Nos. 2--00--1214 & 2--01--0177 cons.

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE 0F THE STATE         )  Appeal from the Circuit Court

OF ILLINOIS	)	of Du Page County

                                )

	Plaintiff-Appellee,	)	

                                )	Nos. 98--CF--399

v.                              )		98--CF--1701

	)

ANN M. JONES,                   )

						  )	Honorable

		)	Ann Brackley Jorgensen

      Defendant-Appellant       )	Judge, Presiding.              

________________________________________________________________

	JUSTICE O’MALLEY delivered the opinion of the court:	

	Defendant, Ann M. Jones, appeals from her sentence for a

conviction of murder in case No. 2--00--1214 and from the order of

the trial court denying her motion to dismiss in case No. 2--01--

0177.  We affirm in both cases.  

	In No. 2--00--1214, defendant waived trial by jury and pleaded

guilty  to one count of murder (720 ILCS 5/9-1(a)(1) (West 1998))

in the August 1998 shooting death of her husband, Michael Jones. 

In exchange for this plea, the State agreed to forego seeking a

sentence of death and to nol-pros the remaining alternate counts of

murder.  Immediately after the plea was entered, defendant and the

State stipulated to the testimony and reports of several doctors,

and the court found that defendant was suffering from a mental

illness at the time of the offense.  After a sentencing hearing, the court sentenced defendant to a term of natural life in prison

on May 31, 2000.  Defendant timely filed a motion to withdraw her

plea of guilty and to vacate judgment.  She subsequently changed

attorneys and filed an amended motion to reconsider sentence in

which she contended that she need not move to withdraw her plea

before seeking the reconsideration of her sentence.  The court

granted the State’s motion to dismiss defendant’s motion.  This

appeal followed.  

	In case No. 2--01--0177, defendant was charged with attempted

first-degree murder (720 ILCS 5/8-4(a), 9--1(a)(1) (West, 1998)),

aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West

1998)), and aggravated discharge of a firearm (720 ILCS 5/24-

1.2(a)(2) (West 1997)) for the February 1998 shooting of Michael

Jones.  The State moved to join the prosecutions of the murder and

the attempted murder cases.  The record does not contain any order

clearly showing the court’s decision on this motion.  However, the

attempted murder case was periodically continued for status along

with the murder case.  On December 12, 2000, defendant filed a

motion to dismiss based on double jeopardy.  The trial court denied

the motion, and this interlocutory appeal followed.  

	Defendant first contends that her sentence of natural life in

prison is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  We disagree.

	We first note that defendant failed to raise this issue in

either her motion to withdraw her plea of guilty or her amended

motion to reconsider sentence.  Issues are waived on appeal unless

they are raised at trial and in a posttrial motion.  People v. Enoch, 122 Ill. 2d  176, 186 (1988); People v. Carroll, 195 Ill. App. 3d 445, 446-47 (1990).  However, the constitutional dimension

of this issue allows us to relax the waiver rule and address it. 

See People v. Wooters, 188 Ill. 2d 500, 510 (1999).

	Defendant was sentenced pursuant to section 5-8-1 of the

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

2000)), which provides in part:

		"(a) Except as otherwise provided in the statute defining

the offense, a sentence of imprisonment for a felony shall be

a determinate sentence set by the court under this Section,

according to the following limitations:

			(1) for first degree murder,

				(a) a term shall be not less than 20 years and

not more than 60 years, or

				(b) if a trier of fact finds *** that the

murder was accompanied by exceptionally brutal or

heinous behavior indicative of wanton cruelty or,

except as set forth in subsection (a)(1)(c) of this

Section, that any of the aggravating factors listed in subsection (b) of Section 9--1 of the Criminal

Code of 1961 are present, the court may sentence

the defendant to a term of natural life

imprisonment[.]" 730 ILCS 5/5--8--1(a)(1)(a),

(a)(1)(b) (West 2000).	

	The sentencing order in this case states that the court

"specifically finds that the murder was accompanied by

exceptionally brutal or heinous behavior."  The order also states

that the court also found "that the Aggravating Factors listed in

720 ILCS 5/9--1(b) are present."  Defendant argues that her life

sentence is beyond the prescribed statutory maximum penalty for

murder and, therefore, unconstitutional.         

	Apprendi held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the 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. We are faced, then, with the

issue of the statutory maximum penalty for first-degree murder.  In

the past, this court has concluded that the maximum penalty is 60

years' imprisonment, pursuant to section 5--8--1(a)(1)(a) of the

Code (730 ILCS 5/5--8--1(a)(1)(a) (West 2000)).  See People v. Joyner, 317 Ill. App. 3d 93, 110 (2000).  Therefore, the Joyner court found section 5--8--1(a)(1)(b) of the Code unconstitutional

		"inasmuch as it allows the imposition of a sentence of

natural life imprisonment when the court makes a finding that

the murder was accompanied by exceptionally brutal or heinous

behavior indicative of wanton cruelty without affording

defendant the right to a jury determination of whether or not

the State proved the fact beyond a reasonable doubt."  Joyner, 317 Ill. App. 3d at 110.   

	We find Joyner distinguishable.  In the case before us, defendant entered into a plea agreement by which the State and

defendant agreed that natural life was the maximum penalty that

could be imposed.  At the time the plea was entered, the following

colloquy took place:

		"THE COURT: You’re both agreeing that the maximum

sentence because of your agreement would be if the Court finds

that there is an exceptionally brutal and heinous

circumstances [sic] surrounding this offense that a sentence of natural life could be imposed.  But because it is your

agreement that the State will not seek to impose the death

penalty therefore the maximum penalty would be natural life.

***

		***

		Mr. Fleming, that’s also your understanding that that that

[sic] [sic] is the maximum penalty that could be imposed under the agreement?

		MR. FLEMING [defense counsel]: That’s correct.  We

understand what the State’s position is in that regard and we

obviously don’t concur with that, but I understand that there

is the maximum the Court found under those sections a

sufficient factual basis exists for those findings ***.

		THE COURT: And, Ms. Jones, that’s also your

understanding?

		MS. JONES: Yes ***."

	A defendant who pleads guilty does not have the same appeal

rights as a defendant convicted after a trial.  People v. Chandler, 321 Ill. App. 3d 292, 297 (2001).  Having agreed that a term of

natural life in prison was the maximum sentence allowable,

defendant cannot now argue that a term of 60 years was the maximum. 

Defendant received the benefit of her bargain when the State

foreclosed the possibility of a sentence of death.  By arguing that

the maximum sentence is 60 years, defendant is seeking to hold the

State to its part of the bargain while unilaterally modifying the

plea agreement; this flies in the face of contract law and

constitutional concerns of fundamental fairness.  See People v. Evans, 174 Ill. 2d 320, 327 (1996) (defendant cannot enter into plea agreement whereby the State agrees to recommend a specific

sentence and then seek reconsideration of that sentence).  Since

natural life in prison was the agreed-upon statutory maximum

sentence, and defendant’s sentence did not exceed that maximum, we

find no Apprendi violation.

	Our conclusion herein is buttressed by the supreme court’s

decision in People v. Ford, 198 Ill. 2d 68 (2001).  In Ford, the defendant was found guilty of first-degree murder after a bench

trial.  The State sought the death penalty, and the defendant

waived a jury for both phases of the capital sentencing hearing. 

The court found the defendant eligible for the death penalty on two

grounds under section 9-1.  However, the court imposed only an extended- term sentence of 100 years' imprisonment, based upon its finding

that the murder was accompanied by exceptionally brutal or heinous

behavior.  The supreme court did not decide whether the maximum

authorized sentence was 60 years' imprisonment, as the defendant

asserted, or death, as the State contended.  Instead, the court

concluded that, "under the particular facts presented" in the case,

the extended-term sentence complied with Apprendi.  Ford, 198 Ill. 2d at 73.  The court found that the maximum sentence facing the

defendant was established when the trial court found the defendant

eligible for the death penalty.  The trial court’s subsequent

finding of brutal and heinous behavior, upon which the extended- term sentence was based, did not increase the sentence that the

defendant was facing.  Ford, 198 Ill. 2d at 74.  The fact that the brutal and heinous behavior was not proved beyond a reasonable

doubt was immaterial, as Apprendi requires that only those facts that increase the penalty for a crime beyond the prescribed

statutory maximum be proved beyond a reasonable doubt.  Ford, 198 Ill. 2d at 74.

	Under the facts of our case, the maximum penalty facing

defendant was established when defendant pleaded guilty in exchange

for the State’s agreement not to seek the death penalty.  Defendant

agreed that natural life in prison was the maximum sentence. 

Therefore, the finding of brutal and heinous behavior did not

require proof beyond a reasonable doubt, as it did not extend

defendant’s sentence beyond the already-established maximum.  We

conclude that defendant’s sentence of natural life in prison did

not run afoul of Apprendi, and we find no error here.              	Defendant next contends that the trial court erred in granting

the State’s motion to dismiss her motion to reconsider sentence. 

We disagree.  

	Defendant originally filed a motion to withdraw her plea of

guilty and to vacate judgment.  However, shortly thereafter,

defendant changed attorneys, and she subsequently filed an "amended

motion to reconsider sentence," in which she alleged that (1) she received the ineffective assistance of counsel at her sentencing

hearing; (2) the trial court did  not allow her the right to a full

and fair sentencing hearing; (3) the trial court erred by

sentencing her to a term of natural life in prison "in violation of

statutory requirements"; and (4) her sentence was excessive and was

based on the inappropriate consideration of aggravating and

mitigating factors.  She also asserted in that motion that she need

not move to withdraw her plea before moving to reconsider her

sentence.  After a hearing, the trial court granted the State’s

motion to dismiss.  

	Our supreme court has held that, where the State enters into

a plea agreement in which it limits or forecloses itself from

arguing for a sentence from the full range of penalties available

under law,  a defendant must first move to withdraw her plea in the

trial court before challenging her sentence.  People v. Diaz, 192 Ill. 2d 211, 225 (2000).  Such is the case here, where the State agreed not to seek a penalty of death.  Defendant fails to address Diaz but asserts that she is entitled to file a motion to reconsider without first moving to withdraw her plea, pursuant to People v. Wilson, 181 Ill. 2d 409 (1998), People v. Williams, 179 Ill. 2d 331 (1997), People v. Didier, 306 Ill. App. 3d 803 (1999), and People v. Payne, 294 Ill. App. 3d 254 (1998).  All of these cases were decided prior to Diaz, and Diaz specifically limited the holdings in Wilson and Williams.  In those cases, the court held that a defendant can challenge her sentence without first moving to

withdraw her guilty plea when she claims that her sentence is void

because it does not conform with the sentencing provisions of the

Unified Code of Corrections.  See Diaz, 192 Ill. 2d at 226.  However, defendant’s motion herein did not allege that her sentence

was void; it only made the blanket statement that the trial court

erred by violating unnamed statutory requirements in sentencing

defendant to natural life.  In light of Diaz, we conclude that defendant was required to move to withdraw her guilty plea.  As she

failed to do so, the trial court did not err in dismissing her

motion to reconsider sentence.

	Defendant next contends that her prosecution for the charge of

attempted murder is barred by double jeopardy.  According to

defendant, the State included a description of the facts

surrounding the attempted murder charge when it provided the

factual basis for defendant’s guilty plea to the murder charge and

used those facts as aggravating evidence at the sentencing hearing

on the murder charge.  Thus, according to defendant, allowing the

attempted murder case to go forward would allow for the

relitigation of issues already decided.  We disagree.  

	The protections against double jeopardy are triggered only

after a defendant has been subjected to the hazards of trial and possible conviction.  People v. Daniels, 187 Ill. 2d 301, 309-10 (1999).  Jeopardy attaches (1) in a jury trial, when the jury is

empaneled and sworn; (2) in a bench trial, when the first witness

is sworn and the trial judge begins to hear evidence; and (3) in a

guilty plea, when the guilty plea is accepted by the judge.  People v. Bellmyer, 323 Ill. App. 3d 269, 275-76 (2001).  Clearly, none of these events occurred as related to the attempted murder charge. 

This fact is made abundantly clear by the following colloquy, which

took place at the entry of defendant’s plea of guilty to the murder

charge:

		"THE COURT: Ms. Jones, do you understand that are [sic] as this mornings [sic] agreement there is absolutely no agreement as to 98 CF 399 alleging attempt murder other than

this.  If their case will be continued by agreement until a

date after the final disposition of 98 CF 1701, Count 1; is

that correct?

		MR. FLEMING [defense counsel]: Yes, Judge.

		THE COURT: And you understand that in the event that you

were ultimately tried and convicted and sentenced on 98 CF

399, any sentence would be served consecutive [sic] to the sentence imposed in 98 CF 1701.  Ms. Jones, do you understand

that?

		MS. JONES: Yes."

The attempted murder charge was continued by agreement and not part

of the plea that was entered on the murder charge.

	Defendant also argues that the attempted murder charge was

already proved because she stipulated to the facts comprising the

attempted murder charge.  According to defendant, she admitted her

guilt to the charge by stipulating to the factual basis and would

be precluded from attacking those facts in a subsequent trial.

	It is true that the State’s factual basis recited the events

of the attempted murder of February 1998.  However, defendant’s

stipulation to the factual basis was not an admission of guilt, as

is shown by the following colloquy:

		"THE COURT: Mr. Fleming, would you stipulate if called to

testify that that’s what the [S]tate’s witnesses would testify

to and that is what the evidence would show?

		MR. FLEMING: We would stipulate that the states [sic] witnesses would testify in that fashion.  My client, I had for

the record I had given my client a copy of this statement of

facts.  She had an opportunity to review it and she disputed

the truthfulness of the [sic] some of the collateral issues.  We would testify [sic] that the witnesses would testify in that fashion.  I don’t think any cross examination of these

witnesses would change any of the facts supporting the element

of the offense ***."

Defendant’s stipulation was only that the witnesses would testify

in the manner described by the State, not to the truthfulness of

that testimony.  Defendant did not admit her guilt to the attempted

murder charge when she stipulated to the factual basis for her plea

in the murder case.  She was never subjected to the hazards of a

trial and possible conviction of the attempted murder charge. 

Therefore, the State is not precluded from proceeding on the charge

of attempted murder in case No. 98--CF--399.

	For these reasons, the judgments of the circuit court of Du

Page County are affirmed.

	Affirmed.

	McLAREN and BYRNE, JJ., concur.