Appeal from the Circuit Court of Marion County. No. 85-CF-38 Honorable Dennis E. Middendorff, Judge, presiding.
The opinion of the court was delivered by: Presiding Justice Hopkins
Judy Altom (defendant) appeals from the dismissal of her second post-conviction petition after counsel had been appointed for her. On May 12, 1986, pursuant to negotiations with the State, defendant pleaded guilty to murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(2)), and the State agreed to dismiss two counts of the indictment that charged defendant with cruelty to children (Ill. Rev. Stat. 1983, ch. 23, par. 2368) and murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(3)) and to refrain from seeking the death penalty. After a sentencing hearing, defendant was sentenced to an extended term of 50 years' imprisonment with credit for 462 days served. On this appeal, defendant contends only, relying on Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), that her extended-term sentence for murder must be reduced or vacated, where the facts that increased the prescribed range of penalties were not found by the trier of fact to have been proven beyond a reasonable doubt. The United States Supreme Court delivered the following holding in Apprendi as its bottom line:
"Other than a 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. See People v. Rush, 322 Ill. App. 3d 1014, 1020, 757 N.E.2d 88, 94 (2001).
At the time of defendant's offense, March 20, 1985, section 5-8-1(a)(1) of the Unified Code of Corrections (Code) provided:
"Sentence of Imprisonment for Felony. (a) A sentence of imprisonment for a felony shall be a determinate sentence set by the court under this Section, according to the following limitations:
(1) for murder, (a) a term shall be not less than 20 years and not more than 40 years, or (b) if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9-1 of the Criminal Code of 1961 are present, the court may sentence the defendant to a term of natural[-]life imprisonment, or (c) if the defendant has previously been convicted of murder under any state or federal law or is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural[-]life imprisonment." Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1(a)(1). Section 5-5-3.2(b) of the Code provided, in pertinent part:
"(b) the following factors may be considered by the court as reasons to impose an extended[-]term sentence under Section 5-8-2 upon any offender who was at least 17 years old on the date the crime was committed:
(2) When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty; or
(3) When a defendant is convicted of any felony committed against:
(i) a person under 12 years of age at the time of the offense;
(ii) a person 60 years of age or older at the time of the offense; or
(iii) a person physically handicapped at the time of the offense." Ill. Rev. Stat. 1983, ...