SIXTH DIVISION

June 22, 2001

No. 1-99-2922

THE PEOPLE OF THE STATE OF ILLINOIS,

		Plaintiff-Appellee,

	v.

DAVID VIDA,

		Defendant-Appellant.

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Appeal from the

Circuit Court of

Cook County

Honorable

Frank De Boni,

Judge Presiding.

	JUSTICE GALLAGHER delivered the opinion of the court:		

	Following a jury trial, defendant David Vida was convicted of first degree murder. 

Finding that defendant's actions were exceptionally brutal and heinous and indicative of wanton

cruelty, the trial court sentenced him to 100 years in prison.  On appeal, defendant contends that

the police lacked probable cause to arrest him.  Defendant also asserts that his trial counsel was

ineffective because counsel advised him not to testify at trial and failed to present significant

evidence to support his case.  In addition, defendant contends that the court erred in allowing the

jury to view statements by defendant's mother during its deliberations.  Defendant also claims that

his 100-year prison sentence was excessive, an abuse of the trial court's discretion, and in

violation of the United States Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000), which held that any fact that

increases the sentence for a crime beyond the prescribed statutory maximum for that offense must be submitted to a jury and proved beyond a reasonable doubt.  For the foregoing reasons, we affirm defendant's convictions and sentence.

	At a hearing on defendant's motion to quash his arrest and suppress evidence, Larry

Lindenman of the Illinois State Police investigations unit was the sole witness.  Lindenman

testified that on March 2, 1997, he investigated the discovery of a dismembered male body at a

campsite in the Des Plaines conservation area in Will County.  Clad in a bloodstained shirt and

jeans, the body had been cut in half at the waist and placed in plastic garbage bags.  The body was

later identified as Scott Harast.

	Several days before the body was discovered, Harast's parents reported him missing. 

Patricia Harast last saw her son alive on February 24 when he and defendant discussed working

together to rehab a house.  Harast told Lindenman she was surprised at their plans because

defendant and her son had a bad relationship.  

	At about 8 p.m. on February 24, a cashier at Leo's Liquors in Brookfield waited on Harast

and defendant.  Another cashier at that store told Lindenman that on February 20, she heard

defendant call Harast a "faggot" and say that he knew people who could kill him.  Regarding

Harast's disappearance, defendant said he and Harast had gone to a liquor store and he had proceeded to the jobsite while Harast stopped at a local grocery store.  However, the owner of

the grocery store told Lindenman that Harast did not enter the store that night.  Defendant said he and Harast were to meet at the house but Harast never arrived. 

	Lindenman testified that on March 4, police obtained a search warrant for 3517 South Park Avenue in Brookfield.  In the house, crime scene investigators discovered blood splatters and markings consistent with a body being chopped on the basement floor.  The indentation of a

chop mark on the floor contained jean material, human tissue and blood.  Tissue and blood were

found on a nail protruding from a hole in the first floor leading to the basement.  Police recovered a bloody ax and tree saw that Lindenman testified were capable of dismembering a human body. 

A bloody sledge hammer and a broken chair also were found.    

	Defendant told Brookfield police that he and Harast were good friends and planned to

rehab the Park Avenue house.  The house's owner told police that he had hired defendant to

perform such work.

	Lindenman testified that 3517 South Park Avenue was four or five blocks away from defendant's residence.  On March 7, Lindenman and Steve Kline, an Illinois State Police detective, went to defendant's home and told defendant they wanted to speak to him at state police

headquarters in Lockport.  Defendant agreed to cooperate, and Lindenman told defendant that he

could drive separately if he wished.  Defendant said he would go with the officers because his

driver's license was suspended.  The officers did not handcuff defendant.  On cross-examination,

Lindenman testified that he did not tell defendant that he did not have to go with them to police

headquarters.  The trial court denied defendant's motion to quash his arrest and suppress

evidence, finding that sufficient probable cause existed for defendant's arrest.  Defendant also

made a motion to suppress his statements to police, which the trial court also denied.

	At trial, Patricia Harast testified that at the time of his death, her son rented a room at

3424 Grand Boulevard in Brookfield from Julie Killian, who was defendant's sister, and Killian's

husband.  She testified that her son was gay.  On February 24, he told her he and defendant were going to a vacant house in Brookfield to do rehab work and that defendant was going to pay him

to vacuum.1  On cross-examination, she stated that her son was bisexual and that he and Julie Killian were friends and had planned a trip together.  She said her son had a drinking problem and

was unemployed and Killian was an alcoholic and a drug addict.     

	Kurt Vavra, manager of Leo's Liquors, testified that on February 20, defendant was in the

store and that he called Harast a "faggot" and said he wanted to kill him.  Donna Taylor, a cashier

at the store, testified that she heard defendant say that day that if Killian died, "they would find

that faggot dead somewhere."2     

	The house's owner testified that on February 22, he asked defendant to obtain a duplicate house key so defendant could enter the house during the week to work in his absence.  On

February 28, he found a note on the house's door from defendant apologizing for a broken chair

and saying that he would explain later.  Between February 28 and March 2, he entered the house

and found that electrical wiring had been pulled out and also noticed a strong odor of cleaning

solutions.  Defendant later told the owner that he had accidentally pulled out the wire with his

foot and had tripped over the chair and broken it.   

	Dr. Larry Blum testified that based on the results of an autopsy, Harast died of skull and

brain injuries due to multiple blunt force trauma.  Harast's injuries included two facial fractures,

bleeding inside the skull, lungs and trachea, multiple head and body lacerations and fractured ribs, with a total of 20 different injured areas.  Blum testified that the condition of the bones near the

dismembered area was consistent with being severed by a saw or a blunt object such as an ax. 

Julie Glasner, a state police forensic scientist, testified as an expert in DNA analysis and stated that bloodstains on the broken chair and on a mop handle at the scene were consistent with

defendant's DNA.

	Lindenman testified that after defendant was brought to police headquarters, defendant

initially denied killing Harast but later said that he and Harast had argued about Harast's

relationship with Killian.  Defendant said Harast swung an ax at him, and defendant punched

Harast in the face, causing Harast to fall backward and through a hole in the floor.  After

discovering that Harast was not breathing, defendant left.  Defendant denied dismembering

Harast's body and leaving it at the campsite.  After offering several other versions of Harast's

death, defendant admitted dismembering and disposing of the body and cleaning the basement. 

Defendant said he put the body in a van and asked his mother to go with him to drop the body off

because that would look less suspicious than if defendant were seen driving alone. 

	Cook County Assistant State's Attorney Colin Simpson testified that at about 1 a.m. on

March 8, defendant gave a court-reported statement admitting that he killed Harast.  Defendant

said he told his mother about the killing and they disposed of the body three days later.  

	The defense presented one witness.  Cheryl Vida, defendant's mother, testified that

between February 23 and February 27, she was at LaGrange Memorial Hospital recovering from a

heart attack.  Vida testified that she did not accompany defendant to dispose of a body.  She gave

a statement to Brookfield police at about 5:30 a.m. on March 8; however, she was upset because Killian, her daughter, had just died and did not know what the police said to her.  On cross-

examination, Vida denied telling Lindenman that defendant told her that he killed Harast and

denied going with defendant to dispose of Harast's body.  However, she admitted signing a

statement in Lindenman's presence on March 8. 

	In rebuttal, Lindenman testified that he took Vida's statement on March 8.  Vida said that

on February 24, defendant told her that he killed Harast and on February 27, she accompanied

defendant to the campsite where they left Harast's body.  Lindenman said Vida signed the

statement. 

	On appeal, defendant first contends that the trial court erred in denying his motion to

quash his arrest and suppress evidence.  He argues that Lindenman and Kline arrested him without

probable cause when they arrived at his house on March 7 and transported him to state police

headquarters.  Defendant points out that Lindenman did not tell him that he did not have to go

with them.

	To have probable cause to justify a warrantless arrest, a police officer must be aware of facts and circumstances at the time of the arrest that are sufficient to allow a person of reasonable

caution to believe that an offense had been committed and that the person being arrested

committed the offense.  People v. Sims, 192 Ill. 2d 592, 614-15, 736 N.E.2d 1048, 1060 (2000).  The existence of probable cause is determined by the totality of the circumstances at the time of

the arrest.  Sims, 192 Ill. 2d at 615, 736 N.E.2d at 1060.  When reviewing a trial court's ruling on a motion to quash an arrest and suppress evidence where no factual or credibility disputes exist,

our standard of review is de novo.  People v. Buss, 187 Ill. 2d 144, 204-05, 718 N.E.2d 1, 35 (1999).

	Among the factors relevant to establishing probable cause are the proximity of the defendant's residence to the crime scene and whether the defendant was among the last to see the

victim alive.  Buss, 187 Ill. 2d at 206, 718 N.E.2d at 36.  Defendant likens the circumstances surrounding his arrest to those in People v. McGhee, 154 Ill. App. 3d 232, 507 N.E.2d 33 (1987), which we find distinguishable from the case at bar.  In McGhee, police took a juvenile suspect into custody after learning that the suspect was in the company of the victim on the night before

the victim was found dead.  McGhee, 154 Ill. App. 3d at 234, 507 N.E.2d at 34.  This court found that information insufficient to support the suspect's arrest.  McGhee, 154 Ill. App. 3d at 237, 507 N.E.2d at 36, quoting Wong Sun v. United States, 371 U.S. 471, 479, 9 L. Ed. 2d 441, 450, 83 S. Ct. 407, 413 (1963) ("'[i]t is basic that an arrest with or without a warrant must stand upon firmer

ground than mere suspicion [citation], though the arresting officer need not have in hand evidence

which would suffice to convict'").  

	Here, the circumstances that were known to police when they arrested defendant went

beyond the fact that defendant was the last person seen with Harast before his death.  Lindenman

testified that he had learned that Harast was last seen alive with defendant, that the two men had a

bad relationship, and that defendant had threatened to kill Harast and used a derogatory term to

describe him.  In addition, defendant lived four or five blocks away from the Park Avenue house,

in which investigators found evidence consistent with Harast's injuries.  Defendant also told police

he was working on rehabbing the house, which the owner confirmed.  Based upon the totality of the circumstances known to police, we find that sufficient probable cause existed to arrest defendant. 

	Defendant also contends that even if the police had probable cause to arrest him, the arrest

was unlawful because it was made inside his house.  Under Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), entry without a valid warrant into a suspect's residence to

effectuate an arrest violates the fourth amendment of the United States Constitution.  U.S. Const.,

amend. IV; see also People v. Wimbley, 314 Ill. App. 3d 18, 731 N.E.2d 290 (2000).  At the suppression hearing, Lindenman testified that he and Kline stood on an unenclosed porch at

defendant's residence while they spoke to defendant.  Defendant was told he could drive

separately if he wished.  Lindenman testified that defendant agreed to go with the officers and went inside the house to get a coat and to change shoes.  

	Based upon those facts, no violation of Payton occurred because the record does not indicate that defendant was arrested inside his residence.  Although Lindenman testified that he or Kline entered the residence at some point, no evidence exists that defendant was placed under

arrest inside the house or that the officer who entered the house was not invited inside by

defendant.  Indeed, as the State points out, the trial judge stated in making his ruling that "I

imagine you could say [defendant] was under arrest from the point that he left his house ***." 

Even if we were to conclude that the officers placed defendant under arrest on the porch, such an

arrest would not violate Payton.  See, e.g., People v. Williams, 275 Ill. App. 3d 249, 254-55, 655 N.E.2d 1071, 1076 (1995) (arrest valid on open porch where suspect "was not in an area where he had a reasonable expectation of privacy"); People v. Arias, 179 Ill. App. 3d 890, 895-96, 535 N.E.2d 89, 92-93 (1989) (officers did not violate Payton in entering porch because porch was distinct from entry into suspect's home).  Defendant's arguments regarding the lawfulness of his

arrest are rejected.

	Defendant next contends his trial counsel was ineffective for presenting an inadequate defense consisting only of the testimony of defendant's mother, who had admitted in a written

statement to police that she had helped her son dispose of Harast's body.  Defendant also asserts

that his defense was hindered by the fact that trial counsel advised him not to testify and that in

the absence of his testimony or the presentation of an alibi or affirmative defense, the jury was left

to consider only evidence implicating him in Harast's death. 

	To demonstrate ineffective assistance of counsel under Strickland v. Washington, 446 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), a defendant must show that counsel's

performance was deficient and that the deficient performance prejudiced the defendant such that

the result of the proceeding would have been different.  Because a defendant must satisfy both the

deficiency and prejudice prongs of Strickland to state a valid claim of ineffective assistance, failure to establish either component will defeat his or her claim.  People v. Richardson, 189 Ill. 2d 401, 411, 727 N.E.2d 362, 369 (2000). 

	Defendant contends that, based upon the advice of counsel, he was "forced not to testify in his own defense."  However, the record contains the following exchange between the trial

judge and defendant immediately prior to the presentation of defendant's case:

		"THE COURT: Mister Vida, as the [d]efendant in this case, you

understand you have the right to testify, if you want to.  Do you understand that?

		DEFENDANT: Yes.

		THE COURT: If you wish to testify, you can take the witness chair, under

oath, like all other witnesses and give testimony.  You can also not testify if you

want to.  That is your right, not to testify.

		DEFENDANT: Yes.

		THE COURT: You are under no obligation to offer any testimony.  You

shouldn't feel compelled to offer any testimony.  You are presumed innocent.  You

may rely on your presumption of innocence.  Do you understand that?

		DEFENDANT: Yes.

		THE COURT: If you decide, after discussing with [defense counsel] Mister

Unger, whether or not you want to testify in this case –

		DEFENDANT: What?

		THE COURT: Do you wish to testify in your defense?

		DEFENDANT: No. 

		THE COURT: Okay.  Has anybody forced you or threatened you to make

you give up your right to testify?

		DEFENDANT: No.

		THE COURT: Has anybody promised you anything to give up your right

to testify?

		DEFENDANT: No.

		THE COURT: You are doing this of your own free will?

		DEFENDANT: Yes.

		THE COURT: You understand, if you wanted to, you would be allow [sic] to testify?

		DEFENDANT: Yes.

		THE COURT: Okay.

		MR. UNGER [to defendant]: You did talk, we did talk it over? 

		DEFENDANT: I talked to him.

		THE COURT: You and Mister Unger discussed it.  He explained to you all

about your right to testify.  It is your decision.  And after talking to Mister Unger

you don't want to testify?

		DEFENDANT: Yes.

		THE COURT: Okay.  Let the record reflect the [d]efendant knowingly and

voluntarily waived his right to testify in his own defense.  So we will allow Mister

Unger to call whatever witnesses he would like to call."

	The right of a criminal defendant to testify at trial is fundamental, and therefore, unlike the presentation of other witnesses, the defendant's exercise of the right to testify is not a matter of

strategy or a tactical decision left to trial counsel.  People v. Steward, 295 Ill. App. 3d 735, 743, 693 N.E.2d 436, 443 (1998).  A defendant's decision to testify can only be made by the defendant regardless of counsel's advice to the contrary.  People v. Clemons, 277 Ill. App. 3d 911, 922, 661 N.E.2d 476, 483 (1996).  The above colloquy indicates that the trial court fully advised defendant of his right to testify and reiterated that the decision was defendant's choice to make.  Defendant

acknowledged that he understood his right to testify but stated that he did not wish to do so. 

	In his brief to this court, defendant asserts that at proceedings on his posttrial motion, his

counsel (who was not his attorney at trial) informed the court that although trial counsel had

advised defendant not to testify, defendant had actually wanted to take the stand.  However, the judge at defendant's posttrial proceedings also presided over defendant's trial, and the judge

recalled his admonitions to defendant regarding his right to testify.  In light of the record, defendant has not shown that he was prevented from testifying in his own defense.

	Regarding defense counsel's decision to present only the testimony of defendant's mother, decisions about which witnesses to call and what evidence to present in a particular case

ultimately rest with counsel and have long been viewed as matters of trial strategy for which

counsel is generally immune from ineffective assistance claims.  See Richardson, 189 Ill. 2d at 414, 727 N.E.2d at 370; People v. York, 312 Ill. App. 3d 434, 437, 727 N.E.2d 674, 677 (2000).  An exception to this rule exists when counsel's chosen trial strategy is so unsound that he or she

fails to submit the prosecution's case to any meaningful adversarial testing.  People v. Reid, 179 Ill. 2d 297, 310, 688 N.E.2d 1156, 1162 (1997).  Defendant asserts that his trial counsel was inadequate for failing to present an "alibi defense or any other affirmative defenses."  A lack of

investigation is to be judged against a standard of reasonableness given all of the circumstances,

"'applying a heavy measure of deference to counsel's judgments.'"  People v. Kokoraleis, 159 Ill. 2d 325, 330, 637 N.E.2d 1015, 1018 (1994), quoting Strickland, 446 U.S. at 691, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.  Moreover, what investigation is deemed reasonable depends on the informed strategic choices of, as well as the information supplied by, the defendant.  Kokoraleis, 159 Ill. 2d at 330, 637 N.E.2d at 1018.  Here, defendant's brief is devoid of specific facts that his counsel overlooked or the names of particular witnesses that counsel failed to interview that

would have lent support to such defense theories.  Cf., e.g., People v. Coleman, 183 Ill. 2d 366, 398, 701 N.E.2d 1063, 1079 (1998) (failure to interview witnesses may be indicative of deficient representation when witnesses are known to trial counsel and their testimony may be

exonerating).  Absent such evidence to show that counsel's performance was deficient, we find no

violation of Strickland.  To the extent that defendant's assertion that "the jury was presented with evidence from the prosecution and nothing more" is an argument that counsel failed to engage in

adversarial testing of the State's case, we also disagree.  See People v. Shatner, 174 Ill. 2d 133, 145-46, 673 N.E.2d 258, 263 (1996) (defense counsel was sufficiently adversarial when he engaged in opening and closing arguments, cross-examined the State's witnesses and presented

witnesses, including the defendant, on defendant's behalf, and voiced objections throughout trial

to adverse evidence). 

	Defendant next contends that the trial court erred in allowing the jury to view his mother's

statement because the statement was only used to impeach her credibility and was not admitted as

substantive evidence.  To review Vida's testimony, she stated she did not accompany defendant to

dispose of a body and although she spoke to Brookfield police, she could not recall details of the

conversation.  Lindenman rebutted that testimony, stating that Vida signed a statement admitting

that defendant told her he killed Harast and that she accompanied defendant to the campsite to

leave the body there.  During deliberations, the jury requested Vida's statement.  The trial judge

allowed the statement to be published to the jury, stating that doing so would not prejudice

defendant's case because Vida had identified the statement in court and acknowledged signing it and because its subject matter was described during testimony.

	Defendant argues that Vida's statement was not made under oath and that she denied knowledge of its contents.  The State responds that Vida's statement was not admitted as substantive evidence but was instead introduced to impeach Vida's credibility after she denied that

she gave a statement to Lindenman.  The State also points out that the jury was instructed that a

witness may be challenged by evidence of a prior inconsistent statement, which the jury should

consider only in determining the weight to be given the witness's testimony.  

	Generally, an error is waived where a defendant fails to voice a timely objection to the

alleged error and fails to include the issue in a posttrial motion.  People v. Enoch, 122 Ill. 2d 176, 187, 522 N.E.2d 1124, 1130 (1988).  According to the record, the trial judge and counsel for both sides conferred regarding the jury's requests to see Vida's statement.  Although defendant's posttrial motion included his claim of error regarding Vida's statement, the record indicates that

defense counsel did not formally object to the publication of Vida's statement to the jury. 

Therefore, defendant has forfeited his right to argue on appeal that the trial court erred in

allowing the jury to view the statement during its deliberations.

	Pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), a reviewing court may override considerations of waiver where plain errors or defects affecting substantial rights are

involved.  See also People v. Basler, 193 Ill. 2d 545, 549, 740 N.E.2d 1, 3 (2000).  However, the plain error doctrine applies only when the evidence is closely balanced or if the alleged error was

of such a magnitude as to deny the defendant a fair trial.  People v. Morgan, 142 Ill. 2d 410, 444- 45, 568 N.E.2d 755, 766 (1991).  We do not find the evidence in this case to have been closely balanced.  In addition, sufficient limits were placed on the use of Vida's statement by the jury via

the trial court's instruction.  See People v. Herron, 218 Ill. App. 3d 561, 574-75, 578 N.E.2d 1310, 1320 (1991) (trial court properly allowed jury to review prior inconsistent statement when jury was instructed that statement was not to be considered as substantive evidence).  Therefore,

on this record, we do not find that plain error occurred.  

	Defendant's remaining contentions on appeal 	involve his 100-year prison sentence.  Defendant was convicted of first degree murder, which carries a sentence of between 20 and 60

years in prison pursuant to section 5-8-1(a)(1)(a) of the Unified Code of Corrections (the Code)

(730 ILCS 5/5-8-1(a)(1)(a) (West 1998)).  Under section 5-8-2(a) of the Code, which provides

for extended-term sentencing, the court was allowed to sentence defendant to between 60 and

100 years in prison if the court found the existence of one or more factors in aggravation set forth

in section 5-5-3.2(b).  730 ILCS 5/5-8-2(a)(1), 5-5-3.2(b) (West 1998).  One such factor under 5-

5-3.2(b) is when "a defendant is convicted of any felony and the court finds that the offense was

accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty."  730 ILCS

5/5-5-3.2(b)(2) (West 1998).  Based upon its finding of that factor in this case, the court

sentenced defendant to 100 years in prison.  

	Defendant argues that Apprendi requires that the factual question of whether Harast's murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty be decided by a jury and proved beyond a reasonable doubt.  He asks this court to find the

statutory sentencing scheme outlined above to be unconstitutional under Apprendi and to vacate his sentence and remand this case to the trial court for resentencing.

	In Apprendi, the Supreme Court addressed a New Jersey statute that classified possession of a firearm for an unlawful purpose as a second degree offense punishable by 5 to 10 years in

prison.  Another statute, known as New Jersey's "hate crime" law, provided for imprisonment of

between 10 and 20 years if the trial judge determined by a preponderance of the evidence that the

defendant "'in committing the crime acted with a purpose to intimidate an individual or group of

individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.'" 

Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351, quoting N.J. Stat. Ann. §2c:44-3(e) (West Supp. 1999-2000).  The Court held that "[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt."  Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.  Apprendi had not been charged under the hate crime law, but the trial court nevertheless sentenced him to 12 years in prison under that

statute based upon evidence that he had fired several shots into the home of a black family

because he did not want them living in the predominantly white neighborhood.  Apprendi, 530 U.S. at 468-69, 147 L. Ed. 2d at 442. 120 S. Ct. at 2351.   

	In the case at bar, the State initially contends that defendant waived his right to challenge

his sentence by failing to include the issue in a postsentencing motion.  Because a challenge to the

constitutionality of a statute may be raised at any time, we do not consider defendant's arguments

waived.  See People v. Wright, 194 Ill. 2d 1, 23, 740 N.E.2d 755, 766 (2000).  Regarding the merits of defendant's argument, the State asserts that Apprendi was not violated because the sentence for first degree murder can range from a minimum of 20 years to a maximum of the death penalty and that defendant's 100-year sentence therefore did not exceed the statutory

maximum sentence for that crime.

	The first Illinois case to analyze the statutory sentencing scheme in light of Apprendi was People v. Joyner, 317 Ill. App. 3d 93, 739 N.E.2d 594 (2000).  In Joyner, a Second District panel of this court found section 5-8-1(a)(1)(b) unconstitutional under Apprendi because under that provision, a court could sentence a defendant convicted of first degree murder to natural life

imprisonment "if the court finds that the murder was accompanied by exceptionally brutal or

heinous behavior indicative of wanton cruelty."  730 ILCS 5/5-8-1(a)(1)(b) (West 1998); Joyner, 317 Ill. App. 3d at 110, 739 N.E.2d at 606-07.  The court found that the trial court's finding enhanced the penalty for the defendant's offense beyond the statutory maximum of 60 years in

prison as set out in section 5-8-1(a)(1)(a).  Joyner, 317 Ill. App. 3d at 110, 739 N.E.2d at 606.  Therefore, a jury should have determined whether the defendant's conduct met the "exceptionally

brutal or heinous" standard.  Joyner, 317 Ill. App. 3d at 110, 739 N.E.2d at 606-07.  The court reduced defendant's sentence to 60 years, which it deemed "the statutory maximum term for first-

degree murder."  Joyner, 317 Ill. App. 3d at 110, 739 N.E.2d at 607.  

	In People v. Beachem, 317 Ill. App. 3d 693, 708, 740 N.E.2d 389, 399 (2000), this court held that Apprendi was violated when the trial judge sentenced the defendant to an extended term of 90 years in prison for first degree murder under section 5-8-2(a) based upon an "exceptionally

brutal or heinous" finding under section 5-5-3.2(b)(2).  The Beachem court found that 60 years was the "prescribed maximum sentence for first degree murder in this State" and that Apprendi prevented findings of fact by the trial court that would extend the defendant's sentence.  Beachem, 317 Ill. App. 3d at 708, 740 N.E.2d at 399.  See also People v. Chanthaloth, 318 Ill. App. 3d 806, 743 N.E.2d 1043 (2001); People v. Armstrong, 318 Ill. App. 3d 607, 743 N.E.2d 215 (2000); People v. Lee, 318 Ill. App. 3d 417, 743 N.E.2d 1019 (2000); People v. Kaczmarek, 318 Ill. App. 3d 340, 741 N.E.2d 1131 (2000).

	Recently, in People v. Nitz, 319 Ill. App. 3d 949, ___ N.E.2d ___ (2001), a defendant was convicted of first degree murder and was sentenced under section 5-8-1(a)(1)(b) to natural life

imprisonment based upon a finding of exceptionally brutal or heinous behavior indicative of

wanton cruelty.  The court rejected the State's argument that the maximum statutory penalty for

first degree murder is the death penalty.  Nitz, 319 Ill. App. 3d at 964, ___ N.E.2d at ___.  The court held that the jury must "determine[] the facts that fix the limit of exposure to punishment,"

and that the court's finding under section 5-8-1(a)(1)(b) exposed the defendant to a punishment

greater than that authorized by the jury's guilty verdict.  Nitz, 319 Ill. App. 3d at 969, ___ N.E.2d  at ___.  The court modified the defendant's sentence to a 60-year prison term.  Nitz, 319 Ill. App. 3d at 969, ___ N.E.2d at ___.      	

	The Nitz court noted that in deciding Apprendi, the Court expressly relied upon its ruling in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999), which involved a federal carjacking statute that carried a maximum penalty of 15 years in prison for that

offense.  The statute in Jones also provided that if serious bodily injury occurred during the carjacking, the offender could be sentenced to up to 25 years, and if death occurred, the offender

was subject to life imprisonment.  Jones, 526 U.S. at 230, 143 L. Ed. 2d at 318, 119 S. Ct. at 1218.  The Court in Jones held that the carjacking statute established three distinct criminal offenses and noted that the longer sentences were conditioned on "further facts (injury, death)

that seem quite as important as the elements in the principal paragraph (e.g., force and violence, intimidation)."  Jones, 526 U.S. at 233, 143 L. Ed. 2d at 319, 119 S. Ct. at 1219.  The Court held that the elements of each separate offense "must be charged by indictment, proven beyond a

reasonable doubt, and submitted to a jury for its verdict."  Jones, 526 U.S. at 252, 143 L. Ed. 2d at 331, 119 S. Ct. at 1228.         

	Noting the Court's reliance in Apprendi on its previous statement in Jones that a legislature cannot "remove from the jury the assessment of facts that increase the prescribed range

of penalties to which a criminal defendant is exposed," the Nitz court stated that "the confirmation and endorsement of Jones by the Apprendi majority enlightens the central premise of the constitutional rule – it is wrong to convict someone of one crime and sentence [him] for another." 

Nitz, 319 Ill. App. 3d at 967, ___ N.E.2d at ___.  The Nitz court concluded that the trial judge made a factual finding that increased the range of penalties to which the defendant was exposed

and which "set [the defendant's] crime apart from other first-degree murders and increased his

exposure to punishment."  Nitz, 319 Ill. App. 3d at 967, ___ N.E.2d at ___.  See also People v. Rush, No. 5-99-0092 (May 11, 2001) (following analysis set forth in Nitz).   

	Having considered those cases, we set forth a different analysis.  In order to determine whether defendant's sentence exceeded the "prescribed statutory maximum" as stated in Apprendi, our first task is to consider the maximum possible sentence that defendant could have received for first degree murder.  Under section 5-8-1(a)(1)(a), the sentence for first degree murder is between

20 and 60 years in prison.  Pursuant to section 5-8-2(a), the trial court can impose a extended- term sentence of 60 to 100 years when the court finds the existence of an aggravating factor in

section 5-5-3.2(b).  That occurred in this case with the trial court's finding of exceptionally brutal

and heinous behavior indicative of wanton cruelty.  In addition, a sentence of natural life

imprisonment was also possible in defendant's case under section 5-8-1(a)(1)(b) based upon the

court's finding of exceptionally brutal or heinous behavior indicative of wanton cruelty or any of

the aggravating factors found in the death penalty statute.  Defendant could have received the

death penalty only upon a jury finding, beyond a reasonable doubt, of the existence of at least one

statutory aggravating factor.  See 720 ILCS 5/9-1(b), (f), (g) (West 1998).  Such a finding of

eligibility for the death penalty was not made in this case.  Therefore, in this case, the maximum

sentence that defendant could have received was natural life imprisonment.

	Several panels of this court have agreed on a "maximum sentence" for first degree murder

that differs from our assessment.  See Nitz, 319 Ill. App. 3d at No. 5-98-0657, slip op. at 22 968, ___ N.E.2d ne2at ___  ("[a] 60- year prison term is the maximum sentence prescribed by law for those facts that define the crime

of first degree murder"); Armstrong, 318 Ill. App. 3d at 620, 743 N.E.2d at 225 (defendant's sentence "cannot be extended beyond the statutory limitations of 60 years in the instant case"); Beachem, 317 Ill. App. 3d at 708, 740 N.E.2d at 399 ("[w]e view 60 years as the prescribed maximum sentence for first-degree murder in this State"); Joyner, 317 Ill. App. 3d at 110, 739 N.E.2d at 606 (the trial court's finding of exceptionally brutal or heinous behavior indicative of wanton cruelty "enhanced the penalty for defendant's offense beyond the statutory maximum of 60

years' imprisonment").  Those cases make reasonable attempts to reconcile the Illinois sentencing scheme for that offense with the Supreme Court's decision in Apprendi.  However, those cases employ reasoning that is somewhat circular by concluding that the extended-term sentencing

provisions violate Apprendi and that therefore the maximum allowable sentence for first degree murder is 20 to 60 years as provided in section 5-8-1(a)(1)(a).  That view does not acknowledge

that the overall sentencing scheme allows for a higher maximum sentence for murder in certain

circumstances.  

	As opposed to reading sections 5-8-1 and 5-8-2 together as part of a single sentencing

scheme, those cases treat each sentencing provision as discrete and independent.  In examining a statute, it must be read as a whole and all relevant parts should be considered, as it is incorrect for

a court to construe a statute in such a way as to render any part meaningless or void.  People v. Reed, 177 Ill. 2d 389, 393, 686 N.E.2d 584, 585 (1997); People v. Tarlton, 91 Ill. 2d 1, 5, 434 N.E.2d 1110, 1111 (1982).  It is the responsibility of this court to interpret and apply statutes in the manner in which they are written and not to ignore the clear provisions of a statute.  See

People v. Robinson, 172 Ill. 2d 452, 462, 667 N.E.2d 1305, 1309 (1996).  In keeping with that charge, a court must avoid construing a statute in a way that renders any part of it superfluous or

meaningless.  In re Detention of Anders, 304 Ill. App. 3d 117, 121, 710 N.E.2d 475, 478 (1999).

	In the sentencing scheme at issue, section 5-8-2(a) provides that "[a] judge shall not

sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by

Section 5-8-1 for the class of the most serious offense of which the offender was convicted unless

the factors in aggravation set forth in paragraph (b) of Section 5-5-3.2 were found to be present." 

730 ILCS 5/5-8-2(a) (West 1998).  In arguing that 60 years is the maximum sentence, Nitz and the cases discussed above acknowledge section 5-8-1(a)(1)(a) but do not consider the sentencing scheme in its entirety, specifically the provisions of section 5-8-2(a), which expressly mentions

section 5-8-1, and also section 5-8-1(a)(1)(b), which provides for a possible sentence of natural

life imprisonment.  By concluding that 60 years is the maximum penalty, these decisions artificially

sever section 5-8-1(a)(1)(a) from section 5-8-1(a)(1)(b) and section 5-8-2(a).  These statutes,

however, must be read in pari materia as part of an overall statutory sentencing scheme for murder.  The interpretation of these provisions cannot end with section 5-8-1(a)(1)(a), but must

encompass each portion of the legislature's scheme.  

	This approach to statutory interpretation under Apprendi was recently endorsed in People v. Murphy, No. 5-99-0535 (May 22, 2001).  In Murphy, another district of this court addressed Apprendi arguments involving consecutive sentencing under sections 5-8-4(a) and 5-8-4(b) of the Code.  In interpreting Apprendi's holding that sentencing courts must impose judgment "within the range prescribed by statute," the Murphy court read the term "statute" to "necessarily include the entire statutory scheme within which a defendant may be sentenced."  (Emphasis added.)  Murphy, slip op. at 14-15.    

	We wholeheartedly agree with the principle adhered to in Apprendi, Jones and their progeny that a defendant should not be charged with and tried for one offense and then sentenced for another.  However, fundamental differences exist between the statutes in Apprendi, Jones and their progeny and the Illinois sentencing scheme for first degree murder.  Such differences remain essential to our analysis.  See People v. Sutherland, 317 Ill. App. 3d 1117, 1131, 743 N.E.2d 1007, 1018 (2000).3  

	In Apprendi, the defendant was convicted of a "second-degree" offense of possession of a firearm for an unlawful purpose.  However, after the trial judge accepted the defendant's plea of

guilty for that offense, the judge held an evidentiary hearing to determine the defendant's

"purpose" and proceeded to convict defendant because his crime was motivated by "racial bias." 

Apprendi, 530 U.S. at 470-71, 147 L. Ed. 2d at 443, 120 S. Ct. at 2352.  In Jones, the defendant was charged with taking a motor vehicle "from the person or presence of another person by force

and violence or by intimidation" while possessing a firearm, which carried a possible 15-year

sentence.  However, the federal district court sentenced the defendant to 25 years because

according to the presentence report, one of the victims of the carjacking sustained serious bodily

injury (specifically, a perforated eardrum which resulted in "some numbness and permanent

hearing loss").  Jones, 526 U.S. at 231, 143 L. Ed. 2d at 318, 119 S. Ct. at 1218.  The portion of the statute that defined the carjacking offense, with which the defendant was charged, did not

contain as an element of the offense that a victim be injured.  In sentencing the defendant, the

Jones court therefore considered evidence of a separate offense (i.e., battery or assault with a deadly weapon, to name two hypothetical possibilities) to increase the defendant's sentence

beyond the sentence that the defendant would have received for the carjacking alone.  

	We agree that those determinations in Apprendi and Jones should have been made by a jury.  However, those factual findings differ from that made by the court in this case.  As our

supreme court has noted, the application of an extended-term statute is determined by the

"offense" rather than by the extent or nature of the defendant's participation.  People v. Palmer, 148 Ill. 2d 70, 89, 592 N.E.2d 940, 948 (1992).  Here, the jury convicted defendant of first degree murder and the court sentenced defendant to an extended term based upon the evidence

that was presented at trial regarding that crime, specifically whether the offense was accompanied

by exceptionally brutal or heinous behavior indicative of wanton cruelty.  The statute that the court used to impose an extended-term sentence upon defendant involved a consideration of the

evidence regarding the particular offense in question.  The court did not engage in an independent

determination of defendant's mental state (as in Apprendi) or consider evidence of additional or more serious crimes that defendant may have committed for which he was not originally charged

(as in Jones).    

	The sentencing statutes at issue properly charge the trial judge with making discretionary

findings based upon the nature of the offense.  The Court in Apprendi goes to great lengths to acknowledge the validity of this practice, stating that judges have long exercised such discretion to sentence a defendant within statutory limits.  Apprendi, 530 U.S. at 481-83, 147 L. Ed. 2d at 449-50, 120 S. Ct. at 2358-59 (noting its observation in Williams v. New York, 337 U.S. 241, 246, 93 L. Ed. 1337, 1341, 69 S. Ct. 1079, 1082 (1949), that a sentencing judge "could exercise a

wide discretion in the sources and types of evidence used to assist him in determining the kind and

extent of punishment to be imposed within limits fixed by law").  The reading of Apprendi that this court has so far adopted strips a judge presiding over a murder trial of the benefit of a breadth

of experience in trying criminal cases and in applying sentencing factors such as the one used here. 

It has eliminated the trial court's discretion that is replete in the statutes that address the possible

sentences for murder.  If a jury is to assume responsibility for determining whether a defendant

engaged in exceptionally brutal or heinous behavior indicative of wanton cruelty in committing a

murder – a standard that is subject to inconsistent interpretations by varying juries – this court and

our supreme court must prepare themselves for a plethora of legal challenges to those findings. 

	Here, defendant was sentenced under the range of possible penalties for first degree

murder after being charged with and tried on the elements of that offense.  Defendant cannot

contend that he did not know what punishment he was subject to under the Illinois sentencing

scheme for first degree murder, a valid concern that was the linchpin of Apprendi and, indeed, of the Illinois cases that have attempted to apply Apprendi.  We conclude therefore that no violation of defendant's due process rights occurred.  

	Lastly, we turn to defendant's remaining contentions regarding his sentence, namely, that the court failed to consider his rehabilitative potential and lack of criminal history and that his

sentence therefore must be reduced.  A trial court is vested with wide discretion in imposing a sentence, and if the sentence is within statutory limits, a reviewing court will not disturb it absent

an abuse of that discretion.  People v. Kyles, 303 Ill. App. 3d 338, 354, 708 N.E.2d 391, 402 (1998).  Before sentencing defendant, the court stated that it considered the evidence presented in aggravation and mitigation.  Contrary to defendant's assertion that he lacked a criminal history, the court heard evidence at sentencing of defendant's criminal record, which included a guilty plea

to a battery charge and an arrest for driving under the influence.  The trial court did not abuse its discretion in sentencing defendant to 100 years for first degree murder, a sentence that we again

note was within the statutory limits for that offense.  

	Accordingly, defendant's convictions and sentence are affirmed.  As part of our judgment, we grant the State's request to assess defendant $100 as costs for this appeal. 	

	Affirmed.

	BUCKELEY,  and O'BRIEN, JJ., concur.J., LY,