Appeal from the Circuit Court of Cook County. Honorable Fred G. Suria, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
Christopher Golden was convicted by a jury of attempted first degree murder and aggravated battery with a firearm. The trial court, after vacating the aggravated battery conviction, sentenced Golden to an extended term of 36 years for the attempted first degree murder. There is no question that the procedure followed by the trial court violated Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). But Golden must overcome two substantial hurdles before he can cash in on the trial court's error. While this is a close case, we conclude Golden's extended-term sentence should be vacated and we remand this cause for resentencing.
On January 26, 1997, around midnight, defendant entered Marsha's Jam Cocktail Lounge along with five or six other men. Marsha Banks worked at the lounge. The men moved to the dance floor in an attempt to have their picture taken by a photographer. The men bumped into people during the process of having their picture taken, and Marsha asked them to have their picture taken outside. They refused and began arguing with her. She had the disc jockey turn off the music and again asked them to have their pictures taken outside.
The victim, Jerome Banks, who was Marsha's brother, approached defendant regarding the disturbance. Defendant cursed at him and then shot at him, missing. The victim tried to grab the gun, but it continued to fire during the struggle, striking the victim several times. Defendant then struck the victim on the top of his head with the gun. The victim fell to the floor, and defendant stood over him and tried to fire the gun at his head, but the gun jammed. The victim was taken to the hospital where he was treated for numerous and severe injuries to his spleen, colon, pancreas, lung, and broken vertebrae.
On August 6, 1997, both Jerome and Marsha identified defendant in a police lineup as the man who shot Jerome at the lounge.
The defendant does not challenge his conviction. He challenges his extended-term sentence.
When sentencing the defendant, who had no prior convictions, the trial court said it considered the pre-sentence investigation, statements of the lawyers, statutory factors in aggravation and mitigation, and, "I've considered the seriousness of the injury or the permanency and the effect--long range effect on the part of the victim, Jerome Banks." The court then sentenced the defendant to 36 years in prison, six years more than the maximum for attempted first degree murder, a Class X felony. See 730 ILCS 5/5-8-1(a)(3) (West 2000).
The trial court did not specifically say it found "exceptionally brutal or heinous behavior indicative of wanton cruelty." 730 ILCS 5/ 5-5-3.2(b)(2) (West 1994). It appears from the record the reason for the extended-term sentence was the seriousness of the current and future injuries to Jerome Banks. We will assume the trial judge intended to apply the enhanced-sentence provision of section 5-5-3.2(b)(2).
The penalty-increasing finding was not alleged in the information, was not submitted to the jury, and was not tested by the standard of proof beyond a reasonable doubt.
The trial court's sentencing procedure violated Apprendi: "[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, 129 S. Ct. at 2362-63.
In our original unpublished order, without going beyond Apprendi, we vacated the extended term sentence and remanded for resentencing. Then, on June 4, 2003, the Illinois Supreme Court directed us to reconsider the remand in light of its supplemental opinion upon denial of rehearing in People v. Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117 (2001); and its opinion in People v. Thurow, 203 Ill. 2d 352, 786 N.E.2d 1019 (2003). We withdrew our order on July 15, 2003, and went back to the drawing board, to conduct the analysis required by Crespo and Thurow. ...