Docket No. 88843–Agenda 6–November 2000.

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

								MICHAEL WAGENER, Appellant.

Opinion filed June 1, 2001.

	JUSTICE FREEMAN delivered the opinion of the court:

	Defendant, Michael Wagener, was charged with first degree

murder (720 ILCS 5/9–1(a) (West 1994)) and concealment of a

homicidal death (720 ILCS 5/9–3.1 (West 1994)). After a bench

trial in the circuit court of Cook County, he was found guilty but

mentally ill of both offenses. The court imposed consecutive prison

sentences of 50 years for his murder conviction and 5 years for his

conviction of concealment of a homicidal death. The appellate

court affirmed. No. 1–98–1561 (unpublished order under Supreme

Court Rule 23). We granted defendant leave to appeal (177 Ill. 2d

R. 315), and affirm his convictions and sentence.

BACKGROUND

	Defendant does not challenge the sufficiency of the evidence

of his guilt, nor does he contend that the circuit court’s conclusion

that he was guilty but mentally ill, rather than legally insane, was

against the manifest weight of the evidence. Accordingly, we will

set out only the facts relevant to the issues raised in this appeal. For

context, we note that the State proved the following facts in its

case in chief. On December 2, 1994, defendant fatally bludgeoned

and strangled his wife, Mary, in their home in Chicago. He

wrapped her body in plastic and hid it under the back porch of the

house. He then drove to Menominee, Wisconsin, with his daughter,

Ashley, where he checked into a hotel using an assumed name and

address. He was arrested at the hotel on December 5. While in

police custody, he gave a statement in which he admitted killing his

wife and secreting her body at their house.

	Defendant’s trial strategy was an insanity defense. See 720

ILCS 5/6–2 (West 1994). He called his two sisters as witnesses.

Both stated that defendant blamed the September 1989 loss of his

job at a major Chicago law firm on a conspiracy to “ruin his life.”

Defendant believed that people were putting chemicals in his work area so that he would itch and sneeze all day; “messing with”

papers in his office and talking about him behind his back; “doing

things” to his telephone; and following him. In subsequent

conversations, defendant stated that the firm had “enlisted the CIA,

the FBI, the post office, just about everybody to continue to ruin

his life.” He believed that there were listening devices in his house

and spent thousands of dollars to have the house “debugged”

multiple times. His sisters tried to get defendant psychological help,

but he refused.

	Defendant was also extremely overprotective of his children

and fearful for their safety. When his son, Richard, died of sudden

infant death syndrome in February 1994, defendant believed his

wife had killed the child and he became very depressed. Although

defendant and his wife began to go to marriage counseling in the

summer of 1994, defendant remained depressed and continued to

believe that his wife had killed their son.

	One of defendant’s sisters, Cathy Michiels, had several

telephone conversations with defendant on December 3, 1994, the

day after the murder. In the course of the conversations, defendant

told her that his daughter was with him and was all right, but when

Michiels asked him if he had hurt his wife, he told her “it was bad,

that it was very bad, it was extreme.” Defendant told Michiels that

his wife had confessed to killing their son. Defendant told Michiels

that he needed a lawyer. Michiels referred him to Thomas Gooch,

an Illinois attorney.

	Michiels was subsequently contacted by a different attorney,

who told her that defendant wanted Michiels to come to

Menominee and get Ashley before defendant turned himself in.

Michiels contacted Gooch to ask if he knew anything about the

arrangement. Michiels testified that Gooch told her that “he was

aware of it, that he thought that [defendant] was–that it wasn’t

really an attorney that called him. He thought it was [defendant]

pretending, you know, to be an attorney and he wasn’t driving up

to Menominee so he had contacted the Chicago Police Department

and called them.” Michiels did drive to Menominee to take custody

of Ashley.

	During cross-examination, the State asked Michiels, over

objection, about another conversation she had with attorney Gooch. Michiels denied recalling that Gooch had told her that

defendant had “asked him what the punishment was for committing

a capital crime and crossing state lines.” However, she admitted

that it was possible that she had so told a police officer.

	The defense also called three expert witnesses on the topic of

defendant’s sanity. Drs. Larry Heinrich, Marvin Schwarz, and

Matthew Markos all testified that at the time of the crime

defendant was insane–he could not appreciate the criminality of his

offense, nor could he conform his conduct to the requirements of

the law. Each believed that defendant had a delusional psychotic

disorder, and that he had killed his wife because he believed his

wife meant to kill Ashley, just as he believed she had killed their

other child.

	Each expert testified that he had reviewed the police reports

generated in connection with the case. One of these reports

contained the statement with which the State had cross-examined

Michiels–that attorney Gooch had told her that defendant had

asked him about the penalty for committing a capital crime and

then crossing state lines. The State cross-examined all of the

defense experts with this statement, over defendant’s continuing

objection to the line of questioning.

	In rebuttal the State presented an expert, Dr. Carl Wahlstrom.

Dr. Wahlstrom agreed with the defense experts that defendant was

suffering from a “persecutory” type of delusional disorder.

However, he testified that defendant was sane at the time of the

crime. One of the reasons for his conclusion was defendant’s ability

to “very carefully conceal the crime.” Specifically, Dr. Wahlstrom

relied in part on the fact that when defendant arrived in

Menominee, “he contacted an attorney regarding the issue of

having–regarding everything that is involved and the commission

of two [sic] capital crimes.”

	The court found defendant guilty but mentally ill of first

degree murder and concealment of a homicidal death. At a

subsequent hearing, defendant was sentenced to consecutive terms

of 50 years’ imprisonment for his murder conviction and 5 years’

imprisonment for his concealment conviction. The appellate court

affirmed. No. 1–98–1561 (unpublished order under Supreme Court

Rule 23). We granted defendant leave to appeal. 177 Ill. 2d R. 315.

ANALYSIS

	Defendant argues that his conviction should be reversed for

violations of his attorney-client privilege. In supplemental briefing,

defendant contends that his sentence should be vacated because

section 5–8–4(b) of the Unified Code of Corrections (730 ILCS

5/5–8–4(b) (West 1994)), under which his sentences were made

consecutive, is unconstitutional.

I. Attorney-Client Privilege

	Defendant first contends that he is entitled to a new trial. He

argues that his conversation with attorney Gooch was protected by

the attorney-client privilege, and that the disclosure in the police

report that he had asked attorney Gooch about the penalty for

committing a capital crime and crossing state lines breached his

privilege. He maintains that the State’s use of this evidence at trial

constituted reversible error. Although the State does not admit that

the statements to attorney Gooch were privileged, it contends that

assuming that they were initially privileged, defendant waived the

privilege. We agree.

	We assume, arguendo, that defendant’s conversation with attorney Gooch was privileged at the time it occurred. We also

assume that the privilege remained intact despite the disclosure by

Gooch to defendant’s sister, her subsequent disclosure to the

police, and the recording of that statement in the written report.

Indeed, the State does not maintain that any privilege which might

have attached to defendant’s statement was waived by any of these

acts. Instead, the State asserts that defendant waived any privilege

by giving the police report containing the statement to his testifying expert witnesses.

	We begin with the general rule that experts may be

cross-examined for the purpose of discrediting their testimony, as

well as to ascertain which factors were taken into account and

which were disregarded in arriving at these conclusions. People v. Williams, 181 Ill. 2d 297, 329 (1998). Opposing counsel is allowed to cross-examine an expert with respect to material which he has

reviewed but upon which he did not rely. People v. Page, 156 Ill. 2d 258, 275 (1993), quoting People v. Pasch, 152 Ill. 2d 133, 179 (1992). Indeed, counsel may venture beyond the facts supported by the record in inquiring as to what changes of conditions would

affect his opinion. Williams, 181 Ill. 2d at 329; Page, 156 Ill. 2d at 275; Pasch, 152 Ill. 2d at 179. Thus the general rule would allow the State to cross-examine the experts with the content of a report

included among the materials which they considered in forming

their opinions.

	Defendant does not dispute the above law, but contends that

general rules regarding cross-examination of experts are beside the

point in this case. He contends that it is irrelevant that the police

report containing his statement was supplied to the psychiatric

experts testifying for the defense because the statement was still

privileged. Defendant argues that “in insanity cases the attorney-

client privilege applies to information received by the defense

mental health experts in the same manner as it does to the

defendant’s attorney.” He relies on this court’s opinion in People v. Knuckles, 165 Ill. 2d 125 (1995). There, this court extended attorney-client privilege to communications between a defendant

and a psychiatric expert, in order to “accord the common law

attorney-client privilege the scope necessary to meet the

complexities of modern legal practice.” Knuckles, 165 Ill. 2d at 135.

	However, Knuckles distinguished between testifying and nontestifying experts. Communications between a defendant raising

an insanity defense and a psychiatric expert are protected by the

attorney-client privilege only so long as “the psychiatrist will not

testify and the psychiatrist’s notes and opinions will not be used in

the formulation of the other defense experts’ trial testimony.”

Knuckles, 165 Ill. 2d at 140. Contrarily, the privilege is waived “with respect to the testimony and reports of those experts who are

identified by the defense as witnesses who will be called to testify

on behalf of the defendant at trial, or whose notes and reports are

used by other defense experts who testify.” Knuckles, 165 Ill. 2d at 139.

	Thus Knuckles is of no help to defendant. Drs. Heinrich, Schwarz and Markos all testified at trial. Thus, the attorney-client privilege between them and defendant was waived.1 Knuckles, 165 Ill. 2d at 139. Because the communication had been revealed to

these persons with whom the privilege was waived, defendant

waived the privilege entirely. See Profit Management Development, Inc. v. Jacobson, Brandvik & Anderson, Ltd., 309 Ill. App. 3d 289, 299 (1999) (“[a]ny disclosure by the client is

inherently inconsistent with the policy behind the privilege of

facilitating a confidential attorney-client relationship and, therefore,

must result in a waiver of the privilege”); People v. Childs, 305 Ill. App. 3d 128, 136 (1999) (same); Fidelity & Casualty Co. v. Mobay Chemical Corp., 252 Ill. App. 3d 992, 1000-01 (1992) (same).

	Defendant relies on Regan v. Garfield Ridge Trust & Savings Bank, 220 Ill. App. 3d 1078 (1991), for the proposition that a party does not waive the protection of the attorney-client privilege

by calling a witness who does not testify as to privileged matters.

In Regan, the plaintiff called his prior attorney as a witness to testify regarding the attorney’s dealings with defendants and their

lawyers. When defendants attempted to cross-examine the attorney

regarding conversations with his client, the attorney refused to

answer, asserting attorney-client privilege. The appellate court

agreed with the trial court that the privilege had not been waived. Regan, 220 Ill. App. 3d at 1090-91.

	Regan is distinguishable because, in the instant case, the waiver did not depend on the substance of the witnesses’

testimony. The mere fact that they testified waived attorney-client privilege between them and defendant. Knuckles, 165 Ill. 2d at 139. While we agree with Regan that the attorney-client privilege is not waived by simply calling an attorney as a witness to matters

not involving the privilege, the attorney-client privilege between a

defendant and a psychiatric expert depends upon the expert’s not

testifying at all. Once this fact changes, the privilege is waived. Knuckles, 165 Ill. 2d at 139-40. Accordingly, the privilege was waived in its entirety with respect to all information defendant had

shared with the experts, just as it would be by the voluntary

revelation of a privileged communication to any person with whom

the privilege was not shared. See Profit Management Development, 309 Ill. App. 3d at 299; Childs, 305 Ill. App. 3d at 136; Fidelity & Casualty Co., 252 Ill. App. 3d at 1000-01.

	In his opening brief to this court, defendant argues that the

privilege could not have been waived by attorney Gooch’s

disclosure to defendant’s sister. He bases this contention on

statements in various cases that a client will not be held to have

waived the privilege through an unauthorized disclosure by his

counsel. See, e.g., Himmelfarb v. United States, 175 F.2d 924 (9th Cir. 1949); Mendenhall v. Barber-Greene Co., 531 F. Supp. 951 (N.D. Ill. 1982); Chavez v. Watts, 161 Ill. App. 3d 664 (1987); People v. Mudge, 143 Ill. App. 3d 193 (1986); 8 J. Wigmore, Evidence §2325 (McNaughton rev. ed. 1961). However, as

previously noted, the State does not argue that Gooch’s disclosure

constituted a waiver of the privilege.

	Moreover, as the State notes in response, this rule does not

vitiate the waiver which occurred in this case when defendant’s

trial counsel disclosed the information to the testifying expert witnesses. The very section of Wigmore upon which defendant

relies states that

			“[s]ince the attorney has implied authority from the

client *** to make admissions and otherwise to act in all

that concerns the management of the cause, all disclosures

(oral or written) voluntarily made to the opposing party or to third persons in the course of negotiations for

settlement, or in the course of taking adverse steps in

litigation *** are receivable as being made under an

implied waiver of privilege, giving authority to disclose the

confidences when necessary in the opinion of the attorney.

This is so unless it appears that the attorney has acted in

bad faith toward the client.” (Emphasis in original.) 8 J.

Wigmore, Evidence §2325 (McNaughton rev. ed. 1961).

This clearly supports the State’s position that trial counsel’s

disclosure of the information waived whatever privilege may have

existed. See also American Bar Association Section of Litigation, The Attorney-Client Privilege and the Work-Product Doctrine, at 165 (3d ed. 1997) (“[a]lthough the client is the holder of the

privilege, it is ordinarily the lawyer’s obligation to claim the

privilege on the client’s behalf, even in the client’s absence. Indeed,

in most instances, it is through actions taken (or not taken) by

counsel that courts find a waiver has occurred”). This court has

previously allowed trial counsel to waive a client’s privilege. See People v. Newbury, 53 Ill. 2d 228, 234-35 (1972) (attorney waived client’s physician-patient privilege by questioning physician on

direct examination). See also People v. Kliner, 185 Ill. 2d 81, 118 (1998) (in the course of litigation, “[a] defendant is bound by the

acts or omissions of his counsel”); cf. People v. Segoviano, 189 Ill. 2d 228, 240 (2000) (“[t]he only trial-related decisions over which

a defendant ultimately must have control are: whether to plead

guilty; whether to waive a jury trial; whether to testify in his own

behalf; whether to appeal; and whether to submit a lesser-included

offense instruction”).

	All of the authorities upon which defendant relies refer to

unauthorized or inadvertent disclosure. In this case defendant has

not even argued that the disclosure by trial counsel to the expert

witnesses was either unauthorized or inadvertent, and it was

defendant’s burden to so establish. Golden Valley Microwave Foods, Inc. v. Weaver Popcorn, Inc., 132 F.R.D. 204, 207 (N.D. Ind. 1990); cf. United States v. Bump, 605 F.2d 548, 551 (10th Cir. 1979).

	Any attorney-client privilege which might have protected the

conversations between defendant and attorney Gooch was waived

by the disclosure of the statement to defendant’s testifying expert

witnesses. Accordingly, we need not reach the State’s alternative

arguments that the statements were not privileged and that any

error in their admission was harmless.

II. Constitutionality of Defendant’s Sentence

	Defendant contends in the alternative that his sentences must

run concurrently, rather than consecutively. While this case was

pending on appeal, the United States Supreme Court decided

Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). This court allowed the parties to submit

supplemental briefs on the constitutionality of defendant’s

consecutive sentence pursuant to section 5–8–4(b) of the Unified

Code of Corrections (the Code) (730 ILCS 5/5–8–4(b) (West

1994)) in the wake of Apprendi.

	Before addressing its merits, the State contends that defendant

has waived his argument by failing to raise it at trial, even though Apprendi was not decided until more than two years after defendant’s trial. The State contends that the recent vintage of

Apprendi is irrelevant because “the cases which were the precursors to Apprendi *** addressed the same general issue of enhanced penalties based upon facts presented at sentencing.” The

State further contends that defendant should not be allowed to rely

upon the rule that a party may challenge the constitutionality of a

statute at any time because “the statute under which defendant was

sentenced has not been declared unconstitutional on its face.

Therefore, the void ab initio [sic] doctrine *** is inapplicable. At worst, section 5–8–4(b) may be unconstitutional only as applied to a particular case, but the void ab initio [sic] doctrine has never been applied to such situations.” (Emphasis in original.)

	Defendant’s argument is not waived. First, a party may

challenge the constitutionality of a statute at any time. See, e.g., People v. Wright, 194 Ill. 2d 1 (2000). We reject the State’s argument, made without benefit of authority, that defendant falls

outside of this rule because the statute “has not been declared

unconstitutional on its face.” The State appears to contend that a

party may only challenge a statute which has already been declared facially unconstitutional. We decline to so hold.

	Additional support for the conclusion that defendant has not

waived the argument may be found in People v. Williams, 179 Ill. 2d 331 (1997). There, a defendant challenged on appeal a sentence

imposed pursuant to a guilty plea. The State contended that

defendant should be barred from challenging his sentence on appeal

because he had not moved to withdraw his guilty plea in the trial

court. We found the argument was not waived, because the

defendant was arguing that the court had imposed a sentence for

which it lacked statutory authority, rather than merely that his

sentence was excessive. We held that the rule requiring a defendant to withdraw a guilty plea before arguing that a sentence was

excessive would not “bar defendant’s claim that his sentence was

void because it does not conform with the statute.” Williams, 179 Ill. 2d at 333. See also People v. Wilson, 181 Ill. 2d 409, 413 (1998) (defendant’s argument that his sentence “violated statutory

requirements” could be considered regardless of whether defendant

had moved to withdraw his guilty plea).

	Accordingly, we will address the merits of defendant’s due

process claim.

	Section 5–8–4(b) of the Code allows the trial court to impose

consecutive sentences in certain cases. At the time of defendant’s

offenses, it provided:

			“The court shall not impose a consecutive sentence

except as provided for in subsection (a) unless, having

regard to the nature and circumstances of the offense and

the history and character of the defendant, it is of the

opinion that such a term is required to protect the public

from further criminal conduct by the defendant, the basis

for which the court shall set forth in the record.” 730

ILCS 5/5–8–4(b) (West 1994).

The parties agree that the trial court imposed consecutive

sentences on defendant pursuant to section 5–8–4(b), based on a

finding that consecutive sentences were required to protect the

public from defendant. Defendant contends that his sentence is void

because he was entitled, as a matter of due process, to have a jury,

rather than the court, make this finding. He relies, as previously

noted, on the Supreme Court’s opinion in Apprendi.

	In Apprendi, the Court considered three New Jersey statutes. One statute classified the possession of a firearm for an unlawful

purpose as a “second degree” offense. Another statute provided

that a second degree offense was punishable by imprisonment for

“between five years and 10 years.” A third statute, which the New

Jersey Supreme Court labeled a “hate crime” statute, authorized an

extended term of between 10 and 20 years’ imprisonment for a

second degree offense if the trial judge found by a preponderance

of the evidence that “[t]he defendant in committing the crime acted

with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual

orientation or ethnicity.” The defendant was sentenced to 12 years’

imprisonment for possession of a firearm because the trial court

found that defendant had violated the hate crime statute.

	The Court found that the “hate crime” statute violated due

process. Specifically, the Court extended to state statutes its prior

holding that in federal statutes “ ‘any fact (other than prior

conviction) that increases the maximum penalty for a crime must

be charged in an indictment, submitted to a jury, and proven

beyond a reasonable doubt.’ ” Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355, quoting Jones v. United States, 526 U.S. 227, 243 n.6, 143 L. Ed. 2d 311, 326 n.6, 119 S. Ct.

1215, 1224 n.6 (1999). See also Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63 (“[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”).

	The State contends that Apprendi does not apply to this case because no additional factual findings beyond the facts of

defendant’s convictions were required for defendant’s sentences to

be made consecutive. The State relies on section 9–3.1 of the

Criminal Code, which defines the offense of concealment of

homicidal death, the second of the two offenses of which defendant

was convicted. Subsection (b) of that statute provides:

			“Nothing in this Section prevents the defendant from

also being charged with and tried for the first degree

murder, second degree murder or involuntary

manslaughter of the person whose death is concealed. If a

person convicted under this Section is also convicted of

first degree murder, second degree murder or involuntary

manslaughter, the penalty under this Section shall be

imposed separately and in addition to the penalty for first

degree murder, second degree murder or involuntary

manslaughter.” 720 ILCS 5/9–3.1(b) (West 1994).

The State contends that the last sentence of this section requires

the trial court to impose consecutive sentences when a defendant

is convicted of both concealment of a homicidal death and first

degree murder, second degree murder, or involuntary manslaughter. To construe the statute otherwise, the State

contends, would render the phrase “in addition to” mere

surplusage. Thus, the State argues, there is no Apprendi issue in this case because the trial court did not have to make any factual

findings in order for the sentences to be consecutive.

	We disagree. The State’s position has been unanimously

rejected by our appellate court, which has held that the “separately

and in addition to” language is simply intended to clarify that a

conviction for concealment of a homicidal death does not merge

into a murder conviction. See, e.g., People v. Dover, 312 Ill. App. 3d 790 (2000); People v. Gil, 125 Ill. App. 3d 892 (1984); People v. Schlemm, 82 Ill. App. 3d 639 (1980). We agree with this construction. As these cases have noted, section 5–8–4 of the Code

of Corrections governs whether sentences are to be served

consecutively. Moreover, section 5–8–4 shows that the legislature

uses the word “consecutive,” rather than the more ambiguous

phrase “in addition to,” when it intends that the sentences be

served consecutively. Although this construction can be

understood as rendering the “in addition to” language redundant,

we note that the legislature has twice amended section 9–3.1 since

the decisions in Gil and Schlemm (see Pub. Act 84–1308, art. III, §23, eff. August 25, 1986; Pub. Act 84–1450, §2, eff. July 1,

1987), but has left intact the “separately and in addition to”

language. “[T]his court presumes that the legislature knew of the

prior interpretation placed on its language by judicial decision,” and

“[w]here terms used in a statute have acquired a settled meaning

through judicial construction and are retained in subsequent

amendments, they are to be understood as previously interpreted

by the courts unless the legislature clearly indicates a contrary

intention.” Carver v. Bond/Fayette/ Effingham Regional Board of School Trustees, 146 Ill. 2d 347, 353 (1992). We find that section 9–3.1 does not mandate consecutive sentences.

	However, we affirm defendant’s sentence in this case. Our

appellate court is sharply divided on the question of whether

Apprendi concerns are raised by consecutive sentencing, where the sentences for the individual crimes remain within the statutory

range. Compare People v. Lucas, No. 1–99–2623, slip op. at 6-7 (March 21, 2001); People v. Hayes, 319 Ill. App. 3d 810, 820 (2001); People v. Maiden, 318 Ill. App. 3d 545, 550 (2001); People v. Primm, 319 Ill. App. 3d 411, 428 (2000); People v. Sutherland, 317 Ill. App. 3d 1117, 1131 (2000) (all finding section 5–8–4(a) of the Code constitutional and affirming defendants’

consecutive sentences thereunder), with People v. Mason, 318 Ill. App. 3d 314, 320 (2000); People v. Harden, 318 Ill. App. 3d 425, 428 (2000); People v. Waldrup, 317 Ill. App. 3d 288, 300 (2000); People v. Carney, 317 Ill. App. 3d 806, 813 (2000); People v. Clifton, Nos. 1–98–2126, 1–98–2384 cons., slip op. at 55 (September 29, 2000) (all finding section 5–8–4(a) unconstitutional

and vacating consecutive nature of defendants’ sentences

thereunder). Those decisions which have struck down section

5–8–4(a) of the Code have focused on the fact that consecutive

sentencing increases the actual amount of time a defendant will

spend in jail, and reasoned that Apprendi commands that any fact which in reality increases the amount of time spent in jail should be

submitted to a jury and proven beyond a reasonable doubt. The

majority of the decisions upholding the statute have reasoned that Apprendi concerns are not raised unless “the [maximum] penalty for a crime” (emphasis added) (Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63) is increased, and since

consecutive sentences remain discrete sentences, none of the

penalties for any individual crime has been increased.

	Initially, we note that Apprendi explicitly disclaimed any holding regarding consecutive sentencing. There the State noted

that defendant had pled guilty to two counts of unlawful possession

of a firearm, as well as a single count of unlawful possession of an

antipersonnel bomb. The State argued that defendant could have

been given consecutive sentences on the two convictions for

unlawful possession of a firearm, and thus received the same 12-

year term of imprisonment as he in fact received on the single

unlawful possession count under the hate crime statute. The Court

refused to address this argument, stating:

		“The constitutional question, however, is whether the 12-

year sentence imposed on count 18 [the unlawful

possession of a firearm count which was found to be a

hate crime] was permissible, given that it was above the

10-year maximum for the offense charged in that count. The finding is legally significant because it

increased–indeed, it doubled–the maximum range within

which the judge could exercise his discretion, converting

what otherwise was a maximum 10-year sentence on that

count into a minimum sentence. The sentences on [the

other two convictions] have no more relevance to our

disposition than the dismissal of [several other charges

against the defendant].” Apprendi, 530 U.S. at 474, 147 L. Ed. 2d at 445, 120 S. Ct. at 2354.

Thus, it is clear that the decisions holding that consecutive

sentencing triggers Apprendi concerns are extending that case beyond its facts, as indeed the seminal case in that line

acknowledged. See Clifton, Nos. 1–98–2126, 1–98–2384 cons., slip op. at 51-52 (rehearing pending).

	The decisions of our appellate court finding that consecutive

sentencing does not raise Apprendi concerns are supported by the only reported United States circuit court decision on this topic. See

United States v. Cruz, ___ F.3d ___, ___ (2d Cir. February 13, 2001) (“[t]he district court’s use of section 5G1.2(d) [of the United

States Sentencing Guidelines to sentence defendant consecutively]

did not result in a sentence on any one count above the maximum

available on that count *** and so did not violate Apprendi”). Accord United States v. Moreno, No. S3 94 Cr. 0165 (S.D.N.Y December 14, 2000) (holding that Apprendi did not prohibit consecutive sentencing even though court, not jury, made finding

prerequisite to consecutive sentencing regarding quantity of drugs

involved). See also United States v. Henderson, 105 F. Supp. 2d 523, 536-37 (S.D.W.V. 2000). Several other federal circuits have

implicitly reached the same conclusion by finding no plain error in

sentencing even though individual sentences exceeded the

maximum allowable sentence based on the facts found by the

jury–in violation of Apprendi–because on remand the sentences could be made consecutive to reach the same total sentence. See United States v. Parolin, 239 F.3d 922, 930 (7th Cir. 2001); United States v. Sturgis, 238 F.3d 956, 960 (8th Cir. 2001); United States v. Page, 232 F.3d 536 (6th Cir. 2000).

	We find that Apprendi concerns are not implicated by consecutive sentencing. It is a settled rule in this state that sentences which run consecutively to each other are not transmuted

thereby into a single sentence. People v. Jones, 168 Ill. 2d 367, 371-72 (1995); People v. Kilpatrick, 167 Ill. 2d 439, 446-47 (1995); Thomas v. Greer, 143 Ill. 2d 271, 278-79 (1991).2 Because consecutive sentences remain discrete, a determination that

sentences are to be served consecutively cannot run afoul of

Apprendi, which only addresses sentences for individual crimes. Accordingly, section 5–8–4(b) of the Code passes constitutional

muster.

	We recognize that Apprendi contains isolated statements which on their face might appear to support the conclusion that the

jury must find beyond a reasonable doubt each and every fact

which might have any real-world impact on the length of time the

defendant might spend in prison. For instance, the Court stated:

		“If a defendant faces punishment beyond that provided by

statute when an offense is committed under certain

circumstances but not others, it is obvious that both the

loss of liberty and the stigma attaching to the offense are

heightened; it necessarily follows that the defendant should

not–at the moment the State is put to proof of those

circumstances–be deprived of protections that have, until

that point, unquestionably attached.” Apprendi, 530 U.S. at 484, 147 L. Ed. 2d at 451, 120 S. Ct. at 2359.

See also Apprendi, 530 U.S. at ___494, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365 (“the relevant inquiry is one not of form, but of

effect–does the required finding expose the defendant to a greater

punishment than that authorized by the jury’s guilty verdict?”).

	However, these statements cannot be taken out of context.

The issue in Apprendi was “whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination

authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.” (Emphasis added.) Apprendi, 530 U.S. at ___469, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351. See also

Apprendi, 530 U.S. at ___490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63 (“[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” (emphasis added)). The Court specifically stated

that consecutive sentencing was “not relevant” to the “narrow

issue” under consideration. Apprendi, 530 U.S. at ___474, 147 L. Ed. 2d at 445, 120 S. Ct. at 2354.

	We are bound to follow the United States Supreme Court’s

interpretation of the Constitution of the United States. People v. Gersch, 135 Ill. 2d 384, 398 (1990); People v. Loftus, 400 Ill. 432, 436 (1948). See also Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 4 L. Ed. 97 (1816). But we are not bound to extend

the decisions of the Court to arenas which it did not purport to

address, which indeed it specifically disavowed addressing, in order

to find unconstitutional a law of this state. This is especially true

where, as here, to do so would require us to overrule settled law

in this state. See Jones, 168 Ill. 2d at 371-72; Kilpatrick, 167 Ill. 2d at 446-47; Thomas, 143 Ill. 2d at 278-79 (sentences retain their discrete character even if they are to be served consecutively).

Each of defendant’s individual sentences was within the statutory

range established by the legislature. This is all that Apprendi requires.

CONCLUSION

	For the reasons above stated, we affirm the judgment of the

appellate court, which affirmed defendant’s convictions and

sentence.

	Affirmed.