No. 2--00--0641

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE OF	)	Appeal from the Circuit Court

ILLINOIS, 	)	of Lake County. 

	)

	Plaintiff-Appellee,	)	

	)	

v.	)	No. 00--CF--114

	)

ANNETTE M. PALMER, 	)	Honorable

	)	Barbara C. Gilleran- Johnson

	Defendant-Appellant. 	)	Judge, Presiding.

_________________________________________________________________

	JUSTICE BYRNE delivered the opinion of the court:

	In this appeal, defendant, Annette M. Palmer, argues that her

10-year extended prison sentence violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  Defendant

insists that, even though she waived the issue by pleading guilty, 

we must review the sentence under the plain error exception to the

waiver rule.  We decline to review the issue as plain error, and we

affirm the conviction and sentence.

BACKGROUND

	Pursuant to a partially negotiated plea agreement, defendant

pleaded guilty to the offense of armed violence premised on

aggravated battery.  The information alleged in pertinent part that

defendant, "while armed with a dangerous weapon, a bludgeon, ***

intentionally and without legal justification cut Pastor Escamilla

about the body thereby causing great bodily harm [to him]."  See 720 ILCS 5/12--4(a), 33A--2 (West 1998).  There was no agreement as

to the sentence.

	The offense of armed violence premised on aggravated battery

is a Class 2 felony (720 ILCS 5/33A--–--1(c), 33A--3(b) (West 1998)) normally punishable by three to seven years' imprisonment (730 ILCS

5/5--8--1(a)(5) (West 1998)).  Under certain provisions of the

Unified Code of Corrections (Code), an extended sentence of 7 to 14

years' imprisonment may be imposed (730 ILCS 5/5--8--2(a)(4) (West

1998)) if the court finds certain aggravating factors, such as

where the offense was accompanied by exceptionally brutal or

heinous behavior indicative of wanton cruelty (730 ILCS 5/5--5--

3.2(b)(2) (West 1998)) or the victim was a person 60 years of age

or older at the time of the offense (730 ILCS 5/5--5--3.2(b)(4)(ii)

(West 1998)).

	In this case, defendant pleaded guilty to the armed violence

charge and, as part of the plea agreement, the State nol-prossed

the charges of attempted first-degree murder, aggravated battery,

and aggravated battery of a senior citizen.  The court read the

armed violence charge to defendant.  The trial court informed

defendant, among other things, that the offense was "technically

probationable" and that the sentencing range for the offense was

three to seven years' imprisonment.  The court also stated that

defendant could receive a term of 7 to 14 years' imprisonment "if

you have a previous conviction within the last 10 years *** or if

*** there is aggravation that qualifies you for that category." 

The court later added that it did not know whether defendant

qualified for an extended term due to a previous felony conviction or "if the injuries are severe enough for this court to consider an

extended[-]term sentence.  It's possible.  But I underline the word

possible."  The court explained generally the various rights that

defendant would give up by pleading guilty, and the State presented

a factual basis for the plea.

	The trial court accepted the plea and imposed an extended

sentence of 10 years' imprisonment based on its consideration of

two aggravating sentencing factors:  the offense was accompanied by

exceptionally brutal or heinous behavior indicative of wanton

cruelty and the victim was a person 60 years of age or older at the

time of the offense.

	On direct appeal, defendant argued that her extended sentence

must be reduced to a nonextended sentence because, in violation of

her right to due process, the sentencing factors of wanton cruelty

and the victim's age were not charged, submitted to a jury, and

proved beyond a reasonable doubt as required by Apprendi.  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 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

	On March 12, 2002, we filed an opinion affirming the

conviction, vacating the sentence, and remanding the cause for

resentencing.  People v. Palmer, 328 Ill. App. 3d 348 (2002).  The State petitioned our supreme court for leave to appeal.  The

supreme court denied the petition but entered a supervisory order

directing this court to vacate our judgment and reconsider the case in light of People v. Jackson, 199 Ill. 2d 286 (2002).  After the supreme court issued its supervisory order, the Appellate Court,

Third District, decided People v. Townsell, No. 3--00--0302 (January 8, 2003), in which the court invoked the plain error rule

to review an Apprendi claim after the entry of a guilty plea.  Defendant filed a motion to cite Townsell as additional authority, and we now grant the motion.

ANALYSIS

	In Jackson, the defendant pleaded guilty to a Class 3 felony of aggravated battery (720 ILCS 5/12--4 (West 1996)) and, in

exchange, the State agreed not to seek an extended-term penalty. 

The trial court elicited facts from the defendant regarding the

circumstances of the offense and admonished her extensively and

specifically regarding the consequences of pleading guilty.  The

trial court accepted the factual basis, determined that the

defendant's plea was knowing and voluntary, and accepted the plea. 

Jackson, 199 Ill. 2d at 289-90.  At the sentencing hearing, the trial court found that the defendant's behavior in committing the

crime was exceptionally brutal and indicative of wanton cruelty and

imposed an extended-term sentence of 10 years' imprisonment. 

Jackson, 199 Ill. 2d at 291-92.

	On appeal, the supreme court initially conceded that, under

Apprendi, "[e]very fact necessary to establish the range within which a defendant may be sentenced is an element of the crime and

thus falls within the constitutional rights to a jury trial and

proof beyond a reasonable doubt, made applicable to the states by

the due process clause of the fourteenth amendment."  Jackson, 199 Ill. 2d at 296.  However, the court held that the defendant's guilty plea waived any Apprendi-based sentencing objections on appeal because, by pleading guilty, she "relieve[d] the State of

its burden of proving any element of the crime" as well as any aggravating sentencing factor.  (Emphasis in original.)  Jackson, 199 Ill. 2d at 297.

	Although Apprendi and Jackson each involved a guilty plea, the Jackson court distinguished the cases factually.  Unlike in Apprendi, the defendant in Jackson failed to reserve her right to challenge the extended portion of her sentence at the guilty plea

hearing.  Jackson, 199 Ill. 2d at 297.

	When a defendant pleads guilty, the trial court must admonish him only of (1) the nature of the charge; (2) the maximum and

minimum penalties that could be imposed; (3) his right to plead not

guilty, if he so chooses; and (4) the fact that a guilty plea would

waive his rights to a jury trial and to be confronted with the

witnesses against him.  177 Ill. 2d Rs. 402(a)(1) through (a)(4); Jackson, 199 Ill. 2d at 296-97.  Here, defendant pleaded guilty only after she was informed of the nature of the armed violence

charge and that a 14-year extended sentence could be imposed for

the crime.  Furthermore, she did not object to the possibility of

an extended-term sentence before pleading guilty.  Therefore, we

conclude that defendant's knowing and voluntary guilty plea waived

any right she might have had to raise an Apprendi-based sentencing objection.  See Jackson, 199 Ill. 2d at 297.

	We next address defendant's citation to Townsell.  In that case, the defendant pleaded guilty to first-degree murder and was sentenced to a 100-year extended prison term based on aggravating

sentencing factors that were not charged, submitted to a jury, and

proved beyond a reasonable doubt.  On direct appeal, the Appellate

Court, Third District, held that the extended portion of the

sentence violated Apprendi.  Townsell, slip op. at 1.

	The State petitioned the supreme court for leave to appeal,

and the court denied the petition.  However, the supreme court

directed the Third District to vacate its judgment and reconsider

its decision in light of Jackson.  On remand, the Third District  conceded that, under Jackson, the defendant waived his Apprendi challenge by pleading guilty.  The court nevertheless addressed the

claim under the plain error rule as set forth in Supreme Court Rule

615(a) (134 Ill. 2d R. 615(a)).  Townsell, slip op. at 5.

	Rule 615(a) provides that "[p]lain errors or defects affecting

substantial rights may be noticed [on appeal] although they were

not brought to the attention of the trial court."  134 Ill. 2d R. 615(a).  The plain error rule permits a reviewing court to take

notice of errors that were not brought to the attention of the

trial court where the evidence is closely balanced or where the

nature of the error is such that it deprives the accused of his

constitutional right to a fair sentencing hearing.  People v. Simms, 143 Ill. 2d 154, 170 (1991).

	After correctly noting that Jackson did not address the applicability of Rule 615(a), the Townsell court cited People v. Billops, 125 Ill. App. 3d 483 (1984), as authority for invoking the plain error rule.  In Billops, the defendant waived a claim of double jeopardy by pleading guilty to an offense, but the appellate court reversed the conviction after reviewing the claim as plain

error.  Noting that the appellate court previously had reviewed a

double jeopardy claim as plain error following a trial, the Billops court reasoned that such review was similarly appropriate in a

guilty plea case because "the underlying error is the same." 

Billops, 125 Ill. App. 3d at 485.

	Citing Billops, the Townsell court held that, because an Apprendi-based claim may be reviewed as plain error following a jury trial (see, e.g., People v. Amaya, 321 Ill. App. 3d 923, 931 (2001)), such a claim may be reviewed in a guilty plea case also. 

Townsell, slip. op. at 7.  However, we conclude that the rationale of Townsell is fatally undermined by the fundamental difference between an Apprendi-based sentencing objection and a claim of double jeopardy in the context of a guilty plea case.

	In Hill v. Cowan, No. 90229 (April 18, 2002) 202 Ill. 2d 151 (2002), our supreme court reaffirmed the holding of Jackson that "Apprendi-based sentencing challenges could not be raised on direct appeal from a guilty

plea."  Hill, slip op. at 2 202 Ill. App.2d at 154.  It is well settled "that the failure to object on proper grounds at trial results in waiver of

the issue through 'procedural default.' "  People v. Lewis, 165 Ill. 2d 305, 336 (1995).  However, Hill emphasized that, when a defendant waives an Apprendi claim by pleading guilty, the waiver signifies the "voluntary relinquishment of a known right" to a jury

trial rather than a "procedural default by failing to bring an

error to the attention of the trial court."  Hill, slip op. at 5 202 Ill. 2d at 158-59..

	A guilty plea fully abandons any and all rights a criminal

defendant has to a jury trial, including any rights he might have had under Apprendi, and one may not complain of error whichthat he induced or in which he participated at trial.  Therefore, a

defendant may not challenge an extended sentence on Apprendi grounds following a voluntary guilty plea.    HHill, 202Hill, slip op. at 5202 Ill. 2d at 159.

	The double jeopardy clause of the fifth amendment to the

United States Constitution, made applicable to the states through

the fourteenth amendment, provides that no person shall "be subject

for the same offence to be twice put in jeopardy of life or limb."

U.S. Const., amends. V, XIV.  The same protection is afforded by

the Illinois Constitution (Ill. Const. 1970, art. I, §10) and by

statute (720 ILCS 5/3--4(a) (West 2000)).  People v. Bellmyer, 199 Ill. 2d 529, 536-37 (2002).  The clause protects against a second

prosecution for the same offense after acquittal or conviction, and

it protects against multiple punishments for the same offense. 

Bellmyer, 199 Ill. 2d at 537.  When determining whether a retrial would violate a defendant's right to be free from double jeopardy,

the reviewing court must decide: (1) whether the defendant was

placed in jeopardy during the first proceeding; and (2) if so,

whether the defendant can nevertheless be retried.  Bellmyer, 199 Ill. 2d at 537.

	We conclude that, when a defendant inadvertently fails to

raise the issue of double jeopardy when pleading guilty, the waiver

is more akin to a procedural default than a voluntary

relinquishment of a known right.  The distinction between the relinquishment of a known right and a procedural default leads us

to reject the analysis in Townsell.  Defendant may not complain of a purported deprivation of her right to a jury trial on the

aggravating sentencing factors because, by pleading guilty, she

voluntarily and fully abandoned that right as well as every other

right a jury trial entails.  See Hill, 202 Ill. 2d at 159 slip op. at 5.

	Moreover, the overall tone of Jackson and Hill reveals that the supreme court intended to bar Apprendi claims in appeals like this one.  For instance, Jackson broadly states that "it is clear that Apprendi-based sentencing objections cannot be heard on appeal from a guilty plea."  Jackson, 199 Ill. 2d at 296.

	Finally, we note that the future application of the rule announced in Townsell could be problematic.  Because the waiver rule is a limitation on the parties and not the courts (People v. Heard, 187 Ill. 2d 36, 63 (1999)), the appellate court has discretion to invoke the rule based on the unique facts of any

given case.  Therefore, a case-by-case application of the plain

error doctrine to Apprendi claims in guilty plea cases could potentially lead to the arbitrary shortening of the sentences of

some defendants and not others.  A reviewing court could avoid this

obviously undesirable result by invoking the plain error rule in

every guilty plea case that involved an Apprendi claim.  However, this approach would effectively circumvent Jackson, and we decline to deviate from the supreme court's holding in that way.

	One district of the state appellate court is not always bound

to follow the decisions of other districts, even though there may

be compelling reasons to do so when addressing factually similar cases.  In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 398 (1992).  Therefore, we need not follow the Third District's holding

in Townsell.  We hold that, because defendant voluntarily pleaded guilty, she waived any argument that her due process rights under

Apprendi were violated.  See Jackson, 199 Ill. 2d at 294-95.  Furthermore, we decline to consider the matter under the plain

error rule as the Third District did in Townsell.

	Accordingly, the judgment of the circuit court of Lake County

is affirmed.

	Affirmed.

	HUTCHINSON, P.J., and CALLUM, J., concur.