THIRD DIVISION

Date Filed: February 20, 2002

No. 1-00-1492

PRESIDING JUSTICE HALL delivered the opinion of the court:

The defendant, Nathan Kidd, was indicted and charged withthree counts of first degree murder (720 ILCS 5/9-1(a)(1),(a)(2), (a)(3) West 1996)) and one count of armed robbery (720ILCS 5/18-2 (West 1996)) in connection with the death of IsaiahBlaxton. The first degree murder counts specified that thevictim was beaten with a bludgeon which resulted in his death.

The defendant waived a jury trial and entered a plea ofguilty to the three murder counts and the armed robbery count. At the time the defendant entered his plea, the trial judgeadvised him of the potential penalties ranging from imprisonmentfor a minimum of 20 years to as much as 120 years, or naturallife. The trial court advised the defendant that the State wasasking that the death penalty be imposed on him, and thedefendant acknowledged that he was giving up his right to besentenced by the jury.

Following a hearing, the trial judge found the defendanteligible for the death penalty, but found that there weremitigating factors precluding the imposition of the death penalty. The trial court sentenced the defendant to an extended-term of 70years' imprisonment in the Department of Corrections. The trialcourt found that the defendant was eligible for an extended-termsentence "based on the wanton cruelty involved in this case, thefact that he took a healthy piece of man, [the victim], andturned him into a pulp of a man when he beat him and stabbed himand viciously was responsible for his death." Subsequently, the trial court denied the defendant's motionfor reconsideration of his sentence and summarily dismissed thedefendant's postconviction petition. This timely appealfollowed.

Our review of a trial court's dismissal of a defendant'spostconviction petition without an evidentiary hearing is denovo. People v. Coleman, 183 Ill. 2d 366, 389, 701 N.E.2d 1063,1075 (1998).

The sole issue on appeal is whether the defendant'sextended-term sentence is unconstitutional under Apprendi v. NewJersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

At the outset and despite the State's lengthy argument tothe contrary, we elect not to abandon or reconsider our positionthat Apprendi applies to a defendant's initial postconvictionproceeding. See People v. Beachem, 317 Ill. App. 3d 693, 740N.E.2d 389 (2000). We note that the second division of thiscourt has reached the opposite conclusion. See People v.Stewart, No. 1-99-3621 (December 18, 2001); People v. Kizer, 318Ill. App. 3d 238 (2000) (cases holding that Apprendi does notapply to cases on collateral review). Nevertheless, we are stillpersuaded by Justice Wolfson's exhaustive research and thoughtfulanalysis in Beachem and continue to hold that Apprendi applies toa defendant's initial postconviction petition.⁽¹⁾

Next, the State maintains that the defendant's failure toraise an Apprendi challenge to his sentence in his postconvictionpetition waives said challenge. See 725 ILCS 5/122-3 (West 1996)(failure to specify error in postconviction petition waivesconsideration of the error). However, the decision in Apprendiwas not issued until June 1, 2000, while the defendant'spostconviction petition had been filed and already denied byMarch 31, 2000. In any event, the constitutional dimension ofthe question permits this court to address the issue regardlessof the defendant's failure to raise it before the circuit court. See Beachem, 317 Ill. App. 3d at 706, 740 N.E.2d at 397-98.

We now turn to the central issue in this case. May adefendant who enters a plea of guilty challenge his extended-termsentence on the basis that the extended term was imposed basedupon a factor not proven beyond a reasonable doubt? Or, viewedmore simply, does Apprendi apply to sentences imposed as theresult of a plea of guilty?

We begin by noting the well-established rule that avoluntary plea of guilty waives all errors, defects, andirregularities in the proceeding that are not jurisdictional,including constitutional error. People v. Jackson, 319 Ill. App.3d 110, 113, 744 N.E.2d 1275, 1278 (2001), appeal allowed, 195Ill. 2d 564, 754 N.E.2d 1289 (2001).

While Apprendi itself involved a plea of guilty, two recentIllinois cases have determined that Apprendi does not apply toguilty pleas. In Jackson, the Appellate Court, Fourth District,distinguished Apprendi on the basis that, in that case, both theState and the defendant had reserved their respective rights toseek or challenge the imposition of a higher sentence. Jackson,319 Ill. App. 3d at 113, 744 N.E.2d at 214. In Jackson, however,the defendant had been admonished as to the possibility of anextended sentence and persisted in her plea of guilty. Jackson,319 Ill. App. 3d at 113, 744 N.E.2d at 214.

In People v. Chandler, 321 Ill. App. 3d 292, 748 N.E.2d 685(2001), the Appellate Court, Second District, also determinedthat Apprendi did not apply to a sentence imposed following aplea of guilty. However, that case involved consecutivesentences which were imposed on the basis that the trial courtfound that the defendant posed a danger to the victim. Oursupreme court has now held that Apprendi does not apply toconsecutive sentences. See People v. Wagener, 196 Ill. 2d 269,752 N.E.2d 430 (2001). Nonetheless, Chandler is helpful to ouranalysis.

The Chandler court noted that the defendant, having waivedhis right to a jury trial on all issues, could not claim that hewas entitled to have a jury determine the issue of his futuredangerousness beyond a reasonable doubt. In distinguishingApprendi, the court stated as follows:

"Although Apprendi itself was an appeal following aguilty plea, the defendant there expressly reserved theright to challenge on appeal the constitutionality of thesentence-enhancement statute. [Citation.] Moreover, theindictment did not allege that Apprendi committed the crimeswith an improper purpose; therefore, his guilty plea did notwaive a jury trial as to that element. [Citation.]"(Emphasis added). Chandler, 321 Ill. App. 3d at 297, 748N.E.2d at 690.

As the Supreme Court recognized in Apprendi, there is nodistinction between an element of a felony offense and a so-called "sentencing factor," and therefore, a defendant isentitled to a jury determination of guilt beyond a reasonabledoubt on every element of the charged offense. Beachem, 317 Ill.App. 3d at 697, 740 N.E.2d at 391. If the defendant is sentencedto a term greater than the maximum based upon a trial court'sfinding of a sentencing factor, once the defendant serves theprescribed maximum sentence, the effect is that he or she remainsin prison on a charge never made or proved. See Beachem, 317Ill. App. 3d at 702, 740 N.E.2d at 394-95.

Applying the above analysis to the case before us, thedefendant was sentenced to an extended term based on the trialcourt's finding that the defendant acted with wanton cruelty inkilling the victim. However, the indictment in this case did notcharge that the defendant acted with wanton cruelty when hekilled the victim. Because the element used to enhance hissentence was never charged in the indictment, the defendantcannot be said to have waived his right to have the jurydetermine that element beyond a reasonable doubt. Chandler, 321Ill. App. 3d at 297, 748 N.E.2d at 690.

Therefore, we conclude that a defendant's plea of guiltydoes not waive his right to have any sentencing factor, exceptfor a prior conviction, which extends his sentence beyond themaximum allowed by statute and which was not charged in theindictment, determined beyond a reasonable doubt. Under thosecircumstances, the dictates of Apprendi apply.

The State then argues that the 70-year sentence imposed inthis case was not beyond the prescribed statutory maximum. TheState maintains that the maximum penalty for murder in Illinoisis death, and since the trial court in this case found thedefendant eligible for the death penalty, even though it chosenot to impose it, the defendant's sentence does not offendApprendi.

The State raised the same argument in Beachem. We rejectedthe State's argument in that case. As in the present case, thedefendant in Beachem was found eligible for the death penalty.

We concluded in Beachem that because the defendant was sentencedunder section 5-8-2(a) (730 ILCS 5/5-8-2(a) (West 1996)) of theUnified Code of Corrections (the Code), which provided for amaximum sentence of 60 years for first degree murder, the trialcourt could not impose a longer sentence unless it found theexistence of factors listed in section 5-5-3.2(b) (730 ILCS 5/5-5-3.2(b) (West 1996). Thus, we determined that 60 years was theprescribed maximum sentence for murder in Illinois.

However, our supreme court's recent decision in People v.Ford, No. 90083 (October 18, 2001), validates the State'sargument.

In Ford, the court held that when a defendant is foundeligible for the death penalty by proof beyond a reasonabledoubt, the imposition of an extended-term sentence under sections5-5-3.2(b)(2) and 5-8-2(a)(1) of the Code complies with the ruleannounced in Apprendi. Ford, slip op. at 5. In Ford, the trialcourt found, by proof beyond a reasonable doubt, that thedefendant had committed the murder in the course of anotherfelony, that the murder was intentional and involved torture and,as a result, the defendant was eligible for the death penalty. However, the trial court imposed an extended-term sentence ofyears, finding that the murder was accompanied by brutal andheinous behavior. The supreme court reasoned that the trialcourt's additional finding did not increase his sentence sincethe defendant was facing the death penalty. See Ford, slip op.at 5.

In this case, the defendant was found eligible for the deathpenalty but was sentenced to an extended term of years undersection 5-8-2(a) of the Unified Code of Corrections (730 ILCS5/5-8-2(a) (West 1996)). Therefore, the decision in Ford ratherthan in Beachem controls the result here.⁽²⁾

We conclude, therefore, that Apprendi does apply to sentencesimposed as a result of a guilty plea. However, when, as in thiscase, the defendant has been found eligible for the death penalty,the maximum sentence is death, and therefore a lesser sentencedoes not violate Apprendi .

For all of the foregoing reasons, we affirm the denial of thedefendant's postconviction petition.

Affirmed.

CERDA and WOLFSON, JJ., concur.

1. In People v. Rush, 322 Ill. App. 3d 1014, 748 N.E.2d 832(2001), the Appellate Court, Fifth District, chose to followBeachem, but noted that the issue of whether Apprendi appliesretroactively to cases on collateral review was currently beforeour supreme court in Hill v. Cowan, appeal docketed, No. 90229(September 19, 2000). Rush, 322 Ill. App. 3d at 1021, 748 N.E.2dat 838.

2. We note, however, that the defendant in this case was neveractually facing the death penalty since at the time of thedefendant's guilty plea, the trial judge stated that he would notimpose the death penalty if the defendant pleaded guilty, eventhough he agreed to conduct a death penalty hearing as requestedby the State.