In Apprendi v. New Jersey, the United States Supreme Courtheld that "[o]ther than the fact of a prior conviction, any factthat increases the penalty for a crime beyond the prescribedstatutory maximum must be submitted to a jury, and proved beyonda reasonable doubt." 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455,120 S. Ct. 2348, 2362-63 (2000). In this direct appeal from hissentence, Townsell claims that extension of his prison term basedon the "brutal or heinous" element of subsection 5--5--3.2(b)(2)violated the rule announced in Apprendi. We agree.

Initially, the State argues that Townsell has waived hisclaim because he (1) failed to raise it below, and (2) entered aguilty plea. In either instance, the waiver doctrine is alimitation on the parties only, and we will overlook a waiver inappropriate situations. See People v. Dunlap, 315 Ill. App. 3d1017 (2000) (involving a waiver argument based on the defendant'sfailure to raise his claim below); People v. McCaskill, 298 Ill.App. 3d 260 (1998) (involving a waiver argument based on the factthat the defendant had entered a guilty plea). Considering thegravity of Townsell's claim, we decline to apply the waiverdoctrine here. See People v. Wagener, 196 Ill. 2d 269 (2001)(refusing to apply the waiver doctrine to an Apprendi claim).

The State also argues that Apprendi is inapplicable becauseTownsell's 100-year prison term does not exceed the prescribedstatutory maximum penalty for first degree murder. The Statesupports this argument by citing People v. Vida, 323 Ill. App. 3d554 (2001), where a panel of the Appellate Court, First District,concluded that the maximum sentence for first degree murder isnatural life imprisonment.⁽¹⁾ We disagree with this conclusion. See People v. Lee, 326 Ill. App. 3d 882 (2001).

In Apprendi the Supreme Court stated that the "relevantinquiry" is whether the required finding (e.g., that a murder wasbrutal or heinous) "expose[s] the defendant to a greaterpunishment than that authorized by the jury's guilty verdict." 530 U.S. at 494, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365. Atthe time of Townsell's sentencing hearing, the greatestpunishment a judge could impose based on a guilty verdict forfirst degree murder was 60 years in prison. Compare Ill. Rev.Stat. 1991, ch. 38, par. 1005--8--1(a)(1)(a) (prescribing aprison term of 20 to 60 years), with Ill. Rev. Stat. 1991, ch.38, pars. 1005--8--1(b), (c) (authorizing natural lifeimprisonment, but only upon a finding of elements additional tothose required for a guilty verdict). That fact has not changedin the meantime. See 730 ILCS 5/5--8--1(a)(1)(a) (West 2000);People v. Nitz, 319 Ill. App. 3d 949 (2001). Thus, for Apprendipurposes, the prescribed statutory maximum penalty for firstdegree murder is a 60-year prison term. See Nitz, 319 Ill. App.3d 949; People v. Armstrong, 318 Ill. App. 3d 607 (2000).

The State further argues that Apprendi is inapplicablebecause Townsell's conviction resulted from a guilty plea. Thisargument is based on the fact that when Townsell pled guilty herelinquished his right to a jury trial, which right the Statedescribes as "the constitutional foundation of Apprendi." Wenote that Townsell entered his guilty plea more than nine yearsbefore Apprendi was decided. This fact raises serious questionsabout whether any of his plea-related relinquishments encompassthe constitutional right announced in Apprendi. Furthermore, theState did not include a "brutal or heinous" element in thecharging instrument. Townsell thus did not relinquish his jurytrial right with respect to that element when he pled guilty. See People v. Fields, 1--00--0287 (January 30, 2002); People v.Kidd, No. 1--00--1492 (February 20, 2002). In any event, theholding in Apprendi certainly can apply to defendants who pleadguilty; after all, Apprendi himself was convicted based on aguilty plea.⁽²⁾

Regarding the merits of Townsell's claim, in People v. Lee,326 Ill. App. 3d 882 (2001), this court held that extension ofthe defendant's prison term based on the "brutal or heinous"element of subsection 5--5--3.2(b)(2) violated the rule announcedin Apprendi. The version of subsection 5--5--3.2(b)(2) involvedin Lee is identical to the version under which Townsell's prisonterm was extended. Our holding in Lee is thus dispositive here.

Nevertheless, the State asserts that Townsell's extendedsentence is not reversible under Apprendi because: (1) the judgemade the "brutal or heinous" finding beyond a reasonable doubt atthe sentencing hearing, despite his failure to articulate thereasonable doubt standard; and (2) any error was harmless becauseundisputed evidence from the sentencing hearing established thatthe offense was brutal or heinous. These assertions fail toaddress the constitutional problem that necessitated Apprendi.

Subsection 5--5--3.2(b)(2) essentially creates a new offense(brutal or heinous first degree murder) that is separate from,and more severe than, ordinary first degree murder. Cf. Jones v.United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215(1999) (holding that three separate offenses were established bya criminal statute containing a regular sentencing provision andtwo extended sentencing provisions); Apprendi, 530 U.S. 466, 147L. Ed. 2d 435, 120 S. Ct. 2348 (noting that New Jersey's extendedsentencing statute turned a second degree offense into a firstdegree offense); People v. Thurow, 318 Ill. App. 3d 128 (2001)(noting that an extended sentencing provision for involuntarymanslaughter stated a distinct offense), appeal allowed 194 Ill.2d 580 (2001). Townsell only pled guilty to the offense statedin the charging instrument--ordinary first degree murder. Itwould thus be fundamentally unfair to sentence him for a moresevere offense.⁽³⁾

While this appeal was pending, the State moved to amend itsrequest for relief by adding an alternate remedy. The proposedremedy is a remand for an "all-inclusive" resentencing hearingwhere the judge can consider all sentencing options, includinganother extended prison term. We took the State's motion withthe case, and we now deny it for the reasons stated above.

The highest penalty Townsell can receive for the offense towhich he pled guilty is 60 years in prison. We thus vacate theextended portion of his sentence and, pursuant to our authorityunder Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)),modify his prison term to 60 years.

The portion of the circuit court's judgment extendingTownsell's prison term is vacated, and his sentence is modifiedto 60 years.

Vacated in part; sentence modified.

LYTTON, P.J., and McDADE, J., concur.

1. The State also cites People v. Ford, No. 90083 (October 18,2001 December 3, 2001), and People v. Rivera, No. 2--98--1662(December 5, 2001), which are clearly distinguishable. In eachof those cases, unlike the instant case, the defendant's extendedsentence fell within a range authorized by an element that hadbeen proved beyond a reasonable doubt.

2. We realize that Apprendi reserved the right to challengeNew Jersey's extended sentencing statute. However, that actiononly spared him from the type of waiver argument we have alreadyrejected. His reservation did not somehow render the SupremeCourt's holding inapplicable to other guilty plea cases where, ashere, courts decline to apply the waiver doctrine.

3. These circumstances illuminate the rationale for applyingApprendi to cases involving guilty pleas. A guilty plea cannotbe knowing and voluntary unless the defendant knows the offensefor which he will be convicted as a consequence of entering theplea.