FOURTH DIVISION

									FILED: 12/14/00

Nos. 1-98-3631 and 1-99-2203 (consolidated)

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

								)	Circuit Court of

	Plaintiff-Appellee,				)	Cook County.

								)

		v.						)	

								)

ALBERT LEE,						)	Honorable

								)	John J. Moran,

	Defendant-Appellant				)	Judge Presiding.

JUSTICE HOFFMAN delivered the opinion of the court:

	Following a jury trial, the defendant, Albert Lee, was found

guilty of first degree murder and armed robbery and sentenced to

concurrent prison terms of natural life for murder and 50 years for

armed robbery.  He filed the instant timely appeal, arguing that

the natural life sentence is excessive.  During the pendency of

this appeal, the United States Supreme Court issued its decision in

Apprendi v. New Jersey, 530 U.S. __, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  The defendant subsequently filed a supplemental

brief, in which he argues, in reliance on Apprendi, that we must vacate his natural life sentence and remand for resentencing.  For

the reasons which follow, we affirm the defendant's convictions,

vacate both sentences, and remand for re-sentencing.

	The evidence at trial1 established that, on November 7, 1992, the defendant was employed as a security guard in a building

located on jeweler's row in downtown Chicago.  The victim, Phillip

Landay, was a tenant in the building.  The defendant went to the

victim's store intending to rob him.  After the victim let the

defendant into the store, the defendant wrapped duct tape around

the victim's wrists, ankles, and head.  He then took several bags

of merchandise from the store.  According to the defendant's

confession, it then occurred to him that, if the victim lived, he

would be able to identify the defendant.  He found a pocket knife

in the victim's pocket and twice slit the victim's throat.  He then

shot the victim in the neck with a gun he found in the store.  The

jury convicted the defendant of both armed robbery and murder.  The

trial court sentenced the defendant to a term of natural life

imprisonment for the offense of murder and an extended term

sentence of 50 years for the offense of armed robbery.

	Before turning to the merits of the defendant's appeal, we

find it necessary to discuss the question of our jurisdiction in

this matter, two notices of appeal having been filed.  On April 23,

1998, the defendant filed a pro se motion to dismiss the indictment.  The trial court denied that motion on August 31, 1998. 

On September 10, 1998, the defendant filed a pro se notice of appeal, apparently from the denial of his motion.  That appeal was

assigned docket number 1-98-3631.  Thereafter, the case proceeded 

to trial.  After the defendant's conviction and sentencing and the

denial of his motion to reconsider his sentence, defense counsel

filed a timely notice of appeal, which was assigned docket number

1-99-2203.  On June 8, 2000, this court granted the defendant's

motion to consolidate the two appeals.  An appeal in a criminal

case may not be maintained until a final judgment, namely a

sentence, has been imposed.  People v. Caballero, 102 Ill. 2d 23, 51, 464 N.E.2d 223 (1984).  The trial court order denying the

defendant's motion to dismiss the indictment is not a final order. 

The defendant acknowledged this in his motion to consolidate the

two appeals and, in his brief, raises no argument pertaining to the

trial court's ruling on the motion to dismiss.  Accordingly, we

dismiss the appeal docketed as number 1-98-3631 for a lack of

jurisdiction.

	We now turn to the defendant's argument that, based on the

United States Supreme Court's recent decision in Apprendi, we must vacate his natural life sentence for murder and remand to the trial

court for re-sentencing.  His argument amounts to a constitutional

attack on section 5-8-1(a)(1)(b) of the Unified Code of Corrections

(Code of Corrections) (730 ILCS 5/5-8-1(a)(1)(b)(West 1992)). 

Section 5-8-1(a)(1)(a) of the Code of Corrections provides that the sentence for first degree murder shall be not less than 20 years or

more than 60 years.  730 ILCS 5/5-8-1(a)(1)(a)(West 1992).  Section

5-8-1(a)(1)(b), however, provides that:

	"(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 (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) (West 1992).

Section 9-1(b) of the Criminal Code of 1961 (Criminal Code)

contains a list of aggravating factors.  720 ILCS 5/9-1(b) (West

1992).  The parties agree, however, that the trial court imposed

the natural life sentence in this case upon the basis of its

finding that the victim's death was exceptionally brutal and

heinous, indicative of wanton cruelty.

	In Apprendi, the Supreme Court found to be unconstitutional a New Jersey statute allowing the trial judge to impose an extended

term sentence upon finding, by a preponderance of the evidence,

that the defendant, when committing the offense for which he was

being sentenced, had acted with a racially biased purpose. 

Apprendi, 530 U.S. __, 147 L. Ed.2d 435, 120 S. Ct. 2348.  The Apprendi court held 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 __, 147 L.Ed.2d at 455, 120 S.Ct. at 2362-63.  In reliance thereon, the defendant contends that section 5-8-1(a)(1)(b) is unconstitutional

because it allows a trial judge to impose a sentence beyond the 20

to 60 year statutory range for first degree murder by finding the

existence of certain facts which have not been submitted to the

jury for proof beyond a reasonable doubt.

	The State first argues that the defendant has waived this

argument because he failed to raise it in his post-trial sentencing 

motion, as required by section 5-8-1(c) of the Code of Corrections. 

730 ILCS 5/5-8-1(c) (West 1998)).  See People v. Reed, 177 Ill. 2d 389, 393-94, 686 N.E.2d 584 (1997)(defendant must raise sentencing

issues in post-sentencing motion to preserve issues for review). 

Challenges to a trial court's statutory authority to impose a

particular sentence are not, however, subject to waiver.  People v. Clifton, Nos. 1-98-2126, 1-98-2384, slip op. at 50-51 (Ill. App. September 29, 2000).  We will, therefore, address the merits of the

issue.

	Our disposition of the instant appeal is controlled by People v. Joyner, No. 2-99-0433 (Ill. App. November 8, 2000).  In Joyner, as here, the defendant was convicted of first degree murder and

sentenced to natural life in prison, pursuant to section 5-8-

1(a)(1)(b), based on the trial court's finding that the murder was

accompanied by exceptionally brutal or heinous behavior indicative

of wanton cruelty.  There, as here, the defendant argued that

section 5-8-1(a)(1)(b) is unconstitutional pursuant to the rule

announced in Apprendi.  The Joyner court noted that section 5-8- 1(a)(1)(b) authorizes the imposition of a sentence of natural life

for the offense of first degree murder, a sentence beyond the

maximum statutorily authorized sentence of 60 years in prison,

based upon a finding that the murder was exceptionally brutal and

heinous without requiring that the brutal and heinous issue be

submitted to a jury or proven beyond a reasonable doubt.  Joyner, No. 2-99-0433, slip op. at 21-22.  The court concluded that, as such, section 5-8-1(a)(1)(b) violates a defendant's constitutional rights to due process and trial by jury.  Joyner, No. 2-99-0433, slip op. at 22.

	We agree with the Joyner court's conclusion that section 5-8- 1(a)(1)(b) is unconstitutional and the reasoning upon which that

conclusion is based.  We find it necessary, however, to address an

argument raised by the State in the instant case but not addressed

in Joyner.  The State maintains that the statutory sentencing range for murder is not 20 to 60 years' imprisonment but, rather, that

the range is 20 years' imprisonment up to and including death.  As

such, the State contends, a sentence of natural life is not an

enhanced sentence or one which exceeds the statutory maximum and,

accordingly, the rule announced in Apprendi does not apply here.

	In support of this contention, the State relies on Walton v. Arizona, 497 U.S. 639, 111 L.Ed. 2d 511, 110 S.Ct. 3047 (1990), in which the United States Supreme Court rejected a constitutional

challenge to an Arizona statute which authorized the trial judge,

rather than a jury, to determine the existence or nonexistence of aggravating factors necessary for the imposition of a death

sentence for the offense of first degree murder.  As the State

notes, the majority opinion in Apprendi specifically statesd that the rule announced therein does not affect the holding in Walton.  The Apprendi majority stated:

	"[t]his court has previously considered and rejected the

argument that the principles guiding our decision today

render invalid state capital sentencing schemes requiring

judges, after a jury verdict holding a defendant guilty

of a capital crime, to find specific aggravating factors

before imposing a sentence of death.  Walton v. Arizona, 497 U.S. 639, 647-649, 110 S. Ct. 3047, 111 L. Ed 2d 511

(1990); id., at 709-714, 110 S. Ct. 3047 (STEVENS, J., dissenting).  For reasons we have explained, the capital

cases are not controlling:

		'Neither the cases cited, nor any other case,

permits a judge to determine the existence of

a factor which makes a crime a capital

offense.  What the cited cases hold is 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 . . . .  The person who is charged with actions that expose him to

the death penalty has an absolute entitlement

to jury trial on all the elements of the

charge.'  Almendarez-Torres, 523 U.S., at 257, n. 2, 118 S. Ct. 1219 (SCALIA, J.,

dissenting)(emphasis deleted)."

	Relying thereon the State contends that the factors listed in

section 5-8-1(a)(1)(b) are merely factors for determining the

appropriate sentence within the overall sentencing range of 20

years' imprisonment to death.  The State, however, fails to

acknowledge the existence of a critical distinction between the

statutes at issue in Walton and those at issue here.  The Arizona statutes pursuant to which the Walton defendant was convicted of first degree murder and sentenced to death provided that the

sentence for first degree murder is either death or life

imprisonment.  Ariz. Rev. Stat. §13-1105, §13-703 (1989). 

Therefore, a sentence of death fell within the statutory sentencing

range involved in Walton, and the statute in question merely limited the trial court's discretion in selecting a penalty within

that range.  

	In contrast, section 5-8-1(a)(1)(a) clearly provides that the

sentencing range for first degree murder is 20 to 60 years.  730

ILCS 5-8-1(a)(1)(a)(West 1992).  A sentence of natural life in

prison can be imposed pursuant to section 5-8-1(a)(1)(b) only if

the trial court finds the existence of a certain fact, either that the crime was committed in a particularly brutal and heinous manner

indicative of wanton cruelty or that one of the aggravating factors

listed in section 9-1(b) of the Criminal Code exists.  Accordingly,

we find that the State, in proposing that a sentence of natural

life in prison falls within the normal sentencing range for murder,

"misreads the statutory scheme."  See People v. Beachem, No. 1-99- 0852, slip op. at 21 (Ill. App. November 8, 2000).  Under Apprendi, a statute which provides for a judicial finding of fact that has

the effect of increasing the penalty for an offense beyond the

statutorily prescribed maximum is unconstitutional.  Section 5-8-

1(a)(1)(b) clearly falls within this prohibition.  Accordingly, we

agree with the defendant that his sentence of natural life in

prison cannot stand.  We recognize that, in Joyner, the court exercised its authority, under Supreme Court Rule 615(b)(4) (134

Ill. 2d R. 615(b)(4)), and reduced the defendant's natural life

sentence to 60 years, the maximum allowable non-extended sentence

for first degree murder.  We, however, choose to grant the

defendant's request and remand this cause to the trial court for

re-sentencing on the defendant's murder conviction.

	We are now compelled to address an issue not raised by the

defendant.  That issue is the propriety of his 50 year extended

term sentence for the offense of armed robbery.  Armed robbery is

a class X offense, for which the statutory sentencing range is 6 to

30 years in prison.  720 ILCS 5/18-4 (West 1992); 730 ILCS 5/5-8-

1(a)(3) (West 1992).  Section 5-8-2 of the Code of Corrections (730 ILCS 5/5-8-2 (West 1992)), however, provides for the imposition of

an extended term sentence of 30 to 60 years for a class X felony if

the trial judge finds the existence of one or more of the

aggravating factors set forth in section 5-5-3.2(b) of the Code of

Corrections (730 ILCS 5/5-5-3.2(b) (West 1992)).  Among the factors

listed in section 5-5-3.2(b) are the facts that the offense was

accompanied by exceptionally brutal or heinous behavior indicative

of wanton cruelty and that the defendant committed an offense

against a person 60 years of age or older or against that person's

property.  730 ILCS 5/5-5-3.2 (West 1992)).  Although, as noted

above, the trial judge found that the conduct which caused the

victim's death was exceptionally brutal and heinous, he did not

make a finding that the armed robbery was brutal and heinous.  The

trial judge did, however, find that the victim was 72 years of age.

	The defendant has not argued that section 5-8-2 is

unconstitutional pursuant to the rule announced in Apprendi, and we do not find it necessary to reach that issue.  We do, however, find

it necessary to vacate the defendant's extended term 50 year

sentence.

	Section 5-8-2 allows for the imposition of an extended term

sentence only for offenses within the most serious class of offense

of which the defendant is convicted.  730 ILCS 5/5-8-2 (West 1992);

People v. Jordan, 103 Ill. 2d 192, 203-06, 469 N.E.2d 569 (1984).  Accordingly, where a defendant is convicted of two offenses of 

different classes, the trial court cannot impose an extended term sentence on the less serious offense; this is true even where the

trial court does not impose an extended term sentence for the more

serious offense.  See People v. Rankin, 297 Ill. App. 3d 818, 823, 697 N.E.2d 1246 (1998). An exception to the general rule exists. 

The Illinois Supreme Court has held that, when a defendant is

convicted of murder and sentenced to death or to life imprisonment, 

the trial court is authorized to impose an extended term sentence

for offenses falling within the next most serious class of offense

of which the defendant is convicted.  People v. Terry, 183 Ill. 2d 298, 301-05, 700 N.E.2d 992 (1998).  This is because sentences of

death or natural life in prison cannot be extended pursuant to

section 5-8-2.  Where, however, a defendant is sentenced to a term

of years for murder, the defendant cannot be sentenced to an

extended term sentence for any less serious offenses.  Terry, 183 Ill. 2d at 301-05.

	The defendant was convicted of first degree murder, which

comprises its own class of offense (730 ILCS 5/5-8-1 (West 1992)); People v. Murray, 312 Ill. App. 3d 685, 694, 728 N.E.2d 512 (2000)), and armed robbery, which is a class X felony (720 ILCS

5/18-2 (West 1992)).  He was originally sentenced to natural life

in prison, a sentence which would not have precluded the imposition

of an extended term sentence for the offense of armed robbery under

the rule stated above.  We have, however, vacated the defendant's

natural life sentence and are remanding to the trial court for re-

sentencing as to that offense.  Furthermore, as we have declared section 5-8-4(a)(1)(b), pursuant to which the natural life sentence

was imposed, to be unconstitutional, the defendant's sentence upon

remand must be for a term of years.  Accordingly, the defendant's

extended term sentence for the offense of armed robbery cannot

stand.  We, therefore, vacate the defendant's 50 year sentence for

the offense of armed robbery and remand to the trial court for re-

sentencing.

	For the foregoing reasons, we affirm the defendant's

convictions for first degree murder and armed robbery, vacate his

respective sentences of natural life and 50 years' imprisonment for

those offenses, and remand to the trial court for re-sentencing.

	1-98-3631 -- Appeal dismissed

	1-99-2203 -- Affirmed in part, vacated in part, and remanded. 

	HARTMAN, P.J. and BARTH, J., concur.

In the instant case, the trial court found that the murder of the

victim was accompanied by brutal and heinous behavior indicative of

wanton cruelty.2  Although neither the State nor the defendant mentions it, the trial court also found that the defendant had

killed the victim while committing an armed robbery.  One of the

aggravating factors listed in section 9-1(b), an incorporated by

reference into section 5-8-1(a)(1)(b) is that the murdered person

was killed during the course of one of certain specified felonies,

of which armed robbery is one, if the defendant actually killed the

victim and in doing so acted with intent to kill or with knowledge

that his acts created a strong probability of death or great bodily

harm.  720 ILCS 5/9-1(b) (West 1992)).  The trial court, however,

made no finding that the defendant acted with the requisite intent

for the imposition of an extended sentence on the basis of this

factor.

	The State maintains that a sentence of natural life

imprisonment is not beyond the statutory maximum for the offense of

first degree murder and that, accordingly, Apprendi does not apply to the facts herein.  In support of its position, the State argues

that the sentencing range for first degree murder is not 20 to 60

years imprisonment but 20 years imprisonment up to and including

the death penalty.  

	We do not, however, agree that we must remand to the trial

court for re-sentencing.  It is clear that the trial court intended

to impose the maximum sentence it could for the offense of first

degree murder.  Accordingly, this court could exercise its power,

pursuant to Supreme Court Rule 615(b)(4) (134 Ill. 2d R.

615(b)(4)), to reduce the defendant's sentence to the maximum non-

extended sentence of 60 years in prison rather than remanding for

re-sentencing.  In deciding whether this is appropriate, however,

we note that the defendant, in his original brief to this court,

argued that his natural life sentence was excessive, asserting that

the trial court failed to take into account certain mitigating

factors.  Before exercising our power to simply reduce the

defendant's sentence to the maximum allowable non-extended

sentence, we feel compelled to address the defendant's contention

that the trial court did not consider the appropriate mitigating

factors.

	In calculating a proper sentence, the trial court should

consider factors such as the defendant's credibility, demeanor,

moral character, mentality, social environment, habits, age, and

prior criminal record and the nature and circumstances of the

offense.  People v. Perruquet, 68 Ill. 2d 149, 154, 368 N.E.2d 882 (1977); People v. Kloiber, 95 Ill. App. 3d 1061, 1070, 420 N.E.2d 870 (1981).  The trial court has considerable discretion in

fashioning an appropriate sentence, and a reviewing court will not

disturb the sentence imposed absent an abuse of that discretion.  People v. Hasprey, 308 Ill. App. 3d 841, 851, 721 N.E.2d 181 (1999).

	The defendant contends that his age, 23 at the time of the

offenses, his lack of a prior criminal record, lack of drug or

alcohol abuse or gang involvement, his good employment record, and

his military record indicate that he has "tremendous rehabilitative

potential."  All of these facts are reflected in the presentence

investigation report.  He also argues that the fact that he

confessed is a strong factor in mitigation.  When imposing

sentence, the trial judge specifically stated that he was

considering the matters set forth in the presentence investigation

report and the factors in mitigation, "including but not limited to

the history, age, and character of the defendant and assessing the

defendant's rehabilitative potential".  The judge also, however,

stated that he was considering the nature, circumstances, and

seriousness of the offense and the need to protect society by

deterring the type of criminal misconduct committed by the

defendant.  We reject the defendant's contention that, although the

trial judge stated that he was considering mitigating factors, the

sentence imposed indicated that he did not "genuinely" weigh those

factors.  A sentencing judge is not required to give greater weight

to a defendant's rehabilitative potential than to the seriousness of the offense.  People v. Govea, 299 Ill. App. 3d 76, 91, 701 N.E.2d 76 (1998).  Nor was the judge required to accord greater

weight to what appellate counsel terms the defendant's "might

contribution to the prosecution's case - his confession", than to

the seriousness of the offense.  Given the circumstances

surrounding the offense and the need for deterrence, we cannot say

that the imposition of the maximum sentence for the offense of

first degree murder in the instant case is an abuse of discretion. 

Accordingly, we exercise our authority pursuant to Rule 615(b)(4)

and reduce the defendant's sentence for first degree murder to 60

years in prison, thus giving effect to the trial court's intention

to impose the maximum sentence allowed for that offense.

One of these factors is that the defendant killed the victim during

the commission of one of certain enumerated felonies, including

armed robbery, and that, in performing the acts which caused the

victim's death, the defendant intended to kill the victim or knew

that his acts created a strong probability of death. As noted

above, the trial judge in this case found that the victim's murder was exceptionally brutal and heinous indicative of wanton cruelty. 

He also found that the defendant killed the victim while committing

an armed robbery, although he made no finding on the record as to

the existence of one of the requisite mental states for the

imposition of a natural life sentence based on this factor.  At the

time of the defendant's sentencing, section 9-1(b) also included as

a factor that the murder victim was 60 years of age or older and

that the death resulted from exceptionally brutal or heinous

behavior indicative of wanton cruelty.  720 ILCS 5/19-1