., voluntary relinquishments of known rights. As a result, theappellate court had no authority to "forgo the administrative convenienceof waiver" and reach the merits of defendant's Apprendi claims, as"administrative convenience" has absolutely nothing to do with the waiverat issue in this case.

In sum, we meant precisely what we said in Jackson: "Apprendi-based sentencing objections cannot be heard on appeal from a guiltyplea." Jackson, 199 Ill. 2d at 296. Moreover, Rule 615(a) does notspeak to waivers that result from the voluntary relinquishment of knownrights, as in the case of a guilty plea. For both of these reasons, theappellate court erred in using Rule 615(a)'s plain error rule as a means ofreaching defendant's Apprendi-based sentencing claims.

CONCLUSION

For the foregoing reasons, the judgment of the appellate court isreversed and the judgment of the circuit court is affirmed.

Appellate court judgment reversed;

circuit court judgment affirmed.

JUSTICE KILBRIDE, dissenting:

I cannot join the majority opinion for two reasons. First, as stated bythe appellate court, defendant pleaded guilty to first degree murder,charged solely under section 9-1(a)(1) of the Criminal Code of 1961 (Ill.Rev. Stat. 1991, ch. 38, par. 9-1(a)(1), now codified as 720 ILCS5/9-1(a)(1) (West 2000)). Neither "brutal or heinous" behavior undersection 5-5-3.2(b)(2) (Ill. Rev. Stat. 1991, ch. 38, par.1005-5-3.2(b)(2)) nor any other aggravating factor was alleged in thecharging instrument or submitted to and proved to a jury beyond areasonable doubt. Accordingly, defendant was only eligible for a 60-yearterm of imprisonment. See Ill. Rev. Stat. 1991, ch. 38, par.1005-8-1(a)(1)(a). I agree with the appellate court that section5-5-3.2(b)(2) "essentially create[d] a new offense (brutal or heinous firstdegree murder) that [was] separate from, and more severe than, ordinaryfirst degree murder." 336 Ill. App. 3d at 346. But, defendant was notcharged with "brutal and heinous" first degree murder. He was chargedwith simple first degree murder and he pleaded guilty only to that specificoffense. In affirming defendant's extended-term sentence, the majorityinexplicably sanctions the imposition of a penalty for an uncharged offensethat was more severe than the offense that was actually charged. See Hillv. Cowan, 202 Ill. 2d 151, 163 (2002) (Kilbride, J., dissenting upondenial of rehearing).

Second, under Apprendi v. New Jersey, 530 U.S. 466, 490, 147L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000), "[o]ther than thefact of a prior conviction, any fact that increases the penalty for a crimebeyond the prescribed statutory maximum must be submitted to a jury,and proved beyond a reasonable doubt." Apprendi applies retroactivelyto all cases that were still pending on direct review, as this one was, whenthe decision was issued. People v. Ford, 198 Ill. 2d 68, 72-73 (2001). Therefore, for the reasons expressed in Chief Justice Harrison's dissentin People v. Jackson, 199 Ill. 2d 286, 302-08 (2002) (Harrison, C.J.,dissenting, joined by Kilbride, J.), the majority's assertion that defendantwaived his right to challenge the extended-term portion of his sentence bypleading guilty is also flawed. In Illinois, a statute held unconstitutional isconsidered void ab initio. People v. Gersch, 135 Ill. 2d 384, 399(1990). It is as if the law never existed. Accordingly, there was nostatutory authority for the extended-term portion of defendant's sentence.Jackson, 199 Ill. 2d at 304 (Harrison, C.J., dissenting, joined by Kilbride,J.). That portion of his sentence is therefore void (Jackson, 199 Ill. 2d at304 (Harrison, C.J., dissenting, joined by Kilbride, J.)) and may becorrected at any time. People v. Arna, 168 Ill. 2d 107, 113 (1995).

More specifically, to hold that a sentence is void because it is notauthorized by statute under the facts of a case is no different, analytically,from holding that a sentence is void because it is unconstitutional asapplied. In the former situation, we allow a defendant to challenge hissentence. See, e.g., People v. Williams, 179 Ill. 2d 331, 333 (1997)(challenge to a trial court's statutory authority to impose a particularsentence not waived when a defendant fails to withdraw his guilty plea andvacate the judgment). Justice, not to mention a consistent body ofprecedent, dictates the same outcome in the situation at hand, where thesentence is invalid because it is unconstitutional as applied. Jackson, 199Ill. 2d at 306 (Harrison, C.J., dissenting, joined by Kilbride, J.).Accordingly, despite the majority's conclusion in Jackson, defendant'splea of guilty should not have resulted in a waiver of his right to have hissentence vacated based on Apprendi.

Under these circumstances and for the foregoing reasons, I wouldhold that defendant's challenge to his extended-term sentence was notbarred by his decision to plead guilty. Accordingly, I would affirm thejudgment of the appellate court, vacating the extended-term portion ofdefendant's sentence and modifying his sentence to 60 years. I, therefore,respectfully dissent.