May 22, 2001

JUSTICE BYRNE delivered the opinion of the court:

Following a jury trial, defendant, Aaron D. Swift, wasconvicted of first-degree murder (720 ILCS 5/9--1(a)(2) (West1998)). During sentencing, the trial court found that the offenseof first-degree murder committed by defendant was exceptionallybrutal or heinous behavior indicative of wanton cruelty and meritedan extended term sentence of 80 years' imprisonment pursuant tosection 5--8--2(a) and section 5--5--3.2(b)(2) of the Unified Codeof Corrections (Code) (730 ILCS 5/5--8--2(a), 5--5--3.2(b)(2) (West1998)). On appeal, defendant does not challenge the sufficiency ofthe evidence. Instead, he argues that the recent United StatesSupreme Court decision of Apprendi v. New Jersey, 530 U.S. 466, 147L. Ed. 2d 435, 120 S. Ct. 2348 (2000), mandates the reduction ofhis sentence. Defendant failed to raise this issue in the trialcourt below; however, we will review it as plain error because itaffects a fundamental right. See People v. Keene, 296 Ill. App. 3d183, 186 (1998). For the reasons that follow, we affirmdefendant's conviction, vacate his sentence, and remand the causefor resentencing.

In Apprendi, the Supreme Court held unconstitutional a NewJersey hate crime statute that increased the normal 5- to 10-yearrange of imprisonment for possession of a firearm for an unlawfulpurpose to a 10- to 20-year term if the trial judge found by apreponderance of the evidence that the defendant, when committingthe offense for which he was being sentenced, had acted with aracially biased purpose. Apprendi, 530 U.S. at ___, 147 L. Ed. 2dat 442, 120 S. Ct. at 2351. The Court held that, "[o]ther than thefact of a prior conviction, any fact that increases the penalty fora crime beyond the prescribed statutory maximum must be submittedto a jury, and proved beyond a reasonable doubt." Apprendi, 530U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. TheSupreme Court instructed that "the relevant inquiry is one not ofform but of effect--does the required finding expose the defendantto a greater punishment than that authorized by the jury's guiltyverdict?" Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 457, 120 S.Ct. at 2365.

To sustain a charge of first-degree murder, a jury must findthat the State proved all of the elements of the offense beyond areasonable doubt. People v. Joyner, 317 Ill. App. 3d 93, 110(2000). Section 5--8--1(a)(1)(a) provides that the sentence forfirst-degree murder shall range from 20 to 60 years' imprisonment. 730 ILCS 5/5--8--1(a)(1)(a) (West 1998). However, under section 5--8--2(a) of the Code (730 ILCS 5/5--8--2(a)(West 1998)), the judgemay impose an extended sentence exceeding the section 5--8--1(a)(1)(a) 20- to 60-year range if he finds by a preponderance ofthe evidence the aggravating factor that the offense wasaccompanied by exceptionally brutal or heinous behavior indicativeof wanton cruelty. 730 ILCS 5/5--5--3.2(b)(2) (West 1998). Neither section 5--8--2(a) nor section 5--5--3.2(b)(2) requiresthat the "exceptionally brutal and heinous" issue be submitted toa jury.

The facts upon which the trial court relied to increasedefendant's murder sentence were never charged in the first-degreemurder count, nor were the extended-term facts submitted to thejury in the instructions. The trial court's finding at thesentencing hearing of exceptionally brutal and heinous behaviorindicative of wanton cruelty extended the potential penalty fordefendant's offense beyond the section 5--8--1(a)(1)(a) maximum of60 years' imprisonment. According to Apprendi, this sentencingscheme violates the fourteenth amendment's proscription of thedeprivation of liberty without due process of law and the sixthamendment's right to trial by jury under the Constitution of theUnited States. U.S. Const. amends. VI, XIV; Apprendi, 530 U.S.466, 147 L. Ed. 2d 435, 120 S. Ct. 2348.

We therefore hold that section 5--8--2 of the Code isunconstitutional under Apprendi because it allows the imposition ofa prison sentence of 60 to 100 years when the court determines thatthe murder was accompanied by exceptionally brutal or heinousbehavior indicative of wanton cruelty without affording defendantthe right to a jury determination of whether the State proved thefact beyond a reasonable doubt. Accord People v. Chanthaloth, 318Ill. App. 3d 806, 816 (2001)(section 5--8--2(a)(2) unconstitutionalas applied); People v. Beachem, 317 Ill. App. 3d 693, 708(2000)(section 5--8--2(a) unconstitutional as applied); cf. Peoplev. Lee, 318 Ill. App. 3d 417, 421 (2000)(section 5--8--1(a)(1)(b)unconstitutional as applied); Joyner, 317 Ill. App. 3d at 110(section 5--8--1(a)(1)(b) unconstitutional as applied).

The State argues that the statutory sentencing range forfirst-degree murder is not 20 to 60 years' imprisonment but,rather, that the range is 20 years' imprisonment up to andincluding death. The State concludes that, because a sentence ofnatural life is not an enhanced sentence or one that exceeds thestatutory maximum, Apprendi does not apply.

The court in Lee rejected the same arguments that the Statepresents in this case. In Lee, as in the present case, the Staterelied on Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110S. Ct. 3047 (1990), in which the Supreme Court rejected aconstitutional challenge to an Arizona statute that authorized thetrial judge, rather than a jury, to determine the existence ornonexistence of aggravating factors permitting the imposition of adeath sentence for first-degree murder. Apprendi held that itsrule did not affect the holding in Walton and other capital cases. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 459, 120 S. Ct. at2366. The Apprendi court explained that those cases hold that,once a jury has found the defendant guilty of all the elements ofan offense that carries as its maximum penalty the sentence ofdeath, the judge may decide whether that maximum penalty, ratherthan a lesser one, ought to be imposed. Thus, the Lee court founda critical distinction between the statutes at issue in Walton andLee. Lee, 318 Ill. App. 3d at 422. The Arizona statute in Waltonprovided that the sentence for first-degree murder is either deathor life imprisonment. Ariz. Rev. Stat.