FIRST DIVISION

							MAY 13, 2002

No. 1-00-0764

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the 

  								)	Circuit Court of

	Plaintiff-Appellee,				)	Cook County

								)

		v.						)	No. 94 CR 21169

								)		

REGINALD KELLEY,					)	The Honorable

								)	Leo E. Holt,

	Defendant-Appellant.			)	Judge Presiding.

	JUSTICE COUSINS delivered the opinion of the court:

	Following a bench trial, defendant Reginald Kelley was

convicted of first degree murder, attempted first degree murder

and armed violence.  Kelley was sentenced to an extended-term

sentence of 80 years' imprisonment for the first degree murder

conviction and 20 years' imprisonment for the attempted murder

conviction, to be served consecutively.  The aggravated battery

with a firearm and aggravated battery counts merged with the

attempted first degree murder conviction.  On March 31, 1999, his

convictions and sentences were affirmed on appeal.  People v. Kelley, 304 Ill. App. 3d 628, 710 N.E.2d 163 (1999).  On December 13, 1999, Kelley filed a pro se petition for postconviction relief.  The petition was dismissed on January 31, 2000.  Kelley

now presents the following issue on appeal:  whether his

consecutive sentences should be modified to run concurrently in

light of sections 5-5-3.2(b)(4)(i) and 5-8-4(a) of the Unified

Code of Corrections (Code) (730 ILCS 5/5-5-3.2(b)(4)(i), 5-8-4(a)

(West 1994)) being declared unconstitutional.  

	While defendant frames the issue in his notice of appeal as whether his consecutive sentences should be modified to run

concurrently in light of sections 5-5-3.2(b)(4)(i) and 5-8-4(a)

of the Code being declared unconstitutional, the argument made in

his brief is limited to an additional contention that the trial

court's sentence abridged Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  Apprendi was decided in June 2000.  In defendant's brief, he argues that "[b]ecause

the post-conviction hearing judge did not have the opportunity to

consider the impact of Apprendi, this Court should modify Kelley's sentences to run concurrently and remand this case to

the trial court for resentencing."  

BACKGROUND

	On August 29, 1994, Kelley was charged with two counts of

first degree murder, armed violence, attempted first degree

murder, aggravated battery with a firearm, aggravated discharge

of a firearm and three counts of aggravated battery. 

	Ebony Collins testified at Kelley's trial that on the

evening of July 25, 1994, while sitting in her car at a stop-

light with her three-year-old son, her father, Ronnie Cole, and

her brother, Ronnie Jr., she saw Kelley and some of his friends

near a grocery store on 79th Street and Yates.  While she did not

know Kelley's name at that time, she recalled that she had seen

him several times before in the area.  She noticed that he was

"constantly" looking at her car.  Kelley and one his friends, Jernel Brown, proceeded to cross the street.  While they crossed

the street, Collins observed Kelley "fumbling" with his shirt.

Kelley reached the northwest corner of a gas station and was

still fumbling with his shirt.  Collins testified that Kelley was

standing on the curb of the gas station and "threw gang signs" at

her.  Collins just looked at Kelley and began driving through the

intersection.  Then Collins heard someone say, "Ain't that the

motherfucking car right there?"  As she continued driving,

Collins heard what she believed at the time to be a car

backfiring.  She later realized that the sounds were gunshots. 

She heard approximately three shots and her father said that he

had been hit and she heard her three-year-old son "let out a loud

cry."  She looked at her son and discovered that he had been shot

in the back of the head.  She stopped the car and her father told

her to let her brother, Ronnie Jr., drive the vehicle.  The

three-year-old boy died that evening at Jackson Park Hospital. 

Collins' father, Ronnie Cole, was shot twice in the right arm and

was hospitalized for three days.

	More witnesses testified, and after the State rested its

case, defendant moved for a directed verdict.  That motion was

denied.  At the end of trial, defendant was found guilty of first

degree murder and attempted first degree murder.  Prior to

sentencing, defendant submitted a motion for a new trial.  That

motion was denied.  

	The presentencing report provided that on January 20, 1994, defendant pled guilty to possession of a controlled substance

with intent to deliver and was sentenced to two years' felony

probation.  After hearing testimony in aggravation and mitigation

at Kelley's sentencing hearing, the court noted that it

considered the fact that defendant had been found guilty of

possession of a controlled substance and was sentenced to

probation, the age of the murder victim, the injury to the Ronnie

Cole, defendant's personal and criminal history, and the court's

intent to deter defendant and others from "such senseless

shootings, senseless acts that endanger and actually kill

people."  On February 10, 1997, the trial court imposed an

extended-term sentence of 80 years' imprisonment for first degree

murder and a consecutive sentence of 20 years' imprisonment for

the attempted first degree murder. 

	On December 13, 1999, defendant filed a pro se petition for postconviction relief.  The petition was dismissed on January 31,

2000, indicating that the issues sought to be raised were barred

by res judicata or waived.  

ANALYSIS

	Defendant's primary issue on appeal is, based on the ruling

in Apprendi, whether this court should modify his sentences to run concurrently and remand for resentencing because he received

an 80-year extended-term sentence under section 5-5-3.2(b)(4)(i)

and a consecutive 20-year sentence under section 5-8-4(a) of the

Code.  The State initially responds that defendant's argument is waived.  In the alternative, the State asserts that Apprendi does not apply to the instant case because the trial court imposed

mandatory consecutive sentences pursuant to section 5-8-4(h) of

the Code (730 ILCS 5/5-8-4(h) (West 1994)).  

	Section 5-8-4(h) of the Code provides that if a person

charged with a felony commits a separate felony while on pretrial

release or in pretrial detention, the sentences imposed upon

conviction of these felonies shall be served consecutively

regardless of the order in which the judgments of conviction are

entered.  730 ILCS 5/5-8-4(h) (West 1994).  The State's reliance

on this section is misplaced.  The trial court did not state that

it was sentencing Kelley on the possession of a controlled

substance conviction to run consecutively with his first degree

murder, attempted first degree murder, and armed violence

convictions.

	We also note that Kelley's argument is not waived.  A party

may challenge the constitutionality of a statute at any time. 

People v. Wright, 194 Ill. 2d 1, 23, 740 N.E.2d (2000). 

	At the time of defendant's offense, first degree murder was

punishable by a term of not less than 20 years' imprisonment and

not more than 60 years' imprisonment.  730 ILCS 5/5-8-1(a)(1)(a)

(West 1994).  However, under the Code at that time, the trial

court could sentence a defendant to an extended-term sentence if

the defendant was convicted of a felony committed against a

person under 12 years of age at the time of the offense.  730 ILCS 5/5-5-3.2(b)(4)(i) (West 1994).  The range for an extended-

term sentence was not less than 60 years' and not more than 100

years' imprisonment.  730 ILCS 5/5-8-2(a)(1) (West 1994).  

	In the instant case, the trial judge stated that he took

into consideration, among other things, the fact that at the time

of the offense defendant had been on probation for possession of

a controlled substance since January 1994 and the age of the

murder victim.  Kelley contends that the victim's age was an

extended-term factor never submitted to a jury and proved beyond

a reasonable doubt.  Defendant relies on Apprendi and People v. Beachem, 317 Ill. App. 3d 693, 740 N.E.2d 389 (2000), to support his contention that this court should vacate his 80-year

extended-term sentence for first degree murder and remand for

resentencing.  

	In Apprendi, the issue before the United States Supreme Court was "whether the Due Process Clause of the Fourteenth

Amendment requires that a factual determination authorizing an

increase in the maximum prison sentence for an offense from 10 to

20 years be made by a jury on the basis of proof beyond a

reasonable doubt."  Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351.  Apprendi applies only where the assessment of facts that increase the "'prescribed range of

penalties to which a criminal defendant is exposed'" are removed

from the jury.  Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2363, quoting Jones v. United States, 526 U.S. 227, 252, 143 L. Ed. 2d 311, 332, 119 S. Ct. 1215, 1228 (1999).  

	The Beachem case is not instructive in deciding the instant case.  The critical issue before the Beachem court was whether Apprendi reaches beyond a direct appeal to an appeal of the dismissal of a timely filed postconviction petition.  Beachem, 317 Ill. App. 3d at 695.  The court held that it did apply. 

Beachem, 317 Ill. App. 3d at 705-06.  The court reasoned that the trial court's "exceptionally brutal or heinous" finding in that

case clearly offended Apprendi.  Beachem, 317 Ill. App. 3d at 708.  The court elected not to decide the issue of the victim's

age as support for the extended-term sentence.  Beachem, 317 Ill. App. 3d at 708. 

	We find People v. Peacock, 324 Ill. App. 3d 749, 756 N.E.2d 261 (2001), and People v. Blackwell, 325 Ill. App. 3d 354, 757 N.E.2d 589 (2001), instructive.  In Peacock, Taki Peacock was sentenced to an 80-year extended-term sentence based on the age

of his 60-year-old murder victim and a finding that his actions

were accompanied by brutal and heinous conduct indicative of

wanton cruelty. 

	The Peacock court noted that "[b]ecause a trial court need find only a single statutory factor in aggravation to impose an

extended sentence," the victim's age, standing alone, was a

sufficient basis upon which to impose an extended-term sentence. 

Peacock, 324 Ill. App. 3d at 756-57.  Based on the court's reading of Apprendi and other related cases, the court wrote that even assuming an Apprendi violation occurred, it found it to be "harmless error."  Peacock, 324 Ill. App. 3d at 760.  The Peacock court reasoned that the finding of the victim's age did not

involve the weighing of evidence or an examination of the

defendant's mental state.  Peacock, 324 Ill. App. 3d at 761.  Indeed, the victim's wife testified to the victim's age, the

parties stipulated at trial that if the medical examiner had been

called to testify, he would have testified that the victim was

the stated age of 60 years of age, and defendant, in his original

brief on appeal, conceded that the victim was 60 years old at the

time of the offense.  Peacock, 324 Ill. App. 3d at 761. Importantly, the court held that had the issue of age been pled

in the indictment and submitted to a jury, "there is no question

a jury still would have found defendant guilty beyond a

reasonable doubt."  Peacock, 324 Ill. App. 3d at 761.  Peacock's sentence of 80 years was affirmed.  Peacock, 324 Ill. App. 3d at 761.

	In Blackwell, Marcus Blackwell was sentenced to an extended- term sentence based on at least one aggravating factor:  the

victim was 60 years of age or older.  Blackwell, 325 Ill. App. 3d at 359.  While the age of the murder victim was not at issue

during trial, trial testimony indicated that the victim was 71

years old at the time of her death.  The Blackwell court reasoned that had the issue of the victim's age been submitted to a jury,

a jury still would have found defendant guilty beyond a reasonable doubt.  Blackwell, 325 Ill. App. 3d at 360.  The court concluded that although an Apprendi violation may have occurred where the age of the victim was not submitted to a jury, such a

violation amounted to harmless error.  Blackwell, 325 Ill. App. 3d at 360.  Blackwell's extended-term sentence for first degree

murder was affirmed.  Blackwell, 325 Ill. App. 3d at 360. 

	In the instant case, assuming that the failure to submit the

fact that the murder victim was three years old to a jury could

violate Apprendi, it was harmless error in the instant case.  The age of the victim was never in dispute.  In fact, the victim's

father testified to his son's age at the time of the murder. 

Moreover, defendant has conceded the boy's age in his brief on

appeal.  Based on a review of the record, even if the victim's

age had been submitted to the jury, the jury still would have

found Kelley guilty of first degree murder beyond a reasonable

doubt.  Accordingly, although a violation of Apprendi may have occurred here where the age of the victim was not submitted to

the jury or included in the charging instrument, any violation

that did occur was harmless error.  Kelley's extended-term

sentence of 80 years is affirmed. 

							II

	Kelley next contends that his 20-year sentence for attempted

first degree murder should be modified to run concurrently with

his sentence for first degree murder.  Defendant asserts that 

section 5-8-4 did not contain a provision affording the option to elect a jury to make the factual findings provided in that

section.  The Illinois Supreme Court has held that consecutive

sentences imposed under section 5-8-4(a) of the Code do not

violate the due process rights of defendants and that the Supreme

Court's Apprendi decision does not apply to such sentences.  People v. Carney, 196 Ill. 2d 518, 536, 752 N.E.2d 1137 (2001).  The court reasoned that "[c]onsecutive sentences do not expose a

defendant to punishment exceeding the statutory maximum for each

conviction."  Carney, 196 Ill. 2d at 536.

	Defendant also states:  "[T]he record suggests that the

trial judge imposed the consecutive sentence because the offenses

were committed as a part of a single course of conduct, and Cole

[the three-year-old's grandfather] suffered severe bodily

injury."  During the sentencing hearing, while the State

requested that the judge impose consecutive sentencing "under

Chapter 730," the judge did not articulate the basis of the 20-

year consecutive sentence for defendant's attempted first degree

murder conviction.    

	At the time of the offense, section 5-8-4(a) of the Code

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 *** in which event the court shall enter sentences to run consecutively."  (Emphasis added.)  730 ILCS 5/5-8-4(a)

(West 1994).

	Section 5-8-4(a) requires consecutive sentencing "where the

defendant has been convicted of either a Class X or Class 1

felony and where he had inflicted severe bodily injury during the

commission of that felony."  People v. Whitney, 188 Ill. 2d 91, 98-99, 720 N.E.2d 225 (1999).  The Whitney court explained that in committing the Class 1 or Class X felony, it must result in

severe bodily injury to the victim of that felony.  Whitney, 188 Ill. 2d at 100.

	We find People v. Jones, 323 Ill. App. 3d 451, 752 N.E.2d 511 (2001), instructive.  In Jones, Isaac Jones was found guilty of first degree murder, attempted first degree murder, and

aggravated battery with a firearm following a bench trial.  He

was sentenced to consecutive prison terms of 26 years for the

first degree murder of Maxine Parker and 6 years for the

attempted first degree murder of Larry Thompson.  On appeal,

Jones asserted that the trial court erred in imposing consecutive

sentences predicated on the  attempted first degree murder count. 

Jones, 323 Ill. App. 3d at 453.  

	In its analysis, the Jones court reviewed People v. Whitney, 188 Ill. 2d 91, 100, 720 N.E.2d 225 (1999), and examined section

5-8-4(a) of the Code.  Jones, 323 Ill. App. 3d at 459-60.  The court determined that while first degree murder was not a Class X

or Class 1 felony, the offense of attempted murder was a Class X

felony and could be the basis for consecutive sentences in that

case.  Jones, 323 Ill. App. 3d at 460.  The Jones court then reasoned that prior to invoking a consecutive sentence in that

case, the requirement of "severe bodily injury" also must be met. 

Jones, 323 Ill. App. 3d at 461.  The victim of the attempted first degree murder in Jones suffered a "grazed-type" gunshot wound to his right cheek bone.  He did not receive medical

treatment for the injury and a doctor gave him a band aid for the

wound and told him that it was "okay."  Jones, 323 Ill. App. 3d at 461.  In the Jones court's view, the wound did not constitute severe bodily injury and, therefore, the imposition of

consecutive sentences was improper.  Jones, 323 Ill. App. 3d at 461.  Accordingly, Jones' sentences were modified to run

concurrently. Jones, 323 Ill. App. 3d at 461.

	We also note that in People v. Wilder, 325 Ill. App. 3d 987, 760 N.E.2d 496 (2001), in instructing the trial court upon

remand, the appellate court stated:

	   "We stress, however, that if the court should determine

that any of the offenses were carried out in a single course

of conduct, it may only use section 5-8-4(a) to impose consecutive sentences for those offenses.  If the court

applies that subsection, it must then also decide: (1)

whether any of the crimes found to have been committed in a single course of conduct are a Class X or Class 1 felony;

(2) whether the defendant inflicted a severe bodily injury;

and (3) whether that severe bodily injury was inflicted

during the commission of any of *** those felonies.  The

court may impose consecutive sentencing under section 5-8-

4(a) only if all three components are met."  (Emphasis in original.)  Wilder, 325 Ill. App. 3d at 1002.

	Here, defendant was convicted of first degree murder,

attempted first degree murder, and armed violence.  First degree

murder is not a Class X or Class 1 felony; rather, it is its own

class of felony.  Whitney, 188 Ill. 2d at 100.  Attempted first degree murder is a Class X felony.  720 ILCS 5/8-4(c)(1) (West

1994).  In addition to being found guilty of first degree murder

of the three-year-old, defendant in the instant case was found

guilty of attempted first degree murder of Ronnie Cole, a Class X

felony.  Ronnie Cole was shot twice in the right arm and was

hospitalized for three days.  We believe that this constitutes severe bodily injury for purposes of consecutive sentencing under

section 5-8-4(a) of the Code. 

	For the foregoing reasons, we affirm defendant's extended-

term sentence of 80 years' imprisonment and defendant's

consecutive sentence of 20 years'  imprisonment for attempted

first degree murder.   We also grant the State's request for $100 in

in costs for defending this appeal.  55 ILCS 5/4-2002.1 (West

1998).

	Affirmed.

	COHEN, P.J., AND and TULLY, J., CONCconcur.