Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois No. 91-CF-191 Honorable Jay Hanson Judge, Presiding
The opinion of the court was delivered by: Justice Holdridge
Dennis Townsell pled guilty to a charge of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9--1(a)(1)) and was sentenced to an extended prison term. On direct appeal to this court, he claimed that his extended term violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We rejected the State's argument that his guilty plea effected a waiver of the claim. Then we held that the extended portion of his sentence was unconstitutional under Apprendi.
The State petitioned the Illinois Supreme Court for leave to appeal. The supreme court denied the petition. However, the court also directed us to vacate our judgment and reconsider it in light of People v. Jackson, 199 Ill. 2d 286 (2002) (holding that a defendant waived her Apprendi claim by pleading guilty). Having done so, we partially vacate Townsell's sentence and modify it to reflect the maximum non-extended term available for first degree murder.
In its charging instrument, the State specifically alleged that on February 18, 1991, without lawful justification and with intent to kill, Townsell caused Terry Biscontine's death by shooting, stabbing, and choking him. Townsell entered his guilty plea on May 23, 1991. Although the maximum sentence available was a 60-year prison term (Ill. Rev. Stat. 1991, ch. 38, par. 1005--8--1(a)(1)(a)), the judge imposed a 100-year term. In doing so, he invoked subsection 5--5--3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005--5--3.2(b)(2)). That subsection authorized the judge to extend Townsell's sentence upon finding, by a preponderance of the evidence, "that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." Ill. Rev. Stat. 1991, ch. 38, par. 1005--5--3.2(b)(2).
In Apprendi the United States Supreme 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." 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000). Townsell claims that extension of his sentence based on the "brutal or heinous" element of subsection 5--5--3.2(b)(2) violates the rule announced in Apprendi. We agree.
The State argues that Apprendi is inapplicable because Townsell's 100-year prison term does not exceed the prescribed statutory maximum penalty for first degree murder. The State supports this argument by citing People v. Vida, 323 Ill. App. 3d 554 (2001), where a panel of the Appellate Court, First District, concluded that the maximum sentence for first degree murder is natural life imprisonment. We disagree with this conclusion. See People v. Lee, 326 Ill. App. 3d 882 (2001), appeal allowed 198 Ill. 2d 625 (2002).
In Apprendi the Supreme Court stated that the "relevant inquiry" is whether the required finding (e.g., that a murder was brutal or heinous) "expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict." 530 U.S. at 494, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365. At the time of Townsell's sentencing hearing, the greatest punishment a judge could impose based on a guilty verdict for first degree murder was 60 years in prison. Compare Ill. Rev. Stat. 1991, ch. 38, par. 1005--8--1(a)(1)(a) (prescribing a prison term of 20 to 60 years), with Ill. Rev. Stat. 1991, ch. 38, pars. 1005--8--1(b), (c) (authorizing natural life imprisonment, but only upon a finding of elements additional to those required for a guilty verdict). That fact has not changed in the meantime. See 730 ILCS 5/5--8--1(a)(1)(a) (West 2000); People v. Nitz, 319 Ill. App. 3d 949 (2001). Thus, for Apprendi purposes, the prescribed statutory maximum penalty for first degree murder is a 60-year prison term. See Nitz, 319 Ill. App. 3d 949; People v. Armstrong, 318 Ill. App. 3d 607 (2000).
The State also relies on People v. Ford, 198 Ill. 2d 68 (2001), and People v. Rivera, No. 2--98--1662 (March 1, 2002), where Apprendi violations were not found. Those cases are clearly distinguishable, however, because they involved extended sentences authorized by elements that were proved beyond a reasonable doubt.
In another vein, the State argues that Townsell has waived his claim for two reasons: (1) he failed to raise it in the trial court; and (2) upon pleading guilty he voluntarily relinquished his constitutional rights to a jury trial and proof of guilt beyond a reasonable doubt--the rights upon which Apprendi is based.
Regarding the first waiver argument, in People v. Wagener, 196 Ill. 2d 269 (2001), our supreme court refused to find that an Apprendi claim was waived by the defendant's failure to raise it in the trial court. Indeed "[t]he waiver rule is one of administrative convenience rather than jurisdiction, and the goals of obtaining a just result and maintaining a sound body of precedent may sometimes override considerations of waiver." People v. Farmer, 165 Ill. 2d 194, 200 (1995). The United States Supreme Court has declared that Apprendi impacts constitutional rights "of surpassing importance." Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355. Accordingly, the magnitude of Townsell's claim warrants overriding the waiver rule.
Regarding the State's second waiver argument, in People v. Jackson, 199 Ill. 2d 286 (2002), our supreme court held that a defendant's guilty plea effected a waiver of her subsequent Apprendi claim. In light of Jackson, we change our prior judgment and conclude that Townsell's guilty plea also effected a waiver.
The remaining question is whether grounds exist for overriding the plea-related waiver. In Jackson our supreme court addressed two grounds and found them to be insufficient. The first ground was that the trial judge lacked power to impose an extended sentence. The supreme court explained that the judge did not lack such power because subsection 5--5--3.2(b)(2) clearly authorized extension of the defendant's sentence. Jackson, 199 Ill. 2d at 300. The second ground was the "void ab initio" doctrine, which provides that the constitutionality of a statute may be challenged at any time. The supreme court explained that this doctrine only applies when no circumstances exist under which the challenged statute would be valid. Since ...