January 18, 2001

No. 2--99--0306

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Supplemental Opinion Upon Denial of Rehearing

PRESIDING JUSTICE COLWELL delivered the opinion of the court:

Defendant, Juan M. Maiden, previously appealed two convictions of aggravated criminal sexual assault (720 ILCS 5/12--14(a)(2) (West 1994)), and this court affirmed in an unpublished order (People v. Maiden, No. 2--99--0306 (2000)(unpublished order under Supreme Court Rule 23)). Defendant now petitions for rehearing. In this petition, defendantrequests that we reconsider our decision regarding whether his speedy-trial right was violated. Additionally, defendantraises for the first time whether the imposition of consecutive sentences for his two convictions violated the strictures of thedue process clause (U.S. Const., amend. XIV).

Defendant first argues that this court failed to address his argument that the State intentionally withheld exculpatory DNAevidence and consequently should be charged, for speedy-trial purposes, with the time it took defendant to procure thatevidence. Initially, we note that in our earlier decision we concluded that the trial court did not abuse its discretion inattributing this delay to defendant. The trial court noted the complexity of defendant's discovery request, specifically that itwas addressed to no one in particular and required evidence to be gathered from two facilities. We find the trial court'sreasoning adequate to support its exercise of its discretion. Furthermore, we note that defendant could have proceeded totrial within the statutory period. However, he chose to wait for his discovery request to be answered. Had the State failedto tender exculpatory evidence, a Brady violation would have occurred. See Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d215, 83 S. Ct. 1194 (1963). The remedy for a Brady violation is a new trial. People v. Sims, 166 Ill. App. 3d 289, 310(1987). Defendant may not convert what would otherwise be grounds for a new trial into a dismissal under the speedy-trialstatute (725 ILCS 5/103--5(a) (West 1994)) by refusing to proceed to trial.

Defendant next argues that the imposition of consecutive sentences violated his rights under the due process clause of theUnited States Constitution. U.S. Const., amend. XIV. This issue was not raised prior to this petition. However,"[s]entencing issues may be reviewed as plain error where the issue is one of misapplication of law, because the right to besentenced lawfully is substantial because it affects a defendant's fundamental right to liberty." People v. Keene, 296 Ill.App. 3d 183, 186 (1998). In this argument, defendant relies extensively on Apprendi v. New Jersey, 530 U.S. ___, 147 L.Ed. 2d 435, 120 S. Ct. 2348 (2000). The United States Supreme Court issued this decision while defendant's appeal waspending. Accordingly, Apprendi is applicable to the present case. See Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d649, 107 S. Ct. 708 (1987). We will examine the merits of defendant's argument.

Defendant was convicted of two counts of aggravated criminal sexual assault. 720 ILCS 5/12--14(a)(2) (West 1994). Thisoffense is set forth in the statute governing consecutive sentencing as requiring consecutive sentencing. 730 ILCS 5/5--8--4(West 1994). In relevant part, that statute, at the time of the offenses of which defendant was convicted, provided:

"The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conductduring which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for whichdefendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where thedefendant was convicted of a violation of Section 12-13 or 12-14 of the Criminal Code of 1961, in which event the courtshall enter sentences to run consecutively." 730 ILCS 5/5--8--4 (West 1994).

The State argued that consecutive sentences were mandatory because defendant was convicted of two counts of aggravatedcriminal sexual assault (720 ILCS 5/12--14(a)(2) (West 1994)) that occurred during a single course of conduct (730 ILCS5/5--8--4 (West 1994)). The trial court accepted the State's reasoning and sentenced defendant to two consecutive terms of20 years' imprisonment.

Defendant contends that the question of whether the acts he committed were part of a "single course of conduct duringwhich there was no substantial change in the nature of the criminal objective"⁽¹⁾ (730 ILCS 5/5--8--4 (West 1994)) shouldhave been charged in the indictment, submitted to the jury, and proved beyond a reasonable doubt. Defendant relies onApprendi for the proposition that a fact that subjects a defendant to punishment more severe than the statutory maximumfor the offense in question must be submitted to the jury. 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-3. Defendant also points us to People v. Clifton, Nos. 1--98--2126, 1--98--2384 cons. (September 29, 2000). In that case, theFirst District held that Apprendi applies to certain factual determinations that result in consecutive sentencing as well as tostatutes that extend the range of a sentence for a particular offense beyond the statutory maximum. Clifton, slip op. at 52.

In Apprendi, the Supreme Court considered the constitutionality of a New Jersey statute that required an extended term ofimprisonment if the sentencing judge found, by a preponderance of the evidence, that the defendant committed theunderlying offense for the purpose of intimidating someone on the basis of race, color, gender, handicap, religion, or sexual orientation. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 442, 120

S. Ct. at 2351. The statute had the effect of increasing the punishment to which the defendant could be subjected frombetween 5 and 10 years' imprisonment to between 10 and 20 years' imprisonment. The Supreme Court first recognized thatjudges typically have wide discretion both in determining an appropriate sentence and in choosing what factors to rely on inmaking that decision. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 449, 120 S. Ct. at 2358. However, the Court noted thatthis discretion is circumscribed by statutory limits establishing the punishment for particular offenses. Apprendi, 530 U.S.at ___, 147 L. Ed. 2d at 449, 120 S. Ct. at 2358. The Court held the New Jersey sentencing scheme unconstitutionalbecause it allowed for a sentence in excess of the statutory maximum for the underlying offense on a finding of fact madeby the sentencing judge. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366-67. When a factual findingenhances a sentence beyond the range established in the statute defining the offense, it must be submitted to a jury andproved beyond a reasonable doubt. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

Apprendi must be contrasted with McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986). In thatcase, the Supreme Court addressed the constitutionality of a Pennsylvania statute that set a mandatory minimum sentencefor certain felonies on a judicial finding that the defendant visibly possessed a firearm during the commission of theoffense. McMillan, 477 U.S. at 81, 91 L. Ed. 2d at 73, 106 S. Ct at 2413. The Court noted that the statute did not alter themaximum punishment the defendant could receive, but merely limited a judge's discretion in selecting a sentence withinthe range established by the underlying offense. McMillan, 477 U.S. at 87-88, 91 L. Ed. 2d at 77-78, 106 S. Ct at 2417. Essentially, the legislature "took one factor that has always been considered by sentencing courts to bear on punishment*** and dictated the precise weight to be given that factor." McMillan, 477 U.S. at 89-90, 91 L. Ed. 2d at 78-79, 106 S. Ctat 2418. The Court concluded that it was permissible to treat visible possession of a firearm as a sentencing factor and toallow this fact to be determined by a judge rather than a jury. McMillan, 477 U.S. at 93, 91 L. Ed. 2d at 81, 106 S. Ct at2420.

From these two cases, the rule emerges that a statute may narrow a judge's discretion in sentencing, as long as it does sowithin limits established by the underlying offense. However, where a statute mandates a punishment beyond thatauthorized by the underlying offense, the factual findings that trigger the statute's application must be submitted to the jury. In the present case, the former portion of this rule applies. The sentencing judge could have imposed consecutive sentencespursuant to his discretion. People v. Jefferson, 260 Ill. App. 3d 895, 914 (1994); People v. Hemphill, 259 Ill. App. 3d 474,477 (1994); People v. Morgan, 14 Ill. App. 3d 232, 236 (1973) ("Once a defendant has been convicted of two or moreoffenses which do not result from the same conduct, the trial court may in its discretion impose consecutive sentences uponhim"). That consecutive sentences were deemed mandatory because the court found that both sexual assaults occurredduring a single course of conduct did not result in a sentence beyond that which the court could have otherwise imposed. Consequently, Apprendi was not violated.

Apprendi counsels us to look at the effect of the statute in determining whether a violation occurred. Apprendi, 530 U.S. at___, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365. In light of the present facts, only two situations were possible. Eitherdefendant's offenses were part of a single course of conduct or they were not. If they were not part of a single course ofconduct, the trial judge could have sentenced defendant to consecutive terms by virtue of his discretion. Jefferson, 260 Ill.App. 3d at 914. If they were part of a single course of conduct, the court had to sentence defendant to consecutive termspursuant to the consecutive sentencing statute. 730 ILCS 5/5--8--4 (West 1994). Because defendant was convicted ofaggravated criminal sexual assault, a finding that the two assaults occurred within a single course of conduct automaticallytriggered mandatory consecutive sentences under the statute. 730 ILCS 5/5--8--4 (West 1994). No further finding of factwas necessary. It is important to note that, because these were sexual assault convictions, the prohibition againstconsecutive sentencing contained in the statute never could have applied to defendant. 730 ILCS 5/5--8--4 (West 1994). While in most cases a finding that two offenses were part of a single course of conduct bars the imposition of consecutivesentences, in the case of aggravated criminal sexual assault, once that finding is made, consecutive sentences followautomatically. 730 ILCS 5/5--8--4 (West 1994).

Under such circumstances, it was constitutionally permissible for the trial judge to determine whether the two offenseswere part of a single course of conduct. Absent this finding, the judge would have had the discretion to impose consecutivesentences. The effect of finding that the offenses occurred during a single course of conduct was to eliminate the judge'sdiscretion and mandate consecutive sentences. This consequence does not require or allow the imposition of a sentencegreater than that which the judge could have otherwise imposed. Apprendi requires a finding of fact to be submitted to ajury only when the finding results in a punishment greater than that otherwise allowed. Apprendi, 530 U.S. at ___, 147 L.Ed. 2d at 455, 120 S. Ct. at 2362-63. Accordingly, Apprendi has not been violated.

We find the instant case controlled by McMillan, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411. In McMillan, the statuteunder review limited the judge's discretion by requiring him to impose a minimum sentence that was within the sentencingrange allowed by the underlying offense. McMillan, 477 U.S. at 81, 91 L. Ed. 2d at 73, 106 S. Ct at 2413. Similarly, in thepresent case, the consecutive sentencing statute operated to divest the judge of discretion to impose anything other thanconsecutive sentences (730 ILCS 5/5--8--4 (West 1994)), but it did not allow for a sentence greater than that which thedefendant could have otherwise received. Thus, as in McMillan, the finding necessary to limit the court's discretion did nothave to be submitted to the jury. See McMillan, 477 U.S. at 87-91, 91 L. Ed. 2d at 77-79, 106 S. Ct at 2417-19.

Defendant points us to Clifton and People v. Carney, No. 1--98--4677 (November 13, 2000) in support of his position;however, both cases are distinguishable. Those cases found Apprendi violations where consecutive sentences were deemedmandatory under another provision of the consecutive sentencing statute--that the offenses occurred during a single courseof conduct and the defendant inflicted serious bodily injury during their commission. 730 ILCS 5/5--8--4 (West 1994). Under these circumstances, a finding that multiple offenses occurred during a single course of conduct mandates concurrentsentencing unless a subsequent finding that the defendant inflicted severe bodily injury is made. Thus, a finding of severebodily injury would allow for the imposition of a sentence greater than otherwise authorized. Such a result is whatApprendi forbids. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

We have granted defendant's request to submit People v. Waldrup, 317 Ill. App. 3d 288 (2000), as additional authority. Inthat case, the court concluded that the provisions of the statute mandating consecutive sentencing where a defendant isconvicted of aggravated criminal sexual assault were unconstitutional under Apprendi. Waldrup, 317 Ill. App. 3d at 300. We believe the Waldrup court misapprehended Apprendi. In Waldrup, the court reasoned that "the imposition ofconsecutive sentences is the same as a sentence enhancement, and, therefore, *** any fact that is utilized to increase theamount of time a defendant must serve must be submitted to the trier of fact and proved beyond a reasonable doubt." Waldrup, 317 Ill. App. 3d at 300. Quoting Apprendi, the Waldrup court stated, " 'the relevant inquiry is not of form, buteffect--does the required finding expose the defendant to greater punishment than that authorized by the jury's guiltyverdict?' " Waldrup, 317 Ill. App. 3d at 300, quoting Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 457, 120 S. Ct. At 2365. The answer to this question is clearly that it does not. Absent a finding that multiple sexual assaults are part of a singlecourse of conduct, a defendant may still receive consecutive sentences pursuant to the sentencing court's discretion. SeeMorgan, 14 Ill. App. 3d at 236. What the Waldrup court failed to recognize is that a finding that two aggravated criminalsexual assaults are part of a single course of conduct does not increase a sentence beyond that to which a defendant couldotherwise be sentenced. In such circumstances, no constitutional violation occurs. See McMillan, 477 U.S. at 87-91, 91 L.Ed. 2d at 77-79, 106 S. Ct at 2417-19. To the extent that Waldrup is inconsistent with this opinion, we reject the analysisof the Waldrup court.

Because defendant was not sentenced to a term in excess of what he could have received by virtue of the jury's factualfindings and the court's exercise of its discretion, Apprendi has not been violated. Accordingly, defendant's petition forrehearing is denied and the decision of the circuit court of Lake County is affirmed.

Affirmed.

RAPP and O'MALLEY, JJ., concur.

1. For the sake of brevity, the remainder of this opinion will refer to this language simply as a "single course of conduct."