*1 ILLINOIS, Plaintiff-Appellee, v. THE OF THE OF PEOPLE STATE JOHNSON, Defendant-Appellant. ROMELL Fifth No. 5 — 99—0637 District Opinion filed October WELCH, J., dissenting. *2 Joyce Randolph, Appellate
Daniel M. and E. both Kirwan of State Office, Vernon, appellant. Defender’s of Mt. (Norbert Wepsiec, Attorney, Murphysboro Goetten,
Michael State’s of J. Norris, Stephen Daly, Attorneys Appellate E. D. and Patrick all of State’s Office, counsel), People. Prosecutor’s of the the opinion JUSTICE KUEHN delivered the of court: This is another case where unthinkable criminal acts drew severe sentence, actual prison incapable imposition of the judicial finding accompanied at murder absence of the effort was or behavior of wanton heinous again, cruelty. upon Once we are called to examine how the constitu- Jersey Apprendi rule v. New Unfits the promulgated tional punish- the of extended-term machinery imposition established for Jersey, Apprendi ment under See v. New 147 Illinois law. (2000). L. Ed. 2d 2348 120 S. Ct. appeal guilt. not the determination of his
The defendant does from reason, the In broad and for no defendant donned dayhght, known identity savagely complete assaulted a a ski mask conceal his misfortune, random stranger. To his John Potter was defendant’s attack, the defendant prey. pleaded Stunned the frenetic Potter presence provoked whose help to relent. His drew onlookers cries severely However, Potter left the defendant’s withdrawal. was face, neck, chest. These He suffered unkind cuts to his wounded. a butcher knife’s blade into bloody by-products repeated of thrusts of he survived. body parts peril. Fortunately, Potter’s life in placed vital trial, met Following Judge felt that the State had its bench Watt attempted proof, guilty and he found the defendant of burden ag- on counts of guilty multiple He also the defendant murder. found weapon of a battery charge possession unlawful gravated and on by a felon. sentence, Judge of a Watt announced his imposition
Prior to at murder was attempt belief that defendant’s upon Based exceptionally brutal behavior indicative of fact, Judge sentencing statute afforded additional
937 greater the maximum imposing punishment than option Watt finding, Without the the law authorized penalty otherwise available. 30-year prison term. imposition sentence no harsher 8—1(a)(3) 1998). (West 30-year A sentence ILCS 5/5 — allowed, solely upon facts weighed based those sentence proof.1 under a doubt standard of reasonable 1It presumption is that we review bench trials with a that a well-settled correctly. apply presumption trial will law The dissent carries this ground. presume willing Judge Watt, admittedly new It experienced judge, foresight and learned would know that the have had finding against required him measure constitution a reasonable doubt proof, though constitutionally standard of even based rule announced in yet Apprendi agree are did not exist. There several reasons that cannot we approach. with this
First,
recognize
inquiry.
ques-
fails
relevant
The constitutional
tion that we
asked to address
in Ap-
are
arises from
landmark decision
case,
prendi.
Apprendi,
statute under which Charles
Jr.,
Apprendi,
received an enhanced sentence was held unconstitutional.
U.S.
L. Ed. 2d at
S. Ct.
2362-63.
did not
right
by jury.
pleaded guilty.
exercise the
to a trial
Apprendi,
He
Second, presumes Judge something the dissent Watt did that he clearly Judge did not finding pursu- do. Watt announced that he arrived at his 5—3.2(b)(2) (730 to ant section of Unified Code of Corrections ILCS 5— (West 5—3.2(b)(2) 1998)), provision any requirement of a devoid that the 5/5 — of companion evidence brutal behavior to the defendant’s criminal conduct be proof. measured of If finding standard he made the in the manner described, pursuant written, clearly to as finding the law it was not made imposing after proof upon a reasonable standard doubt of the State. 5—3.2(b)(2) Finally, following procedure in in set forth section and 5— finding cruelty accompanied that brutal behavior indicative of wanton doubt, Judge defendant’s crime without consideration of reasonable Watt was law, applying existed, indeed finding as it then in a correct manner. The high that enhanced this defendant’s sentence was made at a time before the constitutionality any sentencing court raised concerns about of the scheme August 16, involved. The defendant was sentenced on was 2000, 26, year Judge duty handed down on June later. Watt almost a was proper to upon bound arrive at a sentence based law as existed when 938 more egregious
The that the defendant’s conduct was finding murderers, his at murder attempt the conduct of most would-be accompanied by exceptionally was cruelty, behavior range not key opening to an extended to (a)(1)(b) 8—2(a)(1)(a), 60-year prison term. 730 ILCS exceed 5/5 — 1998). (West Judge greater range punishment, Armed with this impose punishment his discretion Watt exercised penitentiary in called for defendant’s confinement a state 50 years. attempted The now serves a sentence for murder defendant years longer 20 served being that is than the maximum sentence commonplace anyone punished taking for a more effort another’s life. challenges constitutionality 50-year
The defendant
are
sentence. We
asked
examine the
case,
in
employed
fight Apprendi,
scheme
this
case
Jersey
Supreme
which
United States
Court held New
hate-
judges
crime statute unconstitutional
because it commissioned
power
beyond
to punish
make a factual
that enhanced their
priminal
Jersey
offenses.
the maximum
New
question
have
already
We have
detailed
addressed
Nitz,
answers,
Ill.
People
App.
on more than one
See
v.
319
occasion.
Rush,
949,
(2001); People
App.
v.
322
3d 1014
3d
A
that
crime
sentencing
exists,
upon
it
imposed.
judges decide cases
the law as
punishment was
Trial
may develop
upon predications of how
in the future.
not
deserving
punishment
appropriate
is an
greater
rare behavior
Vida,
“discretionary
] based
the nature of the offense.”
finding[
upon
572,
judges
permitted
at
App.
323 Ill.
at
752 N.E.2d
630. Since
are
prescribed
imposing
range
to exercise discretion in
a sentence within
by statute, based on a consideration of factors related both to the of
(see
481,
fense and to the offender
The in their entirety, viewed do not encroach upon facts have determine those that set the limit exposed. required finding to which defendant The of exceptional brutality companion crime does not increase punishment’s beyond maximum prescribed statutory penal- range already legislature. ties fixed The extended-term are crimes, an integral part of punishing certain and the maximum comprise extended-term sentences statutory maximum sentences for those crimes. It required follows additional find- ing of fact is not a empowers sentencing judge punish beyond limits.already those fixed accompanied established crimes by uniquely required brutal or heinous behavior. determination merely statutory authority impose unleashes actually punishments harsher extended-term already fixed law. upon analysis,
Based colleagues upheld imposition this our a 100-year sentence meted out to David Vida for having first-degree having committed murder and criminal acts with exceptionally brutal of wanton behavior indicative at 752 N.E.2d are approach
We not convinced correctly interprets imperative Apprendi. established majority any was averse to scheme set penal criminal and then actual made the of those ties depend upon existence of additional facts would charged decide after the return of a jury verdict on other facts in an States, 227, 252-53, indictment. See v. Jones United 143 L. (1999) 311, 332, Ed. 2d (Stevens, J., 119 Ct. S. 1228-29 concur ring); Jones, see also 526 U.S. at Ed. 2d L. S. Ct. (both (Scalia, J., concurring) expressly concurrences have been *5 940 believed Apprendi majority). majority
endorsed the necessary determination of maximum punishment’s that facts to the formally charged measure should be and entrusted to fellow citizens procedural accompany that safeguards for decision in accordance with promise by jury. Simply put, a time- the constitutional of trial the have a guarantee jury honored to a trial entitles a defendant to the jury determine those facts that determine maximum sentence Nitz, at 54 the law See 3d 747 at allows. N.E.2d 498-99, (relying on Ed. 2d at 120 S. Apprendi, 530 U.S. L. J., (Scalia, concurring)). atCt. a question accompanied by exception of whether crime is
ally brutal or heinous behavior calls for determination that a If qualitatively charged. offender’s crime is different from the offense by jury guarantees right the constitutional to a trial the to have jury those that determine the ultimate measure of decide facts law’s exposure penalties, an criminal punishment, accused’s to committed jury beyond to the facts a reasonable doubt determine or exceptionally whether heinous behavior indica should decide accompanied charged criminal cruelty tive of wanton a defendant’s conduct.
It
can
the
of an
judge
is axiomatic that
consider
nature
exercising sentencing
obviously
It
discretion.
individual’s offense
However,
entirely
ques
do
different
presents
so.
it
judge make an
requires
tion when a
law
additional
accompanies
about
a crime and renders
finding
behavior
of fact
case,
deserving
more
In such a
law
of
Jones,
L. Ed.
alters the
the crime
charged.
nature of
judge
A
nature of
certainly
David of murder. would Vida convicted hu- taking his finding unjustified rel with a that Vida exceptionally man life brutal behavior thereby conceal body of the victim’s dispose In order guilt, parts. his into two After sever- Vida sawed victim’s remains waist, He ing dispose garbage. he tried to of it as body bag and the garbage crammed the head and torso into one rest of remains into another. sentence, presided of a over
Prior to the who trial independent Vida’s made his own assessment what evidence That made established. assessment was without consider- or, proof matter, ation a standardized State’s burden determined, any already beyond measure of kind. The had doubt, legal justification, reasonable took without another’s life. The judge followed that determination with a that Vida accompanied the acts that constituted murder with imposed brutal behavior 100- cruelty, he year sentence. Without determination *6 companion brutality cruelty, punishment for 60-year crime could not have a exceeded term. 730 ILCS 5/5— 1(a)(1)(a) (West 1998). 8— Apprendi challenge
Faced with 100-year to the extended-term prison sentence, the First District panel expressed support its earnest for the basic premise rule, that underlies the constitutional but found essential sentencing differences between the schemes scrutinized in Apprendi forerunner, Jones, and its statutory and the method employed sentencing in Vida to an extended-term sentence. agree wholeheartedly principle
“We with the Ap adhered to in prendi, Jonesi,] and their that progeny a defendant should be not charged with tried one offense and then sentenced another. However, fundamental differences exist Ap between statutes in prendi, Jones[,] progeny sentencing and their and the Illinois scheme for first[-]degree Such murder. differences remain our essential analysis.” Vida, 323 Ill. App. 3d at N.E.2d sentencing
The in Apprendi statute at issue indeed was different in sentencing structure from the statutes at issue here. Our sentenc- ing statutes penalties, establish two tiers of minimum and maximum potentially applicable each when a criminal law is violated. The second tier of is reserved for those offenders whose behavior prohibited given exceeds the conduct that defines a offense —offenders who their accompany exceptionally criminal conduct with brutal cruelty. behavior Jersey The New hate-crime entirely statute was an separate enactment that allowed for enhanced penalties beyond legislated Jersey maximum sentences for all New criminal empowered judge offenses. hate-crime statute to double maximum for a offense the offender was driven certain forbidden motives.
It is more difficult to discern fundamental difference between statutes, and their method our sentences, Congress and the scheme that devised for carjacking under the federal statute. individuals convicted findings in statutory machinery judicial issue Jones invited opened path potential and third tier of to second guilty carjacking. jury after federal found someone out-of-the-ordinary carjackings, Congress punish wanted to certain victim, physical injury or to the in a man- accompanied by death closely legislature method our ner that resembles the devised penalty ranges accompanied extend for crimes behavior indicative of wanton or heinous The federal allowed a determine that the design statute’s carjacking, charged, proven beyond elements of crime were that someone had reasonable doubt. Once federal determined carjacking, the to have a federal sought committed the crime of statute particular judge the nature of the crime determine consider Congress it. whether either of two factors wanted two assessment and entrust a remove these factors from Thus, judge. determination of their existence to a federal the statute way judge, jury, allowed a rather was structured bodily injury or death from the determine whether serious resulted ac- either of these two facts carjacking. judge If the determined that impose companied carjacking, empowered the statute Congress put significantly increased maximum greater punishment. finding of to accommodate either additional place order fact. regard, congressional design closely akin to
design legislature depend- to raise employed by our levels *7 assigned judge a determination. ing upon the existence of fact to range penalties establish a of with provisions Our jury each of Once a determines maximum sentence for class offense. offense, an individual has committed particular consider the nature of the judge statute seeks to have a exceptionally brutal or heinous behavior crime and determine whether acts. cruelty accompanied the offender’s criminal of wanton crime was sentencing judge that a defendant’s If the determines of or heinous behavior indicative companion exercise sentenc- cruelty, empowers that the statute Our greater range potential punishment. ing within a of discretion place, penalties in higher penalties much maximum legislature put finding. only in the event of such a readily for use available method carjacking statute and Thus, the federal under Illinois law share of extended-term imposition punishment, tiers of Both establish several common features. maximum the limits of that far exceed penalties potential guilty comprise jury’s the facts that imposed upon that can be law, the actual fixed but clearly are penalties maximum verdict. The findings upon factual turns of those maximum imposition penalty to which The maximum assessment. removed from findings unconstrained judicial depends upon exposed a defendant jury trial. accompany safeguards of Jones analysis their including those in focus judges, Most This is a majority. say writing in on Justice Souter had what mistake. concerns, Jones, seeking to avoid constitutional majority in three having established carjacking federal statute as
construed the
of three
offenses,
single crime with
choice
rather
than a
distinct
upon sentencing
turned
factors
two of which
penalties,
Jones,
verdict.
requirements
charge
of
exempt from the
331,
Although it
Two peculiar ramifications of the statute’s their views on the constitutional majority endorses the rule set methodology. Because than the narrower rul- concurring opinions rather forth in these two say majority, concurring justices had ing of the Jones what considering import the case’s opinion, the actual when overshadows reach. understanding Apprendi’s proper that, noted Stevens, writing majority Apprendi, for the Justice conviction, endorse the statement prior “[W]e of a exception with the ‘[I]t case: [the Jones] concurring opinions set in the rule forth the as- to remove from legislature for a is unconstitutional range of facts that increase sessment ” added.) Apprendi, exposed.’ (Emphasis a criminal defendant is which quoting L. Ed. 2d at 120 S. Ct. 530 U.S. at at 1228-29 252-53, 119 S. Ct. Jones, 143 L. Ed. (Stevens, J., concurring). carjack- the federal light this rule imperative
It is to consider method for the ing statute’s intended concurring rule set forth methodology
intended is what the *8 944
justices actually addressed. It is not the majority’s cure for ill- conceived design important. is design itself, It is the deemed constitutionally infirm Justice Stevens and Justice Scalia because Congress removed from the the assessment of those facts that had to exist greater before the penalties maximum Congress provided actually could imposed. be noted, previously
As carjacking the federal statute’s intended design punishing for anyone who carjacking committed was different design from the employed by the Jersey State of New punish crimes motivated However, racial hatred. design its intended mirrors the employed method by the State heap of Illinois to greater punishment on those accompany who their criminality with exceptionally brutal or heinous behavior.
Our
colleagues
northern
did not consider Jones from
perspec
concurring
but, rather,
tive of the
opinions
confined their analysis to
holding
and differentiated the case on
Vida,
that basis.
323 Ill.
App. 3d
The Apprendi majority could not endorse the rule set forth in the
concurring opinions in Jones and leave untouched those sentencing
greater
schemes that establish
maximum
imposition only
in the event of
findings
additional factual
by judge.
Jones was not
punished beyond
penalty
under
the federal carjacking
design.
statute’s
intended
And it
design,
cure,
intended
not its
concurring justices
addressed.
We adhere to our belief
process
that “due
right
and the
to a trial
by jury
guarantees
are constitutional
various
schemes
offend, depending upon
can
legislature
power
how
unleashes the
punish
for a
power
offense
whether that
is constrained in
Nitz,
absence of additional
factual findings.”
App.
319 Ill.
966,
Here, legislature the Illinois removed from the the assess ment of a fact essential to the A imposed. judge, rather 12 citizens, fellow determined whether brutal or cruelty heinous behavior accompanied defendant’s criminal acts. The constitutional by jury trial cannot abide a imposed Nitz, in this App. manner. (2001); Rush, App. Ill. 3d 38; v. People 747 N.E.2d (2001). Reed, Ill. 3d 671 v. People view, analysis set forth integral to the There is one other meaningful distinction find no We can which we take issue. accompanied the commission motivation that racial between *9 or heinous behavior finding exceptionally that of a crime and acts. criminal cruelty accompanied indicative of wanton notes: The court draws a distinction. Vida such and Jones in determinations agree that those “We findings However, factual by jury. made should have been supreme As in this case. our that made the court differ from noted, statute is of an extended-term application court has the by the extent or nature by the ‘offense’rather than determined 70, 89, Palmer, 2d v. 148 Ill. participation. People the defendant’s (1992).” 572, 940, 592 N.E.2d N.E.2d at 629. the rule cases decided before constitutional
Palmer examines
extended-term
applied
announced. Those earlier cases
Apprendi was
theory
accountability,
guilty
found
on a
to defendants
offense, rather
than the role
holding that
the nature of the
ap-
crime,
controlling
the
factor. This
participant played in the
differentiating
the
little,
any, guidance
if
between
plication provides
and the kind
finding that constitutes an element of
crime
kind of
However,
such direction.
Apprendi provides
that does not.
Addressing
“constitutionally
the
novel and elusive distinction
”
factors,’
‘sentencing
Justice Stevens
‘elements’ and
between
finding
apply
deciding
whether
provided
proper analysis
subject
a fact
assessment constitutes
of fact removed from
charge
Apprendi,
verdict.
requirement
2365. He wrote:
Ed. 2d at
An finding’s effect is required charged inquiry conduct without into Moreover, contemplated. analysis not the kind of that Justice Stevens finding language require reading of the seems basic nature. of a crime’s goes beyond general consideration legislature punishment, impose In order to by exceptionally crime required that the “was cruelty.” (Emphasis brutal or heinous behavior added.) 8—1(a)(1)(b) (West 1998). 730 ILCS view, In our 5/5 — language calls for a determination that a defendant did something more than necessary the acts for a guilt. determination of It seeks a judge’s determination that an offender attended the conduct comprised the offense with other exceptionally brutal or heinous behavior indicative of wanton cruelty.
Vida accompanied his murder exceptionally brutal behavior indicative of He mutilated his body. victim’s Similarly, Apprendi accompanied his gunplay with purpose. racial Whether a legislature calls for the exceptional existence of behavior companion to a crime’s exceptional commission or an motive commission, for its nature of the conduct legislature punish wants to has been cases, legislators altered. both call for the existence of a fact deemed egregious more than the facts that crime define the charged, the exist- ence of a worthy fact deemed of more cases, In both required finding of that fact’s exposes existence the defendant greater punishment that authorized verdict.
We think a finding brutal behavior indicative of wanton cruelty accompanied the commission of an attempted murder is as much added subject element charge and jury verdict as a finding that racial motivation accompanied prohibited gunplay. It *10 exposed the defendant that could not imposed be in its Therefore, absence. it should have been made by jury rather than a judge. The State needed to allege it in the charging instrument and prove its existence beyond a reasonable anyone doubt before punished for it.
Accordingly, modify we the defendant’s attempted sentence for murder to a 30-year imprisonment, determinate term of sentence the impose law allows us to on those charged proven facts beyond a reasonable doubt.
Affirmed as modified.
MAAG, .J., concurs. WELCH,
JUSTICE
dissenting:
distinguishes
What
this case from the
upon by
cases relied
majority is that this is a
opposed
bench trial as
trial. There is
no
at a bench trial —the trial judge is the finder of
fact.
case,
instant
clearly
record
indicates that
the defendant was
admonished of the “nature of charges
possible penalties”
by trial court. Therefore he was
possibility
being
well aware of the
sentenced to an
upon
extended term
of exceptionally brutal
Furthermore,
cruelty.
of wanton
indicative
and heinous behavior
by a
charges tried
right to have
voluntarily waived
defendant
trial,
presume
we
At a bench
trial.
to have a bench
jury and elected
Pearson,
Ill.
People v.
correctly.
applied the law
the trial
(2001).
App. 3d 622
the trial
presume
case,
must
therefore
of this
we
purposes
For
crime was ac-
doubt,
found, beyond a reasonable
court
indicative of
or heinous behavior
brutal
by exceptionally
companied
730 ILCS
said, “Pursuant
Indeed,
court
5/5—
wanton
ac-
3.2(b)(2) [(West
offense was
finds that the
1998)],
[c]ourt
5—
companied
or heinous behavior
by exceptionally
I do not believe
Accordingly, as
cruelty.”
Jersey,
v. New
(Apprendi
in the instant case
violated
safeguards were
(2000)),
respect-
I must
435,
EDITH Adm’r of COMPANY, Deceased, Plaintiff-Appellee, WESTERN RAILWAY v. GATEWAY Defendant-Appellant. 5 — 01—0710
Fifth District No. September Opinion filed