SECOND DIVISION

DECEMBER 29, 2000

No. 1-98-4278

JUSTICE COUSINS delivered the opinion of the court:

Defendant-appellant, Michael Armstrong, and Wardell McClain,who is not a party to this appeal, were each charged with firstdegree murder pursuant to sections 9-1(a)(1) and (a)(2) of theCriminal Code of 1961 (720 ILCS 5/9-1(a)(1), (a)(2) (West 1998)),for the beating and burning of Richard Will. Armstrong wassentenced to 90 years in the Illinois Department of Corrections. On appeal, defendant argues that: (1) the trial court erred indenying his motion to quash arrest and suppress evidence; (2)counsel provided ineffective assistance of counsel by not movingto suppress statements under the fifth amendment (U.S. Const.,amend. V); and (3) the trial court erred in sentencing him to anextended term of 90 years' imprisonment.

Prior to trial, Armstrong filed a motion to quash arrest andsuppress evidence based upon a violation of his fourth amendmentrights. The motion asserted that Armstrong was seized from hishome without probable cause. The following facts were elicitedat the hearing on that motion.

On October 18, 1995, at approximately 1 a.m., Officer Haynieof the Ford Heights police department stopped a vehicle andarrested the driver on an outstanding warrant. The vehicle's passenger, Richard Will, who was also the vehicle owner, was notallowed to drive his vehicle. Officer Haynie instructed Will towalk to a phone booth located approximately two blocks away tocall someone to pick him up. Officer Haynie called for a towtruck and took the driver to the police station.

While at the station, Officer Haynie received a call that aman was being burned and beaten in the 1600 block of Berkley inFord Heights. When Officer Haynie arrived, he observed that thevictim was Will. The victim was lying in the street in the fetalposition, he had been severely beaten, his hair was smoking, andthere was a smoldering flame in his groin area.

At 8 a.m. on the same day, Officer Haynie told juvenileofficer Donna Bankston that a man had been beaten and burned. Atapproximately 11 a.m., Officer Haynie was informed by FordHeights police department dispatcher Sue Wright that there werenumerous anonymous phone calls "stating that Michael Armstrongwas involved in the burning of a white guy." Officer Bankstonalso received an anonymous phone call at approximately 2 p.m. onthe 18th of October. She testified:

"The subject on the phone had stated that a MA was involvedwith the beating and burning of *** the white guy that wasburnt up. *** He stated that MA was Michael Armstrong wholived at 1600 Greenwood."

She stated that she did not recognize the voice of the caller.

Officer Haynie testified that on the morning of October 19,1995, the Bloom Trail High School police liaison, OfficerHaskins, called the police department and left a message that hewanted to see Officer Haynie. During their meeting, OfficerHaskins told Officer Haynie that one of the students had come tohim in confidence and told him that he spoke to "somebody else"who had spoken to "Stacy Pickens," who said that "MichaelArmstrong did that shit." Officer Haynie then placed a phonecall to Officer Bankston to have her locate Armstrong. OfficerBankston told Officer Haynie that Armstrong was already at thestation.

In fact, on the morning of October 19, Officer Bankston wentto the home of Armstrong. When Armstrong answered the door,Bankston asked him if his grandmother was at home and heresponded that she was. Officer Bankston testified thatdefendant "called upstairs for his grandmother to come down, andshe yelled down, she asked who was it, and he said it's Lady Red,which is me, Officer Bankston." Officer Bankston also testified:

"I stated to her that I needed to talk to Michael andthat I needed to bring him to the station to talk to me.

She stated okay, it would be no problem as long as sheknew he was with me. I told her I would bring him rightback, I just needed to talk to him, and if anything occurredthat I would give her a phone call.

***

I told her I was taking him to the Ford Heights PoliceDepartment."

Armstrong's grandmother testified at the suppression hearing,stating that "when I seen her they was getting in the car, thepolice car," and she denied ever speaking to Officer Bankston. Officer Bankston transported Armstrong to the police departmentin a marked police car. He was not handcuffed and was seated inthe front seat of the police car.

Officer Bankston further testified that she and Armstrongentered the station through the front doors. At the policestation, Officer Bankston read Armstrong his Miranda rights andhis juvenile rights from preprinted forms. When Officer Hayniereturned to the police station on October 19, he spoke withdispatcher Wright, who related that she received more anonymouscalls stating that Michael Armstrong was involved in the burning. The record indicates that Armstrong was interviewed byOfficer Bankston in a open lounge at the police station. OfficerBankston asked Armstrong if he knew anything about the beatingand burning of the victim. Armstrong told her, and later OfficerHaynie and the assistant State's Attorney, about his involvementin the beating and burning of Will. Armstrong relayed thefollowing account:

"After midnight on October 18th, 1995, me and myfriends went over to 16th and Berkely in Ford Heights whichwe called Vietnam. I was with Michael Evans, WardellMcClain, Lewis McDonald, Marvin Drummond, Keith Clinton anda guy named Marquis.

When we got to the corner, we saw this white guyrunning toward us from the Bronx which is near 17th andEllis. We yelled at him freeze, we the police. Me and Mikegrabbed the white guy out of the bushes and me and myfriends jumped him.

We all punched and kicked him in his face and body. ***Wardell lit the guy's hair on fire with a lighter. ThenMarvin poured some lighter fluid from a plastic bottle ontothe white guy's body. Mike helped Wardell light the guy onfire again.

Before when Wardell lit the guy's hair on fire, we letthe fire rise on the guy's head a little and everyone got alaugh out of it. Then I stomped the guy's head with my shoeand put the fire out. Then Mike and Wardell lit the guy upagain while he was on the ground getting stomped.

I knew they were gonna kill the guy when they did thatagain.

I left with Keith and we went to my house. All theother guys met up with us there except for Mike. Mikeshowed up later. I learned later from my grandmother thatthe guy died."

Officer Bankston then told Armstrong that he was under arrest. At the time of his arrest, Armstrong was 16-years-old and residedin Ford Heights, Illinois, with his grandmother, Patsy Armstrong,his guardian. He was in the ninth grade and was receiving"special education."

The trial court denied Armstrong's motion to quash arrestand suppress evidence. Subsequently, the court found Armstrongguilty of two counts of first degree murder. He was sentenced toan extended term of 90 years' imprisonment for the murder.

As the reviewing court, we are asked to review severalissues upon appeal. Armstrong first contends that his statementsand fingerprinting should have been suppressed as the "fruits ofan unlawful arrest without probable cause." We agree.

In denying defendant's motion to quash arrest and suppressevidence, the trial court stated:

"[I]t was brought out Haynie and Bankston are in effectworking together, so the knowledge of one must be imputed tothe other. The doctrine of People versus Peek and similarcases. Now, as far as the knowledge, well, the anonymouscall by itself, that is a very simple issue. An anonymous,one anonymous call covered by the propositions and premisesof People versus Paren and People versus Pitts and othersimilar cases, there isn't too much you can an officer canrely on one anonymous call.

But I think we had more than one here, whichconstructively has been communicated both to Haynie andBankston. That's the information not just from dispatcherWright but also from Officer Haskins, who's not speaking tothe so-called pigeons or police confidential informants,he's speaking to civilian students.

So what we have here is more than just an anonymouscall. So the officer I think was justified in going overthere, either one of the officers, to Armstrong's house, andthe grandmother tells Bankston okay."

However, in our view, the anonymous calls, even whencombined, do not provide an indicia of reliability. In Illinois,information received by the police from third parties must bejustified by some indicia of reliability in order to establishprobable cause. People v. Morris, 229 Ill. App. 3d 144, 158, 593N.E.2d 932 (1992). Probable cause is defined as facts andcircumstances that would prompt a reasonable person to believethat an offense has been committed and that the accused committedthe offense. Morris, 229 Ill. App. 3d at 158. Probable causemay be determined by the totality of the circumstances. Illinoisv. Gates, 462 U.S. 213, 234, 76 L. Ed. 2d 527, 545, 103 S. Ct.2317, 2329 (1983).

Here, Officer Bankston only knew the details of how thevictim died, where he died, and the name given to her by oneanonymous phone call. The information given to her in thatanonymous call had no indicia of reliability. The fact that a"white guy" had been burned and beaten was readily available tomembers of the public. An uncorroborated tip by an informerwhose identity and reliability are both unknown does notconstitute probable cause to make an arrest. People v. Parren,24 Ill. 2d 572, 576, 182 N.E.2d 662 (1962).

We also note that, when police officers are working inconcert on an investigation, probable cause for an arrest may beestablished on information possessed by any of those officers. People v. Holveck, 171 Ill. App. 3d 38, 48, 524 N.E.2d 1073(1988). However, even if the information from Officer Haskins toOfficer Haynie may be imputed to Officer Bankston, the accusationagainst the defendant made by the unnamed student does notcontain any more indicia of reliability than the anonymous phonecalls.

We now turn to whether Armstrong was unlawfully seized. Indenying the motion to quash arrest and suppress evidence, thetrial court stated:

"Now, the indicia of whether he was at that moment arrestedor not, there is some-- there is considerable indicia thathe was not in fact under arrest.

First of all, he was not handcuffed nor searched oreven patted down. And Bankston did testify that if hewasn't going to come, he or grandma said he wasn't coming,she would talk to him at home. I can't really say that theproposition as to the claim that he was arrested at his homehas been supported or sufficiently supported by the greaterweight of the evidence."

We disagree because these considerations by the trial courtare not supported by the greater weight of the evidence. "Therelevant inquiry in determining whether a suspect has beenarrested is whether, under the circumstances, a reasonable personwould conclude that he was not free to leave." People v. Melock,149 Ill. 2d 423, 437, 599 N.E.2d 941 (1992).

Courts look at the following factors to evaluate whether areasonable person in the defendant's position would believehimself to be in custody: (1) the location, mood, and length ofinterview; (2) the number of police officers present; (3) thepresence or absence of the defendant's family or friends; (4) anyindicia of formal arrest, such as physical restraint, the show ofweapons or force, booking, or fingerprinting; and (5) the mannerby which the defendant arrived at the place of the interview. Melock, 149 Ill. 2d at 440.

Moreover, custodial interrogations are seizures and requireprobable cause even though the "trappings of a technical formalarrest" may not be present. People v. Wicks, 236 Ill. App. 3d97, 103, 603 N.E.2d 594 (1992). We hold that the actions of theofficers in the instant case constituted an illegal seizure.

The following cases are instructive when a reviewing courtis presented with facts that do not include the "trappings of atechnical formal arrest." In People v. Fitzpatrick, 107 Ill.App. 3d 876, 438 N.E.2d 222 (1982), the issue on appeal waswhether the trial court erred in denying the defendant's motionto suppress his written statement taken at the police stationbecause the statement was the fruit of an illegal arrest. Thetrial court in Fitzpatrick found that the defendant was notinvoluntarily detained or arrested until after he had made theincriminating statement. Fitzpatrick, 107 Ill. App. 3d at 878. The appellate court, however, disagreed and held that the denialof the motion constituted error. Fitzpatrick, 107 Ill. App. 3dat 877. Similar to the instant case, the investigation inFitzpatrick was focused on the defendant as a result ofinformation received through an anonymous tip. In Fitzpatrick,as in the instant case, the defendant was not told that he neednot accompany the officer to the police station. Fitzpatrick,107 Ill. App. 3d at 879. The reviewing court in Fitzpatrickstated that although the defendant was not handcuffed,fingerprinted, or photographed, the circumstances indicated thatthe detention of defendant resembled a traditional arrest andthat a reasonable person would not have felt free to refuse theofficer's request. Fitzpatrick, 107 Ill. App. 3d at 880.

A landmark case regarding unreasonable seizures is Dunawayv. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248(1979). In Dunaway, a jail inmate awaiting trial for burglarysupplied information to the police implicating the defendant in amurder and attempted robbery. Defendant was taken into custody,driven to the police station for questioning, and given hisMiranda warnings. At the station, the defendant madeincriminating statements. The Supreme Court reasoned that"seizures are 'reasonable' only if supported by probable cause." Dunaway, 442 U.S. at 214, 60 L. Ed. 2d at 837, 99 S. Ct. at 2257. Moreover, the Court held that the seizure of a citizen cannot bean "expedition for evidence." Dunaway, 442 U.S. at 218, 60 L.Ed. 839, 99 S. Ct. at 2259.

A similar, although not identical, case to the instant caseis In re J.W., 274 Ill. App. 3d 951, 654 N.E.2d 517 (1995), inwhich the court applied the aforementioned principles in thejuvenile context. In that case, a 14-year-old was called intothe principal's office and when he arrived, there were threeofficers waiting for him. J.W., 274 Ill. App. 3d at 952-53. They told him that they wanted to speak to him about a homicideand notified his grandmother, who, however, was not his guardian. J.W., 274 Ill. App. 3d at 953. He was placed in the back of thepolice car, one officer sat in the back with him, his book bagwas searched, and he was fed on the way to the police station. J.W., 274 Ill. App. 3d at 953. The boy was taken to a large roomwhere he was questioned while the door was left open. J.W., 274Ill. App. 3d at 953. The boy made incriminating statements whileat the station. Those statements were admitted at trial despitedefense counsel's motion to quash his arrest and suppressevidence. J.W., 274 Ill. App. 3d at 956. Based on thedefendant's age, the number of officers present, the method ofquestioning, the place of questioning, and the lack of anycommunication that he was free to leave, the appellate court heldthat a reasonable person in the boy's situation would not havefelt free to leave and that the defendant's motion to his quasharrest and suppress evidence should have been granted. J.W., 274Ill. App. 3d at 961-62. The appellate court stated that "[i]t iswell understood that interrogation at the police station isinherently coercive [citation], especially when a minor isinvolved." J.W., 274 Ill. App. 3d at 960. The J.W. court alsonoted that "[h]aving been driven to the station, J.W. was ineffect stranded there, buttressing the conclusion that areasonable person in his situation would not have felt free toleave." J.W., 274 Ill. App. 3d at 960.

A trial court's ruling on a motion to suppress is subject toreversal only if it is manifestly erroneous. People v. Wheeler,281 Ill. App. 3d 447, 454, 667 N.E.2d 158 (1996); People v.Steinberg, 260 Ill. App. 3d 653, 656, 633 N.E.2d 142 (1994). The finding by the trial court in the instant case was againstthe manifest weight of the evidence. In the instant case,Armstrong's age, the lack of any communication that he was freeto leave at any time, the anonymous tips to police, the absenceof his grandmother, his lack of previous arrests, and his levelof education all support the contention that he concluded that hewas not free to leave. Therefore, we hold that defendant wasunder arrest while he was at the police station, prior to makinghis statements during interrogation.

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Armstrong also contends that his trial counsel neglected toassert the fifth amendment violation despite "the flagrancy ofthe police mistreatment." Although his counsel filed a motion toquash arrest and suppress evidence, defendant argues that thefailure to move to suppress the statements he made to policeconstituted ineffective assistance of counsel.

Relative to a claim of ineffective assistance of counsel,the reviewing court must examine the record as a whole, ratherthan focusing on isolated incidents. People v. Borges, 127 Ill.App. 3d 597, 602, 469 N.E.2d 321 (1984). Appellate review willnot extend to those areas of representation which include theexercise of judgment, trial tactics and strategy. Borges, 127Ill. App. 3d 597, 602, 469 N.E.2d 321 (1984). A trial counsel'sfailure to file a motion to suppress will not establishincompetent representation when that motion would be futile; asit is a matter of trial strategy to file such a motion, trialcounsel's decision will be afforded great deference. People v.Wilson, 164 Ill. 2d 436, 454-55, 647 N.E.2d 910 (1994).

In order to establish ineffective assistance of counsel, adefendant must prove that: (1) that counsel's performance wasdeficient in that it fell below an effective standard ofreasonableness; and (2) the deficient performance prejudiced thedefense such that defendant was deprived of a fair trial whoseresult was reliable. Strickland v. Washington, 466 U.S. 668,687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); adoptedby the Illinois Supreme Court in People v. Albanese, 104 Ill. 2d504, 527, 473 N.E.2d 1246 (1984). A defendant must establishboth prongs of the Strickland test. People v. Evans, 186 Ill. 2d83, 93, 708 N.E.2d 1158 (1999). However, if the ineffectiveassistance of counsel claim can be disposed of on the ground thatthe defendant did not suffer prejudice, the reviewing court willnot decide whether counsel's performance was constitutionallydeficient. Evans, 186 Ill. 2d at 94.

Finally, a reviewing court will reverse a conviction only ifboth the representation fell below an objective standard ofreasonableness and a reasonable probability exists that theoutcome of the proceedings would have been different but forcounsel's conduct. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2dat 693, 104 S. Ct. at 2064. Based on our holding that the trialcourt erred in denying defendant's motion to quash arrest andsuppress evidence, it is our view that defendant did not sufferprejudice due to the totality of counsel's performance in theinstant case.

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Armstrong's final contention upon appeal is that the trialcourt abused its discretion in sentencing him to 90 years'imprisonment. Armstrong additionally contends that the sentenceimposed by the trial judge exceeded the prescribed statutorymaximum and was impermissible under the fourteenth and sixthamendments of the United States Constitution (U.S. Const.,amends. VI, XIV) and cites Apprendi v. New Jersey, 530 U.S. ,147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We agree that theenhanced sentence imposed is unconstitutional.

Initially, the State contends that Armstrong has waived hisright to challenge the sentence by failing to raise the issue atthe trial level. However, a defendant does not waive an appealrelating solely to sentencing issues for failure to seeksentencing reconsideration in the trial court. People v. Lewis,158 Ill. 2d 386, 391, 634 N.E.2d 717 (1994); People v. Jones, 265Ill. App. 3d 627, 638-39, 637 N.E.2d 601 (1994); People v. Brown,267 Ill. App. 3d 482, 485, 641 N.E.2d 948 (1994). Moreover,Armstrong's challenge is of constitutional dimension. InIllinois, a constitutional challenge to a statute can be raisedat any time. People v. Bryant, 128 Ill. 2d 448, 454, 539 N.E.2d1221 (1989); People v. Zeisler, 125 Ill. 2d 42, 46, 531 N.E.2d 24(1988). As the Apprendi Court stated, "constitutionalprotections of surpassing importance" are at stake:

"[T]he proscription of any deprivation of liberty without'due process of law,' Amdt. 14, and the guarantee that '[i]nall criminal prosecutions, the accused shall enjoy the rightto a speedy and public trial, by an impartial jury,' Amdt.6. Taken together, these rights indisputably entitle acriminal defendant to 'a jury determination that [he] isguilty of every element of the crime with which he ischarged, beyond a reasonable doubt.'" Apprendi, 530 U.S. at , 147 L. Ed. 2d at 447, 120 S. Ct. at 2355, citing UnitedStates v. Gaudin, 515 U.S. 506, 510, 132 L. Ed. 2d 444, 449,115 S. Ct. 2310, 2313 (1995).

See also Sullivan v. Louisiana, 508 U.S. 275, 278, 124 L. Ed. 2d182, 188, 113 S. Ct 2078, 2080 (1993); In re Winship, 397 U.S.358, 364, 25 L. Ed. 2d 368,375, 90 S. Ct. 1068, 1073 (1970). ("[T]he Due Process Clause protects the accused againstconviction except upon proof beyond a reasonable doubt of everyfact necessary to constitute the crime with which he ischarged").

Due process entitles a defendant to know with what he ischarged and to have a factfinder make a decision finding thosefacts beyond a reasonable doubt. Here, there was no knowingwaiver of that entitlement.

Another one of the defendant's contentions upon appeal isthat his sentence is unduly harsh because "the State's ownevidence contained statements of withdrawal from the group." Wedisagree with this contention. A case similar to the one at handis People v. Nunn, 184 Ill. App. 3d 253, 51 N.E.2d 182 (1989). In that case, the eight defendants severely beat a middle-aged,unarmed man using various weapons. Two defendants admitted toparticipating in the beating, although they claimed that theywalked away from the victim while the others continued theirassault upon the victim. The court in Nunn held that simplywalking away while the others continued their assault upon thevictim did not constitute effective withdrawal. Nunn, 184 Ill.App. 3d at 272.

In the instant case, Armstrong did not withdraw before thecrime was committed. In fact, the defendant did not withdrawuntil the victim had already been severely beaten and burned atleast once. Armstrong did indeed leave before the group wasfinished attacking Will, but his exit did not constitute a timelywithdrawal.

We will next address defendant's contention that thesentence imposed in the instant case must be set aside pursuantto the recent Supreme Court decision, Apprendi. In Apprendi, thedefendant fired several shots into the home of an African-American family and was charged with second degree possession ofa firearm for an unlawful purpose. Apprendi, 530 U.S. , 147L. Ed. 2d at 442, 120 S. Ct. at 2351. A New Jersey statuteclassifies the possession of a firearm for an unlawful purpose asa "second degree" offense punishable by imprisonment for 5 to 10years. A separate statute, the state's "hate crime" statute,provides for an extended term, if a trial court finds, by apreponderance of the evidence, that the defendant acted with thepurpose to intimidate an individual because of race, color,gender, handicap, religion, sexual orientation, or ethnicity. Apprendi, 530 U.S. , 147 L. Ed. 2d at 442, 120 S. Ct. at 2351. The extended term authorized by the hate crime law for seconddegree offenses is imprisonment for 10 to 20 years. The issuebefore the Court was "whether the Due Process Clause of theFourteenth Amendment requires that a factual determinationauthorizing an increase in the maximum prison sentence for anoffense from 10 to 20 years be made by a jury on the basis ofproof beyond a reasonable doubt." Apprendi, 530 U.S. , 147 L.Ed. 2d at 442, 120 S. Ct. at 2351. The Supreme Court answeredaffirmatively. Apprendi, 530 U.S. , 147 L. Ed. 2d at 445, 120S. Ct. at 2354.

The precursor to Apprendi is Jones v. United States, 526U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999). In Jones,the defendant was charged under a federal statute with"carjacking." The indictment made no reference to the statute'snumbered subsections and charged none of the facts in thenumbered subsections of the statute. Jones, 526 U.S. at 230, 143L. Ed. 2d at 318, 119 S. Ct. at 1218. The Court held that "underthe Due Process Clause of the Fifth Amendment and the notice andjury trial guarantees of the Sixth Amendment, any fact (otherthan prior conviction) that increases the maximum penalty for acrime must be charged in an indictment, submitted to a jury, andproven beyond a reasonable doubt." Jones, 526 U.S. at 243 n.6,143 L. Ed. 2d at 326 n.6, 119 S. Ct. at 1224 n.6.

The State argues that Apprendi does not apply for severalreasons. First, the State contends that Apprendi does not applyto Illinois' first degree murder statute, as the elements are thesame regardless of whether a defendant is facing the deathpenalty or an extended term. However, proceedings in Illinoiscapital cases are bifurcated. The defendant is entitled to havea jury find the facts that the State must prove in both phases. See 720 ILCS 5/9-1(a) through (g) (Supp. 1999). Moreover, theCourt in Apprendi explained that capital cases are notcontrolling:

"'Neither the cases cited, nor any other case, permits ajudge to determine the existence of a factor which makes acrime a capital offense. What the cited cases hold is that,once a jury has found the defendant guilty of all theelements of an offense which carries as its maximum penaltythe sentence of death, it may be left to the judge to decidewhether that maximum penalty, rather than a lesser one,ought to be imposed .... The person who is charged withactions that expose him to the death penalty has an absoluteentitlement to jury trial on all the elements of thecharge.'" Apprendi, 530 U.S. , 147 L. Ed. 2d at 459, 120S. Ct. at 2366, quoting Almendarez-Torres v. United States,523 U.S. 224, 257 n.2, 140 L. Ed. 2d 350, 377 n.2, 118 S.Ct. 1219, 1237 n.2 (1998) (Scalia, J., dissenting).

Second, the State contends that Apprendi is not applicableto the instant case because the trial court could have properlyimposed a sentence of natural life imprisonment after it foundthat the murder was accompanied by brutal and heinous behaviorindicative of wanton cruelty. Specifically, the State cites thefollowing language used by the trial court in sentencingArmstrong:

"Now, by way of aggravation, the offense was accompanied byexceptionally brutal and heinous behavior indicative ofwanton cruelty and that, I suggest, is putting it mildly. The defendant will be and is sentenced to extended term of90 years." (Emphasis added.)

However, Armstrong was not sentenced under the "natural life"sentence provision of the Unified Code of Corrections (730 ILCS5/5-8-1(a)(1)(a), (a)(1)(b) (West 1998)). He was sentenced to aterm of years pursuant to sections 5-8-2(a)(1) (730 ILCS 5/5-8-2(a)(1) (West 1998)) and 5-5-3.2(b)(2) (730 ILCS 5/5-5-3.2(b)(2)(Supp. 1999)) of the Unified Code of Corrections.

The relevant sections of the sentencing code in the instantcase are sections 5-8-1(a)(1)(a), 5-8-1(a)(1)(b), 5-8-2(a)(1),and 5-5-3.2(b)(2) (730 ILCS 5/5-8-1(a)(1)(a), (a)(1)(b), 5-8-2(a)(1), 5-5-3.2(b)(2) (West 1998 and Supp. 1999)).

Section 5-8-1 provides:

"(a) Except as otherwise provided in the statute definingthe offense, a sentence of imprisonment for a felony shall be adeterminate sentence set by the court under this Section,according to the following limitations:

(1) for first degree murder,

(a) a term shall be not less than 20 years and not more

than 60 years, or

(b) if the court finds that the murder was accompanied byexceptionally brutal or heinous behavior indicative of wantoncruelty or, except as set forth in subsection (a)(1)(c) of thisSection, that any of the aggravating factors listed in subsection(b) of Section 9-1 of the Criminal Code of 1961 are present, thecourt may sentence the defendant to a term of natural lifeimprisonment." 730 ILCS 5/5-8-1(a)(1)(a), (a)(1)(b) (West 1998).

Section 5-8-2 provides:

"(a) A judge shall not sentence an offender to a term ofimprisonment in excess of the maximum sentence authorized bySection 5-8-1 for the class of the most serious offense of

which the offender was convicted unless the factors inaggravation set forth in paragraph (b) of Section 5-5-3.2 werefound to be present. Where the judge finds that such factorswere present, he may sentence an offender to the following:

(1) for first degree murder, a term shall be not less than60 years and not more than 100 years." 730 ILCS 5/5-8-2(a)(1)(West 1998).

Relative to factors in aggravation, section 5-5-3.2provides:

"(b) The following factors may be considered by the court asreasons to impose an extended term sentence under Section 5-8-2upon any offender:

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(2) When a defendant is convicted of any felony and thecourt finds that the offense was accompanied by exceptionallybrutal or heinous behavior indicative of wanton cruelty." 730ILCS 5/5-5-3.2(b)(2) (West Supp. 1999).

Contrary to the State's argument, we hold that, pursuant toApprendi, the aggravating factors provided in section 5-5-3.2(b)(2) must be proved beyond a reasonable doubt.

Finally, the State places reliance on McMillan v.Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411(1986), and United States v. Dunnigan, 507 U.S. 87, 122 L. Ed. 2d445, 113 S. Ct. 1111 (1993). However, those cases aredistinguishable.

In McMillan, the Court considered the constitutionality ofPennsylvania's mandatory minimum sentencing act under the dueprocess clause of the fourteenth amendment and the jury trialguarantee of the sixth amendment. McMillan, 477 U.S. at 80, 91L. Ed. 2d at 73, 106 S. Ct. at 2413. That statute provided thatanyone convicted of certain felonies was subject to a mandatoryminimum sentence of five years if the judge found by apreponderance of the evidence that the defendant "visiblypossessed a firearm" during the commission of the offense. McMillan, 477 U.S. at 81, 91 L. Ed. 2d at 73, 106 S. Ct. at 2414. The McMillan Court reasoned that the Pennsylvania legislature hadtaken one factor that sentencing courts traditionally considered,the instrumentality used to commit the crime, and dictated theprecise weight it was to receive. McMillan, 477 U.S. at 90, 91L. Ed. 2d at 79, 106 S. Ct. at 2418. In McMillan, unlike here,the traditional sentencing factor merely raised the minimumsentence that may be imposed by the trial court. McMillan, 477U.S. at 89, 91 L. Ed. 2d at 78, 106 S. Ct. at 2418. The Courtconcluded that the preponderance standard satisfied due process. McMillan, 477 U.S. at 91, 91 L. Ed. 2d at 80, 106 S. Ct. 2419.

In Dunnigan, the question presented was whether the UnitedStates Constitution permits a court to enhance a defendant'ssentence under the United States Sentencing Commission,Guidelines Manual