Appeal from the Circuit Court of Lake County. No. 00-CF-114 Honorable Barbara C. Gilleran Johnson Judge, Presiding.
The opinion of the court was delivered by: Justice Byrne
In this appeal, defendant, Annette M. Palmer, argues that her 10-year extended prison sentence violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Defendant insists that, even though she waived the issue by pleading guilty, we must review the sentence under the plain error exception to the waiver rule. We decline to review the issue as plain error, and we affirm the conviction and sentence.
Pursuant to a partially negotiated plea agreement, defendant pleaded guilty to the offense of armed violence premised on aggravated battery. The information alleged in pertinent part that defendant, "while armed with a dangerous weapon, a bludgeon, *** intentionally and without legal justification cut Pastor Escamilla about the body thereby causing great bodily harm [to him]." See 720 ILCS 5/12--4(a), 33A--2 (West 1998). There was no agreement as to the sentence.
The offense of armed violence premised on aggravated battery is a Class 2 felony (720 ILCS 5/33A--1(c), 33A--3(b) (West 1998)) normally punishable by three to seven years' imprisonment (730 ILCS 5/5--8--1(a)(5) (West 1998)). Under certain provisions of the Unified Code of Corrections (Code), an extended sentence of 7 to 14 years' imprisonment may be imposed (730 ILCS 5/5--8--2(a)(4) (West 1998)) if the court finds certain aggravating factors, such as where the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty (730 ILCS 5/5--5--3.2(b)(2) (West 1998)) or the victim was a person 60 years of age or older at the time of the offense (730 ILCS 5/5--5--3.2(b)(4)(ii) (West 1998)).
In this case, defendant pleaded guilty to the armed violence charge and, as part of the plea agreement, the State nol-prossed the charges of attempted first-degree murder, aggravated battery, and aggravated battery of a senior citizen. The court read the armed violence charge to defendant. The trial court informed defendant, among other things, that the offense was "technically probationable" and that the sentencing range for the offense was three to seven years' imprisonment. The court also stated that defendant could receive a term of 7 to 14 years' imprisonment "if you have a previous conviction within the last 10 years *** or if *** there is aggravation that qualifies you for that category." The court later added that it did not know whether defendant qualified for an extended term due to a previous felony conviction or "if the injuries are severe enough for this court to consider an extended[-]term sentence. It's possible. But I underline the word possible." The court explained generally the various rights that defendant would give up by pleading guilty, and the State presented a factual basis for the plea.
The trial court accepted the plea and imposed an extended sentence of 10 years' imprisonment based on its consideration of two aggravating sentencing factors: the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty and the victim was a person 60 years of age or older at the time of the offense.
On direct appeal, defendant argued that her extended sentence must be reduced to a nonextended sentence because, in violation of her right to due process, the sentencing factors of wanton cruelty and the victim's age were not charged, submitted to a jury, and proved beyond a reasonable doubt as required by Apprendi. 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 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.
On March 12, 2002, we filed an opinion affirming the conviction, vacating the sentence, and remanding the cause for resentencing. People v. Palmer, 328 Ill. App. 3d 348 (2002). The State petitioned our supreme court for leave to appeal. The supreme court denied the petition but entered a supervisory order directing this court to vacate our judgment and reconsider the case in light of People v. Jackson, 199 Ill. 2d 286 (2002). After the supreme court issued its supervisory order, the Appellate Court, Third District, decided People v. Townsell, No. 3--00--0302 (January 8, 2003), in which the court invoked the plain error rule to review an Apprendi claim after the entry of a guilty plea. Defendant filed a motion to cite Townsell as additional authority, and we now grant the motion.
In Jackson, the defendant pleaded guilty to a Class 3 felony of aggravated battery (720 ILCS 5/12--4 (West 1996)) and, in exchange, the State agreed not to seek an extended-term penalty. The trial court elicited facts from the defendant regarding the circumstances of the offense and admonished her extensively and specifically regarding the consequences of pleading guilty. The trial court accepted the factual basis, determined that the defendant's plea was knowing and voluntary, and accepted the plea. Jackson, 199 Ill. 2d at 289-90. At the sentencing hearing, the trial court found that the defendant's behavior in committing the crime was exceptionally brutal and indicative of wanton cruelty and imposed an extended-term sentence of 10 years' imprisonment. Jackson, 199 Ill. 2d at 291-92.
On appeal, the supreme court initially conceded that, under Apprendi, "[e]very fact necessary to establish the range within which a defendant may be sentenced is an element of the crime and thus falls within the constitutional rights to a jury trial and proof beyond a reasonable doubt, made applicable to the states by the due process clause of the fourteenth amendment." Jackson, 199 Ill. 2d at 296. However, the court held that the defendant's guilty plea waived any Apprendi-based sentencing objections on appeal because, by pleading guilty, she "relieve[d] the State of its burden of proving any element of the crime" as well as any aggravating sentencing factor. (Emphasis in original.) Jackson, 199 Ill. 2d at 297.
Although Apprendi and Jackson each involved a guilty plea, the Jackson court distinguished the cases factually. Unlike in Apprendi, the defendant in Jackson failed to reserve her right to challenge the extended portion of her sentence at the guilty plea hearing. Jackson, 199 Ill. 2d at 297.
When a defendant pleads guilty, the trial court must admonish him only of (1) the nature of the charge; (2) the maximum and minimum penalties that could be imposed; (3) his right to plead not guilty, if he so chooses; and (4) the fact that a guilty plea would waive his rights to a jury trial and to be confronted with the witnesses against him. 177 Ill. 2d Rs. 402(a)(1) through (a)(4); Jackson, 199 Ill. 2d at 296-97. Here, defendant pleaded guilty only after she was informed of the nature of the armed violence charge and that a 14-year extended sentence could be imposed for the crime. Furthermore, she did not object to the possibility of an extended-term sentence before pleading guilty. Therefore, ...