No. 3--99--0784

_________________________________________________________________

							IN THE

							APPELLATE COURT OF ILLINOIS

							THIRD DISTRICT

							A.D., 2001 

THE PEOPLE OF THE STATE 			)	Appeal from the Circuit Court

OF ILLINOIS,					)	of the 12th Judicial

							)	Circuit, Will County, Illinois

	Plaintiff-Appellee,			)	

							)

	v.						)	No. 99--CF--217

							)	

ERIN N. THUROW,				)	Honorable

                                )	Amy Bertani-Tomczak,

	Defendant-Appellant.		)	Judge, Presiding

_________________________________________________________________

JUSTICE LYTTON delivered the opinion of the court:

_________________________________________________________________

	The defendant, Erin Thurow, was charged with involuntary

manslaughter of a family or household member (720 ILCS 5/9--3(f)

(West 1998)).  The jury was instructed on the elements of simple

involuntary manslaughter (720 ILCS 5/9--3(a) (West 1998)), and she

was found guilty.  At sentencing, the judge found that the

defendant was eligible for both an extended term sentence, due to

the tender age of the victim (730 ILCS 5/5--5--3.2(b)(4)(i) (West

1998)), and an enhanced sentence based on the victim being a family

or household member.  The court sentenced her to eight years in

prison.  The issue on appeal is whether the judge’s consideration

of extended term and sentencing enhancement factors violate the

holding of Apprendi v. New Jersey, 530 U.S. __, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  We affirm in part, vacate in part, and

remand for further proceedings.

Facts

	In November 1997, Erin Thurow and her three-year-old daugh

ter, Tianna, were living in a homeless shelter in Elgin, Illi

nois.  At the shelter they met Michelle Mostowski, who was

pregnant.  The two women became friends.  In early December 1997,

Erin and her daughter moved to an apartment in Joliet, and on

Christmas Eve? Mostowski moved into the defendant’s apartment. 

From late December 1997 until April 1998, the defendant was the

sole financial support of the women and her daughter.  In April

1998, the defendant was in the delivery room with Mostowski when

her son Michael was born.  After Michael’s birth, the defendant

continued to provide the only income, and Mostowski would watch

both the children.

	In September 1998,  Mostowski returned to work.  At times

the women’s shifts overlapped, and they had to find babysitters

for their children.  Finally, in January 1999, they decided to

work separate shifts, so that each could look after the other’s

child.  Mostowski worked from 7 a.m. until around 3 p.m. at a

local Burger King; the defendant worked from 4 p.m. until mid

night at a local McDonald’s.  Apparently all was well between the

two women except that the defendant believed Mostowski spoiled

her infant son.  The two argued occasionally about this between

the months of September 1998 and January 1999.  The defendant

also told Mostowski that she had trouble consoling Michael after Mostowski went to work, and that his constant crying was upset

ting her.  

	On February 5, 1999, the defendant was very ill.  She was

treated at the emergency room for dehydration, bronchitis, a

sinus infection and a throat infection.  She left home for the

weekend to visit family in Elgin andto get some rest.  When she

returned on Monday, she went back to work.  Between Monday

`afternoon and Thursday morning she worked three shifts, for a

total of 29 hours.  After her shift on Wednesday, February 10,

she came home around midnight and fell asleep on the couch with

her boyfriend.  The defendant awoke around 6 a.m. on February 11. 

Mostowski left for work around 7 a.m. and put Michael in his

walker.  The defendant’s boyfriend also left for work, and Tianna

watched cartoons.  The defendant was awakened around 10 a.m. by

Michael’s crying.  She tried to calm him but was unsuccessful. 

Around 11 a.m., she took him to his crib for a nap.  He did not

calm down, so she did something she had begun to do frequently

over the last two months: she put her hand over his mouth to calm

him.  He relaxed, took a gasp of air, and his legs and arms

moved.  She then turned him over on his stomach, pulled his

blanket up, and went into the living room.

	Around 1:30 p.m. her boyfriend arrived.  She borrowed his

car and went shopping.  According to the defendant, when she

returned home around 2:30 p.m. her boyfriend said he had checked

on Michael while she was out, and the child was still asleep. 

Her boyfriend then left.

	Around 3 p.m. the defendant went in to check on Michael.  He

was cold and lifeless.  She became hysterical.  Her daughter came

in to see what was wrong and then she too became hysterical.  The

defendant called Mostowski at work and told her to come home

because there was an emergency.  The defendant then called her

employer and told her the baby was dead.  The manager told her to

call 9-1-1.  She did, and the 9-1-1 operator instructed her on

CPR, which she performed.  The emergency crews and police ar

rived, as did Mostowski.  The child was taken to the hospital and

the police left.  The defendant and her daughter remained in the

home.

	About two hours later, the police returned to the home to

talk to the defendant.  She described her day, but omitted any

reference to her holding her hand over Michael’s mouth.  The

defendant and her daughter were then taken to the police station. 

After the police questioned her daughter, they spoke to the

defendant.  They told her that there were some inconsistencies

between her story and her daughter’s.  At that point the defen

dant broke down and told the story of her day again, this time

including the fact that she had put her hand over Michael’s

mouth.  She was then arrested.  

	Ultimately, the defendant was indicted for involuntary

manslaughter with the enhancement that the victim was a family or

household member, a Class 2 felony.  The indictment, as presented

to the jury, read:

	"said defendant, acting in a reckless manner, performed an

act likely to cause death or great bodily harm to some

individual, in that she covered the mouth and nose of Mi

chael Mostowski with her hand, thereby causing the death of

Michael Mostowski, a family or household member of the

defendant."

	At trial, the judge instructed the jury on the elements of

the offense:

	"to sustain the charge of involuntary manslaughter, the

State must prove the following propositions:  First proposi

tion, that the defendant performed the acts which caused the

death of Michael Mostowski, and, second proposition, that

the defendant performed those acts recklessly, and, third

proposition, that those acts were likely to cause death or

great bodily harm."

	The State proposed no instruction on the part of the indict

ment regarding the victim as a family or household member.  The

defense did not object to the proposed instruction.  

	The defendant was convicted on September 2, 1999.  Defense

counsel moved for a new trial and the motion was denied.  On

October 4, 1999, the trial judge found the defendant eligible for

an extended term due to the tender age of the victim (730 ILCS 5-

-5--3.2(b)(4)(i) (West 1998)) and sentenced the defendant to

eight years in prison.  Defense counsel’s motion to reconsider the sentence was denied on October 12, 1999.  This appeal followed.

Analysis

	The defendant asserts that she was improperly convicted of

involuntary manslaughter of a family or household member because

the jury was not required to find, beyond a reasonable doubt,

that the victim was a family or household member.  We agree with

the defendant’s contention that the State must prove every

element of an offense beyond a reasonable doubt, but, for the

reasons stated below, we find this matter is properly character

ized as a sentencing issue.

	Before discussing the merits of defendant’s contention, we

must first address the State’s assertion that the defendant has

waived any sentencing issues for failing to raise them in a post-

trial motion to reconsider sentence.  It is generally true that 

a defendant must raise sentencing issues first at the trial level

to preserve them on appeal.  People v. Reed, 177 Ill. 2d 389, 686 N.E.2d 584 (1997).  However, under People v. Williams, 179 Ill. 2d 331, 688 N.E.2d 1153 (1997), and People v. Wilson, 181 Ill. 2d 409, 692 N.E.2d 1107 (1998), it is no longer clear that the

doctrine of waiver applies when, as here, the defendant chal

lenges the statutory authority of the trial court.  Additionally,

because of the constitutional ramifications to this case of the

Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. __, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) and that decision’s

implications in this case, we find that plain error should apply

pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)).

I.

	Involuntary manslaughter is a Class 3 felony with a punish

ment range of two to five years.  720 ILCS 5/9--3(a) (West 1998);

730 ILCS 5/5--8--1(a)(6) (West 1998).  However, if the victim is

a member of the defendant’s family or household, involuntary

manslaughter is enhanced to a Class 2 felony with a punishment

range of three to fourteen years.  720 ILCS 5/9--3(f) (West

1998).  A prison sentence for an unenhanced Class 2 felony is

three to seven years.  730 ILCS 5/5--8--1(a)(5) (West 1998).

	The sentence for involuntary manslaughter may also be

extended if the judge determines that the victim was under the

age of 12 when the offense occurred (730 ILCS 5/5--5--

3.2(b)(4)(i), 5--8--2 (West 1998)).  When extended, the

sentencing range becomes five to ten years (730 ILCS 5/5--8--

2(a)(5) (West 1998)).

	Here, the judge sentenced the defendant to eight years.  The

State argues first that the uncontested evidence that the victim

was a family or household member is sufficient to support the

sentence under the enhancement provision of the involuntary

manslaughter statute.  Alternatively, the State argues that even

if the enhanced involuntary manslaughter provision does not

apply, the sentence is still appropriate using the extended term

statute.  Both of the arguments must fail based on Apprendi.

	In Apprendi, the Supreme Court held that a New Jersey sentence enhancing procedure violated the sixth amendment as applied to the States by the fourteenth amendment.  U.S.

Constitution, amend. VI, XIV.  In that case, Apprendi was con victed pursuant to his pleas of unlawful discharge of a firearm,

a crime with a punishment range of five to ten years of imprison

ment.  At sentencing, the State presented evidence under a

separate New Jersey sentence enhancing statute that the crime was

motivated by racial bias or hatred.  If enhanced, the sentence

range was increased to 10 to 20 years.  The judge found, by a

preponderance of the evidence, that the crime was racially

motivated and sentenced Apprendi to 12 years in prison.

	The Supreme Court held that the New Jersey sentence enhance

ment procedure violated the Constitution.  "[T]he effect of New

Jersey’s sentencing ‘enhancement’ here is unquestionably to turn

a second-degree offense into a first-degree offense, under the

State’s own criminal code."  Apprendi, 530 U.S. __, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365.  The Court disapproved of the attempt

by the New Jersey legislature to circumvent the typical role of

the fact finder by allowing a substantive issue of the criminal

act to be called a "sentencing enhancement."  "[T]he relevant

inquiry is one not of form, but of effect--does the required

finding expose the defendant to a greater punishment than that

authorized by the jury’s guilty verdict?"  Apprendi, 530 U.S. __, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365.

II.

	The State contends that Apprendi is inapplicable to the instant case because the defendant was proven guilty of a Class 2 felony which, pursuant to the statute, carries a maximum punish

ment of 14 years, and she was sentenced to less than the maximum

possible punishment.  However, the defendant was not properly

convicted of the Class 2 felony of enhanced involuntary man

slaughter.  Although the indictment charged the defendant with

involuntary manslaughter of a family or household member, the

jury was instructed to make a finding on only the basic elements

of involuntary manslaughter.  The jury did not make a finding

beyond a reasonable doubt that the victim was a family or house

hold member.

	Under Apprendi, "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."1  Apprendi, 530 U.S. __, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-2363.  Any

other procedure "is an unacceptable departure from the jury

tradition that is an indispensable part of our criminal justice

system."  Apprendi, 530 U.S. __, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366.

	Here, the jury was not instructed to find all of the ele

ments of enhanced involuntary manslaughter.  We find that Section 9--3(f) of the Criminal Code of 1961 (720 ILCS 5/9--3(f) (West

1998)) states a distinct offense that, under Apprendi, constitu tionally requires proof beyond a reasonable doubt of the elements

of involuntary manslaughter with the additional element that the

victim was a family or household member.  Therefore, the defen dant was improperly sentenced under the enhancement provision of

the involuntary manslaughter statute.

III.

	The State argues that even if the defendant was not eligible

for punishment under the enhanced involuntary manslaughter

provision, the judge properly sentenced her pursuant to the

extended term provision of the Unified Code of Corrections.  The

judge found at sentencing that the victim was a child under the

age of 12.  Since an extended term factor was found, the State

argues, a sentence of up to 10 years could be imposed. 

	The extended term sentence in this case is analogous to Apprendi.  The judge found defendant eligible for an extended term sentence based on a factor that was not before the jury.  In

Apprendi, the New Jersey statutory procedure that was invalidated by the Supreme Court required the trial court judge to find the

sentence enhancing factor by preponderance of the evidence.  The

Court held that "preponderance of the evidence" was not a suffi

cient level of proof.  Apprendi, 530 U.S. __, 147 L. Ed. 2d 435, 120 S. Ct. 2348.  Illinois’ extended term statutory scheme offers

even less constitutional safeguards than the New Jersey law.  The Illinois statute imposes no burden of proof on the judge; the statute merely states that certain factors "may be considered" by

the trial judge in imposing an extended term sentence.  730 ILCS

5/5--5--3.2(b) (West 1998).  

	We hold that Section 5--5--3.2(b)(4)(i) of the Unified Code

of Corrections (730 ILCS 5/5--5--3.2(b)(4)(i) (West 1998)) is

unconstitutional under Apprendi to the extent that it allows an increase in punishment for a felony based on the age of the

victim where that specific finding is not charged to the jury. 

	Because the defendant was impermissibly sentenced to eight

years’ imprisonment, we vacate the sentence and remand for a new

sentencing hearing.  The sentence to be imposed cannot exceed

five years, the statutory maximum term for the Class 3 felony of

involuntary manslaughter.  The judgement is otherwise affirmed.

	Affirmed in part, vacated in part, and remanded for further

proceedings consistent with this opinion.

	H9OOLDRIDGE and SLATER, JJ., concur.