Appeal from the Circuit Court of Jackson County. No. 98-CF-511 Honorable David W. Watt, Jr., Judge, presiding.
The opinion of the court was delivered by: Justice Kuehn
As amended November 7, 2001.
This is another case where unthinkable criminal acts drew a severe prison sentence, punishment incapable of actual imposition in the absence of a judicial finding that the effort at murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Once again, we are called upon to examine how the constitutional rule promulgated in Apprendi v. New Jersey limits the statutory machinery established for the imposition of extended-term punishment under Illinois law. See Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
The defendant does not appeal from the determination of his guilt.
In broad daylight, and for no known reason, the defendant donned a ski mask to conceal his identity and savagely assaulted a complete stranger. To his misfortune, John Potter was the defendant's random prey. Stunned by the frenetic attack, Potter pleaded with the defendant to relent. His cries for help drew onlookers whose presence provoked the defendant's withdrawal. However, Potter was left severely wounded. He suffered unkind cuts to his face, neck, and chest. These bloody by-products of repeated thrusts of a butcher knife's blade into vital body parts placed Potter's life in peril. Fortunately, he survived.
Following a bench trial, Judge Watt felt that the State had met its burden of proof, and he found the defendant guilty of attempted murder. He also found the defendant guilty on multiple counts of aggravated battery and on a charge of unlawful possession of a weapon by a felon.
Prior to the imposition of a sentence, Judge Watt announced his belief that the defendant's attempt at murder was accompanied by exceptionally brutal behavior indicative of wanton cruelty. Based upon this additional finding of fact, the sentencing statute afforded Judge Watt the option of imposing punishment greater than the maximum penalty otherwise available. Without the finding, the law authorized the imposition of a sentence no harsher than a 30-year prison term. 730 ILCS 5/5-8-1(a)(3) (West 1998). A 30-year prison sentence was the maximum sentence allowed, based solely upon those facts weighed under a reasonable doubt standard of proof. *fn1
The finding that the defendant's conduct was more egregious than the conduct of most would-be murderers, that his attempt at murder was accompanied by exceptionally brutal behavior indicative of wanton cruelty, was key to opening an extended range of penalties not to exceed a 60-year prison term. 730 ILCS 5/5-8-1(a)(1)(a), (a)(1)(b) (West 1998). Armed with this greater range of punishment, Judge Watt exercised his sentencing discretion to impose punishment that called for the defendant's confinement in a state penitentiary for 50 years. The defendant now serves a sentence for attempted murder that is 20 years longer than the maximum sentence being served by anyone punished for a more commonplace effort at taking another's life.
The defendant challenges the constitutionality of his 50-year extended-term prison sentence. We are asked to examine the statutory sentencing scheme employed in this case, in light of Apprendi, a case in which the United States Supreme Court held a New Jersey hate-crime statute unconstitutional because it commissioned judges to make a factual finding that enhanced their power to punish beyond the maximum penalties prescribed for New Jersey criminal offenses.
We have already addressed this question and have given detailed answers, on more than one occasion. See People v. Nitz, 319 Ill. App. 3d 949, 747 N.E.2d 38 (2001); People v. Rush, 322 Ill. App. 3d 1014, ___ N.E.2d ___ (2001); People v. Reed, No. 5-98-0777 (September 7, 2001). The defendant's claim to constitutional relief finds support in these earlier rulings.
Notwithstanding, we choose to revisit our earlier views. In a recent case, a panel of colleagues in the First District examined several of our prior rulings and departed from them. The panel chose to "set forth a different analysis." People v. Vida, 323 Ill. App. 3d 554, 569, 752 N.E.2d 614, 627 (2001). That analysis charts a new course that arrives at a ruling contrary to opinions handed down across the state. See, e.g., People v. Beachem, 317 Ill. App. 3d 693, 740 N.E.2d 389 (2000); People v. Joyner, 317 Ill. App. 3d 93, 739 N.E.2d 594 (2000). It offers a way to preserve our legislature's effort to provide fitting punishment for those criminal offenders who accompany their criminality with exceptionally brutal or heinous behavior indicative of wanton cruelty.
The decision teaches us that the constitutionally based rule handed down in Apprendi does not infect the method our legislators devised for the imposition of extended-term punishment. Vida, 323 Ill. App. 3d 554, 752 N.E.2d 614. It instructs in reasoning essentially as follows.
A sentencing judge's finding that a given crime is accompanied by rare behavior deserving of greater punishment is an appropriate "discretionary finding based upon the nature of the offense." Vida, 323 Ill. App. 3d at 572, 752 N.E.2d at 630. Since judges are permitted to exercise discretion in imposing a sentence within a range prescribed by statute, based on a consideration of factors related both to the offense and to the offender (see Apprendi, 530 U.S. at 481, 147 L. Ed. 2d at 449, 120 S. Ct. at 2358), the finding required in order to impose an extended-term sentence is not a finding of fact impermissibly removed from the jury's determination of guilt. It is but a factor that the sentencing judge may weigh in assessing evidence regarding the particular offense in question. It, along with all other sentencing factors, may be used by a sentencing judge to assist in a sound determination of the kind and extent of punishment to be imposed within those limits already fixed by law. The sentencing statutes, viewed in their entirety, do not encroach upon the right to have a jury determine those facts that set the limit of punishment to which a defendant is exposed. The required finding of exceptional brutality companion to a given crime does not increase punishment's range beyond the prescribed statutory maximum penalties already fixed by the legislature. The extended-term penalties are an integral part of punishing certain crimes, and the maximum extended-term sentences comprise the prescribed statutory maximum sentences for those crimes. It follows that the required additional finding of fact is not a finding that empowers a sentencing judge to punish beyond those fixed limits already established for crimes accompanied by uniquely brutal or heinous behavior. The required determination merely unleashes the statutory authority to actually impose the harsher extended-term punishments already fixed by law.
Based upon this analysis, our colleagues upheld the imposition of a 100-year extended-term prison sentence meted out to David Vida for having committed first-degree murder and having accompanied his criminal acts with exceptionally brutal behavior indicative of wanton cruelty. Vida, 323 Ill. App. 3d at 573, 752 N.E.2d at 630.
We are not convinced that this approach correctly interprets the constitutional imperative established by Apprendi. The Apprendi majority was averse to any scheme of punishment that set maximum criminal penalties and then made the actual imposition of those penalties depend upon the existence of additional facts that a judge would decide after the return of a jury verdict on other facts charged in an indictment. See Jones v. United States, 526 U.S. 227, 252-53, 143 L. Ed. 2d 311, 332, 119 S. Ct. 1215, 1228-29 (1999) (Stevens, J., concurring); see also Jones, 526 U.S. at 253, 143 L. Ed. 2d at 332, 119 S. Ct. at 1229 (Scalia, J., concurring) (both concurrences have been expressly endorsed by the Apprendi majority). The Apprendi majority believed that facts necessary to the determination of punishment's maximum measure should be formally charged and entrusted to fellow citizens for decision in accordance with procedural safeguards that accompany the constitutional promise of a trial by jury. Simply put, the time-honored guarantee to a trial by jury entitles a defendant to have a jury determine those facts that determine the maximum sentence that the law allows. See Nitz, 319 Ill. App. 3d at 969, 747 N.E.2d at 54 (relying on Apprendi, 530 U.S. at 498-99, 147 L. Ed. 2d at 460, 120 S. Ct. at 2367 (Scalia, J., concurring)).
The question of whether a crime is accompanied by exceptionally brutal or heinous behavior calls for a determination that a given offender's crime is qualitatively different from the offense charged. If the constitutional right to a trial by jury guarantees the right to have a jury decide those facts that determine the law's ultimate measure of punishment, an accused's maximum exposure to criminal penalties, a jury committed to determine the facts beyond a reasonable doubt should decide ...