January 5, 2001

No. 3--99--0784

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

JUSTICE LYTTON delivered the opinion of the court:

The defendant, Erin Thurow, was charged with involuntarymanslaughter of a family or household member (720 ILCS 5/9--3(f)(West 1998)). The jury was instructed on the elements of simpleinvoluntary manslaughter (720 ILCS 5/9--3(a) (West 1998)), and shewas found guilty. At sentencing, the judge found that thedefendant was eligible for both an extended term sentence, due tothe tender age of the victim (730 ILCS 5/5--5--3.2(b)(4)(i) (West1998)), and an enhanced sentence based on the victim being a familyor household member. The court sentenced her to eight years inprison. The issue on appeal is whether the judge's considerationof extended term and sentencing enhancement factors violate theholding of Apprendi v. New Jersey, 530 U.S. __, 147 L. Ed. 2d 435,120 S. Ct. 2348 (2000). We affirm in part, vacate in part, andremand for further proceedings.

Facts

In November 1997, Erin Thurow and her three-year-old daughter, Tianna, were living in a homeless shelter in Elgin, Illinois. At the shelter they met Michelle Mostowski, who waspregnant. The two women became friends. In early December 1997,Erin and her daughter moved to an apartment in Joliet, and onChristmas Eve? Mostowski moved into the defendant's apartment. From late December 1997 until April 1998, the defendant was thesole financial support of the women and her daughter. In April1998, the defendant was in the delivery room with Mostowski whenher son Michael was born. After Michael's birth, the defendantcontinued to provide the only income, and Mostowski would watchboth the children.

In September 1998, Mostowski returned to work. At timesthe women's shifts overlapped, and they had to find babysittersfor their children. Finally, in January 1999, they decided towork separate shifts, so that each could look after the other'schild. Mostowski worked from 7 a.m. until around 3 p.m. at alocal Burger King; the defendant worked from 4 p.m. until midnight at a local McDonald's. Apparently all was well between thetwo women except that the defendant believed Mostowski spoiledher infant son. The two argued occasionally about this betweenthe months of September 1998 and January 1999. The defendantalso told Mostowski that she had trouble consoling Michael afterMostowski went to work, and that his constant crying was upsetting her.

On February 5, 1999, the defendant was very ill. She wastreated at the emergency room for dehydration, bronchitis, asinus infection and a throat infection. She left home for theweekend to visit family in Elgin and get some rest. When shereturned on Monday, she went back to work. Between Mondayafternoon and Thursday morning she worked three shifts, for atotal of 29 hours. After her shift on Wednesday, February 10,she came home around midnight and fell asleep on the couch withher boyfriend. The defendant awoke around 6 a.m. on February 11. Mostowski left for work around 7 a.m. and put Michael in hiswalker. The defendant's boyfriend also left for work, and Tiannawatched cartoons. The defendant was awakened around 10 a.m. byMichael's crying. She tried to calm him but was unsuccessful. Around 11 a.m., she took him to his crib for a nap. He did notcalm down, so she did something she had begun to do frequentlyover the last two months: she put her hand over his mouth to calmhim. He relaxed, took a gasp of air, and his legs and armsmoved. She then turned him over on his stomach, pulled hisblanket up, and went into the living room.

Around 1:30 p.m. her boyfriend arrived. She borrowed hiscar and went shopping. According to the defendant, when shereturned home around 2:30 p.m. her boyfriend said he had checkedon Michael while she was out, and the child was still asleep. Her boyfriend then left.

Around 3 p.m. the defendant went in to check on Michael. Hewas cold and lifeless. She became hysterical. Her daughter camein to see what was wrong and then she too became hysterical. Thedefendant called Mostowski at work and told her to come homebecause there was an emergency. The defendant then called heremployer and told her the baby was dead. The manager told her tocall 9-1-1. She did, and the 9-1-1 operator instructed her onCPR, which she performed. The emergency crews and police arrived, as did Mostowski. The child was taken to the hospital andthe police left. The defendant and her daughter remained in thehome.

About two hours later, the police returned to the home totalk to the defendant. She described her day, but omitted anyreference to her holding her hand over Michael's mouth. Thedefendant and her daughter were then taken to the police station. After the police questioned her daughter, they spoke to thedefendant. They told her that there were some inconsistenciesbetween her story and her daughter's. At that point the defendant broke down and told the story of her day again, this timeincluding the fact that she had put her hand over Michael'smouth. She was then arrested.

Ultimately, the defendant was indicted for involuntarymanslaughter with the enhancement that the victim was a family orhousehold member, a Class 2 felony. The indictment, as presentedto the jury, read:

"said defendant, acting in a reckless manner, performed anact likely to cause death or great bodily harm to someindividual, in that she covered the mouth and nose of Michael Mostowski with her hand, thereby causing the death ofMichael Mostowski, a family or household member of thedefendant."

At trial, the judge instructed the jury on the elements ofthe offense:

"to sustain the charge of involuntary manslaughter, theState must prove the following propositions: First proposition, that the defendant performed the acts which caused thedeath of Michael Mostowski, and, second proposition, thatthe defendant performed those acts recklessly, and, thirdproposition, that those acts were likely to cause death orgreat bodily harm."

The State proposed no instruction on the part of the indictment regarding the victim as a family or household member. Thedefense did not object to the proposed instruction.

The defendant was convicted on September 2, 1999. Defensecounsel moved for a new trial and the motion was denied. OnOctober 4, 1999, the trial judge found the defendant eligible foran extended term due to the tender age of the victim (730 ILCS 5--5--3.2(b)(4)(i) (West 1998)) and sentenced the defendant toeight years in prison. Defense counsel's motion to reconsiderthe sentence was denied on October 12, 1999. This appeal followed.

Analysis

The defendant asserts that she was improperly convicted ofinvoluntary manslaughter of a family or household member becausethe jury was not required to find, beyond a reasonable doubt,that the victim was a family or household member. We agree withthe defendant's contention that the State must prove everyelement of an offense beyond a reasonable doubt, but, for thereasons stated below, we find this matter is properly characterized as a sentencing issue.

Before discussing the merits of defendant's contention, wemust first address the State's assertion that the defendant haswaived any sentencing issues for failing to raise them in a post-trial motion to reconsider sentence. It is generally true that a defendant must raise sentencing issues first at the trial levelto preserve them on appeal. People v. Reed, 177 Ill. 2d 389, 686N.E.2d 584 (1997). However, under People v. Williams, 179 Ill.2d 331, 688 N.E.2d 1153 (1997), and People v. Wilson, 181 Ill. 2d409, 692 N.E.2d 1107 (1998), it is no longer clear that thedoctrine of waiver applies when, as here, the defendant challenges the statutory authority of the trial court. Additionally,because of the constitutional ramifications to this case of theSupreme Court's holding in Apprendi v. New Jersey, 530 U.S. __,147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) and that decision'simplications in this case, we find that plain error should applypursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)).

I.

Involuntary manslaughter is a Class 3 felony with a punishment range of two to five years. 720 ILCS 5/9--3(a) (West 1998);730 ILCS 5/5--8--1(a)(6) (West 1998). However, if the victim isa member of the defendant's family or household, involuntarymanslaughter is enhanced to a Class 2 felony with a punishmentrange of three to fourteen years. 720 ILCS 5/9--3(f) (West1998). A prison sentence for an unenhanced Class 2 felony isthree to seven years. 730 ILCS 5/5--8--1(a)(5) (West 1998).

The sentence for involuntary manslaughter may also beextended if the judge determines that the victim was under theage of 12 when the offense occurred (730 ILCS 5/5--5--3.2(b)(4)(i), 5--8--2 (West 1998)). When extended, thesentencing range becomes five to ten years (730 ILCS 5/5--8--2(a)(5) (West 1998)).

Here, the judge sentenced the defendant to eight years. TheState argues first that the uncontested evidence that the victimwas a family or household member is sufficient to support thesentence under the enhancement provision of the involuntarymanslaughter statute. Alternatively, the State argues that evenif the enhanced involuntary manslaughter provision does notapply, the sentence is still appropriate using the extended termstatute. Both of the arguments must fail based on Apprendi.

In Apprendi, the Supreme Court held that a New Jerseysentence enhancing procedure violated the sixth amendment asapplied to the States by the fourteenth amendment. U.S.Constitution, amend. VI, XIV. In that case, Apprendi wasconvicted pursuant to his pleas of unlawful discharge of afirearm, a crime with a punishment range of five to ten years ofimprisonment. At sentencing, the State presented evidence undera separate New Jersey sentence enhancing statute that the crimewas motivated by racial bias or hatred. If enhanced, thesentence range was increased to 10 to 20 years. The judge found,by a preponderance of the evidence, that the crime was raciallymotivated and sentenced Apprendi to 12 years in prison.

The Supreme Court held that the New Jersey sentenceenhancement procedure violated the Constitution. "[T]he effectof New Jersey's sentencing 'enhancement' here is unquestionablyto turn a second-degree offense into a first-degree offense,under the State's own criminal code." Apprendi, 530 U.S. __, 147L. Ed. 2d at 457, 120 S. Ct. at 2365. The Court disapproved ofthe attempt by the New Jersey legislature to circumvent thetypical role of the fact finder by allowing a substantive issueof the criminal act to be called a "sentencing enhancement." "[T]he relevant inquiry is one not of form, but of effect--doesthe required finding expose the defendant to a greater punishmentthan that authorized by the jury's guilty verdict?" Apprendi,530 U.S. __, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365.

II.

The State contends that Apprendi is inapplicable to theinstant case because the defendant was proven guilty of a Class 2felony which, pursuant to the statute, carries a maximumpunishment of 14 years, and she was sentenced to less than themaximum possible punishment. However, the defendant was notproperly convicted of the Class 2 felony of enhanced involuntarymanslaughter. Although the indictment charged the defendant withinvoluntary manslaughter of a family or household member, thejury was instructed to make a finding on only the basic elementsof involuntary manslaughter. The jury did not make a findingbeyond a reasonable doubt that the victim was a family orhousehold member.

Under Apprendi, "any fact that increases the penalty for acrime beyond the prescribed statutory maximum must be submittedto a jury, and proved beyond a reasonable doubt."⁽¹⁾ Apprendi, 530U.S. __, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-2363. Anyother procedure "is an unacceptable departure from the jurytradition that is an indispensable part of our criminal justicesystem." Apprendi, 530 U.S. __, 147 L. Ed. 2d at 459, 120 S. Ct.at 2366.

Here, the jury was not instructed to find all of theelements of enhanced involuntary manslaughter. We find thatSection 9--3(f) of the Criminal Code of 1961 (720 ILCS 5/9--3(f)(West 1998)) states a distinct offense that, under Apprendi,constitutionally requires proof beyond a reasonable doubt of theelements of involuntary manslaughter with the additional elementthat the victim was a family or household member. Therefore, thedefendant was improperly sentenced under the enhancementprovision of the involuntary manslaughter statute.

III.

The State argues that even if the defendant was not eligiblefor punishment under the enhanced involuntary manslaughterprovision, the judge properly sentenced her pursuant to theextended term provision of the Unified Code of Corrections. Thejudge found at sentencing that the victim was a child under theage of 12. Since an extended term factor was found, the Stateargues, a sentence of up to 10 years could be imposed.

The extended term sentence in this case is analogous toApprendi. The judge found defendant eligible for an extendedterm sentence based on a factor that was not before the jury. InApprendi, the New Jersey statutory procedure that was invalidatedby the Supreme Court required the trial court judge to find thesentence enhancing factor by preponderance of the evidence. TheCourt held that "preponderance of the evidence" was not asufficient level of proof. Apprendi, 530 U.S. __, 147 L. Ed. 2d435, 120 S. Ct. 2348. Illinois' extended term statutory schemeoffers even less constitutional safeguards than the New Jerseylaw. The Illinois statute imposes no burden of proof on thejudge; the statute merely states that certain factors "may beconsidered" by the trial judge in imposing an extended termsentence. 730 ILCS 5/5--5--3.2(b) (West 1998).

We hold that Section 5--5--3.2(b)(4)(i) of the Unified Codeof Corrections (730 ILCS 5/5--5--3.2(b)(4)(i) (West 1998)) isunconstitutional under Apprendi to the extent that it allows anincrease in punishment for a felony based on the age of thevictim where that specific finding is not charged to the jury.

Because the defendant was impermissibly sentenced to eightyears' imprisonment, we vacate the sentence and remand for a newsentencing hearing. The sentence to be imposed cannot exceedfive years, the statutory maximum term for the Class 3 felony ofinvoluntary manslaughter. The judgement is otherwise affirmed.

Affirmed in part, vacated in part, and remanded for furtherproceedings consistent with this opinion.

HOLDRIDGE and SLATER, JJ., concur.

1. The case at bar does not involve a defendant with a priorcriminal record. However, it should be noted that in Apprendithe Court noted that prior convictions may serve as the basis forthe imposition of an extended or enhanced sentence without theprior convictions being proven to the trier of fact beyond areasonable doubt.