April 16, 2001

Nos. 2--99--1308 & 2--99--1321 cons.

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Brian Chandler, pleaded guilty to arson (720 ILCS5/20--1(a) (West 1998)) and aggravated battery (720 ILCS 5/12--4(a) (West1998)). The court sentenced him to consecutive six- and three-year terms ofimprisonment. Defendant appeals, contending that the court abused its discretionby (1) imposing a six-year sentence for arson and (2) making the sentencesconsecutive. In a supplemental brief, defendant argues that the consecutivesentences were improper under Apprendi v. New Jersey, 530 U.S. 466, 147L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

Defendant pleaded guilty to a series of offenses committedagainst his estranged wife, Ann Marie Chandler. Ann Marie testified at thesentencing hearing that on October 31, 1998, after an altercation withdefendant, she moved out of the parties' home on Randall Road. She obtained anorder of protection against defendant. Later, she and the parties' childrenmoved into a new home on West Plum Street.

On November 20, she took the children to the Randall Roadhome to visit defendant. Defendant got in her car and asked ifthey could work things out. When she said no, defendant grabbed her hair andpunched her in the face. He then kept her in the house for several hours arguingwith her. The following day, defendant showed up at Ann Marie's Plum Streethouse. He saw a truck in the driveway and accused her of being with another man.After she denied it, defendant said, "I'm coming back in 20 minutes todestroy you."

On November 22, Ann Marie called defendant to arrange to pickup the girls from visitation. Defendant said he wanted to move in with herbecause he would soon be evicted from the Randall Road house. Ann Marie saidthat he could not move in. Defendant replied that if she did not let him move inwith her, he would "torture [her] for two days while [she] begged him tokill [her]," and would eventually kill her after two days.

The following morning, when Ann Marie went to take herchildren to school, she discovered that a tire on her car was flat. She had thetire replaced and left. When she returned, she discovered that a different tirehad been cut. She reported the incidents to the police and went to work. At 9p.m., an officer called to tell her that the Plum Street home was on fire.

As part of the factual basis for defendant's pleas, theprosecutor stated that defendant returned to the Plum Street house around 7:15p.m. on November 23. He entered the house by breaking a window, poured gasolinein the living room and, after checking to ensure that no one was home, set thegasoline on fire. The Aurora police arrested defendant the next day, and heconfessed to slashing Ann Marie's tires, violating the order of protection, andsetting her house on fire.

Shortly after these incidents, Ann Marie quit her job andleft the state. She testified that after the move her older daughter earnedlower grades, had difficulty sleeping, and had become aggressive, abusive, andsuicidal. At the time of the sentencing hearing, the daughter was in therapy.

The presentence report shows that defendant had priorconvictions of illegal transportation of alcohol, driving with a suspendedlicense, and driving under the influence of alcohol (DUI). Other evidence at thehearing reflected defendant's problems with drugs and alcohol. Greg Fields, acase manager with Treatment Alternatives for Safe Communities, opined thatdefendant was addicted to alcohol and cocaine. Defendant had attempted suicideseveral times and was taking psychotropic medication.

Defendant testified that he had been abusing alcohol sinceage 18. As a result of the DUI conviction, the court ordered him to undergoalcohol treatment. He went to the first class drunk and eventually stoppedattending classes when he concluded that they were a "sham." He neverthought of himself as an alcoholic.

Defendant said that after surgery in 1996 he stopped workingand stayed home with his children. He cared for the children while his wifeworked. He said that he committed the offenses while drunk and he never actuallymeant to hurt anyone. He cried when he found out that his daughter had beentraumatized by his actions. He further testified, "I seen myself in themirror and punched myself in the face till both my eyes were closed and I couldjust see no more."

Wade Thompson, a mental health worker at the Kane Countyjail, testified that defendant was placed on a suicide watch at the jail. Heattempted suicide several times. Defendant told Thompson that he was angrybecause Ann Marie had lied about him and that, because she had lied, she hadgiven herself "the death penalty." Defendant said that if he ever gotprobation he would "go get her."

The court sentenced defendant to six years' imprisonment forarson and three years' imprisonment for aggravated battery. The court orderedthe sentences to be served consecutively, finding that defendant would continueto be a danger to Ann Marie. The court imposed sentences for additionalmisdemeanors, with those sentences to be served concurrently with the felonysentences and with each other. After the court denied his motion to reconsiderthe sentences, defendant perfected this appeal.

Defendant first contends that the six-year sentence for arsonfailed to account for his rehabilitative potential and, accordingly, was anabuse of discretion. He argues that he had an insignificant criminal history,that the offenses were the result of a momentary loss of control due to hisalcohol use, and that he never intended to harm anyone.

The trial court has broad discretion in sentencing and itsdecision is entitled to great deference. People v. Perruquet, 68 Ill. 2d149, 154 (1977). The trial court is granted such deference because it has asuperior opportunity to weigh such factors as the defendant's credibility,demeanor, general moral character, mentality, social environment, habits, andage. People v. Stacey, 193 Ill. 2d 203, 209 (2000); Perruquet, 68Ill. 2d at 154. Consequently, the reviewing court must not substitute itsjudgment for that of the trial court merely because it would have weighed thesefactors differently. People v. Streit, 142 Ill. 2d 13, 19 (1991).Although the sentencing court is required to consider a defendant'srehabilitative potential, it need not accord that factor greater weight than theseriousness of the offense. People v. Coleman, 166 Ill. 2d 247, 261(1995).

The six-year sentence was not an abuse of discretion. It isonly two years longer than the minimum sentence for a Class 1 felony. See 730ILCS 5/5--8--1(a)(4) (West 1998). Setting his wife's house on fire was not, asdefendant claims, the result of a momentary loss of control due to alcohol use,but the culmination of a nearly week-long campaign of harassment against her.Although defendant seeks to blame his conduct on his alcoholism, he was given aprior opportunity to obtain treatment, but refused to take it seriously. It isdoubtful that defendant has significant rehabilitative potential unless he cancontrol his alcohol and drug problems, something he has thus far been unable orunwilling to do.

Defendant alternatively contends that the court abused itsdiscretion by ordering the six-year and three-year sentences to runconsecutively. He emphasizes that the trial court characterized his criminalhistory as "not significant." He again argues that the crimes were theresult of a momentary loss of control due to alcohol use and that there is noevidence that he poses a continuing threat to the public.

Section 5--8--4(b) of the Unified Code of Correctionsprovides in relevant part as follows:

"The court shall not impose a consecutive sentence *** unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record[.]" 730 ILCS 5/5--8--4(b) (West 1998).

Consecutive sentences should be imposed sparingly (Peoplev. O'Neal, 125 Ill. 2d 291, 298 (1988)) and should be imposed only where thecircumstances of the offense and defendant's history and character indicate thata consecutive term is required to protect the public from his further criminalconduct. People v. Clark, 278 Ill. App. 3d 996, 1006 (1996).

While defendant does not have a long criminal history, therecord supports the trial court's finding that he will continue to be dangerous.He was convicted of a series of crimes committed against his wife. He repeatedlyexpressed his rage when his wife showed that she no longer wanted him to be apart of her life, and he terrorized her when she would not accede to his wishes.Defendant continued to threaten Ann Marie even while he was in jail. The recordamply supports the conclusion that defendant would continue to be a threat tohis wife and, indirectly, his children, if he were released from prison. Thus,the court's imposition of consecutive sentences was not an abuse of discretion.

In a supplemental brief, defendant contends that hisconsecutive sentences must be vacated in light of the Supreme Court's decisionin Apprendi. There, the court struck down a New Jersey statute thatallowed the trial court to impose a five-year sentence beyond what wouldnormally have been the statutory maximum if the court found by a preponderanceof the evidence that defendant acted in order to intimidate an individual orgroup because of race, color, gender, or other similar factors. The court heldthat the New Jersey scheme defeated a defendant's right to have a jury determinethat he is guilty of every element of an offense beyond a reasonable doubt. See Apprendi,530 U.S. at ___, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366-67.

Apprendi does not apply in this situation. Althoughdefendant presents his Apprendi claim as a sentencing issue, theconstitutional rights effectuated by that decision were the right to a jurytrial and the right to have the state prove all the elements of the offensebeyond a reasonable doubt. In other words, the argument that the Supreme Courtaccepted in Apprendi was not that Apprendi's sentence was too long but,rather, that defendant had a right to have a jury decide whether the Stateproved beyond a reasonable doubt the factor that resulted in the longersentence. Here, defendant waived those rights by pleading guilty.

A defendant who pleads guilty does not have the same appealrights as one convicted following a trial. People v. Wendt, 283 Ill. App.3d 947, 956 (1996). Generally, after pleading guilty, a defendant may not raiseclaims of the deprivation of constitutional rights that occurred before theentry of the plea. Wendt, 283 Ill. App. 3d at 957. Before defendantentered his plea, the court informed him of the sentencing ranges for theoffenses and specifically admonished him of the possibility of consecutivesentences. Having waived a jury trial on all issues, defendant cannot now claimthat he was deprived of the right to have a jury determine the issue of hisfuture dangerousness. Similarly, he cannot claim that he was unfairly deprivedof the right to have the State prove that point beyond a reasonable doubt.

Although Apprendi itself was an appeal following aguilty plea, the defendant there expressly reserved the right to challenge onappeal the constitutionality of the sentence-enhancement statute. Apprendi,530 U.S. at ___, 147 L. Ed. 2d at 443, 120 S. Ct. at 2352. Moreover, theindictment did not allege that Apprendi committed the crimes with an improperpurpose; therefore, his guilty plea did not waive a jury trial as to thatelement. See State v. Apprendi, 304 N.J. Super. 147, 163, 698 A.2d 1265,1273 (1997) (Wecker, J., dissenting).

Here, by contrast, the trial court did not find any elementnot alleged in the indictment. The court specifically admonished defendant thatconsecutive sentences based on his future dangerousness were a possibility. Thecourt based its finding of future dangerousness not on the presence of anadditional factual element but on the number and nature of defendant's crimes.By his plea, defendant declined to place the number and nature of his crimes inissue. See State v. Cody, ___ Kan. App. 2d ___, ___, 10 P.3d 789, 790-91(2000); Weeks v. State, 761 A.2d 804, 806 (Del. 2000). This court hasdeclined to apply Apprendi to consecutive sentences imposed under section5--8--4(b) even where the defendant was raising the claim following a jurytrial. People v. Hindson, No. 2--99--1360, slip op. at 17 (March 2,2001). This court observed that the trial court based its finding of futuredangerousness primarily on defendant's criminal record, which Apprendirecognized as an exception to the requirement of proof beyond a reasonabledoubt. The other factors the court recited in support of consecutive sentences"merely constituted other circumstances evidencing the need to protect thepublic *** from further criminal conduct by defendant." Hindson,slip op. at 17. Under those circumstances, we held Apprendi inapplicable.Hindson, slip op. at 17.

Moreover, defendant filed only a motion to reconsider thesentence, not a motion to withdraw the plea. If we vacated his sentence on Apprendigrounds and remanded the cause, it is unclear what relief the circuit courtcould provide. That court would not be able to effectuate defendant's rights toa jury trial and to proof beyond a reasonable doubt in any case. Thus, defendantmay not raise an Apprendi claim at this stage of the proceedings.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

HUTCHINSON, P.J., and O'MALLEY, J., concur.