NO. 5-98-0657

JUSTICE KUEHN delivered the opinion of the court:

At one time, Richard Nitz knew when he was to rendevous with death, for the State of Illinois had set theappointed hour. Death was to be Nitz's punishment for killing Michael Miley and mutilating his body. However, hislast meal was never served.

After losing his direct appeal, Nitz sought collateral relief from his conviction and death sentence, based uponhis fitness to stand trial. Nitz had ingested a psychotropic drug called Tranxene during the trial. The drug wasadministered to quell anxiety. The trial was conducted without a prior fitness hearing to determine the effect of thepsychotropic medication on Nitz's mental well-being. In the absence of a hearing, our high court presumed Nitz to beunfit because of the medication's use and found that the process to the verdict and death sentence was constitutionallyinfirm. People v. Nitz, 173 Ill. 2d 151, 670 N.E.2d 672 (1996). It reversed the conviction, vacated the sentence, andordered a new trial.

The State prosecuted Nitz again for the same crime, but it did not charge Nitz in the same manner, and it didnot seek capital punishment. It charged three counts of first-degree murder. Each count alleged that Nitz shot Miley witha gun and thereby caused Miley's death. The counts differed only in alleging different mind-sets under which Nitzperformed that act. A Jackson County jury engaged in lengthy deliberations before arriving at its verdict. It found thatNitz had not intended to kill Miley and that Nitz had no knowledge that shooting Miley would in fact cause Miley'sdeath. It acquitted Nitz on the two charges that called for those findings. The jury returned a guilty verdict on a thirdcount, finding that Nitz was aware of the fact that shooting Miley created a strong probability of death or great bodilyharm. Based upon the jury's finding of guilt and the trial judge's finding that this particular first-degree murder wasaccompanied by brutal and heinous behavior indicative of wanton cruelty, the trial judge sentenced Nitz to imprisonmentfor the rest of his life. Nitz appeals the verdict and sentence.

The particular facts surrounding the offense for which Nitz was again convicted are recounted in detail by thesupreme court in People v. Nitz, 143 Ill. 2d 82, 572 N.E.2d 895 (1991). We address only those limited facts necessaryto an understanding of the legal issues raised on this appeal.

Nitz challenges the validity of the verdict based upon the following arguments: (1) that he was deprived of theconstitutional right to testify in his own defense when the trial judge ruled that his testimony, if given, could beimpeached with prior sworn testimony given during the first trial, (2) that jurors lied during voir dire and convicted himbased upon knowledge of his earlier conviction and his failure to testify and that the jury foreman lied about hisimpartiality during voir dire and concealed his preconceived belief in Nitz's guilt, (3) that he was improperly preventedfrom presenting evidence of other possible suspects who might have murdered Miley, (4) that the jury should have beeninstructed on the offense of second-degree murder, and (5) that he was improperly prevented from impeaching certainState witnesses with evidence of their prior convictions.

Nitz also challenges the validity of his sentence based upon the following arguments: (1) that his conduct wasnot brutal and heinous behavior suggestive of wanton cruelty and therefore cannot support the judge's factual finding,(2) that the trial judge should have eased the sentence based upon certain evidence offered in mitigation, and finally, (3)that the receipt of a natural-life sentence based upon a factual finding not determined by a jury under a reasonable doubtstandard violated his constitutional rights to due process, notice, and a trial by jury.

For the following reasons, we affirm the conviction and modify the sentence to a 60-year prison term.

The first argument is premised upon Nitz's absolute right to testify in his own defense. He maintains that thisright was taken from him when the trial judge ruled that the State could use his testimony at the first trial, provided thatit proved to be inconsistent with testimony tendered here. Nitz tried to bar the testimony's use, based upon hispresumptive incompetence during the first trial. He maintains that if an involuntary confession cannot be used forimpeachment purposes, prior testimony from an incompetent defendant should not be used as well.

We note that the foundation for this argument, Nitz's presumptive incompetence and his prior testimony'sunreliability because of that fact, has fallen prey to a supreme court that has come full circle in its understanding of ourfitness statute. The same court that reversed Nitz's conviction, vacated his death sentence, and granted him a new trialbecause a fitness hearing was not held no longer believes that the legislature intended to require one. We now know whatonly three members of the supreme court knew in 1996 when Nitz was granted postconviction relief. We cannot presumeNitz unfit simply because he was treated with Tranxene to manage anxiety disorders during the trial.

The supreme court has entirely abandoned the legal basis for Nitz's earlier reprieve. People v. Mitchell, 189Ill. 2d 312, 328-31, 727 N.E.2d 254, 265-67 (2000). Had the supreme court read our fitness statute in the same mannera few years ago, in all likelihood Nitz would be appealing in that undiscovered forum from whose bourn no travelerreturns.

Nitz counters this legal turnabout with several arguments that pertain to the question of his actual fitness, andhis prior testimony's arguable unreliability, given the ingestion of mood-altering medication. We need not address them.

Nitz was not deprived of the right to give testimony at his trial. He was simply not afforded the luxury of doingso without challenge from earlier sworn testimony that might have proven to be inconsistent. We have no way ofknowing what prejudice, if any, resulted from the trial court's ruling. Nitz did not testify at the trial. We suspect thatthe choice was thrust upon him by virtue of the State's power to use prior testimony sharply at odds with what he wantedto say. Notwithstanding, his choice to forego testifying, standing alone, cannot support the conclusion that he wasprejudiced. See People v. Benson, 266 Ill. App. 3d 994, 1001-02, 641 N.E.2d 617, 623-24 (1994). Without histestimony, we have no basis to review the question of trial court error. As our supreme court has noted in an analogouscontext:

"[D]efense counsel may not have it both ways by altering their trial strategy to make the best of the trial court'sorder, depriving the reviewing court of a reviewable record, and still maintain that the order was erroneouslyentered." People v. Whitehead, 116 Ill. 2d 425, 443-44, 508 N.E.2d 687, 693 (1987).

Nothing in this record tells us what Nitz hoped to establish with his testimony or how the trial court's rulingerroneously impacted what he hoped to say. Without a record, we can find no error in the trial court's ruling.

Nitz's second argument raises a specter of juror dishonesty and misconduct. It touches directly upon the sanctityof the jury deliberation process. It rests upon a juror's disavowal of her vote to convict, coupled with her assessmentof the mental processes by which other jurors arrived at a guilty verdict, based upon comments they made during jurydeliberation.

Having lost his bid to prevent the State from using his prior testimony, Nitz's strategy to defend withouttestifying prompted painstaking inquiry of prospective jurors about a defendant's right not to testify. Apart fromquestions posed by defense counsel, questions designed to condition the jury to Nitz's forthcoming silence, the trial judgespoke to each juror about the right not to testify and determined that its exercise would not affect their outlook on thecase. In essence, the trial judge engaged in the same colloquy with each prospective juror, and each one answered inidentical fashion. Here is a typical example.

"Q. You understand that Mr. Nitz does not have to testify or present any evidence?

A. Yes.

Q. That is a fundamental concept of our law. Will you hold it against him if he chooses not to testifyor to present any evidence?

A. No."

Not one of the 12 jurors selected to serve was spared the inquiry. Moreover, all of the jurors selected assuredthe court, counsel, and Nitz that the absence of his testimony would not be considered in arriving at a verdict.

Another topic of intense inquiry during voir dire was the extent to which each juror already possessedknowledge about the facts of the case. Despite a venue change to minimize juror awareness of prior events, the earlierconvictions of Nitz and his wife, Rita, were generally known to the prospective jurors. Each member of the jury saidthat he or she would decide the case only on the facts and evidence presented at the trial and not on prior knowledge ofthe case.

Joan Davis was one of the jurors selected. She voted to return a guilty verdict and affirmed that vote in Nitz'spresence when the jury was polled in open court. Before the hearing on posttrial motions, she provided Nitz with a swornaffidavit that impeached her verdict and assailed the deliberation process. The affidavit explained that Davis was oneof four "hold out" jurors, a status she held by virtue of her belief that the State failed to prove its case against Nitz. According to Davis, she abandoned her sworn duty to Nitz because she felt pressured and believed what other jurors toldher about the sentence that would be imposed. She threw her own beliefs to the wind, voted to convict someone who,in her mind, was not proven guilty, and affirmed that misconduct in open court, because she believed that Nitz wouldbe sentenced to time served.

The affidavit also addressed misconduct on the part of other jurors. Davis set forth that jurors commented aboutNitz's failure to testify and that the jurors further commented that therefore Nitz must be guilty. The affidavit also setforth that at least one juror commented that the jury had no choice but to convict, given the fact that Nitz had alreadybeen convicted. The affidavit concluded with a statement that Davis was upset that "other jurors would consider theother trials, including Nitz's wife's trial results[,] and that they would consider the fact that Mr. Nitz didn't testify."

Based upon the affidavit, the trial judge was asked to award a new trial or, in the alternative, to conduct ahearing to determine if jurors had been dishonest in answering voir dire questions. The trial judge expressed his beliefthat jurors had been forthright and honest in their responses to his questions, and the judge refused the request. He foundthat the affidavit was an attempt to impeach the verdict by raising matters that involved the nature and process of jurydeliberation.

Nitz now asks us for a new trial or, in the alternative, a remand to conduct a hearing on the possibility of jurorperjury.

We adhere to the longstanding rule of law that the testimony of jurors will not be received to establish their ownmistake or misconduct, to prove that of their fellows while in the jury room, or to otherwise impeach their own verdict. See Phillips v. Town of Scales Mound, 195 Ill. 353, 363-64, 63 N.E. 180, 184 (1902). This certainly applies to jurorDavis's revelation about her own misconduct, as well as to any misconduct engaged in by the other jurors. Juror Davismay not testify as to what transpired in the jury room as a means by which to impeach her, or the other jurors', verdict. See Sanitary District of Chicago v. Cullerton, 147 Ill. 385, 390-92, 35 N.E. 723, 724-25 (1893).

Nitz claims that this well-established rule of law, designed to protect the sanctity of jury verdicts, is not at issue. He claims to invoke an exception to the rule. He points to our acceptance of a verdict's challenge where it can be shownthat a prospective juror testified falsely on voir dire and the testimony involved a matter of potential bias and prejudice. See Hockett v. Dawdy, 180 Ill. App. 3d 491, 497, 536 N.E.2d 84, 87 (1989). Based upon this principle, he contends thatthe verdict was reached by jurors who committed perjury when they said that a failure to testify would not be considered. He also maintains that jurors committed perjury when they said that the verdict would be decided solely upon facts andevidence presented at the trial. It follows from this position that the affidavit was not really offered to impeach theverdict by way of a showing that jurors engaged in misconduct during deliberations. Rather, the affidavit was offeredto impeach the verdict by showing how jurors lied in answer to inquiries made during voir dire.

Although juror Davis believes that jurors used Nitz's earlier conviction and failure to testify as a basis toconvict, we are not willing to accept her conclusion. Juror Davis may well have heard improper comments duringdeliberations, but other than herself, she does not know and cannot say why any particular juror voted to convict. Whilecertain jurors may have expressed thoughts inconsistent with their charge, we would like to think that all of the jurors,save juror Davis, voted their conscience based solely upon the facts and evidence submitted. In any event, the contentof the affidavit does not prove otherwise.

More importantly, the exception carved out by Hockett v. Dawdy was designed to deal with circumstances wherejurors consciously conceal facts about themselves that would expose a predisposition, bias, or prejudice detrimental tofair and open-minded thinking. It was not designed to police the jury deliberation room for comments inconsistent withthe instructions given and to later use those comments in order to maintain that jurors failed to deliver on voir direcommitments to follow the law. There is good reason why jurors are asked about potential silence in the face ofaccusation and are specifically instructed not to consider a defendant's silence. We know that a mute defense is goingto bother and trouble people, regardless of legal guarantees that allow for it. We suspect that the comments juror Davisheard are not all that uncommon in the process of deliberation, despite all efforts to keep jurors from such thoughts. Hopefully, when a juror points out that the defendant failed to testify, the comment upsets another juror who promptlypoints out the judge's instruction not to consider that fact. In any event, we will not invite a massive attack on thesanctity of verdicts by allowing the use of comments made during jury deliberations to suggest that the jurors did notperform their duty to follow the law or otherwise shirked some commitment to legal principle made during voir dire. Such an exception would engulf the rule.

Juror Davis explicates our view. She told the judge and the parties during voir dire that she would decide thecase solely upon the facts and the evidence presented. She also told them that if she did not believe that the evidenceestablished guilt beyond a reasonable doubt, if she believed that the State failed to prove its case, she would find thedefendant not guilty. According to her, she did not do either. Her decision was guided by a need to relieve herself ofdiscomfort from peer pressure and a misadvised belief that she would not do Nitz much harm by abandoning herconvictions. If the statements she made on voir dire provided a basis to impeach the verdict and warranted a new trial,she, and any other juror, would be empowered to impeach a verdict by confessing misconduct. The misconduct wouldsimply have to be recast from the deliberation room back to the voir dire session where commitments to perform theduties of a juror were made.

Nitz's request does not raise a question of juror dishonesty on a matter of bias or prejudice. It constitutes aneffort to impeach a jury verdict on matter that involves the nature and process of deliberations. Jury verdicts should be,and will be, insulated from such attack.

The third argument deals with Nitz's attempt to introduce evidence of other possible suspects who might havecommitted the murder. Due to the space limitations imposed by Supreme Court Rule 23 (166 Ill. 2d R. 23), thediscussion of this issue will not be published.

Next, Nitz quarrels with the trial judge's refusal to instruct on the offense of second-degree murder. Nitz arguesthat the second-degree-murder instruction was warranted on the basis of mutual quarrel or combat. The instructionshould be given where there exists some evidence of serious provocation which, if believed by the jury, would reducethe crime to second-degree murder. People v. Kidd, 295 Ill. App. 3d 160, 167, 692 N.E.2d 455, 460 (1998).

A person commits second-degree murder when "[a]t the time of the killing he is acting under a sudden andintense passion resulting from serious provocation by the individual killed or another whom the offender endeavors tokill, but he negligently or accidentally causes the death of the individual killed." 720 ILCS 5/9-2(a)(1) (West 1996). "Serious provocation" is defined as "conduct sufficient to excite an intense passion in a reasonable person." 720 ILCS5/9-2(b) (West 1996). The defendant must be acting under a sudden and intense passion spurred from seriousprovocation that the law recognizes as reasonable. People v. Garcia, 165 Ill. 2d 409, 429, 651 N.E.2d 100, 110 (1995). The only categories of provocation that courts recognize as sufficient to warrant a second-degree-murder instruction aremutual quarrel or combat, substantial physical injury or assault, illegal arrest, or adultery with one's spouse. Garcia,165 Ill. 2d at 429, 651 N.E.2d at 110. Passion on behalf of the defendant, no matter how violent, will not relieve himof culpability for first-degree murder unless it is engendered by provocation that the law recognizes as reasonable. Garcia, 165 Ill. 2d at 429, 651 N.E.2d at 110.

Mutual quarrel or combat is defined as a " 'fight or struggle entered into by both parties willingly or by mutualfight upon a sudden quarrel and in hot blood upon equal terms ***.' " People v. Jackson, 304 Ill. App. 3d 883, 893, 711N.E.2d 360, 368 (1999) (quoting People v. Rivera, 255 Ill. App. 3d 1015, 1026, 627 N.E.2d 294, 301 (1993)). Theconfrontation must be mutual, and the evidence must indicate that both the accused and the victim willingly participatedin a fight. Jackson, 304 Ill. App. 3d at 893, 711 N.E.2d at 368. In addition, the evidence will not support a second-degree-murder instruction where there is provocation but the defendant's retaliation is not proportional. Jackson, 304Ill. App. 3d at 893, 711 N.E.2d at 368.

A defendant is entitled to an instruction on his theory of the case if there is some foundation for the instructionin the evidence, and if there is such evidence, it is an abuse of discretion for the trial court to refuse to so instruct the jury. People v. Jones, 175 Ill. 2d 126, 131-32, 676 N.E.2d 646, 649 (1997).

We find that the trial court did not abuse its discretion in refusing to give Nitz's second-degree-murderinstruction, because Nitz did not present sufficient evidence to warrant giving that instruction. There is nothing in theevidence to establish that Nitz was acting under a sudden and intense passion resulting from serious provocation at thetime he beat and killed Miley. This was not mutual combat or quarrel as that term has been defined. It was not a fighton equal terms.

In an attempt to support his claim of mutual quarrel or combat, Nitz points to testimony that Miley followedhim to his trailer, exited his car, and advanced to the steps of Nitz's front porch. Nitz also points to the testimony ofMichael Stearns, who testified that Nitz told him that he had killed a homosexual with whom he had a "run-in," and thetestimony of Danny Walker, who testified that Nitz had told him that words had been exchanged before Nitz killed Miley.

Mere words, gestures, or trespass to property do not constitute the kind of serious provocation contemplatedby the statute. People v. Strader, 278 Ill. App. 3d 876, 884, 663 N.E.2d 511, 516 (1996). The evidence here shows thatthere was no struggle with Miley prior to the time that Nitz struck him with a baseball bat, shot him in the head, anddecapitated him. The evidence shows that no more than words were exchanged. No evidence was presented to showthat Miley threatened Nitz, and even if the victim's act of following Nitz home could be viewed as provocation, Nitz'sretaliation was not proportional. The nature of the contact characterized by Nitz beating Miley with a baseball bat whileMiley remained "unarmed" could hardly meet the definition of mutual combat, which envisions a fight or struggle onequal terms. See Jackson, 304 Ill. App. 3d at 894, 711 N.E.2d at 368.

Accordingly, under the facts of this case, no second-degree-murder instruction was warranted, and the trial courtdid not abuse its discretion by rejecting that instruction.

The fifth argument deals with the trial court's refusal to allow Nitz to impeach two of the State's witnesses withevidence of prior misconduct. We will discuss this issue in the immediately following, nonpublishable portion of thisopinion.

Finally, Nitz wants us to reverse his life sentence of imprisonment. He first argues that the trial judgeerroneously found that his conduct was brutal and heinous behavior indicative of wanton cruelty.

Our fellow courts have attempted to refine what the words brutal and heinous mean. Heinous conduct has beencalled "hatefully or shockingly evil" and "grossly bad" conduct. People v. Nielson, 187 Ill. 2d 271, 299, 718 N.E.2d131, 148 (1999) (quoting People v. Lucas, 132 Ill. 2d 399, 445, 548 N.E.2d 1003, 1022 (1989) (quoting People v. LaPointe, 88 Ill. 2d 482, 501, 431 N.E.2d 344, 353 (1981) (quoting Webster's Third New International Dictionary 1050(1971)))). Brutal conduct has been called "grossly ruthless," "devoid of mercy or compassion," and "cruel and cold-blooded." Nielson, 187 Ill. 2d at 299, 718 N.E.2d at 148 (quoting Lucas, 132 Ill. 2d at 445, 548 N.E.2d at 1022 (quotingLa Pointe, 88 Ill. 2d at 501, 431 N.E.2d at 353 (quoting Webster's Third New International Dictionary 286 (1971)))). We find no need to elaborate on what the words brutal and heinous mean.

We are mindful of the fact that it is hard to find a murder that does not possess some element of brutality, doesnot appear heinous in nature, and could not be said to show a degree of wanton cruelty to one's fellow man. Yet, certainmurders stand apart from others when we think of these terms.

Nitz repeatedly inflicted blows to the head of a downed and defenseless Miley, blows administered with abaseball bat. An eyewitness estimated that he may have taken as many as 20 swings. Nitz then stuffed Miley's body intothe trunk of his car. He drove Miley to a remote destination, opened the trunk, and fired a bullet into Miley's head. Tohamper future investigation and conceal his foul deeds, he severed the head from Miley's body and disposed of it in partsunknown.

When we think of what Louisville Slugger can do with a piece of white ash and we envision it employed as aweapon aimed at the skull of a listless young man, we might wonder about the bloody sight that it could produce and thedegree of pain that it must have inflicted. We might wonder how Nitz managed to fight fatigue, having taken the numberof rips that he did. We might wonder whether the badly beaten young man was still conscious when Nitz stuffed himinto the trunk, whether he gasped for his last breaths of air while entombed in those surroundings, whether he felt relievedwhen the trunk opened and fresh air hit his lungs, and whether he knew his final moment was at hand when he saw thegun trained at his head. While we might further ponder where the head of Michael Miley has come to rest, there is onething over which we need not speculate-whether this crime fits the definition of brutal and heinous conduct indicativeof wanton cruelty. We find no abuse of discretion in the trial judge's finding.

Nitz's second attack on the life-imprisonment sentence points to mitigation evidence that failed to sway the trialjudge from imposing the harshest sentence available. The trial judge considered the mitigating evidence but rejectedit, finding that Nitz lacked sufficient rehabilitative potential to warrant a mitigated sentence. Thus, the judge did not veerfrom his judgment that Nitz should receive the most severe punishment at hand, despite hearing evidence that Nitz wasemotionally and physically abused as a child, suffered from mild frontal-lobe brain damage, and had demonstrated finerhuman qualities at certain times during his life. It was within the trial judge's discretion to allow the seriousness of theoffense to guide his decision in finding the proper punishment to impose. His rejection of the factors in mitigation wasnot an abuse of discretion.

Finally, we are asked to determine whether the statutory mechanism for the imposition of the life sentenceimposed in this case deprived Nitz of liberty without due process of law and of the right to have a jury determine thosefacts that set his limit of exposure to punishment. The constitutional challenge focuses on the manner in which our lawallows a sentencing judge to impose life's duration as a prison term. The first-degree-murder sentencing statute increasesthe maximum penalty that a sentencing judge can impose, based upon the judge's determination that the killing wasaccompanied by brutal or heinous behavior indicative of wanton cruelty. Life imprisonment, as opposed to a maximumprison term of 60 years, can be imposed if, but only if, the judge first finds that the murder was committed in anexceptionally brutal or heinous way. We are asked to examine this sentencing scheme in light of Apprendi v. New Jersey,530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), a case in which the United States Supreme Court held a NewJersey hate-crime statute unconstitutional because it commissioned judges to make a factual finding that enhanced theirpower to punish beyond the maximum penalties prescribed for any given criminal offense.

In 1994, Charles Apprendi Jr. took his handgun and fired a spray of .22-caliber bullets into the home of his newneighbors. Apparently, the newly arrived family did not fit Apprendi's color criteria for living in a Vineland, New Jerseyneighborhood. Apprendi was indicted with numerous criminal offenses because of his misconduct, but none of themalleged that his actions were racially motivated. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351.

Apprendi pleaded guilty to possession of a firearm for an unlawful purpose, an offense for which the New Jerseylegislature enacted a 10-year maximum prison sentence. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 442-43, 120 S. Ct.at 2352. However, a separate New Jersey hate-crime statute authorized the imposition of greater punishment for anycrimes motivated by racial hatred. The trial judge found that Apprendi's crime was so motivated and, because of thatfact, sentenced Apprendi to a prison sentence greater than the 10-year maximum that could otherwise have been imposed. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 443, 120 S. Ct. at 2352.

The Supreme Court, relying upon constitutional protections of due process, notice, and the right to a trial byjury, struck down the New Jersey hate-crime statute. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351. The Court took an exhaustive look at what our founding fathers promised when they bestowed the right to a trial by juryin all criminal cases. It found that a part of that promise was the right to have a jury determine all facts necessary to adetermination of the maximum punishment the law allows. The Supreme Court handed down a constitutional-based rulewhen it stated, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond theprescribed statutory maximum must be submitted to a jury[] and proved beyond a reasonable doubt." Apprendi, 530 U.S.at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

Here, the sentencing judge determined a fact that was not submitted to the jury-that this murder, as opposedto other first-degree murders, was accompanied by exceptionally brutal and heinous conduct indicative of wanton cruelty. Based upon his finding as to the crime's singular nature, the sentencing judge increased his maximum sentencing optionfrom 60 years of imprisonment to imprisonment for life's duration. The State thus used the jury's verdict, coupled withthe sentencing judge's finding, to obtain the maximum sentence prescribed by law for the offense of first-degree murder. The statutory mechanism employed spared the State from having to prove beyond a reasonable doubt that Nitz's murderwas committed in a particularly extreme way, set apart from other murders by its brutal and heinous nature.

The sentencing provision at issue establishes two tiers of punishment for the crime of first-degree murder. Section 5-8-1 of the Unified Code of Corrections provides as follows:

"(a) Except as otherwise provided in the statute defining the offense, a sentence of imprisonment fora felony shall be a determinate sentence set by the court under this Section, according to the followinglimitations:

(1) for first degree murder,

(a) a term shall be not less than 20 years and not more than 60 years, or

(b) if the court finds that the murder was accompanied by exceptionally brutal andheinous behavior indicative of wanton cruelty or, except as set forth in subsection (a)(1)(c)of this Section, that any of the aggravating factors listed in subsection (b) of Section 9-1 ofthe Criminal Code of 1961 are present, the court may sentence the defendant to a term ofnatural life imprisonment ***." 730 ILCS 5/5-8-1(a) (West 1996).

The question of whether this sentencing scheme offends the constitution in the same manner that New Jersey'shate-crime statute did has already been addressed by this court. People v. Beachem, 317 Ill. App. 3d 693, 740 N.E.2d389 (2000); People v. Joyner, 317 Ill. App. 3d 93, 739 N.E.2d 594 (2000). In Beachem, a first district panel concludedthat an extended-term 90-year prison sentence imposed under section 5-8-1, based upon the sentencing judge's findingthat the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, violated thesame constitutional provisions invoked by Apprendi. Beachem, 317 Ill. App. 3d at 708, 740 N.E.2d at 398-99. TheBeachem panel rejected an argument that the State urges us to adopt. In Joyner, a second district panel addressed theconstitutionality of section 5-8-1(a)(1)(b) (730 ILCS 5/5-8-1(a)(1)(b) (West 1996)), the same sentencing provision atissue here. Joyner, 317 Ill. App. 3d at 109, 739 N.E.2d at 605-06. In light of the Apprendi ruling, the second districtheld that section 5-8-1(a)(1)(b) provided an unconstitutional method for the imposition of a life sentence. Joyner, 317Ill. App. 3d at 110, 739 N.E.2d at 606-07. The court found that the provision impermissibly allows the imposition ofa life sentence upon a factual finding reached by the sentencing judge rather than the defendant's jury. Joyner, 317 Ill.App. 3d at 110, 739 N.E.2d at 606-07. It reasoned that the exceptionally egregious nature of the defendant's conductwas a fact that the jury needed to determine and a fact that the State needed to prove beyond a reasonable doubt. Joyner,317 Ill. App. 3d at 110, 739 N.E.2d at 606-07. The Joyner panel ruled without the benefit of the argument that the Stateraises here. For that reason, the State urges us to depart from its decision.

The State also maintains that the Beachem panel rejected its argument without really addressing it anderroneously found that 60 years' imprisonment is the prescribed statutory maximum penalty for the crime of first-degreemurder.

Because our sentencing statutes authorize judges to make an array of factual findings that unleash greaterpunishment, we have been inundated with Apprendi-based arguments challenging the validity of punishments imposedunder those statutes. The State's counter to most of those arguments is similar to the position that it takes here. Althoughthe State's view has found some acceptance, its legitimacy remains unsettled. See People v. Sutherland, No. 1-98-3802(December 1, 2000) (where Apprendi was held inapplicable because section 5-8-4(a) criteria do not increase the sentencebeyond the prescribed statutory maximum). But see People v. Clifton, Nos. 1-98-2126, 1-98-2384 (cons.) (September29, 2000); People v. Carney, 317 Ill. App. 3d 806, 740 N.E.2d 435 (2000).

The State's argument draws upon the constitutional-based rule that emerges from the Apprendi decision, a ruleexpressed in the following words:

"Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribedstatutory maximum must be submitted to a jury[,] and proved beyond a reasonable doubt." (Emphasis added.)Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2262-63.

Based upon this statement of principle, the State maintains that Apprendi's dictate is not offended by hownatural-life imprisonment is imposed under Illinois law. The State takes the position that Apprendi stands for no morethan what the stated rule declares. It claims that if Apprendi means what it says, it only proscribes the use of nonjuryfactual determinations to increase a defendant's sentence where the increase extends the criminal penalty beyond theprescribed statutory maximum sentence enacted for the offense charged. Conversely, the State argues that Apprendi doesnot condemn sentences that remain within the maximum penalty that lawmakers have authorized judges to impose fora given offense. The State concludes that any factor that varies the range of sentence can be assigned to a judge fordetermination so long as it is not a factor that authorizes an increase in punishment for a crime beyond the prescribedstatutory maximum.

The State asks the following question: Under Illinois law, what is the prescribed maximum penalty for the crimeof first-degree murder? According to the State, this is the required inquiry and, if properly answered, places section 5-8-1(a)(1)(b) beyond Apprendi's reach.

We agree with the State that the simple answer to the question posed is death. We also agree with the State thatin noncapital cases, the maximum prescribed penalty for first-degree murder is natural-life imprisonment. Notwithstanding, we cannot agree with the State's conclusion that because Nitz's life sentence does not exceed themaximum prescribed penalty for the offense of first-degree murder, it necessarily withstands constitutional challenge. The State concludes that because the maximum noncapital penalty for first-degree murder is natural-lifeimprisonment, and because the sentencing judge imposed a sentence that did not exceed the maximum prescribed penaltyfor the offense charged, the procedure employed in the imposition of Nitz's life sentence afforded due process of lawand all jury determinations to which Nitz was constitutionally entitled. In support of its conclusion, the State emphasizesthat the legislature clearly empowered courts to impose a life sentence upon any person who committed first-degreemurder in a particularly brutal or heinous manner. The State argues that the language "not more than sixty years"contained in section 5-8-1(a) does not set a maximum penalty but merely states the high range of a lesser tier ofpunishment. Section 5-8-1(a) exists to limit sentencing discretion to a range of lesser penalties in those cases where theaggravating "sentencing factors" contained in section 5-8-1(a)(1)(b) do not exist. Thus, the State views the two-tieredsentencing scheme as a method of limitation rather than enhancement. Based upon this view, it argues that the trial judgedid not impermissibly enhance Nitz's sentence. The trial judge merely determined that this was not the type ofunremarkable first-degree murder that would limit his sentencing range to punishment's first tier.

This position conforms to the language that Justice Stevens chose to use when he drafted Apprendi'sconstitutional imperative. It follows from this construct that Nitz's sentence would not suffer the constitutional infirmitythat infected Apprendi's sentence. Apprendi was punished beyond the maximum 10-year sentence established for thecrime that he had committed. But Nitz was only punished with the prescribed statutory maximum sentence for first-degree murder, a penalty no more severe than what the law allowed for when Nitz committed the crime.

By focusing upon the precise wording of one sentence among many that comprise the Apprendi ruling, we couldgreatly simplify our task. Such a focus would free us from an encounter with the broader constitutional message that areading of the entire decision yields. The State acknowledges that another message lurks behind the rule's wording, amessage that the State has referred to as the other Apprendi ruling.

The Apprendi decision cannot be read in isolation. When read in conjunction with the case that foreshadowedit, the basic premise of the State's argument is drawn into question. The State, of necessity, assumes that the languageused to state the rule was designed to limit its application to the rare circumstance that befell Apprendi, where a separatehate-crime statute empowered Apprendi's sentencing judge to punish beyond the prescribed maximum sentence alreadyestablished for his offense. While the words used in the holding were necessary in order to align the ruling withApprendi's circumstance, they were not intended to narrowly confine the constitutional protection to only those criminaldefendants sentenced under statutes that enhance punishment beyond a prescribed statutory maximum. This conclusionfinds clear support in a reading of the entire paragraph that contains the sentence relied upon by the State. When weexamine the three sentences that make up that paragraph, we find that the two sentences that bracket the rule are criticalto an understanding of the message that Justice Stevens was trying to convey. We immediately discover the importanceof reading Apprendi in light of its harbinger, Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215(1999). Justice Stevens wrote:

"In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirmsthe opinion that we expressed in Jones. Other than the fact of a prior conviction, any fact that increases thepenalty for a crime beyond the prescribed statutory maximum must be submitted to a jury[,] and proved beyonda reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurringopinions in [the Jones] case: '[I]t is unconstitutional for a legislature to remove from the jury the assessmentof facts that increase the prescribed range of penalties to which a criminal defendant is exposed.' " (Emphasisadded.) Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2262-63 (quoting Jones, 526 U.S. at252-53, 143 L. Ed. 2d at 332, 119 S. Ct. at 1228 (Stevens, J., concurring)).

We cannot see how Justice Stevens could have intended the limitation that the State suggests and, in the nextbreath, couple his narrowly confined rule to an endorsement of what he had to say in Jones. It is simply not possible. By coupling Apprendi's circumstance to the circumstance confronted by Jones and to the views he expressed inaddressing the federal statute struck down in Jones. Justice Stevens necessarily extended the constitutional rule to statutesother than those limited statutes whose enhancement schemes permit penalty increases beyond prescribed statutorymaximum penalties. Jones's sentence was struck down even though it did not exceed the prescribed statutory maximum. In light of the nature of the sentencing statute at issue in Jones and the mechanism that it employed to enhance Jones'ssentence, the decision in Jones suggests that due process and the right to a trial by jury are constitutional guarantees thatvarious sentencing schemes can offend, depending upon how a legislature unleashes the power to punish for a givenoffense and whether that power is constrained in the absence of additional factual findings. The required factual findingsdo not have to increase penalties beyond the prescribed statutory maximum, as was the case with Apprendi. The factremoved from jury consideration merely has to increase the prescribed range of penalties to which a criminal defendantis exposed.

Jones is particularly instructive, because the federal statute at issue was structured in a fashion closely akin tomany of the Illinois sentencing statutes now under Apprendi attack, including the statute at issue here. The federal statutethreatened a maximum penalty of 15 years' imprisonment for the offense of "carjacking." The statute also provided thatif "serious bodily injury" occurred during the course of the carjacking, the offender would be subject to imprisonmentfor up to 25 years. If death occurred during the course of the crime, the offender was subject to life imprisonment. Jones, 526 U.S. at 230, 143 L. Ed. 2d at 318, 119 S. Ct. at 1218. Whether serious bodily injury or death occurred duringthe course of the carjacking were not facts assigned to the jury for decision. Congress wanted the sentencing judge todecide the existence of serious bodily injury or death as "sentencing factors" that opened the way to higher punishmentranges. This tiered approach to punishment, hinged upon facts assigned to the sentencing judge for determination,formed the constitutional question addressed by the Supreme Court. Jones, 526 U.S. at 231-32, 143 L. Ed. 2d at 319,119 S. Ct. at 1218-19.

Jones was convicted of federal carjacking. Jones, 526 U.S. at 231, 143 L. Ed. 2d at 318, 119 S. Ct. at 1218. The sentencing judge determined that one of the victims of the carjacking had sustained a perforated eardrum during thecourse of the crime, and based upon a finding of serious bodily injury, the judge sentenced Jones to a 25-year prisonterm. Jones, 526 U.S. at 231, 143 L. Ed. 2d at 318-19, 119 S. Ct. at 1218. Thus, Jones's sentence was not enhancedbeyond the prescribed statutory maximum. Jones received the prescribed statutory maximum of 25 years, a sentence nomore severe than the law allowed for when Jones committed the crime.

The Supreme Court framed the issue as follows:

"This case turns on whether the federal carjacking statute *** defined three distinct offenses or a singlecrime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from therequirements of charge and jury verdict." Jones, 526 U.S. at 229, 143 L. Ed. 2d at 317, 119 S. Ct. at 1217.

The Court was called upon to examine the distinction between a sentencing factor and an element of anunderlying offense. Jones, 526 U.S. at 232, 143 L. Ed. 2d at 319, 119 S. Ct. at 1219. It found that the carjacking statuteestablished separate offenses by the specification of distinct elements. As such, the infliction of severe bodily injury wasan element that had to be "charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for itsverdict." Jones, 526 U.S. at 252, 143 L. Ed. 2d at 331, 119 S. Ct. at 1228.

The confirmation and endorsement of Jones by the Apprendi majority enlightens the central premise of theconstitutional rule-it is wrong to convict someone of one crime and sentence them for another. Laws that allow for iterode the value of the right to a trial by jury. The Supreme Court addressed this in Jones:

"If a potential penalty might rise from 15 years to life on a nonjury determination, the jury's role wouldcorrespondingly shrink from the significance usually carried by determinations of guilt to the relativeimportance of low-level gatekeeping: in some cases, a jury finding of fact necessary for a maximum 15-yearsentence would merely open the door to a judicial finding sufficient for life imprisonment. It is therefore notrivial question to ask whether recognizing an unlimited legislative power to authorize determinations settingultimate sentencing limits without a jury would invite erosion of the jury's function to a point against whicha line must necessarily be drawn." (Emphasis added.) Jones, 526 U.S. at 243-44, 143 L. Ed. 2d at 326, 119 S.Ct. at 1224.

With this in mind, we address the question of whether Apprendi's constitutional rule was meant to apply wherethe maximum prescribed penalty established for a given crime is a penalty that cannot be imposed unless a judge firstmakes an additional required finding of fact beyond those facts that the jury determined in the return of a guilty verdict. We examine this question under the facts of this case, where the trial judge found that Nitz committed a different kindof murder, one that set his crime apart from other first-degree murders and increased his exposure to punishment.

We believe that the sentencing mechanism used to impose life imprisonment in this case offends the constitutionin a manner that the United States Supreme Court intended to proscribe. The statutory machinery employedimpermissibly violated the constitutional protections afforded by the due process clause and the sixth amendment'sguarantee to a jury trial.

A proper determination of the constitutionality of our first-degree-murder sentencing scheme requires a lookat the effect of the sentencing judge's finding of fact. When we examine the machinery for the imposition of a lifesentence, we need to ask: What was the most severe punishment the law allowed the trial judge to impose, absent hisfinding that Nitz killed Miley in a brutal and heinous manner indicative of wanton cruelty? Justice Stevens explains whythis question is important to the promise of a trial by jury: "[T]he relevant inquiry is not one of form, but of effect-doesthe required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365. When this inquiry is made, its answer compels aconclusion that our legislature has designed a method for imposing life imprisonment in certain cases of first-degreemurder that offends the constitution.

While our legislature clearly authorized the imposition of natural-life imprisonment in certain exceptional casesof first-degree murder, it did not permit the imposition of a life sentence based solely upon the facts determined by a juryin arriving at its guilty verdict. The findings of fact left for a jury in accordance with the State's burden of proof do notinclude the finding of fact required to impose a life sentence. Judges cannot impose a life sentence under our UnifiedCode of Corrections based upon the findings of fact that make up the jury's guilty verdict. To increase the sentencingrange from the 20-to-60-year range set forth in section 5-8-1(a)(1)(a), the sentencing judge must first find an additionalfact, not decided by the jury. Without the required additional finding, the judge is constrained by law to impose asentence no more severe than imprisonment for 60 years. Hence, a 60-year prison term is the most punishment to whichan accused is exposed on the facts assigned to the jury for determination. A 60-year prison term is the maximumsentence prescribed by law for those facts that define the crime of first-degree murder. Those are the facts that aresubmitted to a jury for determination, facts that must measure up to a reasonable doubt standard of proof before the Statehas the right to impose any form of punishment.

Thus, the permanent loss of freedom is a potential penalty for committing first-degree murder. However, itsactual imposition as a punishment turns upon a fact that a state officer is empowered to decide, rather than a jury. Thepromise of a trial at which facts are determined by fellow citizens rather than state officers or government officials cannotabide such a scheme. Justice Scalia, in an answer to the Apprendi dissent, provides the simple reason when he explainswhat the right to trial by jury guarantees:

"What ultimately demolishes the case for the dissenters is that they are unable to say what the right to trial byjury does guarantee if, as they assert, it does not guarantee-what it has been assumed to guarantee throughoutour history-the right to have a jury determine those facts that determine the maximum sentence the lawallows." (Latter emphasis added.) Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 460, 120 S. Ct. at 2367 (Scalia,J., specially concurring).

We adhere to Justice Scalia's view of what the right to a trial by jury has historically guaranteed and, therefore,must continue to guarantee-the right to have a jury determine those facts that determine the maximum sentence that thelaw will allow. After a jury determines the facts that fix the limit of exposure to punishment, judges are free to considera wide range of factors to determine whether the maximum punishment should be imposed.

The effect of the trial judge's factual finding under section 5-8-1(a)(1)(b) was to expose Nitz to a greaterpunishment than that authorized by the jury's guilty verdict. Natural-life imprisonment was therefore imposed inviolation of the constitutional right to a trial by jury. Because Nitz was unlawfully sentenced to life imprisonment andbecause the trial judge's sentencing findings are quite clear as to the type of sentence Nitz deserves, we will exercise ourauthority under Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) and modify the sentence to a 60-yeardeterminate term of imprisonment, the maximum sentence the law allows us to impose on those facts decided by the jurythat weighed Nitz's guilt, the maximum sentence for the crime that 12 fellow citizens determined Nitz to have committed.

For the foregoing reasons, we affirm the judgment of conviction but modify the sentence of natural-lifeimprisonment to 60 years' imprisonment.

Affirmed as modified.

WELCH and GOLDENHERSH, JJ., concur.