Appeal from the Circuit Court of Cook County 97 CR 21738 Honorable Thomas M. Tucker, Judge Presiding
The opinion of the court was delivered by: Justice McBRIDE
Following a bench trial, defendant, Marcus Blackwell, was found guilty of first degree murder and attempted murder. He was sentenced consecutively to 84 years' imprisonment for the first degree murder conviction and to 27 years' imprisonment for the attempted murder conviction. The trial court imposed an extended-term sentence for the murder under section 5-5-3.2(b)(4)(ii) of the Unified Code of Corrections on the basis that the murder victim was 71 years old. 730 ILCS 5/5-5-3.2(b)(4)(ii) (West 1998). The trial court also determined that defendant was eligible for consecutive sentences under section 5-8-4(b) of the Unified Code of Corrections because defendant inflicted severe bodily harm on the attempted murder victim. 730 ILCS 5/5-8-4(b) (West 1998).
Defendant appeals on the grounds that his extended-term sentence and consecutive sentences are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S. Ct. 2348 (2000). Defendant further claims that his sentences were excessive based on his young age, lack of criminal record, and rehabilitative potential.
The record below revealed the following facts. On July 9, 1997, Mary Harris, age 71, was shot in front of her home located at 1608 South 19th Street, Maywood, Illinois. Kerry Rouse, a teenager, was also shot in his side during the same shooting. As a result of the gunshots, Harris died and Rouse was severely injured.
The record further indicated that the shots were fired by defendant, who along with three other black males, conducted a drive-by-shooting in the intersection of 19th and Van Buren Streets in Maywood. Testimony in the record revealed that the shooting was motivated by a rivalry between two gangs known as the Four Corner Hustlers and the Blackstones.
Brian Holmes testified that he and defendant were both members of the Four Corner Hustlers. On July 7, 1997, Holmes stated that he, Walter Blount, Keshan Huston, and defendant were driving around Maywood when they saw Brian Moore, a fellow Four Corner Hustler. Blount, who was driving the car, pulled the car over so that they could converse with Moore. Moore claimed to have been shot at by the Blackstones. After conversing with Moore, Holmes testified that the same four drove off to retrieve a gun. According to Holmes, defendant retrieved a .380 caliber hand gun from the bushes in the alley at 16th Street. Defendant put the weapon under his shirt and got back into the car. Holmes said that the gun was retrieved in order to shoot at the Blackstones who hung out at the corner of 20th and Van Buren Streets.
Holmes testified that the four drove by the intersection of 19th and Van Buren Streets several times as they examined a crowd of eight or nine people standing south of the intersection. Rouse testified that the crowd was about ten feet away from the front door of Mary Harris' residence. On the fifth pass, Blount slowed the vehicle down and stated, "I think that's them." At that time, defendant fired five or six shots at the crowd from the vehicle's window. After the shots were fired, the four sped away rapidly from the scene.
Rouse testified that, prior to the shooting, Harris was standing in her doorway and was attempting to move the crowd away from the front of her home. Samuel Davis, Harris' common law husband, stated that Harris was 71 years old. He further said that late in the evening on July 9, 1997, Harris came into the bedroom and told him that she had been shot. She then fell to the floor and was taken to the hospital where she was pronounced dead of a gunshot wound to the chest. Rouse stated that he was shot in the side of his body and that he spent approximately six weeks in the hospital recovering from the gunshot wound.
The police ultimately arrested defendant, Blount, and Holmes. In exchange for his testimony against defendant and Blount, Holmes received a six year prison sentence. Defendant and Blount were tried separately. After hearing all of the evidence, the trial judge found defendant guilty of first degree murder and attempted murder. Defendant was sentenced consecutively to 84 years' imprisonment for the first degree murder conviction and to 27 years' imprisonment for the attempted murder conviction. As noted above, the trial court imposed an extended-term sentence for the murder under section 5-5-3.2(b)(4)(ii) of the Unified Code of Corrections on the ground that the murder victim was 71 years old. 730 ILCS 5/5-5-3.2(b)(4)(ii) (West 1998). The trial court also concluded that defendant was eligible for consecutive sentences under section 5-8-4(b) of the Unified Code of Corrections because defendant inflicted severe bodily harm on the attempted murder victim. 730 ILCS 5/5-8-4(b) (West 1998). We affirm the trial court for the following reasons.
The constitutionality of extended-term sentencing under the Apprendi decision was recently addressed by this court in People v. Vida, No. 1-99-2922 (June 22, 2001). In Vida, the State first argued, as it does here, that defendant waived the issue by failing to raise it in the trial court. The Vida court disagreed citing People v. Wright, 194 Ill. 2d 1, 23, 740 N.E.2d 755, 766 (2000)(holding that defendants' argument was not waived because the constitutionality of a statute may be raised at any time). People v. Vida, slip op. at 16. Thus, we conclude that defendant has not waived the issue.
We note that in Apprendi, cited above, the Supreme Court held a New Jersey statute unconstitutional that allowed a judge to increase the sentencing range for an offense where the court found that the defendant committed the crime with the purpose of intimidating an individual or group based on a particular characteristic. Specifically, the Supreme Court stated, "[o]ther than the fact of a prior conviction, any fact that increases the sentence for a crime beyond the prescribed statutory maximum for the relevant offense must be submitted to a jury and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 442, 120 S.Ct. at 2362-63.
As pointed out above, the trial court in the instant case imposed an extended-term sentence based on the fact that the victim's age exceeded 60 years at the time of the offense. In his brief, defendant maintains that the trial court's failure to submit to a jury the question of the victim's age as it pertained to extended-term sentencing was unconstitutional under Apprendi.
The State maintains that the sentencing range for first degree murder can be 20 years' imprisonment up to and including the death penalty. Several Illinois cases have rejected that same argument. Those cases have held that the maximum statutory penalty for first degree murder is that provided in section 5-8-1(a)(1)(a) of the Unified Code of Corrections (930 ILCS 5/5-8-1(a)(1)(a) (West 1994)(stating that a term shall be not less than 20 years and not more than 60 years)), and that the imposition of an extended-term sentence based on a finding by the trial court that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty violates Apprendi where such findings are based on a relaxed evidentiary standard. See e.g., People v. Beachem, 317 Ill. App. 3d 693, 708, 740 N.E.2d 389 (2000) (holding that 60 years is the "the ...