Docket No. 91840–Agenda 13–September 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 

								AARON D. SWIFT, Appellee.

Opinion filed November 21, 2002.

	JUSTICE FREEMAN delivered the opinion of the court:

	In this appeal we are asked to review the constitutionality of

defendant’s 80-year extended-term sentence in light of the

Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The central issue

is one of construction of the Illinois sentencing statutes that

establish the penalties for first degree murder. Specifically, we must

determine, for purposes of Apprendi analysis, whether the Illinois “sentencing range” for that crime is 20 to 60 years’ imprisonment,

20 years’ to life imprisonment, or 20 years’ imprisonment to death.

We conclude that the sentencing range is 20 to 60 years’

imprisonment. Because defendant’s sentence exceeded this range,

based on a factual finding made by the court, the sentence cannot

stand. Accordingly, we vacate the sentence and remand the cause

for resentencing.

BACKGROUND

	In the circuit court of CookWinnebago County, a jury convicted

defendant, Aaron Swift, of the first degree murder (720 ILCS

5/9–1(a)(2) (West 1998)) of Karzell Anderson. Although a detailed

recitation of the facts underlying the conviction is not necessary for

our disposition of the case, we note that from the evidence and

testimony adduced at trial, the jury could have found that in

February 1998, defendant stabbed the victim 21 times, causing his

death, as the end result of a drug-related altercation.

	The State did not seek the death penalty for defendant.

However, the State did request the court to impose an extended-

term sentence. The court found that the offense was exceptionally

brutal or heinous, and imposed an extended term sentence of 80

years’ imprisonment based on that finding. See 730 ILCS

5/5–8–2(a), 5–5–3.2(b)(2) (West 1998). Defendant appealed.

	The appellate court affirmed defendant’s conviction, but

vacated his extended-term sentence. In so doing, the court held

that section 5–8–2 of the Unified Code of Corrections (Code) (730

ILCS 5/5–8–2 (West 1998))–the statute authorizing the extended-

term sentence the circuit court imposed on defendant–was

unconstitutional under Apprendi, which was decided while the appeal was pending. 322 Ill. App. 3d 127. This appeal of right

followed. 177 Ill. 2d R. 612(b); 134 Ill. 2d R. 317. For the reasons

that follow, we affirm the judgment of the appellate court that the

sentence imposed in this case cannot stand and remand for

resentencing.

ANALYSIS

	As previously noted, this case involves application of the rule

of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). There, the defendant was convicted of

possession of a firearm for an unlawful purpose, a “second-degree”

offense (N.J. Stat. Ann. §2C:39–4(a) (West 1995)) normally

punishable by a sentence of 5 to 10 years’ imprisonment (N.J. Stat.

Ann. §2C:43–6(a)(2) (West 1995)). However, a New Jersey “hate

crime” statute increased the applicable sentence to 10 to 20 years’

imprisonment, based on the trial judge’s finding, by a

preponderance of the evidence, regarding the defendant’s motive

for committing the crime. N.J. Stat. Ann. §2C:43–7(a)(3) (West

1995). The high court struck down the latter statute, framing the

issue as “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 from10 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. The Court answered this question in the

affirmative, concluding 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.

	Defendant argues that Apprendi compels vacatur of his sentence in the instant case. He contends that based solely on the facts found by the jury, he was only exposed to a sentence of

between 20 and 60 years’ imprisonment for his conviction of first

degree murder. See 730 ILCS 5/5–8–1(a)(1)(a) (West 1998). He

notes that his 80-year extended-term sentence, like the sentence

imposed in Apprendi, was based on a factual finding by the trial judge by a preponderance of the evidence. See 730 ILCS

5/5–8–2(a), 5–5–3.2(b)(2) (West 1998). He argues that a

straightforward application of Apprendi requires that his extended- term sentence be vacated and the cause remanded for resentencing.

	The State disagrees. First, the State attempts to distinguish

Apprendi on its facts, arguing that the Court never intended that sentences imposed under statutes such as the Illinois extended-term

statute be judged according to the rule announced in Apprendi. In the alternative, the State contends that the statutory scheme in

force in Illinois and the sentence imposed on the defendant in the

instant case do not violate the Apprendi rule. We shall consider these arguments in turn.

	Initially, the State attempts to limit Apprendi to its facts, proffering two distinctions between the New Jersey statute struck

down in Apprendi and the extended-term statute under which defendant was sentenced in the instant case. First, the State notes

that the statute at issue in Apprendi required the court to impose a longer sentence upon the requisite factual finding concerning the

defendant’s motive, whereas the Illinois extended-term statute

merely permits the court to impose an extended-term sentence upon an appropriate finding. See 730 ILCS 5/5–8–2(a) (West

1998). Second, the State notes that in Apprendi the Court stated that the New Jersey statute essentially raised the classification of

the underlying offense, from a second-degree offense to a first-

degree offense. See Apprendi, 530 U.S. at 494, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365. The State contends that the Court was

only truly concerned with statutes which changed offense

classifications and argues that the rule announced in Apprendi was never intended to apply to statutes that do not have such an effect.

	Neither distinction is persuasive. Although the State correctly

characterizes the statute at issue in Apprendi, the Court’s analysis did not rely on the features by which the State seeks to distinguish the case. In other words, the State’s distinctions make no

difference.

	As we have previously discussed, the rule established by the

Court’s decision in Apprendi admits of a relatively simple statement: Due process requires that all facts necessary to establish

the statutory sentencing range within which the defendant’s

sentence falls must be proven to a jury beyond a reasonable doubt.

See People v. Jackson, 199 Ill. 2d 286, 296 (2002); People v. Ford, 198 Ill. 2d 68, 73 (2001), quoting Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. With respect to

the State’s first argument, the mandatory nature of the New Jersey

sentence increase was not germane to the Court’s analysis, as is

evident in the Court’s framing of the issue–“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 from10 to 20 years be made by a

jury on the basis of proof beyond a reasonable doubt.” (Emphasis

added.) Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351. The Court did not rely on this feature of the statute in

any portion of its analysis. A defendant’s due process rights are

violated by a sentence which exceeds the maximum sentence

authorized by the facts found by the jury, whether imposition of the

invalid sentence is mandatory or discretionary with the judge.

	The State’s second basis for distinguishing Apprendi is that the rule was only intended to apply to statutes which actually change

the classification of the offense. This argument fares little better

than the State’s first argument, in light of the Supreme Court’s

recent decision Ring v. Arizona, 536 U.S. __, 153 L. Ed. 2d 556,  122 S. Ct. 2428 (2002). There, the Court held that the Arizona

death penalty scheme did not pass constitutional muster, because

it allowed the judge to make a factual finding which would

determine whether a defendant convicted of first degree murder

would receive the death penalty or life imprisonment. The statute

which the Court invalidated in Ring did not change the classification of the offense.

	The State’s attempts to distinguish Apprendi on its facts are unavailing. Accordingly, we must proceed to the central issue in

the case, analysis of the penalty scheme for first degree murder in Illinois. We note that this case squarely presents this court with an

issue we previously left unaddressed. See Ford, 198 Ill. 2d at 73.

	The central tenet of Apprendi is that the constitution requires that any facts necessary to authorize the sentence imposed on the

defendant must be proven to the jury, beyond a reasonable doubt.

In this case defendant was sentenced to 80 years’ imprisonment

based on a factual finding that the crime was brutal and heinous.

This finding was made by the circuit court judge, not a jury.

Moreover, the burden of proof was merely a preponderance of the

evidence, not proof beyond a reasonable doubt. See People v. Jackson, 199 Ill. 2d 286, 293 (2002) (judge need only find extended-term sentencing factor by a preponderance of the

evidence). Accordingly, defendant’s sentence cannot stand unless

he was eligible for such a sentence without such a finding–i.e., based solely on the facts found by the jury beyond a reasonable

doubt. As previously noted, defendant argues that the appellate

court correctly vacated his sentence, because the sentencing range

for first degree murder is 20 to 60 years’ imprisonment.

	The State contends that according to the statutes which

establish the sentencing structure for first degree murder, defendant

became eligible for a sentence of 20 years to life–or 20 years to

death–upon the jury’s finding that he was guilty of first degree

murder, because there is statutory authorization for any sentence

in these ranges. The State urges that it is of no moment that the

judge made a factual finding in the course of sentencing defendant,

because defendant’s sentence fell within the sentencing range for

the crime of which the jury found him guilty. Accordingly, the

State argues, the appellate court erred, and defendant’s 80-year

sentence should be affirmed.

	We must determine what sentence could be imposed on

defendant for his first degree murder conviction, based solely on

the facts found by the jury. This is a question of statutory

interpretation, and as such the principles guiding our analysis are

well established. In matters of statutory interpretation our standard

of review is de novo. Our primary purpose is to give effect to the intent of the legislature, and the best evidence of that intent is the

plain language of the statutes. Where the meaning of a statute is

plain on its face, there is no need to resort to other tools of construction. In interpreting statutes, we must avoid constructions

which would produce absurd results. People v. Pullen, 192 Ill. 2d 36, 42 (2000).

	 There are three statutes involved.

	Section 5–8–1(a)(1) of the Code (730 ILCS 5/5–8–1(a)(1)

(West 1998)) provides that “[e]xcept as otherwise provided in the

statute defining the offense,” the court shall impose a sentence of

imprisonment for first degree murder within certain constraints:

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

than 60 years, or

			(b) if the court 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, or

			(c) the court shall sentence the defendant to a term of

natural life imprisonment when the death penalty is not

imposed if [various factual predicates obtain with respect

to the defendant, the victim, or the crime.]” 730 ILCS

5/5–8–1(a)(1)(a) through (a)(1)(c) (West 1998).1

	Section 9–1 of the Criminal Code of 1961 (Criminal Code)

(720 ILCS 5/9–1 (West 1998)) defines the crime of first degree

murder and sets out the procedures necessary to impose the death

penalty for the crime. Subsection (a) of section 9–1 provides that

one who kills an individual without lawful justification commits

first degree murder if, in performing the acts which cause the

death,

			“(1) he either intends to kill or do great bodily harm to

that individual or another, or knows that such acts will

cause death to that individual or another; or

			(2) he knows that such acts create a strong probability

of death or great bodily harm to that individual or another;

or

 			(3) he is attempting or committing a forcible felony other than second degree murder.” 720 ILCS 5/9–1(a)

(West 1998).

Subsection (b) of section 9–1 provides that a defendant found

guilty of first degree murder who was 18 or older at the time of the

commission of the offense may be sentenced to death if one of

several different aggravating factors obtain. See 720 ILCS

5/9–1(b)(1) through (b)(19) (West 1998). Before a death sentence

may be imposed, however, the court must hold a separate

sentencing hearing. 720 ILCS 5/9–1(d) (West 1998). At this

hearing, a jury–or the court, if defendant waives a jury–must first

determine whether the State has proven one or more of the

enumerated aggravating factors beyond a reasonable doubt. 720

ILCS 5/9–1(g), (h) (West 1998). Even if the fact finder does so

find, it must next consider factors in aggravation and mitigation.

The death penalty can only be imposed if the fact finder

concludes–unanimously, if the fact finder is a jury–that there are no

mitigating factors sufficient to preclude the imposition of the death

sentence. 720 ILCS 5/9–1(g), (h) (West 1998). If the fact finder

does not find the State to have proven one or more of the

aggravating factors beyond a reasonable doubt, or does not

subsequently unanimously find that there are no mitigating factors

sufficient to preclude the imposition of the death penalty, the court

must sentence the defendant to a term of imprisonment under

chapter V of the Code. 720 ILCS 5/9–1(g), (h) (West 1998).

	Finally, section 5–8–2(a) of the Code provides that the court

			“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. Where the

judge finds that such factors were present, he may

sentence an offender to the following:

			(1) for first degree murder, a term shall be not less than

60 years and not more than 100 years[.]” 730 ILCS

5/5–8–2(a) (West 1998).2

The court imposed the 80-year sentence in the instant case

pursuant to section 5–8–2(a), based on its finding that the offense

was exceptionally brutal and heinous. See 730 ILCS

5/5–5–3.2(b)(2) (West 1998).

	In essence, the State contends that Illinois has a “unitary”

sentencing scheme for first degree murder. The State urges us to

read all of the statutes as a whole and conclude that any sentence

the legislature has authorized to be imposed on a defendant

convicted of first degree murder is part of the sentencing range.

	We reject this argument. A defendant commits first degree

murder when he kills an individual, intending or knowing that he is

likely to cause death or great bodily harm, or when he commits the

killing in the attempt or commission of a felony other than second

degree murder. See 720 ILCS 5/9–1(a) (West 1998). See also

Illinois Pattern Jury Instructions, Criminal, §No. 7.02 (4th ed.

2000). According to the plain language of the statutes we set out

above, if only these facts are proven, the sentence imposed must be

between 20 and 60 years’ imprisonment. See 730 ILCS

5/5–8–1(a)(1)(a) (West 1998). For any other sentence to be

imposed, be it an extended-term sentence of 60 to 100 years (730

ILCS 5/5–8–2(a)(1) (West 1998)), life imprisonment (730 ILCS

5/5–8–1(a)(1)(b), (a)(1)(c) (West 1998)), or the death penalty (720

ILCS 5/9–1(g), (h) (West 1998)), additional facts must be proven.

Thus, according to the plain language of the statutes, 20 to 60

years'’  imprisonment is the sentencing range for first degree murder. This is the only range of sentence authorized for the basic

elements of the crime.

	The State’s argument runs counter to the plain language of

section 5–8–2(a) of the Code in another sense, as well. As

previously noted, section 5–8–2(a) only requires proof of

aggravating factors if the court imposes a sentence “in excess of

the maximum sentence authorized by Section 5–8–1.” 730 ILCS

5/5–8–2(a) (West 1998). If the “maximum sentence authorized by

section 5–8–1” were life imprisonment, as the State contends,

section 5–8–2(a) would seem to permit the court to impose an

extended-term sentence without finding any aggravating

factor–because no matter what extended-term sentence the court

imposed, that sentence could not exceed life imprisonment.

Reading section 5–8–1 as authorizing a maximum sentence of 60

years’ imprisonment, on the other hand, allows that section and

section 5–8–2(a) to operate in perfect harmony, with the 60- to

-

100-year extended-term range permitted pursuant to the latter

picking up exactly where the former’s 20-to-60-year sentencing

range leaves off. See People v. Hopkins, 201 Ill. 2d 26, 40 (2002) (“when any statutory enhancing aggravating factor is proved to

exist beyond a reasonable doubt, *** the original sentencing range increases according to the statutory scheme” (emphasis added)).

	Finally, the State’s argument that the Apprendi “sentencing range” for a crime is any penalty authorized by statute to be

imposed for that crime–regardless of what factual findings the

legislature might require before higher ranges of sentence could be

imposed–has recently been rejected by the Supreme Court. See

Ring v. Arizona, 536 U.S. __, 153 L. Ed. 2d 556, 122 S. Ct. 2428  (2002).

	In briefing the instant case, the State relied in large part on

Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990). There, the Court upheld the constitutionality of the

Arizona death penalty statutes. Under Arizona law, the only two

punishment alternatives for a defendant convicted of first degree

murder were death or life imprisonment. Ariz. Rev. Stat. Ann.

§13–703(A) (West 2001). A death sentence could be imposed only

if the court found that an aggravating circumstance existed and that

there were “no mitigating circumstances sufficiently substantial to call for leniency.” Ariz. Rev. Stat. Ann. §13–703(E) (West 2001).

In Walton, the Court upheld this scheme, rejecting the argument that a defendant was entitled to have a jury determine the existence

of an aggravating circumstance. In Apprendi, the Court distinguished and reaffirmed Walton. Key to the distinction drawn by the Apprendi majority was the premise that the maximum sentence for first degree murder in Arizona was death. Reasoning

therefrom, the Court concluded that “ ‘once a jury has found the

defendant guilty of all the elements of an offense which carries as

its maximum penalty the sentence of death, it may be left to the

judge to decide whether that maximum penalty, rather than a lesser

one, ought to be imposed.’ ” Apprendi, 530 U.S. at 497, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366, quoting Almendarez-Torres v. United States, 523 U.S. 224, 257 n.2, 140 L. Ed. 2d 350, 377 n.2, 118 S. Ct. 1219, 1237 n.2 (1998) (Scalia, J., dissenting, joined by

Stevens, Souter and Ginsburg, JJ.). The primary dissent in

Apprendi labeled the majority’s distinction of Walton “baffling,” because the majority’s premise was “demonstrably untrue”: a

defendant convicted of first degree murder in Arizona could not

receive a death sentence unless the judge made the additional

factual finding that a statutory aggravating factor existed.

Apprendi, 530 U.S. at 538, 147 L. Ed. 2d at 484, 120 S. Ct. at 2388 (O’Connor, J., dissenting, joined by Rehnquist, C.J., Kennedy

and Breyer, JJ.).

	The Arizona Supreme Court later concluded that the Apprendi dissenters had construed the Arizona statutes at issue correctly.

State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001). Although a defendant convicted of first degree murder could ultimately receive

the death sentence, that sentence could not be imposed unless the

court made a factual finding that there existed a statutory

aggravating factor. State v. Ring, 200 Ariz. at 279, 25 P.3d at 1151.

	Faced with Arizona’s construction of its own statutes, the

Court reconsidered its earlier conclusion that Walton and Apprendi could peacefully coexist. After briefing had concluded in the instant case, the Court overruled Walton. Ring v. Arizona, 536 U.S. __,  153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002). The Court concluded

that Walton and Apprendi were irreconcilable, and reversed the defendant’s death sentence on the grounds that the Arizona death

penalty scheme was unconstitutional because it removed from the

jury the determination of facts required to establish the defendant’s

eligibility for that sentence. “Because Arizona’s enumerated

aggravating factors operate as ‘the functional equivalent of an

element of a greater offense,’ Apprendi, 530 U.S., at 494, n.19, the Sixth Amendment requires that they be found by a jury.” Ring, 536 U.S. at __, 153 L. Ed. 2d at 577, 122 S. Ct. at 2443.

	One of the arguments raised in Ring was that the defendant was “sentenced within the range of punishment authorized by the

jury verdict” because he “was convicted of first-degree murder, for

which Arizona law specifies ‘death or life imprisonment’ as the

only sentencing options.” Ring, 536 U.S. at __, 153 L. Ed. 2d at  573, 122 S. Ct. at 2440. The Court rejected this argument,

recalling the admonition in Apprendi that “ ‘the relevant inquiry is one not of form, but of effect.’ ” Ring, 536 U.S. at __, 153 L. Ed. 2d at 573, 122 S. Ct. at 2440,  quoting Apprendi, 530 U.S. at 494, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365. A finding of an

aggravating circumstance would expose the defendant to a penalty

greater than that authorized by the jury’s guilty verdict standing

alone, the Court stated; the Arizona statutory scheme “ ‘authorizes

a maximum penalty of death only in a formal sense.” Ring, 536 U.S. at __, 153 L. Ed. 2d at 573-74,  122 S. Ct. at 2440, quoting Apprendi, 530 U.S. at 541, 147 L. Ed. 2d at 486, 120 S. Ct. at 2389 (O’Connor, J., dissenting, joined by Rehnquist, C.J., Kennedy

and Breyer, JJ.). The Court concluded that to endorse this

argument would reduce Apprendi “to a ‘meaningless and formalistic’ rule of statutory drafting.” Ring, 536 U.S. at __, 153 L. Ed. 2d at 574, 122 S. Ct. at 2441, quoting Apprendi, 530 U.S. at 541, 147 L. Ed. 2d at 486, 120 S. Ct. at 2390 (O’Connor, J.,

dissenting, joined by Rehnquist, C.J., Kennedy and Breyer, JJ.).

	We conclude that for purposes of Apprendi analysis, the “sentencing range” for first degree murder in Illinois is 20 to 60

years’ imprisonment. This is the only range of sentence permissible

based on an ordinary jury verdict of guilt. Although there is

statutory authorization for higher sentences to be imposed for this

crime, any sentence longer than 60 years requires additional factual

findings. See 730 ILCS 5/5–8–2(a) (West 1998) (extended-term sentence); 730 ILCS 5/5–8–1(a)(1)(b), (a)(1)(c) (West 1998) (life

imprisonment); 720 ILCS 5/9–1(g), (h) (West 1998) (death

penalty). According to Apprendi, any factual findings which take a sentence above the sentencing range must be proven to a jury

beyond a reasonable doubt. In this case, the factual finding that

defendant’s crime was brutal and heinous was made by the circuit

court, and the State was not held to the appropriate burden of

proof. Accordingly, defendant’s sentence cannot stand.

	However, section 5–8–2(a)(1) is not facially unconstitutional.

See People v. Jackson, 199 Ill. 2d 286, 301 (2002) (“A statute is facially unconstitutional only if ‘ “no set of circumstances exists

under which the Act would be valid” ’ ”), quoting In re C.E., 161 Ill. 2d 200, 210-11 (1994), quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100

(1987); Ford, 198 Ill. 2d 68 (upholding constitutionality of application of section 5–8–2(a)(1)). Accordingly, we vacate that

portion of the appellate court’s opinion which so held.

CONCLUSION

	For the foregoing reasons, we affirm the result reached by the

appellate court, that the sentence in this case cannot stand.

However, we vacate the appellate court’s conclusion that section

5–8–2 of the Code of Corrections (730 ILCS 5/5–8–2 (West

1998)) is facially unconstitutional. The conviction entered by the

circuit court is affirmed, but the sentence entered is vacated, and

the cause is remanded to the circuit court for resentencing.

Appellate court judgment affirmed

in part and vacated in part;

circuit court judgment affirmed

in part and vacated in part;

cause remanded.