No. 2--99--0306	 	              

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

THE PEOPLE OF THE STATE OF

ILLINOIS,

	Plaintiff-Appellee,

v.

JUAN M. MAIDEN,

	Defendant-Appellant.	

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Appeal from the Circuit

Court of Lake County.

No.  97--CF--2369

Honorable

George Bridges,

Judge, Presiding.

Supplemental Opinion Upon Denial of Rehearing

	PRESIDING JUSTICE COLWELL delivered the opinion of the court:

	Defendant, Juan M. Maiden, previously appealed two convictions

of aggravated criminal sexual assault (720 ILCS 5/12--14(a)(2)

(West 1994)), and this court affirmed in an unpublished order

(People v. Maiden, No. 2--99--0306 (2000) (unpublished order under Supreme Court Rule 23)).  Defendant now petitions for rehearing. 

In this petition, defendant requests that we reconsider our

decision regarding whether his speedy-trial right was violated. 

Additionally, defendant raises for the first time whether the

imposition of consecutive sentences for his two convictions

violated the strictures of the due process clause (U.S. Const.,

amend. XIV).

	Defendant first argues that this court failed to address his

argument that the State intentionally withheld exculpatory DNA

evidence and consequently should be charged, for speedy-trial purposes, with the time it took defendant to procure that evidence. 

Initially, we note that in our earlier decision we concluded that

the trial court did not abuse its discretion in attributing this

delay to defendant.  The trial court noted the complexity of

defendant's discovery request, specifically that it was addressed

to no one in particular and required evidence to be gathered from

two facilities.  We find the trial court's reasoning adequate to

support its exercise of its discretion.  Furthermore, we note that

defendant could have proceeded to trial within the statutory

period.  However, he chose to wait for his discovery request to be

answered.  Had the State failed to tender exculpatory evidence, a Brady violation would have occurred.  See Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).  The remedy for

a Brady violation is a new trial.  People v. Sims, 166 Ill. App. 3d 289, 310 (1987).  Defendant may not convert what would otherwise be

grounds for a new trial into a dismissal under the speedy-trial

statute (725 ILCS 5/103--5(a) (West 1994)) by refusing to proceed

to trial.

	Defendant next argues that the imposition of consecutive

sentences violated his rights under the due process clause of the

United States Constitution.  U.S. Const., amend. XIV.  This issue

was not raised prior to this petition.  However, "[s]entencing

issues may be reviewed as plain error where the issue is one of

misapplication of law, because the right to be sentenced lawfully

is substantial because it affects a defendant's fundamental right

to liberty."  People v. Keene, 296 Ill. App. 3d 183, 186 (1998).  In this argument, defendant relies extensively on Apprendi v. New Jersey, 530 U.S. ___, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  The United States Supreme Court issued this decision while

defendant's appeal was pending.  Accordingly, Apprendi is applicable to the present case.  See Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987).  We will examine the

merits of defendant's argument.

	Defendant was convicted of two counts of aggravated criminal

sexual assault.  720 ILCS 5/12--14(a)(2) (West 1994).  This offense

is set forth in the statute governing consecutive sentencing as

requiring consecutive sentencing.  730 ILCS 5/5--8--4 (West 1994). 

In relevant part, that statute, at the time of the offenses of

which defendant was convicted, provided:

	"The court shall not impose consecutive sentences for offenses

which were committed as part of a single course of conduct

during which there was no substantial change in the nature of

the criminal objective, unless, one of the offenses for which

defendant was convicted was a Class X or Class 1 felony and

the defendant inflicted severe bodily injury, or where the

defendant was convicted of a violation of Section 12-13 or 12-

14 of the Criminal Code of 1961, in which event the court

shall enter sentences to run consecutively."  730 ILCS 5/5--8-

-4 (West 1994).

The State argued that consecutive sentences were mandatory because

defendant was convicted of two counts of aggravated criminal sexual

assault (720 ILCS 5/12--14(a)(2) (West 1994)) that occurred during

a single course of conduct (730 ILCS 5/5--8--4 (West 1994)). The trial court accepted the State's reasoning and sentenced defendant

to two consecutive terms of 20 years' imprisonment.

	Defendant contends that the question of whether the acts he

committed were part of a "single course of conduct during which

there was no substantial change in the nature of the criminal

objective"1 (730 ILCS 5/5--8--4 (West 1994)) should have been charged in the indictment, submitted to the jury, and proved beyond

a reasonable doubt.  Defendant relies on Apprendi for the proposition that a fact that subjects a defendant to punishment

more severe than the statutory maximum for the offense in question

must be submitted to the jury.  530 U.S. at ___, 147 L. Ed. 2d at

455, 120 S. Ct. at 2362-3.  Defendant also points us to People v. Clifton, Nos. 1--98--2126, 1--98--2384 cons. (September 29, 2000).  In that case, the First District held that Apprendi applies to certain factual determinations that result in consecutive

sentencing as well as to statutes that extend the range of a

sentence for a particular offense beyond the statutory maximum. 

Clifton, slip op. at 52.

	In Apprendi, the Supreme Court considered the constitutionality of a New Jersey statute that required an extended

term of imprisonment if the sentencing judge found, by a

preponderance of the evidence, that the defendant committed the

underlying offense for the purpose of intimidating someone on the

basis of race, color, gender, handicap, religion, or sexual

orientation.  Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 442, 120 

S. Ct. at 2351.  The statute had the effect of increasing the

punishment to which the defendant could be subjected from between

5 and 10 years' imprisonment to between 10 and 20 years'

imprisonment.  The Supreme Court first recognized that judges typically have wide discretion both in determining an appropriate

sentence and in choosing what factors to rely on in making that

decision.  Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 449, 120 S. Ct. at 2358.  However, the Court noted that this discretion is

circumscribed by statutory limits establishing the punishment for

particular offenses.  Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 449, 120 S. Ct. at 2358.  The Court held the New Jersey sentencing

scheme unconstitutional because it allowed for a sentence in excess

of the statutory maximum for the underlying offense on a finding of

fact made by the sentencing judge.  Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366-67.  When a factual finding

enhances a sentence beyond the range established in the statute

defining the offense, it must be submitted to a jury and proved

beyond a reasonable doubt.  Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

	Apprendi must be contrasted with McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986).  In that case,

the Supreme Court addressed the constitutionality of a Pennsylvania

statute that set a mandatory minimum sentence for certain felonies

on a judicial finding that the defendant visibly possessed a

firearm during the commission of the offense.  McMillan, 477 U.S. at 81, 91 L. Ed. 2d at 73, 106 S. Ct at 2413.  The Court noted that

the statute did not alter the maximum punishment the defendant

could receive, but merely limited a judge's discretion in selecting 

a sentence within the range established by the underlying offense. 

McMillan, 477 U.S. at 87-88, 91 L. Ed. 2d at 77-78, 106 S. Ct at 2417.  Essentially, the legislature "took one factor that has

always been considered by sentencing courts to bear on punishment

*** and dictated the precise weight to be given that factor." 

McMillan, 477 U.S. at 89-90, 91 L. Ed. 2d at 78-79, 106 S. Ct at 2418.  The Court concluded that it was permissible to treat visible possession of a firearm as a sentencing factor and to allow this

fact to be determined by a judge rather than a jury.  McMillan, 477 U.S. at 93, 91 L. Ed. 2d at 81, 106 S. Ct at 2420.

	From these two cases, the rule emerges that a statute may

narrow a judge's discretion in sentencing, as long as it does so

within limits established by the underlying offense.  However,

where a statute mandates a punishment beyond that authorized by the

underlying offense, the factual findings that trigger the statute's

application must be submitted to the jury.  In the present case, the former portion of this rule applies.  The sentencing judge

could have imposed consecutive sentences pursuant to his

discretion.  People v. Jefferson, 260 Ill. App. 3d 895, 914 (1994); People v. Hemphill, 259 Ill. App. 3d 474, 477 (1994); People v. Morgan, 14 Ill. App. 3d 232, 236 (1973) ("Once a defendant has been convicted of two or more offenses which do not result from the same

conduct, the trial court may in its discretion impose consecutive

sentences upon him").  That consecutive sentences were deemed

mandatory because the court found that both sexual assaults

occurred during a single course of conduct did not result in a

sentence beyond that which the court could have otherwise imposed. 

Consequently, Apprendi was not violated.

	Apprendi counsels us to look at the effect of the statute in determining whether a violation occurred.  Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365.  In light of the

present facts, only two situations were possible.  Either defendant's offenses were part of a single course of conduct or

they were not.  If they were not part of a single course of

conduct, the trial judge could have sentenced defendant to

consecutive terms by virtue of his discretion.  Jefferson, 260 Ill. App. 3d at 914.  If they were part of a single course of conduct,

the court had to sentence defendant to consecutive terms pursuant

to the consecutive sentencing statute.  730 ILCS 5/5--8--4 (West

1994).  Because defendant was convicted of aggravated criminal

sexual assault, a finding that the two assaults occurred within a

single course of conduct automatically triggered mandatory

consecutive sentences under the statute.  730 ILCS 5/5--8--4 (West

1994).  No further finding of fact was necessary.  It is important

to note that, because these were sexual assault convictions, the

prohibition against consecutive sentencing contained in the statute

never could have applied to defendant.  730 ILCS 5/5--8--4 (West

1994).  While in most cases a finding that two offenses were part

of a single course of conduct bars the imposition of consecutive

sentences, in the case of aggravated criminal sexual assault, once

that finding is made, consecutive sentences follow automatically.  730 ILCS 5/5--8--4 (West 1994).

	Under such circumstances, it was constitutionally permissible

for the trial judge to determine whether the two offenses were part

of a single course of conduct.  Absent this finding, the judge

would have had the discretion to impose consecutive sentences.  The

effect of finding that the offenses occurred during a single course

of conduct was to eliminate the judge's discretion and mandate consecutive sentences.  This consequence does not require or allow

the imposition of a sentence greater than that which the judge

could have otherwise imposed.  Apprendi requires a finding of fact to be submitted to a jury only when the finding results in a

punishment greater than that otherwise allowed.  Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.  Accordingly, Apprendi has not been violated.

	We find the instant case controlled by McMillan, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411.  In McMillan, the statute under review limited the judge's discretion by requiring him to impose a

minimum sentence that was within the sentencing range allowed by

the underlying offense.  McMillan, 477 U.S. at 81, 91 L. Ed. 2d at 73, 106 S. Ct at 2413.  Similarly, in the present case, the

consecutive sentencing statute operated to divest the judge of

discretion to impose anything other than consecutive sentences (730

ILCS 5/5--8--4 (West 1994)), but it did not allow for a sentence

greater than that which the defendant could have otherwise

received.  Thus, as in McMillan, the finding necessary to limit the court's discretion did not have to be submitted to the jury.  See McMillan, 477 U.S. at 87-91, 91 L. Ed. 2d at 77-79, 106 S. Ct at 2417-19.

	Defendant points us to Clifton and People v. Carney, No. 1-- 98--4677 (November 13, 2000) in support of his position; however,

both cases are distinguishable.  Those cases found Apprendi violations where consecutive sentences were deemed mandatory under

another provision of the consecutive sentencing statute--that the

offenses occurred during a single course of conduct and the

defendant inflicted serious bodily injury during their commission. 

730 ILCS 5/5--8--4 (West 1994).  Under these circumstances, a

finding that multiple offenses occurred during a single course of

conduct mandates concurrent sentencing unless a subsequent finding

that the defendant inflicted severe bodily injury is made.  Thus,

a finding of severe bodily injury would allow for the imposition of

a sentence greater than otherwise authorized.  Such a result is

what Apprendi forbids.  Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

	We have granted defendant's request to submit People v. Waldrup, 317 Ill. App. 3d 288 (2000), as additional authority.  In that case, the court concluded that the provisions of the statute

mandating consecutive sentencing where a defendant is convicted of

aggravated criminal sexual assault were unconstitutional under

Apprendi.  Waldrup, 317 Ill. App. 3d at 300.  We believe the Waldrup court misapprehended Apprendi.  In Waldrup, the court reasoned that "the imposition of consecutive sentences is the same

as a sentence enhancement, and, therefore, *** any fact that is

utilized to increase the amount of time a defendant must serve must

be submitted to the trier of fact and proved beyond a reasonable

doubt."  Waldrup, 317 Ill. App. 3d at 300.  Quoting Apprendi, the Waldrup court stated, " 'the relevant inquiry is not of form, but effect--does the required finding expose the defendant to greater

punishment than that authorized by the jury's guilty verdict?' "  Waldrup, 317 Ill. App. 3d at 300, quoting Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 457, 120 S. Ct. At 2365.  The answer to this question is clearly that it does not.  Absent a finding that

multiple sexual assaults are part of a single course of conduct, a

defendant may still receive consecutive sentences pursuant to the

sentencing court's discretion.  See Morgan, 14 Ill. App. 3d at 236.  What the Waldrup court failed to recognize is that a finding that two aggravated criminal sexual assaults are part of a single course

of conduct does not increase a sentence beyond that to which a

defendant could otherwise be sentenced.  In such circumstances, no

constitutional violation occurs.  See McMillan, 477 U.S. at 87-91, 91 L. Ed. 2d at 77-79, 106 S. Ct at 2417-19.  To the extent that Waldrup is inconsistent with this opinion, we reject the analysis of the Waldrup court.

	Because defendant was not sentenced to a term in excess of

what he could have received by virtue of the jury's factual

findings and the court's exercise of its discretion, Apprendi has not been violated.  Accordingly, defendant's petition for rehearing

is denied and the decision of the circuit court of Lake County is

affirmed.

	Affirmed.

	RAPP and O'MALLEY, JJ., concur.