The opinion of the court was delivered by: Justice Hoffman
Appeal from the Circuit Court of Cook County. Honorable John J. Moran, Judge Presiding.
Following a jury trial, the defendant, Albert Lee, was found guilty of first degree murder and armed robbery and sentenced to concurrent prison terms of natural life for murder and 50 years for armed robbery. He filed the instant timely appeal, arguing that the natural life sentence is excessive. During the pendency of this appeal, the United States Supreme Court issued its decision in Apprendi v. New Jersey, 530 U.S. __, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The defendant subsequently filed a supplemental brief, in which he argues, in reliance on Apprendi, that we must vacate his natural life sentence and remand for resentencing. For the reasons which follow, we affirm the defendant's convictions, vacate both sentences, and remand for re- sentencing.
The evidence at trial *fn1 established that, on November 7, 1992, the defendant was employed as a security guard in a building located on jeweler's row in downtown Chicago. The victim, Phillip Landay, was a tenant in the building. The defendant went to the victim's store intending to rob him. After the victim let the defendant into the store, the defendant wrapped duct tape around the victim's wrists, ankles, and head. He then took several bags of merchandise from the store. According to the defendant's confession, it then occurred to him that, if the victim lived, he would be able to identify the defendant. He found a pocket knife in the victim's pocket and twice slit the victim's throat. He then shot the victim in the neck with a gun he found in the store. The jury convicted the defendant of both armed robbery and murder. The trial court sentenced the defendant to a term of natural life imprisonment for the offense of murder and an extended term sentence of 50 years for the offense of armed robbery.
Before turning to the merits of the defendant's appeal, we find it necessary to discuss the question of our jurisdiction in this matter, two notices of appeal having been filed. On April 23, 1998, the defendant filed a pro se motion to dismiss the indictment. The trial court denied that motion on August 31, 1998. On September 10, 1998, the defendant filed a pro se notice of appeal, apparently from the denial of his motion. That appeal was assigned docket number 1-98-3631. Thereafter, the case proceeded to trial. After the defendant's conviction and sentencing and the denial of his motion to reconsider his sentence, defense counsel filed a timely notice of appeal, which was assigned docket number 1-99-2203. On June 8, 2000, this court granted the defendant's motion to consolidate the two appeals. An appeal in a criminal case may not be maintained until a final judgment, namely a sentence, has been imposed. People v. Caballero, 102 Ill. 2d 23, 51, 464 N.E.2d 223 (1984). The trial court order denying the defendant's motion to dismiss the indictment is not a final order. The defendant acknowledged this in his motion to consolidate the two appeals and, in his brief, raises no argument pertaining to the trial court's ruling on the motion to dismiss. Accordingly, we dismiss the appeal docketed as number 1-98-3631 for a lack of jurisdiction.
We now turn to the defendant's argument that, based on the United States Supreme Court's recent decision in Apprendi, we must vacate his natural life sentence for murder and remand to the trial court for re- sentencing. His argument amounts to a constitutional attack on section 5-8-1(a)(1)(b) of the Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5-8-1(a)(1)(b)(West 1992)). Section 5-8-1(a)(1)(a) of the Code of Corrections provides that the sentence for first degree murder shall be not less than 20 years or more than 60 years. 730 ILCS 5/5-8- 1(a)(1)(a)(West 1992). Section 5-8-1(a)(1)(b), however, provides that:
"(b) if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or, except as set forth in (a)(1)(c) of this Section, that any of the aggravating factors listed in subsection (b) of Section 9-1 of the Criminal Code of 1961 are present, the court may sentence the defendant to a term of natural life imprisonment * * *". 730 ILCS 5/5-8-1(a)(1) (West 1992).
Section 9-1(b) of the Criminal Code of 1961 (Criminal Code) contains a list of aggravating factors. 720 ILCS 5/9-1(b) (West 1992). The parties agree, however, that the trial court imposed the natural life sentence in this case upon the basis of its finding that the victim's death was exceptionally brutal and heinous, indicative of wanton cruelty.
In Apprendi, the Supreme Court found to be unconstitutional a New Jersey statute allowing the trial judge to impose an extended term sentence upon finding, by a preponderance of the evidence, that the defendant, when committing the offense for which he was being sentenced, had acted with a racially biased purpose. Apprendi, 530 U.S. __, 147 L. Ed.2d 435, 120 S. Ct. 2348. The Apprendi court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Apprendi, 530 U.S. at __, 147 L.Ed.2d at 455, 120 S.Ct. at 2362-63. In reliance thereon, the defendant contends that section 5-8-1(a)(1)(b) is unconstitutional because it allows a trial judge to impose a sentence beyond the 20 to 60 year statutory range for first degree murder by finding the existence of certain facts which have not been submitted to the jury for proof beyond a reasonable doubt.
The State first argues that the defendant has waived this argument because he failed to raise it in his post-trial sentencing motion, as required by section 5-8-1(c) of the Code of Corrections. 730 ILCS 5/5- 8-1(c) (West 1998)). See People v. Reed, 177 Ill. 2d 389, 393-94, 686 N.E.2d 584 (1997)(defendant must raise sentencing issues in post- sentencing motion to preserve issues for review). Challenges to a trial court's statutory authority to impose a particular sentence are not, however, subject to waiver. People v. Clifton, Nos. 1-98-2126, 1-98- 2384, slip op. at 50-51 (Ill. App. September 29, 2000). We will, therefore, address the merits of the issue.
Our disposition of the instant appeal is controlled by People v. Joyner, No. 2-99-0433 (Ill. App. November 8, 2000). In Joyner, as here, the defendant was convicted of first degree murder and sentenced to natural life in prison, pursuant to section 5-8-1(a)(1)(b), based on the trial court's finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. There, as here, the defendant argued that section 5-8-1(a)(1)(b) is unconstitutional pursuant to the rule announced in Apprendi. The Joyner court noted that section 5-8-1(a)(1)(b) authorizes the imposition of a sentence of natural life for the offense of first degree murder, a sentence beyond the maximum statutorily authorized sentence of 60 years in prison, based upon a finding that the murder was exceptionally brutal and heinous without requiring that the brutal and heinous issue be submitted to a jury or proven beyond a reasonable doubt. Joyner, No. 2- 99-0433, slip op. at 21-22. The court concluded that, as such, section 5-8-1(a)(1)(b) violates a defendant's constitutional rights to due process and trial by jury. Joyner, No. 2-99-0433, slip op. at 22.
We agree with the Joyner court's conclusion that section 5-8- 1(a)(1)(b) is unconstitutional and the reasoning upon which that conclusion is based. We find it necessary, however, to address an argument raised by the State in the instant case but not addressed in Joyner. The State maintains that the statutory sentencing range for murder is not 20 to 60 years' imprisonment but, rather, that the range is 20 years' imprisonment up to and including death. As such, the State contends, a sentence of natural life is not an enhanced sentence or one which exceeds the statutory maximum and, accordingly, the rule announced in Apprendi does not apply here.
In support of this contention, the State relies on Walton v. Arizona, 497 U.S. 639, 111 L.Ed. 2d 511, 110 S.Ct. 3047 (1990), in which the United States Supreme Court rejected a constitutional challenge to an Arizona statute which authorized the trial judge, rather than a jury, to determine the existence or nonexistence of aggravating factors necessary for the imposition of a death sentence for the offense of first degree murder. As the State notes, the majority opinion in Apprendi specifically stated that the rule announced therein does not affect the holding in Walton. The Apprendi majority stated:
"[t]his court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death. Walton v. Arizona, 497 U.S. 639, 647-649, 110 S. Ct. 3047, 111 L. Ed 2d 511 (1990); id., at 709-714, 110 S. Ct. 3047 (STEVENS, J., dissenting). For reasons we have explained, the capital cases are not controlling:
'Neither the cases cited, nor any other case, permits a judge to determine the existence of a factor which makes a crime a capital offense. What the cited cases hold is that, once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed . . . . The person who is charged with actions that expose him to the death penalty has an absolute entitlement to jury trial ...