In Apprendi v. N. J., 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the U.S. Supreme Court held that unless a factor which increases the maximum authorized sentence involves recidivism, it must be submitted to the jury and proven beyond a reasonable doubt. The following lists selected State Appellate Defender cases and published opinions raising Apprendi challenges to Illinois sentencing statutes. New cases are marked in bold and with an asterisk.

In interests of space, some cases have been omitted. You should also note that courts frequently issue revised opinions in Apprendi cases.

I. Generally

A. Apprendi

1. “If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact [other than prior conviction], that fact - no matter how the State labels it - must be found by a jury beyond a reasonable doubt.”

2. “A defendant may not be exposed to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.”

B. Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2248, 153 L.Ed.2d 556 (2002)

1. Apprendi applies to death penalty statute where death sentence is authorized only if trial judge finds that aggravating factors exist.

2. Apprendi is triggered where effect of law is to increase sentence beyond maximum authorized by jury verdict standing alone.

C. People v. Swift, 202 Ill.2d 378, 781 N.E.2d 292 (2002)

1. Apprendi applies whether the enhancement in sentence is mandatory or discretionary.

2. Apprendi applies whether or not the enhanced sentence involves an increase in the classification of the offense.

3. See also Dean v. Hockaday, (reh. pending Ill.S.Ct. as No. 94528) (whether as matter of equal protection Swift must be applied to all extended term sentences based on “exceptionally brutal and heinous” factor).

II. Whether Apprendi is to be applied retroactively; appropriate remedy.

Opinions:

Relief available:

People v. Wagener, 196 Ill.2d 269, 752 N.E.2d 430 (2001) (applies on direct appeal despite lack of objection at trial)

People v. Ford, 198 Ill.2d 68, 761 N.E.2d 735 (2001) (retroactive to direct appeal; Apprendi raised in out-of-time rehearing petition in Appellate Court)

Relief not available:

People v. De La Paz, 204 Ill.2d 426, 791 N.E.2d 489 (2003) (Apprendi does not apply retroactively to cases in which direct appeal has been completed)

People v. Lee, 207 Ill.2d 1, 796 N.E.2d 1021 (2003) (same) (petition for certiorari filed 9/25/03)

See also Summerlin v. Stewart, 341 F.3d 1082 (9^th Cir. 2003) (Ring v. Arizona applies retroactively; Apprendi does not) (certiorari granted 12/1/03 as Schiro v. Summerlin, No. 03-526)

Cert. Pending (U.S. Supreme Court):

Appellate Court:

John Chew, #1-03-0125 (Oman) (1^st) (whether Teague applies only to procedural holdings, and substantive rulings must be applied retroactively)

Berry Johnson, #1-02-1975 (Harger) (1^st) (whether Teague retroactivity analysis applies to substantive rules; whether Apprendi represents “watershed” rule under Teague)

Charles Jones, #1-03-0189 (Waller) (1^st) (whether Teague retroactivity analysis applies to substantive holdings)

Anthony Washington, #1-02-3445 (Muellenbach) (1^st) (same)

Charles Young, #5-00-0474 (O’Neill) (5^th) (whether retroactivity analysis applies to substantive changes in the law)

III. Waiver of Apprendi argument.

A. Constitutional nature of challenge & plain error.

Opinions:

People v. Crespo, 203 Ill.2d 335, 788 N.E.2d 1117 (2003) (where no objection was raised in trial court, defendant could not prove prejudice for purposes of the plain error rule where there was overwhelming evidence of “brutal and heinous” factor; defendant was convicted before Apprendi was decided and raised issue in rehearing petition in Supreme Court)(see also People v. Vida, 339 Ill.App.3d 115, 790 N.E.2d 64 (1^st Dist. 2003) (100-year extended term reinstated where evidence showed overwhelmingly that offense was “exceptionally brutal and heinous”; defendant cannot demonstrate that he was prejudiced by the absence of a jury finding; alternatively, “even if defendant had been sentenced after Apprendi was decided and had the opportunity to preserve the issue properly, the error would be harmless”) (compare People v. Golden, 342 Ill.App.3d 820, 795 N.E.2d 1011 (1^st Dist. 2003) (3^rd Div.) (Crespo plain error rule satisfied where evidence of brutal and heinous nature of offense was not overwhelming); People v. Alvarez, 344 Ill.App.3d 179, 799 N.E.2d 694 (1^st Dist. 2003) (5^th Div.) (Apprendi violation was plain error where evidence of enhanced sentencing factor was not overwhelming); People v. Mena, ___ Ill.App.3d ___, 803 N.E.2d 92 (1^st Dist. 2003) (1^st Div.) (Crespo did not bar relief where there was a reasonable probability that rational juror could have found that offense was not exceptionally brutal or heinous).

See also, People v. Coleman, ___ Ill.App.3d ___, ___ N.E.2d ___ (1^st Dist. 2004) (6^th Div.) (No. 1-99-2714, 3/5/04) (under Illinois law, State has burden to prove harmless error where defendant made timely objection at trial, while defendant has burden to prove that error was prejudicial if no objection was raised at trial; showing of prejudice requires proof of (1) error, (2) that was plain, (3) and affected defendant’s substantial rights, (4) to extent that fairness, integrity, or public reputation of the proceedings were seriously affected; defendant failed to show prejudice where evidence of “brutal and heinous” conduct was overwhelming).

People v. Kaczmarek, 207 Ill.2d 288, 798 N.E.2d 713 (2003) (No. 90865, 9/2/03) (Apprendi violation was not plain error where evidence of extended term factor was overwhelming)

People v. Davis, 205 Ill.2d 349, 793 N.E.2d 552 (2002) (No. 89704, 2/22/02) (not waived - raised for first time on direct appeal)

People v. Wagener, 196 Ill.2d 269, 752 N.E.2d 430 (2001) (not waived - constitutionality of statute may be raised any time)

People v. Armstrong, 318 Ill.App.3d 607, 743 N.E.2d 215 (1^st Dist. 2000) (2^nd Div.) (raised on appeal - not waived)

People v. Beachem, 317 Ill.App.3d 693, 740 N.E.2d 389 (1^st Dist. 2000) (3^rd Div.) (raised in supplemental brief - not waived)

People v. Carney, 317 Ill.App.3d 806, 740 N.E.2d 435 (1^st Dist. 2000) (5^th Div.) (raised in supplemental brief - plain error rule applied) (S.Ct. Op. - 196 Ill.2d 518, 752 N.E.2d 1137 (2001))

People v. Givens, 319 Ill.App.3d 910, 747 N.E.2d 436 (4^th Dist. 2001) (first raised in Appellate Court - not waived)

People v. Kidd, 327 Ill.App.3d 973, 765 N.E.2d 488 (1^st Dist. 2001) (3^rd Div.) (raised on appeal from denial of post-conviction petition)

People v. Rush, 322 Ill.App.3d 1014, 748 N.E.2d 832 (5^th Dist. 2001) (raised in supplemental brief on appeal from denial of post-conviction relief - not waived)

B. Challenges to statutory authority not waived.

People v. Jackson, 199 Ill.2d 286, 769 N.E.2d 21 (2002) (although lack of statutory authority is not waived by guilty plea, where unconstitutional statute clearly authorized the sentence in question, a guilty plea waived error unless statute was void on face; “brutal and heinous” extended term factor is not void on face); see also Hill v. Cowan, 202 Ill.2d 151, 781 N.E.2d 1065 (2002)

People v. Wagener, 196 Ill.2d 269, 752 N.E.2d 430 (2001) (not waived - constitutionality of statute may be raised any time)

People v. Harden, 318 Ill.App.3d 425, 741 N.E.2d 1063 (1^st Dist. 2000) (4^th Div.) (not waived)

People v. Herring, 324 Ill.App.3d 458, 754 N.E.2d 385 (1^st Dist. 2001) (6^th Div.) (not waived)

People v. Jones, 322 Ill.App.3d 675, 749 N.E.2d 1021 (1^st Dist. 2001) (4^th Div.) (challenges to sentencing authority not waived)

People v. Lee, 318 Ill.App.3d 417, 743 N.E.2d 1019 (1^st Dist. 2000) (4^th Div. ) (not waived)

People v. Mason, 318 Ill.App.3d 1014, 741 N.E.2d 1088 (1^st Dist. 2000) (2^nd Div.) (not waived)

C. Apprendi not anticipated by prior case law.

People v. Jackson, 199 Ill.2d 286, 769 N.E.2d 21 (2002) (because Apprendi dealt with well-established rather than novel constitutional rights, pre-Apprendi guilty plea waived challenge to extended term sentencing); see also Hill v. Cowan, 202 Ill.2d 151, 781 N.E.2d 1065 (2002)

People v. Lathon, 317 Ill.App.3d 573, 740 N.E.2d 377 (1^st Dist. 2000) (1^st Div.) (raised in rehearing - not waived)

D. Apprendi decided during defendant’s appeal.

People v. Crespo, 203 Ill.2d 335, 788 N.E.2d 1117 (2003) (where no objection was raised in trial court, defendant could not prove prejudice for purposes of the plain error rule where there was overwhelming evidence of “brutal and heinous” factor; defendant was convicted before Apprendi was decided and raised issue in rehearing petition in Supreme Court)(see also People v. Vida, 339 Ill.App.3d 115, 790 N.E.2d 64 (1^st Dist. 2003) (100-year extended term reinstated where evidence showed overwhelmingly that offense was “exceptionally brutal and heinous”; defendant cannot demonstrate that he was prejudiced by the absence of a jury finding; alternatively, “even if defendant had been sentenced after Apprendi was decided and had the opportunity to preserve the issue properly, the error would be harmless”) (compare People v. Golden, 342 Ill.App.3d 820, 795 N.E.2d 1011 (1^st Dist. 2003) (3^rd Div.) (Crespo plain error rule satisfied where evidence of brutal and heinous nature of offense was not overwhelming); People v. Alvarez, 344 Ill.App.3d 179, 799 N.E.2d 694 (1^st Dist. 2003) (5^th Div.) (Apprendi error was plain error where evidence of enhanced sentencing factor was not overwhelming)

People v. Beachem, 317 Ill.App.3d 693, 740 N.E.2d 389 (1^st Dist. 2000) (3^rd Div.) (raised in supplemental brief - not waived)

People v. Carney, 317 Ill.App.3d 806, 740 N.E.2d 435 (1^st Dist. 2000) (5^th Div.) (raised in supplemental brief - not waived)

People v. Herring, 324 Ill.App.3d 458, 754 N.E.2d 385 (1^st Dist. 2001) (6^th Div.) (raised in supplemental brief - not waived)

People v. Kaczmarek, 318 Ill.App.3d 340, 741 N.E.2d 1131 (1^st Dist. 2000) (3^rd Div.) (raised in petition for rehearing - not waived) (subseq. op. at 207 Ill.2d 288, 798 N.E.2d 713 (2003))

E. Where defendant pleaded guilty.

Opinions:

People v. Jackson, 199 Ill.2d 286, 769 N.E.2d 21 (2002) (pre-Apprendi guilty plea by defendant who was aware of possibility of enhanced sentence waived Apprendi error) (see also Hill v. Cowan, 202 Ill.2d 151, 781 N.E.2d 1065 (2002) (Apprendi challenge could not be raised in State habeas petition where conviction was pursuant to guilty plea))

*People v. Townsell, ___ Ill.2d ___, ___ N.E.2d ___ (2004) (No. 95725, 4/15/04) (Rule 615 plain error rule does not allow reviewing court to reach Apprendi error in guilty plea cases; Apprendi issues cannot be heard on appeal from guilty plea)

People v. Beronich, 334 Ill.App.3d 536, 778 N.E.2d 385 (2^nd Dist. 2002) (whether plea is voluntary is determined at time of plea; pre-Apprendi plea not involuntary because, in light of Apprendi, trial court’s admonishments were improper)

IV. Whether sentences which violate Apprendi are void.

Opinions:

People v. Jackson, 199 Ill.2d 286, 769 N.E.2d 21 (2002) (not void; void ab initio doctrine applies only to facially unconstitutional statutes); Hill v. Cowan, 202 Ill.App.3d 151, 781 N.E.2d 1065 (2002) (void ab initio doctrine applies only to facially unconstitutional statute; statute is facially unconstitutional only if there is no conceivable set of circumstances under which it could be constitutionally applied)

People v. Lott, 325 Ill.App.3d 749, 760 N.E.2d 115 (3^rd Dist. 2001) (sentence not void - complied with statutory requirements; could not be raised in out-of-time §2-1401)

People v. Ramos, 318 Ill.App.3d 181, 742 N.E.2d 763 (1^st Dist. 2000) (4^th Div.) (merely voidable)

(See also People v. Harvey, 196 Ill.2d 444, 753 N.E.2d 293 (2001) (2-year statute of limitations for 2-1401 petition inapplicable where challenged sentence is void)

V. Apprendi & Harmless Error.

Held to be Harmless:

U.S. v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (under federal plain error rule, which permits correction of plain errors which affected substantial rights if the fairness, integrity, or public reputation of the proceedings was “seriously affected,” Apprendi error concerning weight of controlled substances did not justify reversal where evidence was overwhelming)

People v. Thurow, 203 Ill.2d 352, 786 N.E.2d 1019 (2003) (failure to instruct jury on enhanced sentencing factor (that decedent was member of defendant’s household) was subject to harmless error analysis; was harmless beyond a reasonable doubt where evidence on factor was uncontested and overwhelming)

People v. Blackwell, 325 Ill.App.3d 354, 757 N.E.2d 589 (1^st Dist. 2001) (2^nd Div.) (harmless where evidence on victim’s age was undisputed)

People v. Kelley, 331 Ill.App.3d 253, 770 N.E.2d 1130 (1^st Dist. 2002) (2^nd Div.) (harmless where age of victim was never in dispute and defense conceded issue in brief)

People v. Peacock, 324 Ill.App.3d 749, 756 N.E.2d 261 (1^st Dist. 2001) (2^nd Div.) (failure to allege victim’s age in charge and submit question to jury was harmless where parties “basically stipulated” to age at trial and jury would have found victim was over 60)

People v. Pearson, 324 Ill.App.3d 622, 756 N.E.2d 438 (4^th Dist. 2001) (evidence undisputed that victim was 80; in a bench trial, trial judge is presumed to apply law correctly)

Not Harmless:

People v. Black, 327 Ill.App.3d 662, 765 N.E.2d 1046 (2^nd Dist. 2002) (error not harmless where State failed to present any evidence of victims’ ages at plea hearing)

People v. Bryant, 325 Ill.App.3d 448, 758 N.E.2d 430 (1^st Dist. 2001) (4^th Div.) (harmless error analysis inappropriate on “brutal and heinous” issue, which involves weighing of evidence rather than exact quantity) (implicitly overruled by People v. Gholston, 332 Ill.App.3d 179, 772 N.E.2d 880 (1^st Dist. 2002) (4^th Div.) (under U.S. v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), Apprendi error does not “seriously affect the fairness, integrity, or public reputation of judicial proceedings” where evidence on factor authorizing enhanced sentence (“exceptionally brutal and heinous”) was overwhelming)

People v. Carter, 332 Ill.App.3d 576, 773 N.E.2d 1140 (1^st Dist. 2002) (3^rd Div.) (questioning whether harmless error analysis can apply to questions involving the weighing of evidence; rejecting argument that any trier of fact would have found murder to be exceptionally brutal and heinous where jury acquitted defendant of first degree murder and convicted of second degree murder)

*People v. Daniels, ___ Ill.App.3d ___, ___ N.E.2d ___ (1^st Dist. 2004) (4^th Div.) (No. 1-97-4354, 2/19/04) (where defendant objected in trial court, Apprendi error was not harmless; evidence of “exceptionally brutal and heinous” was less than overwhelming)

People v. Golden, 342 Ill.App.3d 820, 795 N.E.2d 1011 (1^st Dist. 2003) (3^rd Div.) (Apprendi error not harmless where jury considering evidence might not have found offense to be exceptionally brutal and heinous)

VI. Multiple Sentencing Factors.

People v. Hopkins, 201 Ill.2d 26, 773 N.E.2d 633 (2002) (where one extended term factor was an element of a crime which was proven beyond a reasonable doubt and on which the jury returned a verdict, other extended term factors did not increase the maximum authorized sentence; reversal not required despite Apprendi error concerning the other factors)

VII. Whether sentencing factors which increase authorized sentence must be alleged in charge.

Opinions:

People v. Jackson, 199 Ill.2d 286, 769 N.E.2d 21 (2002) (Apprendi’s discussion of charging instrument requirements was dictum)

People v. Thurow, 203 Ill.2d 352, 786 N.E.2d 1019 (2003) (rejecting argument that Apprendi requires “notice of the sentence-enhancing fact”); compare People v. DeBord, 344 Ill.App.3d 321, 800 N.E.2d 809 (2^nd Dist. 2003) (although Thurow held that element which increases authorized sentence need not be alleged in charge, different rule applies where enhanced sentencing applies to uncharged crime (involuntary manslaughter of a family member) of which defendant was convicted as lesser included offense; unless factor is alleged in crime, crime is not lesser included offense under “charging instrument” approach)

People v. Armstrong, 318 Ill.App.3d 607, 743 N.E.2d 215 (1^st Dist. 2000) (2^nd Div.) (yes)

People v. Johnson, 333 Ill.App.3d 935, 776 N.E.2d 238 (5^th Dist. 2001) (yes)

VIII. Death Penalty

A. Whether Apprendi applies to death sentences.

Opinions:

Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Apprendi applies to death penalty statute which authorizes death sentence only if trial court finds that certain factors are present) (“capital defendants . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment”) (overruling Walton v. Arizona, 497 U.S. 639 (1990))

People v. Ballard, 206 Ill.2d 151, 794 N.E.2d 788 (2002) (Apprendi does not apply to second stage finding that there are no mitigating factors sufficient to preclude death sentence; Ring v. Arizona applied only to aggravating factors; moreover, second stage finding is not factual finding but balancing of aggravation and mitigation)

People v. Harris, 206 Ill.2d 293, 794 N.E.2d 181 (2002) (Illinois death penalty statute does not violate Apprendi although second stage findings are not subject to reasonable doubt standard)

B. Where death hearing held.

People v. Ford, 198 Ill.2d 68, 761 N.E.2d 735 (2001) (no due process violation where defendant was found death-eligible and sentenced to 100-year extended term; once death-eligibility finding was made, maximum authorized sentence was death even where extended term was based on factor that had not been in issue at death hearing) (see also People v. Rivera, 333 Ill.App.3d 1092, 777 N.E.2d 360 (2^nd Dist. 2001) (under Ford, felony murder verdict obviates Apprendi problem for extended term; implies that despite additional requirements of 720 ILCS 5/9-1(b)(6), felony murder conviction equates to death penalty eligibility factor authorizing natural life sentences, and that natural life is maximum sentence for non-capital murder in Illinois)

Compare People v. Reynolds, 327 Ill.App.3d 1027, 764 N.E.2d 1135 (1^st Dist. 2002) (5^th Div.) (Apprendi error occurred where trial court imposed natural life sentence based on presence of two death penalty eligibility factors, but State did not ask for death and factors were not proven to jury under the reasonable doubt standard)

People v. Payne, 336 Ill.App.3d 154, 783 N.E.2d 130 (1^st Dist. 2002) (6^th Div.) (defendant could not claim lack of notice of possibility of death sentence; trial counsel’s statements to judge showed awareness that State would request death sentence)

IX. Apprendi under the Illinois State Constitution.

Opinions:

People v. Jones, 322 Ill.App.3d 236, 749 N.E.2d 466 (3^rd Dist. 2001) (Illinois Constitution does not mandate Apprendi for recidivist exception)

People v. Pittman, 326 Ill.App.3d 297, 761 N.E.2d 171 (1^st Dist. 2001) (4^th Div.) (same)

People v. Smith, 337 Ill.App.3d 175, 785 N.E.2d 76 (1^st Dist. 2003) (6^th Div.) (same)

People v. Smith, 338 Ill.App.3d 555, 788 N.E.2d 1204 (1^st Dist. 2003) (6^th Div.) (same)

X. Presumption that trial court applied law correctly.

People v. Johnson, 333 Ill.App.3d 935, 776 N.E.2d 238 (5^th Dist. 2001) (cannot presume that trial court applied Apprendi where sentence was imposed before Apprendi was decided)

XI. Whether Apprendi applies to factors which trigger mandatory minimum sentences.

Opinions:

Harris v. U.S., 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (Apprendi does not apply to factors which trigger mandatory minimum sentence)

People v. Phillips, 326 Ill.App.3d 157, 759 N.E.2d 946 (3^rd Dist. 2001) (mandatory minimums not subject to Apprendi)

XII. Where a sentence violates Apprendi, may the reviewing court impose the maximum non-enhanced sentence in lieu of remanding for resentencing?

People v. Lee, 207 Ill.2d 1, 796 N.E.2d 1021 (2003) (issue raised but not reached by court)

XIII. P.A. 91-953 (eff. 2/23/01).

A. Whether State failed to prove extended term factor beyond a reasonable doubt.

Opinions:

People v. Askew, 341 Ill.App.3d 548, 793 N.E.2d 56 (1^st Dist. 2003) (legislature intended to except prior conviction from reasonable doubt requirement; failure to include explicit language in §5-8-2 was legislative oversight which reviewing court may remedy; defendant was properly sentenced to extended term despite failure to prove prior convictions to jury and beyond reasonable doubt)

People v. Washington, 343 Ill.App.3d 889, 800 N.E.2d 436 (1^st Dist. 2003) (3^rd Div.) (same)

People v. Smith, 343 Ill.App.3d 613, 798 N.E.2d 831 (2^nd Dist. 2003) (same)

People v. Culbreath, 343 Ill.App.3d 998, 798 N.E.2d 1268 (4^th Dist. 2003) (same)

Pending:

Clarence Delton, #1-02-1835 (Weicher) (1^st) (only evidence of factor was presentence report)

Willie Montgomery, #1-01-1970 (Walsh) (1^st) (sentencing hearing occurred after effective date; only proof of prior convictions was notation in presentence report)

Donald Price, #1-02-2600 (Stephenson) (1^st) (prior conviction not proven)

Jettie Williams, #1-02-1121 (Becker) (1^st) (State argued that defendant had prior conviction, but only evidence was presentence report)

Laura Williams, #1-02-1411 (Stephenson) (1^st) (only evidence of prior conviction was presentence report)

Demicus Woods, #1-02-0290 (Gonzalez) (1^st) (sentencing and crime occurred after effective date; only evidence of convictions was presentence report)

B. Whether trial court may treat sentencing factor as element of crime before effective date of P.A. 91-953.

Opinions:

People v. Forcum, 344 Ill.App.3d 427, 800 N.E.2d 499 (5^th Dist. 2003) (trial court did not err by giving jury special interrogatory on extended term factor, although crime occurred before effective date of P.A. 91-953) (cert. pet. filed 4/9/04)

People v. Jett, 341 Ill.App.3d 200, 793 N.E.2d 214 (2^nd Dist. 2003) (trial court did not err by instructing jury on “exceptionally brutal and heinous” theory although crime occurred before effective date of P.A. 91-953)

People v. O’Quinn, 339 Ill.App.3d 347, 791 N.E.2d 1066 (5^th Dist. 2003) (trial court did not err by giving jury a special interrogatory concerning extended term sentencing factor - the victim’s age)

Pending:

Robert John, #3-01-0922 (Vescogni) (panel) (3rd) (judge gave instruction on intentional discharge of firearm from vehicle, which authorized natural life sentence)

C. Whether P.A. 91-953 applies retroactively to crimes committed before February 23, 2001.

Opinions:

People v. Forcum, 344 Ill.App.3d 427, 800 N.E.2d 499 (5^th Dist. 2003) (P.A. 91-953 concerns procedure only; can be applied retroactively) (dissenting opinion by Justice Kuehn - P.A. 91-953 is substantive; enacts additional element creating crime “more egregious than murder”) (cert. pet. filed 4/9/04)

People v. McClain, 343 Ill.App.3d 1122, 799 N.E.2d 322 (1^st Dist. 2003) (4^th Div.) (applies retroactively)

People v. O’Quinn, 339 Ill.App.3d 347, 791 N.E.2d 1066 (5^th Dist. 2003) (P.A. 91-953 applies retroactively)

Pending:

Steven Crutchfield, #5-03-0043 (Evers) (5^th)

Edward Mitchell, #1-02-1244 (Becker) (1^st)

James Sanford, #5-02-0046 (Randolph) (5^th)

D. Provision allowing State to elect new trial.

A. Whether constitutional

James Sanford, #5-02-0046 (Randolph) (5^th)

B. Effect

People v. Fikara, 345 Ill.App.3d 144, 802 N.E.2d 260 (2^nd Dist. 2003) (where sentence is vacated on appeal or in collateral proceedings and State gives notice that it will seek new enhanced sentence based on non-recidivist factor, defendant is entitled to new trial rather than merely a new sentencing hearing) (supplemental opinion issued 12/31/03 at ___ Ill.App.3d ___, ___ N.E.2d ___ (2^nd Dist. 2003) (No. 2-02-0228, 12/31/03)

E. Constitutionality of notice pleading.

People v. McClain, 343 Ill.App.3d 1122, 799 N.E.2d 322 (1^st Dist. 2003) (4^th Div.) (no constitutional violation; only “reasonable notice” of enhanced sentencing factor is required)

XIV. Standard of review for Apprendi issues.

People v. Hopkins, 201 Ill.2d 26, 773 N.E.2d 633 (2002) (de novo)

XV. Miscellaneous.

People v. Clifton & Galloway, 342 Ill.App.3d 696, 795 N.E.2d 887 (1^st Dist. 2003) (1^st Div.) (cause remanded for clarification where record was unclear whether trial court based extended term on factor which would have violated Apprendi)

XVI. Challenged Statutes.

A. 720 ILCS 5/8-4(c)(1) - enhanced penalty for attempt murder of police officer.

Edgar Green, #89660 (l/a docket) (Kirwan) (5^th) (sup. order issued - other grounds - 10/4/00)

B. 720 ILCS 9-3(e) - penalty enhanced to Class 2 felony for reckless homicide where defendant was under influence of drugs or alcohol.

People v. Henderson, 329 Ill.App.3d 810, 768 N.E.2d 222 (1^st Dist. 2002) (6^th Div.) (no due process violation; factors authorizing enhancement were alleged in charge and contained in jury instructions)

C. 720 ILCS 5/9-3(f) - involuntary manslaughter against a family member.

Opinions:

People v. Thurow, 318 Ill.App.3d 128, 742 N.E.2d 880 (3^rd Dist. 2001) (due process violation) (l/a granted 4/4/01) (reversed on harmless error grounds, 203 Ill.2d 352, 786 N.E.2d 1019 (2003)

D. 720 ILCS 5/12-3.2(b) - domestic battery enhanced to felony due to prior conviction.

Myron Cockrell, #4-01-0242 (Essig) (4^th) (prob. rev. appeal)

E. 720 ILCS 5/12-13(b)(2) & (3); 720 ILCS 5/12-14(d)(2) - enhanced sentences, including natural life, for criminal sexual assault or aggravated criminal sexual assault after certain other convictions.

Opinions:

People v. Sanchez, 344 Ill.App.3d 74, 800 N.E.2d 455 (1^st Dist. 2003) (2^nd Div.) (no due process violation)

People v. Ware, 323 Ill.App.3d 47, 751 N.E.2d 81 (1^st Dist. 2001) (2^nd Div.) (no due process violation)

Pending:

David Jamison, #1-01-1095 (Piper) (1^st)

F. 720 ILCS 5/12-30(d) - violation of order of protection enhanced to felony due to prior convictions.

Earnest Kirkwood, #4-00-0242 (Foust) (4^th)

G. Misdemeanor theft enhanced to felony due to prior conviction for of any type of theft, robbery, armed robbery, burglary, residential burglary, possession of burglary tools or home invasion. (720 ILCS 5/16-1(b)(2); 720 5/16A-10(2))

Opinions:

People v. Ligons, 325 Ill.App.3d 753, 759 N.E.2d 169 (4^th Dist. 2001) (no due process violation)

Pending:

Gail Clemons, #4-01-0084 (Essig) (4^th) (appeal from prob. revoc.)

H. 720 ILCS 5/33B - natural life sentence for third Class X offense in specified chronological order (Habitual Criminal Act).

Opinions:

Morrisette v. Briley, 326 Ill.App.3d 590, 761 N.E.2d 333 (3^rd Dist. 2001) (no Apprendi violation)

People v. Allen, 335 Ill.App.3d 773, 780 N.E.2d 1133 (4^th Dist. 2003) (no Apprendi violation)

People v. Boston, 324 Ill.App.3d 557, 755 N.E.2d 1058 (2^nd Dist. 2001) (no Apprendi violation)

People v. Henderson, 343 Ill.App.3d 1108, 799 N.E.2d 682 (1^st Dist. 2003) (5^th Div.) (no Apprendi violation)

People v. Jones, 328 Ill.App.3d 233, 764 N.E.2d 1232 (1^st Dist. 2002) (3^rd Div.) (no Apprendi violation)

People v. Maguire, 329 Ill.App.3d 1186, 769 N.E.2d 1085 (5^th Dist. 2002) (no Apprendi violation)

People v. Pickens, 323 Ill.App.3d 429, 752 N.E.2d 1195 (5^th Dist. 2001) (no Apprendi violation)

Pending:

Randy Hill, #1-01-3928 (Fazal) (1^st) (post-conviction appeal)

I. Extended terms under 730 ILCS 5/5-5-3.2:

1. (b)(1) - any class felony within 10 years of same or greater class felony.

Opinions:

People v. Antoine, 335 Ill.App.3d 562, 781 N.E.2d 444 (1^st Dist. 2002) (3d Div.) (no due process violation)

*People v. Blanks, ___ Ill.App.3d ___, ___ N.E.2d ___ (1^st Dist. 2004) (1^st Div.) (No. 1-02-0161, 3/15/04) (no due process violation)

People v. Brown, 327 Ill.App.3d 816, 764 N.E.2d 562 (4^th Dist. 2002) (no due process violation)

People v. Calvert, 326 Ill.App.3d 414, 760 N.E.2d 1024 (4^th Dist. 2001) (no due process violation)

People v. Childress, 321 Ill.App.3d 13, 746 N.E.2d 783 (1^st Dist. 2001) (2^nd Div.) (no due process violation)

People v. Davis, 319 Ill.App.3d 572, 746 N.E.2d 758 (4^th Dist. 2001) (no due process violation)

People v. Dillard, 319 Ill.App.3d 102, 745 N.E.2d 185 (4^th Dist. 2001) (no due process violation)

People v. Douglas, 328 Ill.App.3d 978, 768 N.E.2d 766 (3^rd Dist. 2002) (no due process violation)

People v. Fox, 337 Ill.App.3d 477, 786 N.E.2d 563 (1^st Dist. 2003) (6^th Div.) (no due process violation)

People v. Garry, 323 Ill.App.3d 292, 752 N.E.2d 1244 (4^th Dist. 2001) (no due process violation)

People v. Landrum, 323 Ill.App.3d 664, 755 N.E.2d 18 (5^th Dist. 2001) (no due process violation)

People v. Ligons, 325 Ill.App.3d 753, 759 N.E.2d 169 (4^th Dist. 2001) (no due process violation)

People v. Pulgar, 323 Ill.App.3d 1001, 752 N.E.2d 585 (1^st Dist. 2001) (4^th Div.) (no due process violation)

People v. Thompson, 335 Ill.App.3d 1027, 782 N.E.2d 946 (4^th Dist. 2003) (no due process violation)

2. (b)(2) - felony “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.”

Opinions:

People v. Swift, 202 Ill.2d 378, 781 N.E.2d 292 (2002) (violates due process; in absence of additional factual finding, maximum sentence for first degree murder is 60 years)

Pending:

Supreme Court:

Lucien v. Briley, #92922 (direct appeal)

3. (b)(4) - felony against the person or property of a person who is under 12, over 60, or physically handicapped.

Opinions:

People v. Black, 327 Ill.App.3d 662, 765 N.E.2d 1046 (2^nd Dist. 2002) (violates due process)

People v. Chanthaloth, 318 Ill.App.3d 806, 743 N.E.2d 1043 (2^nd Dist. 2001) (violates due process; sentencing factors are elements of crime)

People v. Rohlfs, 322 Ill.App.3d 965, 752 N.E.2d 499 (4^th Dist. 2001) (harmless error where there was also proper extended term factor)

4. (b)(5) - aggravated criminal sexual assault or criminal sexual assault where same offenses also committed against same victim by others, defendant voluntarily and knowingly participated, and crime was part of a single course of conduct.

Derrick McGee, #3-00-0670 (Hess) (3^rd)

Phillip Rovito, #1-99-3797 (Jacoby) (1^st) (p.c. appeal)

5. (b)(7) - first degree murder conviction within 10 years of specified convictions, where the charges are separately brought and tried and arise from different series of facts.

Oswaldo Gonzalez, #1-00-1700 (Spiliopoulos) (1^st)

6. (b)(8) - felony other than conspiracy committed by agreement where defendant occupied position of leadership and offense was gang-related.

Jamison Treadway, #1-99-4349 (Rouse) (1^st)

Michael Rivera, #1-00-3871 (Leven) (1^st) (Panel)

7. First degree murder of policeman with firearm (repealed).

Alexis Green, #1-01-1477 (O’Shea) (1^st) (p.c. appeal)

J. 730 ILCS 5/5-8-1(c) - extended term authorized for certain sex offenses where the victim was under 18.

Don Harris, #1-00-3860 (Buckley) (1^st) (p.c. appeal)

James Davis, #4-00-0655 (McCarthy) (4^th) (p.c. appeal)

K. 730 ILCS 5/5-8-1(a)(1)(b).

1. Natural life authorized for first degree murder accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty.”

Opinions:

People v. Callahan, 334 Ill.App.3d 636, 778 N.E.2d 737 (4^th Dist. 2002)

People v. Joyner, 317 Ill.App.3d 93, 739 N.E.2d 594 (2^nd Dist. 2000) (found due process violation) (overruled by People v. Rivera, 333 Ill.App.3d 1092, 777 N.E.2d 360 (2^nd Dist. 2001))

People v. Lee, 318 Ill.App.3d 417, 743 N.E.2d 1019 (1^st Dist. 2000) (4^th Div.) (found due process violation)

People v. Nitz, 319 Ill.App.3d 949, 747 N.E.2d 38 (5^th Dist. 2000) (found due process violation) (subsequent unpublished order held error harmless (No. 5-98-0657, 3/5/04)

(See also People v. Swift, 202 Ill.2d 378, 781 N.E.2d 292 (2002) (“brutal and heinous” factor of 730 ILCS 5/5-5-3.2 violates due process)

2. Natural life authorized for first degree murder where certain death penalty aggravating factors are present and natural life is not mandatory.

Opinions:

People v. Reynolds, 327 Ill.App.3d 1027, 764 N.E.2d 1135 (1^st Dist. 2002) (5^th Div.) (due process violation)

L. 730 ILCS 5/5-8-1(a)(1)(c) - natural life mandatory where certain death penalty aggravating factors present and death sentence not imposed.

Opinions:

People v. Cabrera, 326 Ill.App.3d 555, 760 N.E.2d 1041 (3^rd Dist. 2001) (natural life sentence based on murder conviction in another State qualifies for recidivism exception; no due process violation)

M. 730 ILCS 5/5-8-1(c)(iii) - natural life for murder of police officer.

Ellean Nance, #1-00-2947 (Bennett) (1^st) (p.c. appeal)

N. 730 ILCS 5/5-8-1(c)(ii) - natural life mandatory upon conviction for murdering more than one person, if death sentence is not imposed.

Opinions:

People v. Jackson, 333 Ill.App.3d 962, 777 N.E.2d 626 (1^st Dist. 2002) (2^nd Div.)

O. 730 ILCS 5/5-5-3(c)(8) - mandatory Class X sentencing for Class 1 or 2 offense after two previous Class 1 or 2 convictions, where defendant is over 21 and the charges are separately brought and tried and arise from different facts.

Opinions:

People v. Bell, 343 Ill.App.3d 110, 796 N.E.2d 1114 (1^st Dist. 2003) (no due process violation)

*People v. Blanks, ___ Ill.App.3d ___, ___ N.E.2d ___ (1^st Dist. 2004) (1^st Div.) (No. 1-02-0161, 3/15/04) (no due process violation)

People v. Burks, 343 Ill.App.3d 765, 799 N.E.2d 745 (1^st Dist. 2003) (1^st Div.) (no due process violation)

People v. Dixon, 319 Ill.App.3d 881, 747 N.E.2d 1 (3^rd Dist. 2001) (no due process violation)

People v. Dunn, 326 Ill.App.3d 281, 760 N.E.2d 511 (1^st Dist. 2001) (4^th Div.) (no due process violation)

People v. Echols, 325 Ill.App.3d 515, 758 N.E.2d 878 (1^st Dist. 2001) (6^th Div.) (no due process violation)

People v. Givens, 319 Ill.App.3d 910, 747 N.E.2d 436 (4^th Dist. 2001) (no due process violation)

People v. Hill, 345 Ill.App.3d 620, 803 N.E.2d 138 (1^st Dist. 2003) (4^th Div.) (no due process violation)

People v. Jones, 322 Ill.App.3d 236, 749 N.E.2d 466 (3^rd Dist. 2001) (no due process violation)

People v. Lathon, 317 Ill.App.3d 573, 740 N.E.2d 377 (1^st Dist. 2000) (1^st Div.) (no due process violation)

People v. Lundy, 334 Ill.App.3d 819, 779 N.E.2d 404 (1^st Dist. 2002) (1^st Div.) (no due process violation)

People v. Ramos, 318 Ill.App.3d 181, 742 N.E.2d 763 (1^st Dist. 2000) (4^th Div.) (no due process violation)

People v. Roberts, 318 Ill.App.3d 719, 743 N.E.2d 1025 (1^st Dist. 2000) (5^th Div.) (no due process violation)

People v. Rucker, ___ Ill.App.3d ___, ___ N.E.2d ___ (1^st Dist. 2003) (2^nd Div.) (No. 1-01-3617, mod. op. 2/4/04) (no due process violation)

People v. Smith, 338 Ill.App.3d 555, 788 N.E.2d 1204 (1^st Dist. 2003) (6^th Div.) (no due process violation)

People v. Wallace, 331 Ill.App.3d 822, 772 N.E.2d 785 (1^st Dist. 2002) (5^th Div.) (no due process violation)

People v. Watson, 322 Ill.App.3d 164, 749 N.E.2d 1078 (2^nd Dist. 2001) (no due process violation)

People v. Young, 334 Ill.App.3d 785, 779 N.E.2d 293 (1^st Dist. 2002) (1^st Div.) (no due process violation)

P. Pre-1978 indeterminate sentencing.

James Caldwell, #2-01-1149 (Paschen) (2^nd) (denial of motion for relief)

Major Morris, #3-01-0565 (Silvern) (3^rd) (motion to vacate)

Wayne Mikel, #4-00-0141 (Essig) (4^th) (appeal from denial of motion for DNA testing) (court declined to reach issue in unpublished order, 12/4/01)

Q. 730 ILCS 5-8-4.

1. 5-8-4(a), (b) - mandatory consecutive sentences where one offense was first degree murder or a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where defendant was convicted of certain sex offenses or of armed violence predicated on certain offenses.

Opinions:

Supreme Court:

People v. Carney, 196 Ill.2d 518, 752 N.E.2d 1137 (2001) (consecutive sentencing under §5-8-4(a) not subject to Apprendi)

Appellate Court:

People v. Murphy, 322 Ill.App.3d 271, 752 N.E.2d 19 (5^th Dist. 2001) (noting that consecutive sentences are now mandatory for certain offenses whether or not they occur in a single course of conduct)

2. 5/5-8-4(b) - discretionary consecutive sentences where the court believes that such a term is required to protect the public from further criminal conduct by the defendant.

People v. Rogers, 197 Ill.2d 216, 756 N.E.2d 831 (2001) (consecutive sentencing not subject to Apprendi)

People v. Wagener, 196 Ill.2d 269, 752 N.E.2d 430 (2001) (consecutive sentencing not subject to Apprendi)

3. 5/5-8-4(c)(1)(D) - 25-year mandatory enhancement if firearm is discharged and causes great bodily harm, permanent disability, permanent disfigurement or death.

People v. Nunez, #2-02-0081 (Wiltgen) (2^nd)

4. 5/5-8-4(f) - mandatory consecutive for persons committed to DOC who commit offense while incarcerated.

People v. Wagener, 196 Ill.2d 269, 752 N.E.2d 430 (2001) (consecutive sentencing not subject to Apprendi; dealt with discretionary consecutive sentencing)

5. 5/5-8-4(g) - mandatory consecutive for attempt escape.

People v. Wagener, 196 Ill.2d 269, 752 N.E.2d 430 (2001) (consecutive sentencing not subject to Apprendi; dealt with discretionary consecutive sentencing)

6. 5/5-8-4(h) - mandatory consecutive for felony committed while on pretrial release or in pretrial custody.

People v. Wagener, 196 Ill.2d 269, 752 N.E.2d 430 (2001) (consecutive sentencing not subject to Apprendi; dealt with discretionary consecutive sentencing)

People v. Watkins, 325 Ill.App.3d 13, 757 N.E.2d 117 (2^nd Dist. 2001) (no Apprendi violation)

7. 730 ILCS 5/5-8-4(i) - mandatory consecutive sentence for separate felony committed while free on bond.

People v. Wagener, 196 Ill.2d 269, 752 N.E.2d 430 (2001) (consecutive sentencing not subject to Apprendi; dealt with discretionary consecutive sentencing)

R. 730 ILCS 5/3-6-3(2)(iii) (truth-in-sentencing) - 85% of sentence must be served for certain offenses where trial court held that “great bodily harm” occurred.

Opinions:

People v. Bell, 327 Ill.App.3d 238, 764 N.E.2d 551 (3^rd Dist. 2002) (no due process violation)

People v. Fender, 325 Ill.App.3d 168, 757 N.E.2d 645 (5^th Dist. 2001) (no due process violation)

People v. Garry, 323 Ill.App.3d 292, 752 N.E.2d 1244 (4^th Dist. 2001) (no due process violation)

People v. Newbolds, 325 Ill.App.3d 192, 757 N.E.2d 664 (5^th Dist. 2001) (no due process violation)

S. 705 ILCS 405/5-805(2) (presumptive transfer to adult court of 15-year-old accused of Class X offenses or certain firearm, gang, or drug-related offenses).

People v. Beltran, 327 Ill.App.3d 685, 765 N.E.2d 1071 (2^nd Dist. 2002) (no due process violation)

*People v. Perea & Galarza, ___ Ill.App.3d ___, ___ N.E.2d ___ (1^st Dist. 2004) (2^nd Div.) (No. 1-02-0662 & 02-0871, 3/2/04) (no due process violation)

T. Discretionary transfer of juveniles.

1. 705 ILCS 405/5-4(3)(a)

Marcus Molds, #4-00-0682 (Fowler) (5^th) (p.c. appeal)

2. Ill. Rev. Stat. 1985, ch. 37, ¶702-7(3)

People v. Beck, 339 Ill.App.3d 413, 790 N.E.2d 429 (5^th Dist. 2003) (no due process violation)

U. 705 ILCS 405/5-810 (extended juvenile jurisdiction statute authorizing juvenile court to retain jurisdiction but impose adult criminal penalties).

*In re J.W., ___ Ill.App.3d ___, 804 N.E.2d 1094 (1^st Dist. 2004) (1^st Div.) (No. 1-01-2703, 2/9/04) (no due process violation)

In re Matthew M., 335 Ill.App.3d 276, 780 N.E.2d 223 (2^nd Dist. 2002) (no due process violation)

V. 625 ILCS 5/11-501(d)(1)(A) (aggravated DUI - Class 4 felony for DUI with two prior convictions).

People v. Braman, 327 Ill.App.3d 1091, 765 N.E.2d 500 (3^rd Dist. 2002) (no due process violation)

People v. Thompson, 328 Ill.App.3d 360, 765 N.E.2d 1209 (2^nd Dist. 2002) (no due process violation)

W. 720 ILCS 570/401(c)(2) & 730 ILCS 5/5-5-3(c)(2)(D) (defendant convicted of possession of between one and fifteen grams of cocaine is ineligible for probation if amount possessed exceeds five grams).

Joanne Y. Phillips, #3-00-0510 (Kelly) (3^rd)

X. 625 ILCS 5/11-204.1(b) (second or subsequent offense of aggravating fleeing or attempt to elude an officer elevated from Class 4 to Class 3 felony).

Anthony Chippas, #2-01-0115 (Karalis) (2^nd)

Y. 625 ILCS 5/6-303 (driving while license revoked enhanced from Class A misdemeanor to Class 4 felony based on prior conviction for driving while license revoked which was based on DUI).

David Jackson, #4-01-0409 (Essig) (4^th) (p.c. appeal)

James G. Miller, #4-01-0140 (Essig) (4^th)

Z. Ill.Rev.Stat.1985, Ch. 56½, ¶1408 - sentence of twice authorized maximum for second or subsequent controlled substances offense.

Opinions:

People v. Smith, 337 Ill.App.3d 175, 785 N.E.2d 76 (1^st Dist. 2003) (6^th Div.) (no due process violation)

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