NO. 4-99-1043

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

	Plaintiff-Appellee,			)	Circuit Court of

	v.			     		)	Jersey County

RICKY E. CALLAHAN,		 			)	No. 97CF147 

	Defendant-Appellant.		)	

	                     		)	Honorable

							)	Ronald F. Robinson,

							)	Judge Presiding.

_______________________________________________________________

	JUSTICE KNECHT delivered the opinion of the court:

	A jury convicted defendant, Ricky Callahan, of first

degree murder and four counts of armed violence.  The trial court

sentenced him to a term of natural life imprisonment for the

murder conviction and 30 years for each conviction for armed

violence, to be served consecutively to each other and to the

sentence of natural life.  Defendant appeals, raising the follow

ing contentions:  (1) the trial court erred in allowing the State

to file additional charges on the eve of trial and defense

counsel was ineffective in failing to object to the filing of the

armed violence charges on speedy-trial grounds; (2) defense

counsel was ineffective for failing to tender a jury instruction

defining "recklessness" after tendering a jury instruction for

involuntary manslaughter; (3) the record shows no valid waiver of

defendant's Miranda rights (see Miranda v. Arizona, 384 U.S.436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)); (4) imposition of a

natural life sentence under section 5-8-1(a)(1)(b) of the Unified

Code of Corrections (Unified Code) (730 ILCS 5/5-8-1(a)(1)(b) (West 1996)) violated defendant's right to due process under

Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)); (5) the mandatory consecutive sentencing

provisions under section 5-8-4(a) of the Unified Code (730 ILCS

5/5-8-4(a) (West 1996)) are unconstitutional under Apprendi; (6) the discretionary consecutive sentencing provisions under section

5-8-4(b) of the Unified Code (730 ILCS 5/5-8-4(b) (West 1996))

are unconstitutional under Apprendi; (7) the truth-in-sentencing provision contained in section 3-6-3(a) of the Unified Code (730

ILCS 5/3-6-3(a)(iii) (West 1996) (requiring trial court to find

conduct resulted in great bodily harm to a victim)) is unconsti

tutional under Apprendi; (8) imposing consecutive sentences on a natural life sentence was improper as a matter of law; and (9) a

sentence of natural life was excessive and inappropriate as a

matter of law.  We affirm defendant's conviction for first degree

murder but modify his sentence; we reverse his convictions for armed violence; and we remand with directions.

				I. FACTS 

	In January 1998, the State charged defendant by indict

ment with first degree murder (720 ILCS 5/9-1(a)(2) (West 1996))

for the December 27, 1997, stabbing death of Ronald Haenitsch,

the attempt (first degree murder) of Steven Garrett, David

Almasey, Jennifer Williams, and Michael Talley (720 ILCS 5/8- 4(a), 9-1(a)(2) (West 1996)), and criminal damage to state-

supported property (720 ILCS 5/21-4(A) (West 1996)).  In May

1999, the State also charged him with eight counts of armed

violence (720 ILCS 5/33A-2 (West 1996)) for stabbing injuries

that same day to Steven Garrett, David Almasey, Jennifer Wil liams, and Michael Talley; eight counts of aggravated battery (720 ILCS 5/12-4(a), (b)(8) (West 1996)); and two counts of

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

1996)) based on the same series of events.  A jury trial was held

in July 1999 on the murder charge and the four counts of armed

violence.

	Shortly after 12 a.m. on December 27, 1997, Jerseyville

police responded to a call concerning an altercation at Lorton's

Hotel Restaurant and Bar in Jerseyville.  Officers arrived to

find a scuffle outside the bar involving defendant and several

other men and placed defendant in custody in a squad car.  Inside

the bar, they found a large crowd of people, several of whom were

injured.  Haenitsch, the murder victim, lay on the floor of the

bar.  A knife was found on the ground outside near the entrance

to the bar. 

	Defendant, a patron of the bar, was rebuffed by a woman

with whom he wished to dance.  The woman's brother intervened and

told defendant, "Hey, man she said no."  Defendant withdrew to

his table but then approached the brother and scratched him twice

on the neck with the tip of a knife.  In response to the bar

tender's request, two patrons then escorted defendant to the exit

door of the bar.  Defendant appeared willing to leave but then

turned back into the crowd and, in a punching motion, stabbed

four other patrons.  One died and the other three were injured.  

	Defendant then left the bar, ran across the street, and

returned still carrying a bloody knife in his hand, with the

blade sticking between his fingers and the palm of his hand. 

Several patrons struggled with defendant, took him to the pave ment, and disarmed him.  The police then arrived.

	Twelve witnesses testified in varying detail to these

events.  None of the witnesses knew defendant prior to December

27, 1997, and none testified to anyone provoking defendant.

	The parties stipulated deoxyribonucleic acid (DNA)

testing revealed blood on the knife was Talley's and blood on

defendant's jeans was Jennifer Williams'.  A fingerprint on the

knife was Zachariah Czaia's.  The parties also stipulated medical

evidence indicated wounds found on Almasey, Williams, Talley, and

Garrett were consistent with stab wounds inflicted by a knife. 

An autopsy on Haenitsch indicated the cause of death to be a

single stab wound to the chest, which perforated his heart.

	Several witnesses testified for defendant about the

amount of alcohol he consumed on December 26 and his actions that

afternoon and evening.  Defendant asserted a defense of voluntary

intoxication and presented an expert psychologist, Dr. Richard

Wetzel, who testified that, on the night in question, defendant

did not have the ability to form the intent to kill or seriously

harm someone.  The State called a psychiatrist, Dr. Kevin Miller,

in rebuttal.  Dr. Miller testified he did not believe defendant

to have been legally intoxicated on the night in question, and he

opined that defendant's actions were intentional and purposeful.  

	Jerseyville police officer Frank Scoggins testified he

interviewed defendant at the police station after his arrest. 

Defendant told him he was in the front bar area and rest room of

Lorton's but never in the nightclub area where the crimes oc

curred and he had no problem with anyone there.  Defendant told

Scoggins he drank four to five Crown and Coke beverages that evening.  He twice inquired whether Scoggins had "pulled a knife

off of him" when he was arrested.

	The jury deliberated on the foregoing evidence and

returned verdicts of guilty on one count of first degree murder

and four counts of armed violence.  

	The trial court held a sentencing hearing on September

2, 1999.  The court found no factors in mitigation.  In aggrava

tion, the court noted defendant's conduct caused serious harm; he

had a history of criminal activity; he inflicted severe bodily

injury; he attacked five people in the span of only a few sec

onds, causing death to one and great bodily harm to the other

four; the attacks occurred in a public place against unsuspecting

individuals minding their own business; the attacks were random

and without reason; defendant was not subject to rehabilitation;

defendant did not exhibit any remorse; defendant offered no help

to his victims but fled the scene; and the randomness of the

murder was indicative of brutal and heinous behavior indicating

wanton cruelty.  It then sentenced defendant to natural life for

the murder conviction and consecutive 30-year prison terms on

each of the four armed violence offenses, to be served consecu

tively to the term of natural life.

	Defendant filed a motion to reduce sentence on Septem

ber 21, 1999, which the trial court denied on December 21, 1999. 

This appeal  followed.

				II. ANALYSIS

		A. Ineffectiveness of Counsel in Failing To Move To Dismiss Late

Filed Additional Charges on Speedy-Trial Grounds

	Defendant remained in custody from his arrest on December 27, 1997, until his trial.  A speedy-trial demand

pursuant to section 103-5(a) of the Code of Criminal Procedure of

1963 (725 ILCS 5/103-5(a) (West 1996)) was filed by defense

counsel on January 6, 1998, requiring defendant be brought to

trial within 120 days of the date he was taken into custody. 

Numerous continuances occurred, and trial was finally set for May

25, 1999.  At a pretrial hearing on May 13, 1999, the State

indicated it would be filing additional charges later that date. 

The 20 new charges were brought to the attention of the trial

court at the next pretrial hearing on May 20, 1999.  The trial

court noted these charges could have been filed over a year

before as they were based on the same actions as the original

charges of first degree murder and attempt (first degree murder)

which were filed in early 1998.  Both the State and defense

counsel agreed with the court.  The State also agreed with the

trial court's assessment the charges were not included offenses

and defendant would be entitled to a preliminary hearing.  

	Defense counsel made no objection to the filing of the

charges despite being filed on the eve of trial.  The trial court

allowed them to be filed.  After they were filed, defense counsel

made no motion to dismiss the new charges on speedy-trial

grounds.  The trial was continued until July 19, 1999.

	On appeal, defendant argues defense counsel was inef

fective for failing to move to dismiss the newly filed charges on

speedy-trial grounds.  The standard of review for assessing

ineffective assistance of counsel is the two-pronged test set

forth in Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984), as adopted by People v. Albanese, 104 Ill. 2d 504, 526-27, 473 N.E.2d 1246, 1255-56 (1984), in which a defendant must show counsel's perfor

mance was objectively deficient and defendant was prejudiced by

such deficiency.  He must show counsel made errors so serious he

was not functioning as the "counsel" guaranteed under the sixth

amendment.  Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.  To establish prejudice, a defendant must show a

reasonable probability that, but for counsel's unprofessional

errors, the result would have been different.  Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

	The rule regarding speedy-trial considerations on

later-filed charges was set forth in People v. Williams, 94 Ill. App. 3d 241, 248-49, 418 N.E.2d 840, 846 (1981):  

		"Where new and additional charges arise

from the same facts as did the original

charges and the State had knowledge of these

facts at the commencement of the prosecution,

the time within which trial is to begin on

the new and additional charges is subject to

the same statutory limitation that is applied

to the original charges.  Continuances ob

tained in	connection with the trial of the original charges cannot be attributed to

defendants with respect to the new and addi

tional charges because these new and addi

tional charges were not before the court when

those continuances were obtained."

Counsel's failure to move for a speedy-trial discharge of the new and additional charges under these circumstances may constitute

ineffective assistance of counsel.  People v. Stanley, 266 Ill. App. 3d 307, 310, 641 N.E.2d 1224, 1226 (1994).

	Where charges are required to be brought in a single

prosecution under the compulsory-joinder provisions of section 3-

3(b) of the Criminal Code of 1961 (720 ILCS 5/3-3(b) (West

1996)), the speedy-trial period begins to run when the speedy-

trial demand is filed even if the State brings some charges at a

later date.  People v. Quigley, 183 Ill. 2d 1, 13, 697 N.E.2d 735, 741 (1998).  The later filing date for some charges cannot

be used to "restart" the speedy-trial period, and any delay

occasioned by the late filing is not attributable to the defen

dant.  The State is required to bring a defendant to trial on all

charges within the original speedy-trial term.  The new charges

"relate back" to the date the original charges were filed. 

People v. Gooden, 189 Ill. 2d 209, 222, 725 N.E.2d 1248, 1255 (2000).

	Included offenses that are charged later are not

subject to the Williams rule.  An indictment for a particular offense serves as an indictment for all included offenses, and

the later-filed included offenses are not "new and additional"

charges.  They are deemed to have been before the court when

earlier continuances were granted.  People v. Dressler, 317 Ill. App. 3d 379, 387, 739 N.E.2d 630, 637 (2000) (Third District).  

	The State elected to go to trial on just four of the

later-filed charges, armed violence, and the original first

degree murder charge.  The armed violence counts arose from the

same acts as the original charges and the facts were long known by the State.  The armed violence counts were filed after the 120

days of the speedy-trial term had expired.  None of the continu

ances granted prior to filing of the armed violence charges would

then be attributable to defendant under the Williams rule, and the charges would be amenable to dismissal on speedy-trial

grounds unless the later-filed charges were included offenses.

	The State argues armed violence is an included offense

of attempt (first degree murder) and, as such, is not barred by

the speedy-trial rule set forth in Williams.

	To determine whether an offense is an included offense

of another, the supreme court has endorsed the "charging-instru

ment" approach.  People v. McLaurin, 184 Ill. 2d 58, 104, 703 N.E.2d 11, 33 (1998).  The instrument charging the greater

offense must, at a minimum, set out the main outline of the

lesser offense.  McLaurin, 184 Ill. 2d at 104-05, 703 N.E.2d at 33; People v. White, 311 Ill. App. 3d 374, 386, 724 N.E.2d 572, 582 (2000).  A charging instrument setting forth the "main outline" of an offense includes allegations of all the essential

elements of that offense.  See  McLaurin, 184 Ill. 2d at 105, 703 N.E.2d at 33; White, 311 Ill. App. 3d at 386-87, 724 N.E.2d at 582.

	Where the State has charged two different offenses and

is required to prove an additional element to obtain a conviction

of one of the offenses as alleged in the charging instrument,

that offense cannot be an included offense of the other.  People v. Lindsey, 324 Ill. App. 3d 193, 201, 753 N.E.2d 1270, 1277 (2001).  Even though the language of the two offenses as charged may be similar, the presence of an element found in one offense but not in the other prevents one from being an included offense

of the other.  People v. Priest, 297 Ill. App. 3d 797, 804, 698 N.E.2d 223, 228 (1998).

	The State cites People v. Bowens, 307 Ill. App. 3d 484, 718 N.E.2d 602 (1999) (First District), in support of its argu ment that armed violence is an included offense of attempt (first

degree murder).  In Bowens, the court found armed violence, as charged by the State, is an included offense of attempt (first degree murder).  Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at 610.  In Bowens, both charges stated the defendant, while armed with a knife, stabbed the victim in the throat and repeatedly

kicked the victim about the head and neck.  For the armed vio

lence charge, the aggravated battery on which it was predicated

was based on defendant's alleged intent and knowledge his actions

would cause bodily harm and permanent disability to the victim. 

Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at 610-11.

	Specifically, the attempt (first degree murder) charge

in Bowens alleged:

	"’[H]e without legal justification [and] with intent to commit the offense of first degree

murder intentionally and knowingly attempted

to kill [the victim] by cutting [the victim]

on or about the throat area with a knife and

kicked [the victim] repeatedly about the

head, face[,] and neck area.’"  Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at	610-11 (quoting count I of indictment).

The armed violence charged in Bowens alleged:

	"'[W]hile armed with a dangerous weapon, to

wit: a knife, [he] committed the offense of

aggravated battery' by 'kicking [the victim]

repeatedly about the head, face[,] and neck

area and stabbing [the victim] in the neck

with a knife *** without legal justification'

and with the intent and knowledge that his

actions would cause 'bodily harm and perma

nent disability' to the victim."  Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at 611 (quot

ing counts IV and V of indictment).

	The court in Bowens noted that to allege the offense of armed violence, all that was needed was to substitute the defen

dant's "intent and knowledge" his actions would cause bodily harm

in the armed violence count for his intent to kill his victim in

the attempt (first degree murder) count.  The fact the victim

would have suffered bodily injury as a result of the defendant's

actions was implicit in the attempt (first degree murder) charge. 

Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at 611.

	In this case, the State added two sets of armed vio

lence charges after the speedy-trial date had passed.  The first

set of armed violence charges alleged as follows:

	"[D]efendant, while armed with a knife with 

a blade of at least three inches in length,

performed an act prohibited by Illinois Com

piled Statutes [,] Chapter 720, Act 5[,]

Section 12-4(a), being Aggravated Battery, in

that defendant struck [the victim] in [the neck/lower abdomen/posterior lower back] with said knife, thereby causing great bodily harm

to [the victim]."  (Emphasis added.)

The other set of armed violence charges alleged:

	"[D]efendant, while armed with a knife with a

blade of at least three inches in length,

performed an act prohibited by Illinois Com

piled Statutes [,] Chapter 720, Act 5 [,] 

section 12-4(b)(8), being Aggravated Battery,

in that defendant struck [the victim] in [the neck/lower abdomen/posterior lower back] with said knife, while [the victim] was at the Lorton's Hotel Restaurant & Bar, a public

place of amusement."  (Emphasis added.)

The attempt (first degree murder) charge in this case alleged:

	"[D]efendant, with the intent to commit the

offense of Murder in violation of section 9-

1(a)(2) of Act 5 of Chapter 720 of the Illi

nois [C]ompiled Statutes, performed a sub

stantial step toward the commission of the

offense, in that said defendant, without

lawful justification, struck [the victim] in [the neck/lower abdomen/posterior lower back] with a knife, knowing such act created a strong probability of death to the [the vic

tim], thereby causing great bodily harm to [the victim], in violation of Chapter 720, Act 5, Section 8-4(a) of the Illinois Com piled Statutes."  (Emphases added.)

	The State elected to go to trial solely on the armed

violence counts predicated on aggravated battery alleging defen

dant struck the victims with a knife in excess of three inches

while in a public place of amusement.  These armed violence

charges contained the elements "armed with a knife with a blade

of at least three inches in length" and that the acts of defen

dant occurred "while [the victim] was at *** a public place of

amusement."  These elements were not contained in the attempt (first degree murder) charge and, thus, were not required to be

proved for a conviction of attempt (first degree murder). 

Therefore, armed violence was not an included offense of attempt

(first degree murder) as charged by the State.

	Because the charging-instrument approach is the analy

sis endorsed by the supreme court in determining whether an

offense is included in another offense, it does not matter

whether those additional elements were actually at issue at

trial.       

	Failure to move to dismiss the armed violence counts on

speedy-trial grounds was prejudicial to defendant because dis

missal on that ground would properly have been granted, and

defendant would not have been convicted of four counts of armed

violence.  Therefore, he received ineffective assistance of

counsel, and his convictions on four counts of armed violence are

reversed.

B. Ineffectiveness of Counsel for Failure To Tender Jury Instruc

tion Defining Recklessness

	The jury instruction for involuntary manslaughter (Illinois Pattern Jury Instructions, Criminal, No. 7.07 (3d ed. 1992) (hereinafter IPI Criminal 3d)) was tendered by the State

and given by the court.  That instruction reads:

		"A person commits the offense of invol

untary manslaughter when he unintentionally

causes the death of an individual *** by acts

which are performed recklessly and are likely

to cause death or great bodily harm to an

other."  IPI Criminal 3d No. 7.07, at 168.  

	The committee note beneath this instruction states that

IPI Criminal 3d No. 5.01 defining "recklessness" is to be given with IPI Criminal 3d No. 7.07.  IPI Criminal 3d No. 7.07, Commit tee Note, at 168.  No instruction defining "recklessness" was

tendered by either party or given by the court.

	Defendant argues defense counsel was ineffective in

failing to tender IPI Criminal 3d No. 5.01, defining the mental state of recklessness, one of the essential elements of involun

tary manslaughter, as the failure to do was prejudicial error. 

Defendant cites People v. Howard, 232 Ill. App. 3d 386, 597 N.E.2d 703 (1992), and People v. Bolden, 103 Ill. App. 2d 377, 243 N.E.2d 687 (1968).  

	In Howard, reversible error was found where the jury instruction for involuntary manslaughter was given but not the

instruction defining recklessness.  Howard, 232 Ill. App. 3d at 392-93, 597 N.E.2d at 708.  However, the court also found the

evidence was closely balanced and the prosecutor made an improper

closing argument.  Howard, 232 Ill. App. 3d at 392, 597 N.E.2d at 708.

	In Bolden, 103 Ill. App. 2d at 379-80, 243 N.E.2d at 689, the involuntary manslaughter instruction itself omitted any

reference to the act having to be performed recklessly.  The

Bolden court found the failure to mention and define the mental state of recklessness, one of the essential elements of involun

tary manslaughter, was prejudicial error.  Bolden, 103 Ill. App. 2d at 382, 243 N.E.2d at 690.  The court also found the evidence

to have been closely balanced.

	Where the evidence is not closely balanced, no preju

dice could have resulted, and defense counsel's failure to tender

the jury instruction defining recklessness has been found not to

be ineffective representation.  People v. Lake, 298 Ill. App. 3d 50, 54-55, 697 N.E.2d 1147, 1150-51 (1998).

	The evidence here was not closely balanced.  Defen

dant's actions were not reckless but voluntary and willful with

the natural tendency to cause death or great bodily harm.  After

being rebuffed in attempting to dance with a woman, defendant

returned to his table.  After some time passed, he cut the

woman's brother twice in the neck and started to leave.  Instead,

he returned quickly through the bar and stabbed people along the

way.  He held his knife against the palm of his hand with the

blade between his fingers.  He did not swing wildly with the

knife, but punched his victims with great force.  The fatal blow

to Haenitsch sank five inches into his chest and penetrated his

heart.  

	Despite defendant's assertion on appeal that the

primary issue at trial was whether his actions were reckless or

intentional, the focus at trial was on his affirmative defense of voluntary intoxication.  The case did not hinge on which mental state defendant possessed but on whether he was intoxicated and

without the requisite mental state.

	Defendant did not seriously contest the issue of

whether his actions constituted involuntary manslaughter or first

degree murder.  We find defense counsel's failure to tender the

jury instruction defining recklessness along with the tendered

instruction for involuntary manslaughter was harmless beyond a

reasonable doubt.

C. Valid Waiver of Defendant's Miranda Rights

	After defendant was arrested, he was interrogated at

the police station.  Officer Scoggins read him his Miranda rights.  Defendant acknowledged he understood his rights.  Officer Scoggins did not read the last item on the "Miranda rights" card prepared by the Jerseyville police department: 

"Knowing these rights, do you want to talk to me without having a

lawyer present?  You may stop talking to me at any time and you

may also demand a lawyer at any time."

	Defendant argues he did not waive his rights before he

spoke to Officer Scoggins because he was not asked if he wished

to waive them and he did not otherwise state he was waiving them. 

He does not contend he was not advised of his rights or that he

did not understand them.  He asserts only that he made no valid

waiver because it was not expressed.

	The trial court denied defendant's motion to suppress

the statements made to Officer Scoggins.  The State contends

defendant waived this argument on appeal as he did not include it

in a posttrial motion, as required by People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988).  We agree and find the

argument has been waived.

D. Imposition of Natural Life Sentence Under 

Section 5-8-1(a)(1)(b) of the Unified Code Violated

Defendant's Right to Due Process Under Apprendi 

	The trial court sentenced defendant to natural life in

prison for first degree murder and consecutive terms on each of

four counts of armed violence.  Under Illinois law, punishment

for first degree murder is normally imprisonment for a term of

not less than 20 nor more than 60 years.  730 ILCS 5/5-8-

1(a)(1)(a) (West 1996).  However, the trial court can sentence a

defendant to natural life if it finds the offense was accompanied

by exceptionally brutal or heinous behavior indicative of wanton

cruelty.  730 ILCS 5/5-8-1(a)(1)(b) (West 1996).

	Defendant argues this sentencing procedure is unconsti

tutional because the enhancing factor (brutality and wanton

cruelty) was not charged, submitted to the jury, and proved

beyond a reasonable doubt.  In support of his position he relies

on Apprendi, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348. 

	The general rule of Apprendi is as follows:

	"Other 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 be

yond a reasonable doubt."  Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at

2362-63.

	Defendant asserts the first degree murder charge of

which he was convicted did not include the additional "facts" or "elements" of brutality and wanton cruelty found by the trial

court and used to enhance his sentence beyond the normal, statu

tory maximum penalty.  Thus, the imposition of his sentence of

natural life in prison violated Apprendi.

	The majority of Illinois Appellate Court decisions have

held Apprendi prohibits a trial court in a noncapital case from imposing a sentence beyond the normal range merely because it

finds the defendant engaged in exceptionally brutal or heinous

behavior if that aggravating factor is not submitted to a jury

and proved beyond a reasonable doubt.  See People v. Johnson, No. 5-99-0637, slip op. at 7-8 (October 23, 2001), ___ Ill. App. 3d

___, ___, ___ N.E.2d ___, ___ (Fifth District); People v. Bryant, 325 Ill. App. 3d 448, 457, 758 N.E.2d 430, 437-38 (2001) (First

District, Fourth Division); People v. Nitz, 319 Ill. App. 3d 949, 968, 747 N.E.2d 38, 54 (2001) (Fifth District); People v. Chanthaloth, 318 Ill. App. 3d 806, 816, 743 N.E.2d 1043, 1050 (2001) (Second District).  In these cases, the findings of

brutality and wanton cruelty improperly increased the defendants'

exposure to greater punishment.  As noted by the court in Nitz, the trial judge made a factual finding that increased the range

of penalties, thus increasing defendant's exposure to punishment. 

Nitz, 319 Ill. App. 3d at 967, 747 N.E.2d at 53.  

	In addition, a majority of decisions have applied this

reasoning to first degree murder cases where the death penalty

was not sought by the State.  See People v. Reynolds, 327 Ill. App. 3d 1027, 1034-35, 764 N.E.2d 1135, 1140-41 (2002) (First

District, Fifth Division); People v. Lee, 319 Ill. App. 3d 289, 307-08, 745 N.E.2d 78, 93 (2001) (First District, Third Divi sion); People v Armstrong, 318 Ill. App. 3d 607, 619, 743 N.E.2d 215, 224 (2000) (First District, Second Division); People v. Kaczmarek, 318 Ill. App. 3d 340, 353-54, 741 N.E.2d 1131, 1143 (2000) (First District, Third Division); People v. Lee, 318 Ill. App. 3d 417, 422-23, 743 N.E.2d 1019, 1023 (2000) (First Dis

trict, Fourth Division). 

	We recognize at least two courts have used a different

analysis and found the sentencing scheme in Illinois not to be

violative of Apprendi.  Following a jury trial, the defendant in  People v. Vida, 323 Ill. App. 3d 554, 557, 752 N.E.2d 614, 618 (2001) (First District, Sixth Division), was convicted of first degree murder and was sentenced by the court to an extended term

of 100 years in prison under section 5-8-2(a)(1) of the Unified

Code (730 ILCS 5/5-8-2(a)(1) (West 1998)).  The Vida court found the maximum sentence for first degree murder, absent special

findings necessary to impose the death penalty, is natural life

in prison.  Vida, 323 Ill. App. 3d at 569, 752 N.E.2d at 627.  The court in Vida criticized other courts for holding 60 years was the maximum allowable sentence for first degree murder

because those courts failed to read sections 5-8-1(a)(1)(a), 5-8-

1(a)(1)(b), and 5-8-2(a)(1) of the Unified Code together as part

of a complete sentencing scheme that provides for natural life

and extended-term sentences for first degree murder, with natural

life as the statutory maximum sentence for first degree murder. 

Vida, 323 Ill. App. 3d at 570, 752 N.E.2d at 628.  Thus, a finding of exceptional brutality does not increase a punishment's

range beyond the maximum statutory penalty.  Vida, 323 Ill. App. 3d at 572, 752 N.E.2d at 630.  The 100-year sentence imposed was not beyond the statutory maximum and, hence, not violative of

Apprendi.  Vida, 323 Ill. App. 3d at 572-73, 752 N.E.2d at 630; see also People v. Rivera, No. 2-98-1662, slip op. at 12-14 (December 5, 2001), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___,

___ (Second District); contra People v. Joyner, 317 Ill. App. 3d 93, 110, 739 N.E.2d 594, 606-07 (2000) (Second District (Rapp,

J., joined by Geiger and Colwell, JJ.), overruled in relevant part in Rivera, No. 2-98-1662 (December 5, 2001), ___ Ill. App. 3d ___, ___ N.E.2d ___.  

	We agree with the court in Johnson and find the analy sis of Vida less the00  atn convincing.  A defendant's guarantee of a trial by jury requires the facts necessary to the determination

of a statutory maximum penalty are required to be submitted to a

jury.  The question of whether a crime is accompanied by excep

tionally brutal or heinous behavior calls for the determination

that the defendant's crime is qualitatively different from the

crime charged.  A trial judge can consider the nature of an

individual's offense in exercising sentencing discretion but it

is an entirely different question when the sentencing law re

quires a judge to make an additional finding of fact about

behavior accompanying an offense that renders it deserving of

more punishment.  Johnson, slip op. at 3, ___ Ill. App. 3d at ___, ___  N.E.2d at ___.

	We hold the trial judge's finding that defendant's

behavior was exceptionally brutal and indicative of wanton

cruelty was an element that should have been charged and submit

ted to the jury.  The State needed to allege it in the charging

instrument and prove it beyond a reasonable doubt.  Accordingly, we modify defendant's sentence for first degree murder to a 60-

year determinate prison term, the maximum sentence the law allows

on the facts charged and proved beyond a reasonable doubt.

III. CONCLUSION	

	As we have reversed defendant's convictions for armed

violence, his 30-year consecutive sentences for those convictions

are also reversed.  Thus, defendant's arguments regarding the

application of Apprendi to consecutive sentencing, the applica tion of Apprendi to truth-in-sentencing provisions, and the propriety of imposing consecutive sentences on natural life

sentences are moot.	 Since we have also reduced defendant's sentence from natural life to a determinate 60-year prison term,

defendant's final argument on his sentence of natural life being

excessive and inappropriate is also moot.

	We affirm defendant's conviction for first degree

murder but modify the sentence of natural life imprisonment to 60

years' imprisonment, we reverse defendant's convictions for armed

violence, and we remand for issuance of an amended written

judgment of sentence.

	Affirmed in part as modified and reversed in part;

cause remanded with directions.  

	McCULLOUGH, P.J., concurs.

	STEIGMANN, J., specially concurs in part and dissents

in part.

	JUSTICE STEIGMANN, specially concurring in part and

dissenting in part:

	I agree with the majority's decision except its conclu

sion that defendant received ineffective assistance of counsel

when his trial counsel failed to move for dismissal of the armed

violence counts on speedy-trial grounds.  In fact, had counsel

made such a motion, the trial court should have denied it.  As

the State correctly points out, that ruling would have been

appropriate because the armed violence charges were lesser

included offenses of the attempt (first degree murder) charges

the State originally filed.

	The majority cites Dressler, which states that the so- called Williams rule does not apply where later-filed charges describe lesser included offenses.  Dressler, 317 Ill. App. 3d at 387, 739 N.E.2d at 637.  That is exactly what happened in this

case.  

	In Bowens, 307 Ill. App. 3d at 487, 718 N.E.2d at 605, the First District Appellate Court needed to determine whether

the entry of multiple convictions against the defendant was

proper where those convictions included attempt (first degree

murder) and armed violence.  As in this case, the convictions

arose out of a stabbing incident.  The First District concluded

that the multiple convictions could not stand because the armed

violence counts were lesser included offenses of attempt (first

degree murder).  Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at 610-11.  The analysis in Bowens is sound, and this court should follow it here. 

	Further, it must be remembered that this matter comes before us on a claim of plain error (that the trial court erred

by permitting the State to file the four new counts of armed

violence) or, alternatively, ineffective assistance of counsel

(because defendant's trial counsel failed to object to the

State's request to file these additional charges).  I conclude

neither applies.

	From trial counsel's point of view, he was asserting

the only available defense (voluntary intoxication), given the

overwhelming case against his client.  The State had already

charged his client with attempt (first degree murder) concerning

the four victims who were similarly named in the newly added

armed violence counts.  It is certainly not clear to me that no

reasonable lawyer would have failed to object to the filing of

these new counts.  Similarly, I have serious difficulty finding

any prejudicial effect since, as earlier stated, the State was

entitled to file these charges because they were lesser included

offenses.  

	Accordingly, I respectfully dissent from the majority's

decision to vacate defendant's convictions for armed violence.