No. 2--00--0189

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Kane County.

		)

	Plaintiff-Appellee,	)

	)	No.	94--CF--610

v.	)

	)

JAMES E. BLACK,	)	Honorable

	)	James T. Doyle,

	Defendant-Appellant.	)	Judge, Presiding.

________________________________________________________________

	JUSTICE BOWMAN delivered the opinion of the court:

	Pursuant to a plea agreement, defendant, James E. Black,

pleaded guilty to home invasion (720 ILCS 5/12--11(a)(1) (West

1998)).  In exchange for the guilty plea, the State agreed to drop

three other charges that were pending against defendant, but no

agreement was made about defendant's sentence.  At the time

defendant pleaded guilty, no evidence about the victims' ages was

presented to the court.  However, at the sentencing hearing, the

court found that defendant would be sentenced to an extended-term

of imprisonment because the victims of the home invasion were over

60 years old.  See 730 ILCS 5/5--5--3.2(b)(4)(ii) (West 1998).  

Once the court determined that defendant was eligible for an

extended sentence, the court evaluated the various aggravating and

mitigating factors and sentenced defendant to 40 years'

imprisonment.  Defendant moved to reconsider his sentence, and the

trial court granted the motion, reducing defendant's sentence to 34 years' imprisonment.  Defendant appeals, arguing that his extended-

term sentence was improper under Apprendi v. New Jersey, 530 U.S. ___466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  We vacate

defendant's sentence and remand the cause.

	Before defendant pleaded guilty, the trial court advised

defendant that home invasion was a Class X felony.  As such,

defendant could be sentenced to between 6 and 30 years'

imprisonment.  The trial court also told defendant that if an

extended-term sentence applied, defendant could face 30 to 60

years' imprisonment.  The factual basis for defendant's plea

revealed that on December 13, 1993, defendant went to the Elgin

home of Charles Jewel and Jewel's wife.  While armed with a

dangerous weapon, defendant and his codefendants threatened the

Jewels and robbed them.  The State failed to tell the court that

the Jewels were over 60 years old when defendant robbed them.

	At the sentencing hearing, Charles Jewel testified that he was

67 years old when the home invasion occurred, and Jewel's wife was

64 years old.  During the State's closing arguments, the assistant

State's Attorney argued that defendant should be sentenced to an

extended-term of imprisonment because the victims of the home

invasion were over 60 years old.  The court asked defendant's

attorney if he had an argument to present on that issue, and the

attorney said no.  The court then found that defendant was eligible

for an extended-term sentence.  

	The closing arguments continued, and, when the arguments

concluded, the court began to evaluate the various aggravating and mitigating factors that were presented.  During a discussion of

these factors the court made the following statement:

		"The defendant committed the offense against persons 60

years of age or older.  Okay, but I would not use that in

terms of *** adding on more years in terms of the aggravation

if we get to the extended term[.] ***

		Legislature has put up and allows me to take in a lot of

different factors and a lot of different issues and one of the

things that the legislature has asked me to do is to look at

and gives me the option to make extended term on behalf of

crimes committed against senior citizens.  And that certainly

was here and it was certainly terror.

		So first of all is that I'm going to impose extended

term."

The court then assessed the various aggravating and mitigating

factors and found that a 40-year sentence was appropriate. 

Defendant moved to reconsider his sentence, and the trial court

granted the motion, reducing defendant's sentence to 34 years'

imprisonment.  This timely appeal followed.  

	Defendant argues that the trial court erred when it imposed an

extended-term sentence because under Apprendi the fact warranting an extended-term sentence here, i.e., the age of the victims, was neither charged in the indictment nor proved beyond a reasonable

doubt at trial.  The State suggests that Apprendi does not apply because defendant was sentenced to a term of imprisonment that was

within the sentencing range for this offense.  The State claims

that the single sentencing range for each class of felony includes the minimum term available under section 5--8--1 of the Unified

Code of Corrections (Code) (730 ILCS 5/5--8--1 (West 1998)) and the

maximum term available under the extended-term sentencing

provisions.

	We determine that the State's argument is not persuasive. 

There are two cases that support defendant's argument and our

conclusion.  In People v. Thurow, 318 Ill. App. 3d 128, 135 (2001), the Third District concluded that during the trial the trier of

fact must make a specific finding about the victim's age before the

court can impose an extended sentence using the victim's age as the

basis for the extended-term sentence.

	After Thurow was decided, this court decided People v. Chanthaloth, 318 Ill. App. 3d 806 (2001).  In Chanthaloth the age of the victim was presented to the jury, and the defendant did not

challenge that evidence.  Chanthaloth, 318 Ill. App. 3d at 818.  Therefore, under a strict interpretation of Apprendi, the trial court properly imposed an extended-term sentence using the age of

the victim as the basis for imposing an extended-term sentence. 

Chanthaloth, 318 Ill. App. 3d at 818.  However, this court also noted that in imposing an extended-term sentence the trial court

considered not only the age of the victim but also the nature of

the crime and the fact that the victim was handicapped. 

Chanthaloth, 318 Ill. App. 3d at 818.  Because the trial court considered these other factors in addition to the age of the

victim, this court remanded the cause so that the defendant could

be resentenced.  Chanthaloth, 318 Ill. App. 3d at 818.

	Here, no evidence of the victims' ages was presented to the

court when defendant pleaded guilty.  Thus, the trial court failed

to find during the guilty plea proceedings that the victims of the

home invasion were over 60 years old.  When defendant pleaded

guilty he did not know that he was giving up his right to have the

State prove that the victims were over 60 years old.  Because the

fact that the victims were over 60 years old increased the penalty

that defendant faced and no evidence was presented regarding this

fact during the guilty plea proceedings, we conclude that

defendant's extended-term sentence must be vacated.

	The dissent maintains that defendant "was on notice" that the

age of the victims could be relevant because he knew that an older

couple lived in the residence involved in the crime and because he

chided one of the other individuals involved in the burglary for

taking the " 'old woman's jewelry.' "   Slip op. at 9.  We fail to

see how these two facts informed defendant that the victims' age

was a factor that the court could consider in sentencing defendant.

	Moreover, we find distinguishable the cases relied upon by the

dissent to support its position that the State's failure to inform

the trial court of the age of the victims at the plea hearing

constituted harmless error.  See People v. Blackwell, 325 Ill. App. 3d 354 (2001); People v. Peacock, 324 Ill. App. 3d 749 (2001); People v. Pearson, 324 Ill. App. 3d 622 (2001); People v.  Rohlfs, 322 Ill. App. 3d 965 (2001).  In Blackwell, Peacock, Pearson, and Rohlfs, undisputed evidence was presented during trial that the victim's age was 60 years or older.  In each of these cases the

appellate court found that, although the victim's age was not submitted to the trier of fact for proof beyond a reasonable doubt,

it was unlikely that the trier of fact could have found a different

age, given the undisputed evidence of age.  Consequently, where

there was evidence before the trial court of a factor used in

sentencing, the failure to submit that fact to the trier of fact

for proof beyond a reasonable doubt was harmless error.  Blackwell, 325 Ill. App. 3d at 359-60; Peacock, 324 Ill. App. 3d at 760-61; Pearson, 324 Ill. App. 3d at 628; Rohlfs, 322 Ill. App. 3d at 972.  Here, as noted above, there was no evidence presented to the trial

court during the guilty plea proceedings regarding the victims'

ages.

	The dissent relies on our treatment of the defendant's

Apprendi claim in People v. Chandler, 321 Ill. App. 3d 292 (2001) as support for its conclusion that, by entering a guilty plea,

defendant in the present case waived the right to challenge the

factor that resulted in his extended sentence.  The dissent,

however, misconstrues Chandler as stating that anytime a defendant pleads guilty he waives his constitutional rights as to any claim

that occurred prior to the entry of the guilty plea.  Furthermore,

unlike the present case, the trial court in Chandler specifically admonished the defendant that consecutive sentences based on his

future dangerousness, i.e., the factor the court ultimately relied on in imposing consecutive sentences, were a possibility. 

Chandler, 321 Ill. App. 3d at 297.  Also, the court based the defendant's future dangerousness not on the presence of an

additional factual element but on the number and nature of the

defendant's crimes.  Here, although the trial court advised defendant of the sentence he could face if an extended term

applied, it did not forewarn him, prior to sentencing, regarding

the factors that could result in such a sentence.

	Moreover, we consider it significant that in Chandler, we determined that, because the defendant filed only a motion to

reconsider his sentence and not a motion to withdraw his plea, it

was unclear what relief the trial court could provide if we vacated

his sentences.  Chandler, 321 Ill. App. 3d at 298.  Consequently, we concluded that the defendant could not raise an Apprendi claim at that stage of the proceedings.  Chandler, 321 Ill. App. 3d at 298.  In our view, Chandler does not provide adequate support for the dissent's position. 

	The State argues that this court should affirm the trial

court's sentencing order because section 5--5--3.2(b)(1) of the

Code (730 ILCS 5/5--5--3.2(b)(1) (West 1998)) allows the trial

court to impose an extended-term sentence when the defendant has

been convicted of a similar or greater class felony within the last

10 years.  Here, the State argues that an extended-term sentence

could properly be imposed because defendant's criminal record

revealed that defendant was convicted of burglary of a

dwelling/occupied structure in Florida in 1990.

	Although it appears that the trial court could have imposed an

extended-term sentence based on this fact, this is not the reason

why the trial court chose to impose an extended-term sentence. 

Rather, the trial court imposed an extended-term sentence

specifically because the victims were over 60 years old.  Thus, we

determine that the State's argument lacks merit.  We note, however, that our determination does not preclude the trial court on remand

from considering defendant's prior conviction in imposing sentence.

	For the above- stated reasons, we are constrained to vacate the

extended-term sentence pursuant to the United State's Supreme

Court's holding in Apprendi.  On remand, defendant, at a minimum,  has a right to be resentenced in light of the views expressed

herein.  We note that while this cause was pending in this court,

our legislature enacted a statute that addressed the issue

presented in Apprendi.  See Public Act 91--953 §10, eff. February 23, 2001 (amending 730 ILCS 5/5--5--4 (West 1998).  On remand, the

parties may choose to address the applicability of this statute.  

	The sentence imposed by the circuit court of Kane County is

vacated, and the cause is remanded for further proceedings that are

consistent with this disposition.

	Sentence vacated and cause remanded for further proceedings.

	O'MALLEY, J., concurs.

	PRESIDING JUSTICE HUTCHINSON, dissenting:

	In the present case, defendant voluntarily waived his right to

have the charges tried by a jury or the bench when he elected to

enter a plea of guilty.  In pleading guilty, defendant waived all

nonjurisdictional errors or irregularities.  See People v. Peeples, 155 Ill. 2d 422, 491 (1993).  Defendant is requesting this court to

vacate his extended-term sentence because the State failed to

inform the trial court during its presentation of the factual basis

that the victims were over the age of 60 when defendant robbed

them.  At the hearing, defendant was admonished regarding the

possible sentence he eventually received.  The possibility of a term of 30 to 60 years was clear at the time of the plea.  By

pleading guilty, defendant gave up the right to challenge a

sentence within the statutory range for the offense to which he

pleaded guilty.  We have previously stated:

		"A defendant who pleads guilty does not have the same

appeal rights as one convicted following a trial.  [Citation.] 

Generally, after pleading guilty, a defendant may not raise

claims of the deprivation of constitutional rights that

occurred before the entry of the plea.  [Citation.]  Before

defendant entered his plea, the court informed him of the

sentencing ranges for the offenses and specifically admonished

him of the possibility of consecutive sentences.  Having

waived a jury trial on all issues, defendant cannot now claim

that he was deprived of the right to have a jury determine the

issue of his future dangerousness.  Similarly, he cannot claim

that he was unfairly deprived of the right to have the State

prove that point beyond a reasonable doubt."  People v. Chandler, 321 Ill. App. 3d 292, 297 (2001).

	Furthermore, defendant was on notice that the age of the

victims could be relevant.  Even before the plea hearing took

place, defendant explained his involvement in the crime to an

investigator.  Defendant indicated that he went to the victims'

residence one week before the burglary and noted that an older

couple lived there.  During the burglary he chided one of the other

individuals involved for taking the "old woman's jewelry."  At the

plea hearing, the record clearly reflects that defendant was

admonished of the nature of the charges and possible penalties by the trial court before he entered his plea.  The trial court

informed defendant that, if an extended term applied to him, the

sentencing range would run between 30 and 60 years.  At that point,

defendant was confronted with the possibility that he was eligible

to receive a prescribed statutory maximum sentence of 60 years upon

a finding that any one of the statutory factors existed.  See 730

ILCS 5/5--5--3.2(b)(4)(ii), (West 1998); 720 ILCS 5/12--11 (West

1998); People v. Rivera, No. 2--98--1662 (December 5, 2001).  If defendant had additional concerns, he was afforded the opportunity

to confer with his appointed counsel.  Any error resulting from the

State's failure to officially inform the trial court of the age of

the victims was harmless.  See People v. Blackwell, 325 Ill. App. 3d 354 (2001); People v. Peacock, 324 Ill. App. 3d 749 (2001); People v. Pearson, 324 Ill. App. 3d 622, 628 (2001); People v. Rohlfs, 322 Ill. App. 3d 965 (2001).

	I believe that, by entering a plea of guilty, defendant waived

the right to challenge the factor that resulted in the longer

sentence.  See Chandler, 321 Ill. App. 3d at 296-97.  Further, defendant's extended-term sentence was specifically authorized by

statute, and the trial court's imposition of the sentence complied

with the rule announced in Apprendi.  Accordingly, I must respectfully dissent from the majority's decision to vacate

defendant's extended-term sentence.