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People v. Cundiff
State: Illinois
Court: 5th District Appellate
Docket No: 5-99-0534 Rel
Case Date: 06/07/2001
                       NOTICE
Decision filed 06/07/01.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-99-0534

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,

     Plaintiff-Appellee,

v.

DAVID CUNDIFF,

     Defendant-Appellant.

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Appeal from the
Circuit Court of
Williamson County.

No. 98-CF-125

Honorable
John Speroni,
Judge, presiding.

JUSTICE HOPKINS delivered the opinion of the court:

A jury found David Cundiff (defendant) guilty but mentally ill of the offense ofattempted first-degree murder of a peace officer (720 ILCS 5/8-4(a), 9-1(a), 9-1(b)(1) (West1998)). The jury also found defendant guilty but mentally ill of attempted first-degreemurder and of armed violence; however, the trial court vacated these convictions. The trialcourt sentenced defendant to 30 years' incarceration on his conviction for attempted first-degree murder of a peace officer. Defendant appeals, contending that the State failed toprove he was guilty beyond a reasonable doubt; that he was denied the effective assistanceof counsel, as trial counsel failed to assert other affirmative defenses consistent with hisdefense of not guilty by reason of insanity; that evidence presented by the State wasprejudicial and inflammatory, thereby denying him a fair trial; that the trial court erred in notsentencing him pursuant to the provisions of section 104-26 of the Code of CriminalProcedure of 1963 (725 ILCS 5/104-26 (West 1998)); and that he is entitled to a newsentencing hearing, as the amended statute (720 ILCS 5/8-4(c) (West 1998)) under whichhe was sentenced was declared unconstitutional. We affirm.

I. BACKGROUND

Defendant stabbed Scott Houston, the police chief of Crainville, with a knife onMarch 16, 1998. On April 1, 1998, after a hearing, defendant was found unfit to stand trial. On September 3, 1998, defendant was restored to fitness and found fit to stand trial. A trialbegan and four jurors were selected when defendant was again determined to be unfit tostand trial. On March 1, 1999, following another fitness hearing, defendant was found fitto stand trial. Defendant was tried in April 1999 and found guilty of attempted first-degreemurder of a peace officer.

II. FACTS

The facts of the crime, as adduced at the trial, are as follows. Defendant, who was58 years old at the time of the incident, suffers from a mental illness-schizophrenia,paranoid type. Defendant has been in and out of mental institutions since 1971. For severalyears prior to March 16, 1998, defendant had not taken his medication for his mental illness.

Defendant lived in a mobile home on the property of his mother, Geraldine Smith. On March 16, 1998, when construction workers came to Smith's home to work, defendantthreatened the construction workers. Both defendant and the construction workers contactedthe authorities. As a result, Houston went to Smith's home to investigate.

Houston arrived at Smith's residence about 1:45 that afternoon. Defendant wasstanding outside waving a lighted flashlight. Houston told defendant why he was there. Defendant told Houston to get off his property or he would kill Houston. When Houstonasked defendant how he would do that, defendant pulled out a pocket knife and opened theblade.

Houston went into Smith's home and talked to her. Smith told Houston thatdefendant needed treatment for his mental illness. Houston called the Williamson Countysheriff's department, and the sheriff's office advised Houston to arrest defendant and to bringhim in for a mental evaluation.

Houston went outside and slowly approached defendant, trying to calm defendantdown. Defendant still had the flashlight and the open knife in his hands. Houston askeddefendant to put down the flashlight and knife and to come into the house so that they couldtalk with his mother, but defendant did not do so. When Houston got within four feet ofdefendant, defendant lunged at him, swinging the flashlight at Houston's head. Houstongrabbed defendant and wrestled him to the ground. While Houston tried to securedefendant, defendant stabbed Houston in the inner thigh of his left leg. Defendant twistedthe knife in Houston's leg. Houston took defendant's hand, with the knife still in it, andpulled it from his leg. Defendant pulled his hand loose from Houston and slashed Houston'schest, slicing Houston's shirt and ballistic vest.

Houston got the knife from defendant, placed the knife in his pocket, and handcuffeddefendant. Houston used his pack radio to call for assistance and an ambulance for himself. Two Carterville police officers arrived, followed by the ambulance. The ambulancetook Houston to Carbondale Memorial Hospital, where Houston underwent surgery to hisleg. At the trial, Houston identified his bloody pants, slashed shirt, and ballistic vest.

Orien Drew, an officer for the Carterville police department, testified that he went toSmith's home in response to Houston's call for assistance. Houston told Drew that defendanthad stabbed him, and Houston gave Drew the knife. According to Drew, defendant said,"I didn't cut him that fucking bad."

Drew took defendant to the Williamson County jail in his squad car. Several officersremoved defendant from the squad car at the jail, as defendant refused to cooperate. Drew,along with Officer Eric Frattini, then went to Carbondale Memorial Hospital. When Drewand Frattini returned to the jail, Drew spoke to defendant. Defendant told Drew that hecalled the Carterville police, and he asked Drew why the Carterville police had not come tohis residence.

Frattini, an investigator for the Williamson County sheriff's department, testified thathe met Drew's squad car at the jail. Frattini described defendant as uncooperative andbelligerent. Frattini corroborated that he and Drew went to the hospital and retrievedHouston's clothing. Frattini identified Houston's pants, shirt, and ballistic vest as theclothing he retrieved on March 16, 1998.

At this time, the assistant State's Attorney stated as follows: "[I]n light of the fact thatScott Houston has testified that there's some blood on [his clothes], I would like the jury tobe able to see them better. Since they didn't see them, I'd like to be able to hold them up forthem to see them without them having to touch them so there's no risk of any kind of healththreat." Defense counsel stated he had no objection to the prosecutor's proposed actions. Dr. David Clutts testified that he surgically repaired Houston's wound on March 16,1998. Dr. Clutts explained that Houston's wound was potentially life-threatening, as thewound was about a quarter of an inch from the femoral artery, a major artery in the leg. Dr.Clutts also stated that a person normally has 10 units of blood but that Houston had lost threeto four units of blood.

Dr. Robert Marsh, a clinical psychologist, testified that he knows the standard forlegal insanity. Dr. Marsh examined defendant in September 1998 to determine if defendantwas legally insane at the time of the incident. Dr. Marsh reviewed police reports,interviewed defendant's mother and uncle and Houston, and reviewed defendant's treatmentrecords from the Marion Veteran's Administration Hospital (VA Hospital) and ChesterMental Health Center (Chester). Dr. Marsh tried to interview defendant on three occasions;however, defendant refused to talk to him on the third occasion.

Dr. Marsh stated that defendant's treatment records establish that defendant suffersfrom schizophrenia to varying degrees, depending on defendant's medication compliance,and that defendant's symptoms include paranoia. Dr. Marsh tried to determine whichsymptoms of schizophrenia defendant was suffering from on March 16, 1998, byconsidering others' observations of defendant at the time and by structuring the questionshe asked defendant so that they might reflect defendant's symptoms.

Dr. Marsh concluded from his examination that defendant's mental illness was minorto moderate at the time of the incident. Dr. Marsh based his opinion on defendant'sstatement to Dr. Marsh that he was afraid that the construction workers would overchargehis mother when defendant could perhaps do the work for less money. Defendant did notexpress a physical fear of the construction workers. Also, defendant indicated that whenHouston arrived, defendant knew that Houston was a police officer and that Houston wasnot going to hurt him. Dr. Marsh found that defendant's memory was clear on events thatoccurred before Houston arrived at Smith's home and after he was transported in the policecar but that his memory was less clear for the time between the two events. Defendantdescribed the incident with Houston as "a little ruckus."

Dr. Marsh told defendant that he had been asked to determine whether defendant'smental illness had anything to do with the incident. According to Dr. Marsh, defendantreplied: "You know it did. *** I thought sure that mental illness would have caused whatI did." When Dr. Marsh told defendant that he was not sure that defendant's mental illnesshad caused the incident, defendant told Dr. Marsh that he did not think Dr. Marsh knewwhat mental illness was. According to Dr. Marsh, defendant also said, "What do I need ***to tell you to show you that [the mental illness] did[?]"

Because defendant indicated to Dr. Marsh that defendant believed that Houston cameto help him, Dr. Marsh did not think that defendant incorporated Houston into anydelusional thinking. Dr. Marsh explained that the fact that defendant suffers from paranoidschizophrenia alone does not equate to insanity. It was Dr. Marsh's opinion that defendantwas sane at the time of the incident with Officer Houston.

On cross-examination, Dr. Marsh admitted that defendant had been takingpsychotropic medication for his mental illness for several months before Dr. Marshinterviewed defendant and that the medication would improve defendant's thought disorder;however, Dr. Marsh stated that he took this fact into account in forming his opinion. Defendant told Dr. Marsh that his symptoms on March 16, 1998, were that he wasexperiencing "some degree of a blue light in one eye" and that he could remember hearingsome voices talking to him. Defendant communicated no other delusional thinking to Dr.Marsh.

Smith testified that she is defendant's mother. Smith explained that defendant haslived a terrified existence for the few years before the trial and that he used a flashlight toscare "whatever off." Smith stated that defendant had been in that condition for the previoustwo or three years because he had not been on medication. Smith said that althoughdefendant is better when he takes medication, defendant does not like taking the medication. Dr. David Warshauer, a clinical psychologist, testified that he examined defendanton March 25, 1998. Dr. Warshauer stated that he understood the standard for legal insanityand that he examined defendant to determine whether he was legally insane at the time ofthe incident. Defendant had not been taking his medication prior to the interview. Dr.Warshauer's examination included a psychosocial history; a review of defendant's recordsfrom the VA Hospital, Chester, and Choate Mental Health Center (Choate); a review of theincident reports of March 16, 1998; and an interview with defendant. Dr. Warshauertestified that defendant's interview did not go well, as defendant was very guarded and veryevasive, which Dr Warshauer stated is typical of individuals suffering from mental illness. Defendant would not answer many of Dr. Warshauer's questions.

Dr. Warshauer stated that defendant had nine admissions to Choate from 1971 to"1980 something." Defendant was diagnosed as paranoid schizophrenic. The samediagnosis of defendant was made at the VA Hospital and also at Chester in August 1998.

Dr. Warshauer explained that symptoms of paranoid schizophrenia are delusions andhallucinations. The symptoms can also include what Dr. Warshauer identified as "CapgrasSyndrome," which the doctor explained is a belief that a person is being impersonated bysomeone else. Dr. Warshauer stated that defendant was not sure that the judge was reallythe judge. Dr. Warshauer also explained that schizophrenics become very frightenedbecause of their delusional system, that they think other people are trying to hurt or killthem, and that because of the delusion, they become dangerous. Dr. Warshauer thoughtdefendant "may have" incorporated Houston into his delusions.

Dr. Warshauer testified that the flashlight defendant was waving was one of hisdelusions, because defendant believed that the flashlight made him more invulnerable to thelight rays that defendant thought were affecting him. Dr. Warshauer found defendant'sbehavior in March 1998 consistent with defendant's behavior during previoushospitalizations in Choate, where Dr. Warshauer was the chief psychologist. It was Dr.Warshauer's opinion that defendant was legally insane on March 16, 1998.

Dr. Warshauer agreed with Dr. Marsh that the fact that defendant is a paranoidschizophrenic does not automatically mean that defendant was insane on March 16, 1998. However, Dr. Warshauer believed that if defendant was in an acute stage of his illness,which Dr. Warshauer thought he was, then that alone would be sufficient to find defendantlegally insane. The basis of Dr. Warshauer's opinion was that defendant was not takingmedication, was evasive, would not make eye contact, would not answer questions, wasfairly withdrawn and reclusive, referred to delusions, and was not sure that the judge wasthe judge.

Dr. Warshauer admitted that defendant selected which questions he would answer. As an example, Dr. Warshauer stated that he asked defendant whether he had been marriedand that defendant, who had been married, told Dr. Warshauer he had not. Dr. Warshauercould not say whether defendant did not remember his marriage or whether he was distortingthe truth. Dr. Warshauer found that defendant's memory was good when he talked about hischildhood, his father, his educational background, and other areas of his life. Dr. Warshauerbelieved that defendant's delusions were severe enough on March 16, 1998, so that ifdefendant believed that his life was being threatened, defendant might resort to killingsomeone if he thought he had to protect his life.

The jury found defendant guilty but mentally ill of attempted first-degree murder ofa peace officer. The court sentenced defendant to 30 years' incarceration. Defendantappeals.

III. ANALYSIS

A. Legal Insanity Defense

Defendant contends that the State failed to prove his sanity at the time of the incidentbeyond a reasonable doubt and that the jury's finding that defendant was guilty but mentallyill was against the manifest weight of the evidence. We disagree.

All defendants are presumed to be sane. People v. Hill, 297 Ill. App. 3d 500 (1998). Insanity is an affirmative defense, and once it is raised, the defendant bears the burden ofproving by a preponderance of the evidence that he was legally insane at the time of theoffense. People v. Fierer, 260 Ill. App. 3d 136 (1994). The State is only required to provethe elements of the offense beyond a reasonable doubt, not that the defendant is sane beyonda reasonable doubt. 720 ILCS 5/6-2(e) (West 1998). A defendant may suffer from mentalillness and still not be found to be legally insane. Fierer, 260 Ill. App. 3d at 143. Whethera defendant is legally insane is a question of fact, and the fact finder's determination will notbe reversed unless it is contrary to the manifest weight of the evidence. People v. Sojak, 273Ill. App. 3d 579 (1995). The trier of fact is free to accept one expert's testimony overanother's, and the jury decides what weight to accord the experts' respective testimony. Hill,297 Ill. App. 3d at 517. The weight given to an expert's opinion is measured by the statedreasons and the factual details supporting the conclusion. Hill, 297 Ill. App. 3d at 518. Additionally, lay witnesses' observations of a defendant's sanity are relevant if they are madeshortly before or after the crime's occurrence. Sojak, 273 Ill. App. 3d at 587.

Here, the jury accepted Dr. Marsh's opinion concerning defendant's sanity. Thereasons and factual details for the doctor's opinions support the jury's decision. Dr. Marshattempted to determine what defendant's delusions were at the time of the offense andconcluded that, based on defendant's statements and the observations of others at the timeof the offense, defendant was delusional but his delusions did not incorporate OfficerHouston. The only delusion defendant relayed to Dr. Marsh concerned a "blue light" in hiseye and hearing voices. No evidence was produced to explain what the voices said or if thevoices were the reason defendant stabbed Officer Houston. Further, the jury may havedetermined that defendant knew what he was doing, given defendant's statements to Dr.Marsh that his mental illness caused him to do what he did.

In contrast, the basis of Dr. Warshauer's opinion was that defendant's behavior wasconsistent with his behavior on past hospitalizations and that defendant was not takingmedication, was evasive, would not make eye contact, would not answer questions, waswithdrawn and reclusive, was having delusions, and was not sure the judge was the judge.None of these facts established that defendant lacked substantial capacity to appreciate thecriminality of his conduct or that he was unable to conform his conduct to the requirementsof the law.

Both Dr. Marsh and Dr. Warshauer agreed that mental illness alone was not equal tolegal insanity. Further, both doctors found that defendant's memory was unclear only aboutthe events involving Officer Houston. Dr. Warshauer testified that defendant selected thequestions he wanted to answer and that because of some of defendant's answers, Dr.Warshauer could not determine if defendant was unable to remember or if he was distortingthe truth.

In addition, lay witnesses' testimony bolsters the jury's determination that defendantwas sane at the time of the offense. Defendant's statement to Officer Drew that he did notcut Houston very badly establishes that defendant was aware of what he was doing. Overall,defendant failed to prove by a preponderance of the evidence that he was legally insane atthe time of the crime, and the jury's finding that defendant was sane is not against themanifest weight of the evidence.

B. Ineffective Assistance of Counsel

Defendant claims that his trial counsel was ineffective because he failed to assertother viable affirmative defenses relating to his mental state. Defendant argues that hiscounsel was ineffective as he failed to assert the affirmative defense that defendant lackedthe specific intent to kill because of "diminished capacity"; because he did not argue thatdefendant's actions were not done "knowingly," as that term is used in the armed violencestatute; and because he did not raise the affirmative defense of self-defense.

The standard of review for a claim of ineffective assistance of counsel is well-established. See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052(1984) (adopted in Illinois in People v. Albanese, 104 Ill. 2d 504 (1984)). The standard ofreview is two-pronged: a defendant must show (1) that his counsel's representation fellbelow an objective standard of reasonableness and that counsel's shortcomings were soserious as to deprive defendant of a fair trial, a trial whose result is unreliable and (2) thathis counsel's unprofessional errors were so serious that there is a reasonable probability that,but for the unprofessional errors, the outcome of the proceeding would have been different. Albanese, 104 Ill. 2d at 525. The court indulges in the strong presumption that an attorney'sconduct falls within the wide range of reasonable professional conduct, and a defendantmust overcome the presumption that counsel's actions can be considered sound trial strategy. Albanese, 104 Ill. 2d at 526 (citing Strickland, 466 U.S. at 689-90, 80 L. Ed. 2d at 694-95,104 S. Ct. 2065-66). An attorney's choice of trial strategy is a matter of professionaljudgment to which a review of a counsel's competency does not extend. People v.Cordevant, 297 Ill. App. 3d 193 (1998). "Trial strategy includes an attorney's choice of onetheory of defense over another." People v. Campbell, 264 Ill. App. 3d 712, 732 (1992).

Here, defense counsel set forth the affirmative defense of insanity. The defense ofinsanity appears to have been the best defense for defendant. Simply because a trial strategyis unsuccessful is not evidence that counsel was ineffective. People v. Madej, 177 Ill. 2d116 (1997), overruled on other grounds by People v. Coleman, 183 Ill. 2d 366 (1998). Defendant has not proved that his trial counsel was ineffective, because counsel's choice ofinsanity as an affirmative defense constituted sound trial strategy.

C. Evidence of Bloody Uniform

Defendant's third argument is that the trial court abused its discretion when itadmitted Officer Houston's bloody uniform into evidence. Defendant claims that the errorwas compounded by the prosecutor's holding up the uniform to show the jury. Defensecounsel did not object to the admission of the evidence or to the prosecutor's actions at thetrial or in his posttrial motion. The failure to object at the trial and in a posttrial motionwaives the issue for consideration on appeal. See People v. Enoch, 122 Ill. 2d 176 (1988). Further, the admission of Officer Houston's uniform into evidence was a matter of discretionleft to the trial court. See People v. Stewart, 122 Ill. App. 3d 546 (1984). The evidence wasrelevant to show defendant's intent to kill the officer, an element of the offense of attemptedfirst-degree murder. People v. Williams, 165 Ill. 2d 51 (1995). Because the evidence of thebloody and slashed uniform was relevant, the plain error doctrine does not apply. Defendanthas waived this issue.

Defendant alternatively argues that his counsel was ineffective for failing to objectto the admission of the evidence and to the showing of the uniform to the jury. Defendant's argument consists of one sentence. Here, the admission of the evidence and the showing ofthe evidence to the jury were relevant to an element of the offense, so counsel's failure toobject to relevant evidence was objectively reasonable professional judgment and was nota serious unprofessional error. Defendant's counsel was not ineffective under the standardset forth in Strickland. See Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.

D. Section 104-22

Defendant next contends that the trial court erred in determining that defendant hadnot been tried pursuant to section 104-22 of the Code of Criminal Procedure of 1963 (725ILCS 5/104-22 (West 1998)), which provides as follows:

"Trial with special provisions and assistance. (a) On motion of the defendant[or] the State or on the court's own motion, the court shall determine whether specialprovisions or assistance will render the defendant fit to stand trial as defined insection 104-10.

(b) Such special provisions or assistance may include but are not limited to:

(1) Appointment of qualified translators who shall simultaneously translate alltestimony at trial into language understood by the defendant.

(2) Appointment of experts qualified to assist a defendant who because of adisability is unable to understand the proceedings or communicate with his or herattorney.

(c) The case may proceed to trial only if the court determines that suchprovisions or assistance compensate for a defendant's disabilities so as to render thedefendant fit as defined in Section 104-10. In such cases the court shall state for therecord the following:

(1) The qualifications and experience of the experts or other persons appointedto provide special assistance to the defendant;

(2) The court's reasons for selecting or appointing the particular experts orother persons to provide the special assistance to the defendant;

(3) How the appointment of the particular expert or other persons will servethe goal of rendering the defendant fit in view of the appointee's qualifications andexperience, taken in conjunction with the particular disabilities of the defendant; and

(4) Any other factors considered by the court in appointing that individual." 725 ILCS 5/104-22 (West 1998).

As a result of the trial court's ruling, the court refused to sentence defendant undersection 104-26 of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-26 (West1998)), which allows a convicted defendant to be remanded to the Department of HumanServices for a hearing and possible commitment to a mental institution rather thanconfinement in a prison. Defendant argues that the extra precautions taken by the trialcourt-daily inquiring and ensuring that defendant continued to take his psychotropicmedications, which were needed to keep him fit to stand trial, before and during defendant'strial and sentencing hearing-were "special provisions" under section 104-22. Defendantasks this court to construe section 104-22 so as to include taking medication as a specialprovision and to remand this case so that defendant could be sentenced under section 104-26.

The fundamental purpose of statutory construction is to give effect to the intent of thelegislature. People v. Watters, 231 Ill. App. 3d 370 (1992). When a court construes astatute, the language of the statute is the best indication of the drafters' intent. Watters, 231Ill. App. 3d at 380. In addition, a court should consider the reason for the law, the evils tobe remedied, and the objects and purposes to be attained. Watters, 231 Ill. App. 3d at 382. Also, a court should consider the legislative history when construing a statute, as well asconsider the statute in conjunction with other sections so that the statute's construction isconsistent and harmonious with statutes that relate to the same subject. See Watters, 231 Ill.App. 3d at 382.

Primarily, the language of this statute concerns the appointment of a person to helpa disabled defendant during a trial. Clearly, the plain language of the statute establishes thatsection 104-22 applies to cases where more than medication is needed to make a defendantfit to stand trial.

Further, the language of the statute, coupled with the legislative history of the section,reinforces our construction of section 104-22. The legislative history of the statute was setout in Watters, 231 Ill. App. 3d at 382-83. In Watters, a case involving a mentally retardeddefendant, this court noted that section 104-26 and, correspondingly, section 104-22 weredrafted as a result of the case of Donald Lang, a visually impaired, illiterate deaf-mute whowas twice indicted for murder. Donald Lang was unable to communicate by any means withanyone so as to assist in his defense. Watters, 231 Ill. App. 3d at 383. As this court statedin Watters, "The case of Donald Lang brought to the fore the dilemma of criminaldefendants who are unfit to stand trial yet are not in need of mental treatment." (Emphasisadded.) Watters, 231 Ill. App. 3d at 384. This court concluded that section 104-26 andsection 104-22 were passed by the legislature in recognition of the problems of prosecutingand sentencing a developmentally disabled and/or physically disabled defendant. Watters,231 Ill. App. 3d at 383.

Lastly, when the entire legislation concerning unfit defendants is considered (725ILCS 5/104-10 et seq. (West 1998)), our conclusion that section 104-22 does not apply todefendant's case is further supported. Section 104-21 pertains to defendants who are takingpsychotropic medication. 725 ILCS 5/104-21 (West 1998). Since the legislators saw fit toseparate defendants on medication from those needing special provisions and assistance, itis clear that section 104-22 does not apply to those defendants who only require medicationto keep them fit for trial. The evidence in the case sub judice established that defendant wastaking psychotropic medication to render him fit to stand trial, so section 104-21 applies todefendant's case and sections 104-22 and 104-26 do not. The trial court did not err in rulingthat section 104-22 did not apply to defendant's case, as the taking of medication alone isnot a "special provision" under that section. Accordingly, sentencing defendant pursuantto section 104-26 was not an option for the trial court.

E. Sentencing Hearing

Lastly, defendant contends that he is entitled to a new sentencing hearing because theamendment of section 8-4(c)(1) of the Criminal Code of 1961 (720 ILCS 5/8-4(c)(1) (West1998)), under which defendant was sentenced, was found to be unconstitutional. Defendantargues that because the court sentenced defendant to the low end of the sentencing rangeunder the amended statute, defendant's case must be remanded for resentencing inaccordance with the valid sentencing limits.

Section 8-4(c) was amended by Public Act 88-680, effective January 1, 1995. PublicAct 88-680 amended section 8-4(c)(1) by increasing the sentencing range for attempted first-degree murder from 15 to 60 years' imprisonment to 20 to 80 years' imprisonment wheneverone of the aggravating factors specified in paragraphs (1), (2), and (12) of section 9-1(b)(720 ILCS 5/9-1(b)(1), (b)(2), (12)(12) (West 1994)) were present. Pub. Act 88-680, art.35,

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