The opinion of the court was delivered by: Justice Garman
Docket No. 90549-Agenda 15-March 2001.
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 ILCS 5/18-2 (West 1996)). Defendant had been charged with intentional murder (720 ILCS 5/9-1(a)(1) (West 1996)), knowing murder (720 ILCS 5/9-1(a)(2) (West 1996)), and felony murder (720 ILCS 5/9-1(a)(3) (West 1996)), with the armed robbery count as the predicate felony. The circuit court sentenced defendant to consecutive terms of 29 years' imprisonment for murder and 10 years' imprisonment for armed robbery. The consecutive sentences were imposed pursuant to section 5-8-4(a) of the Unified Code of Corrections (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 to run concurrently, finding section 5-8-4(a) of the Code unconstitutional under the decision of the United States Supreme Court 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 other arguments on appeal that were not addressed by the appellate court. 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 and remand for consideration of these issues.
Defendant and a co-defendant, Sean Tucker, were charged with the murder and armed robbery of Richard Frazier. On the evening of September 26, 1997, Frazier and Charles Epps were playing a game of dice outside a residence in Chicago. Epps' girlfriend, Tamika Johnson, was standing nearby watching out for police. Three men approached Frazier and Epps. One of the men wore a Halloween mask and the other two wore hooded sweatshirts pulled tightly around their faces. Johnson, who was approximately 15 feet from the group, saw the man with the mask take money from Frazier, while holding a gun on him. She saw Frazier struggle with the man and then heard a shot. Frazier fell to the ground and the men ran away. Frazier died two weeks later from complications of the gunshot wound he sustained.
Police officers recovered a shell casing from the crime scene and spoke with Johnson and Epps. Defendant's mother gave consent to a search of her home. In defendant's bedroom, officers found a Halloween mask that belonged to defendant's sister. They recovered a handgun and clip from Tucker's home. A firearms expert testified that the shell casing found at the scene of the shooting had been fired by the gun retrieved from Tucker's home.
Defendant testified that after he was arrested, he declined to speak to the officers or to a woman who identified herself as an attorney. In rebuttal, Assistant State's Attorney Kathleen Muldoon testified that defendant agreed to speak to her on the day he was arrested. He told her that he and Tucker were driving around on the night of the shooting. They had a Halloween mask and a gun with them in the car. They saw the dice game between Frazier and Epps and stopped. Epps walked up to the car and told defendant and Tucker that Frazier was "sweet," meaning that he was an easy target. Defendant parked the car and he and Tucker walked over to the dice game. Tucker was wearing the mask and had the gun. Defendant pretended to rob Epps, while Tucker held the gun on Frazier. Defendant saw the two men struggle with each other and then Tucker shot Frazier.
The jury returned verdicts of guilty on first degree murder and armed robbery, using general verdict forms. The circuit court entered judgment on the counts of intentional murder and armed robbery. At the sentencing hearing, the circuit court found that defendant had inflicted severe bodily injury on Frazier. Noting that defendant had been convicted of armed robbery, a Class X felony, the court imposed consecutive sentences.
Section 5-8-4(a) of the Code provides in pertinent part:
"When multiple sentences of imprisonment are imposed on a defendant at the same time, or when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State or in another state, or for a sentence imposed by any district court of the United States, the sentences shall run concurrently or consecutively as determined by the court. *** The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury *** in which event the court shall enter sentences 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 plea agreement, the defendant pleaded guilty to two counts of second degree possession of a firearm for an unlawful purpose and one count of third degree unlawful possession of an antipersonnel bomb. The first offense carried a sentence of 5 to 10 years in prison, while the second offense carried a penalty range of 3 to 5 years in prison. New Jersey's hate crime statute allowed the sentencing judge to increase the sentence for a particular offense beyond the statutory maximum if the judge found, by a preponderance of the evidence, that the defendant, in committing the offense, acted with a purpose to intimidate an individual or group of individuals on the basis of, inter alia, race. Apprendi, 530 U.S. at 468-69, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351. The plea agreement permitted the State to request imposition of a higher sentence on the second degree offense on the ground that defendant had acted with a biased purpose, as described in the hate crime statute. Defendant reserved the right to challenge the hate crime sentence enhancement on constitutional grounds. Following an evidentiary hearing, the circuit court found, by a preponderance of the evidence, that defendant's crime was motivated by racial bias and that defendant's actions were taken with a purpose to intimidate. The circuit court rejected defendant's constitutional challenge to the hate crime statute and imposed a 12-year prison term on the second degree offense, a sentence equivalent to that permitted for commission of a first degree offense. This decision was upheld by the appellate division of the New Jersey superior court 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 the sentence enhancement provisions of New Jersey's hate crime statute unconstitutional under the due process clause of the fourteenth amendment to the United States Constitution. U.S. Const., amend. XIV. Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355. In doing so, the 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 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.
In addition to Apprendi, the appellate court in the instant case relied on its decision in People v. Clifton, 321 Ill. App. 3d 707 (2000). There, the defendant was sentenced to consecutive prison terms 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 is unconstitutional under the rationale of Apprendi, because the finding of severe bodily injury must be made by a jury and not the circuit court. The appellate court agreed, observing that it would be "anomalous" to hold that a statute that enhances a sentence based upon certain factors comes within the purview of Apprendi, while a statute that requires an extended period of imprisonment based upon the existence of certain factors does not. Section 5-8-4(a) of the Code, while not enhancing the sentence for any particular offense, has the effect of increasing the total amount of time a defendant will serve in prison. The practical effect of the application of section 5-8-4(a) is that a factual finding of severe bodily injury by a circuit court will increase the actual sentence which a ...