Appeal from the Circuit Court OF ILLINOIS, of Du Page County. No. 09-CF-3041 Honorable Kathryn E. Creswell, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Hutchinson and Burke concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant, Darrell O. Crawford, was convicted of forgery (720 ILCS 5/17-3(a)(2) (West 2008)). Finding that probation would deprecate the seriousness of the offense, the trial court sentenced defendant to five years' imprisonment. Defendant appeals, contending that his prison sentence is unconstitutional because the finding the trial court made in sentencing him to prison was not alleged in the indictment and proved to a jury beyond a reasonable doubt. We affirm.
¶ 2 An indictment charged defendant with forgery in that he "with intent to defraud, knowingly delivered to Shoe Carnival, a document apparently capable of defrauding another, in that it was purported to have been made by another, the United States Treasury, said document being a counterfeit one hundred dollar bill ($100.00), knowing the document to have been thus made."
¶ 3 A jury found defendant guilty. Defendant moved for a new trial and to preclude any sentence other than probation. Defendant's sentencing motion argued that the Unified Code of Corrections required that he be sentenced to probation unless the trial court found that probation was inappropriate for one of several reasons. See 730 ILCS 5/5-6-1(a) (West 2008). However, the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000), that, except for 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." Id. at 490. Defendant argued that, because the State had not presented the jury with facts to support any of the statutory bases for rejecting probation, the trial court could not make such findings and, thus, had to sentence him to probation.
¶ 4 The trial court found that probation would deprecate the seriousness of the offense (730 ILCS 5/5-6-1(a)(2) (West 2008)) and sentenced defendant to five years' imprisonment. Defendant moved the trial court to reconsider the sentence, renewing his Apprendi argument. The trial court denied the motion, stating that the issue should be resolved on appeal. Defendant timely appeals.
¶ 5 On appeal, defendant argues, as he did in the trial court, that his prison sentence violates Apprendi. His argument is premised on section 5-6-1(a), which provides as follows:
"(a) Except where specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that:
(1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or
(2) probation or conditional discharge would deprecate the seriousness of the offender's conduct and would be inconsistent with the ends of justice; or
(3) a combination of imprisonment with concurrent or consecutive probation when an offender has been admitted into a drug court program under Section 20 of the Drug Court Treatment Act is necessary for the protection of the public and for the rehabilitation of the offender." 730 ILCS 5/5-6-1(a) (West 2008).
¶ 6 Defendant notes that the Supreme Court held in Apprendi, 530 U.S. 466, that, except for 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." Id. at 490. Defendant reasons that, because section 5-6-1 requires the court to make one of three findings in order to impose a prison term rather than probation, probation is the maximum sentence and any finding the court makes to increase that sentence violates Apprendi. The State responds that the maximum sentence for forgery, a Class 3 felony, is five years' imprisonment and that a finding that requires or authorizes the court to impose a particular sentence up to the maximum does not run afoul of Apprendi.
¶ 7 The threshold question we must answer is, what is the maximum sentence for forgery? In answering this ...