SECOND DIVISION

									September 128, 2001

No. 1-99-4064

THE PEOPLE OF THE STATE OF ILLINOIS,

	Plaintiff-Appellee,

	v.

MARCUS BLACKWELL,

	Defendant-Appellant.		

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Appeal from the

Circuit Court of

Cook County

97 CR 21738

Honorable

Thomas M. Tucker,

Judge Presiding.

		JUSTICE McBRIDE delivered the opinion of the court:

	Following a bench trial, defendant, Marcus Blackwell, was found guilty of first degree murder and attempted murder.  He was

sentenced consecutively to 84 years' imprisonment for the first

degree murder conviction and to 27 years' imprisonment for the

attempted murder conviction.  The trial court imposed an

extended-term sentence for the murder under section 5-5-

3.2(b)(4)(ii) of the Unified Code of Corrections on the basis

that the murder victim was 71 years old.  730 ILCS 5/5-5-

3.2(b)(4)(ii) (West 1998).  The trial court also determined that

defendant was eligible for consecutive sentences under section 5-

8-4(b) of the Unified Code of Corrections because defendant

inflicted severe bodily harm on the attempted murder victim.  730

ILCS 5/5-8-4(b) (West 1998).  

	Defendant appeals on the grounds that his extended-term 

sentence and consecutive sentences are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S. Ct. 2348 (2000).  Defendant further claims that his sentences were excessive based on his young age, lack of criminal record, and

rehabilitative potential.  

	The record below revealed the following facts.  On July 9,

1997, Mary Harris, age 71, was shot in front of her home located

at 1608 South 19th Street, Maywood, Illinois.  Kerry Rouse, a teenager, was also shot in his side during the same shooting.  As

a result of the gunshots, Harris died and Rouse was severely

injured.

	The record further indicated that the shots were fired by

defendant, who along with three other black males, conducted a

drive-by-shooting in the intersection of 19th and Van Buren Streets in Maywood.  Testimony in the record revealed that the

shooting was motivated by a rivalry between two gangs known as

the Four Corner Hustlers and the Blackstones.

	Brian Holmes testified that he and defendant were both

members of the Four Corner Hustlers.  On July 7, 1997, Holmes

stated that he, Walter Blount, Keshan Huston, and defendant were

driving around Maywood when they saw Brian Moore, a fellow Four

Corner Hustler.  Blount, who was driving the car, pulled the car

over so that they could converse with Moore.  Moore claimed to

have been shot at by the Blackstones.  After conversing with

Moore, Holmes testified that the same four drove off to retrieve

a gun.  According to Holmes, defendant retrieved a .380 caliber

hand gun from the bushes in the alley at 16th Street.  Defendant put the weapon under his shirt and got back into the car.  Holmes said that the gun was retrieved in order to shoot at the

Blackstones who hung out at the corner of 20th and Van Buren Streets.

	Holmes testified that the four drove by the intersection of

19th and Van Buren Streets several times as they examined a crowd of eight or nine people standing south of the intersection. 

Rouse testified that the crowd was about ten feet away from the

front door of Mary Harris' residence.  On the fifth pass, Blount

slowed the vehicle down and stated, "I think that's them."  At

that time, defendant fired five or six shots at the crowd from

the vehicle's window.  After the shots were fired, the four sped

away rapidly from the scene. 

	Rouse testified that, prior to the shooting, Harris was

standing in her doorway and was attempting to move the crowd away

from the front of her home.  Samuel Davis, Harris' common law

husband, stated that Harris was 71 years old.  He further said

that late in the evening on July 9, 1997, Harris came into the

bedroom and told him that she had been shot.  She then fell to

the floor and was taken to the hospital where she was pronounced

dead of a gunshot wound to the chest.  Rouse stated that he was

shot in the side of his body and that he spent approximately six

weeks in the hospital recovering from the gunshot wound. 

	The police ultimately arrested defendant, Blount, and

Holmes.  In exchange for his testimony against defendant and

Blount, Holmes received a six year prison sentence.  Defendant and Blount were tried separately.  After hearing all of the

evidence, the trial judge found defendant guilty of first degree

murder and attempted murder. Defendant was sentenced

consecutively to 84 years' imprisonment for the first degree

murder conviction and to 27 years' imprisonment for the attempted

murder conviction.  As noted above, the trial court imposed an

extended-term sentence for the murder under section 5-5-

3.2(b)(4)(ii) of the Unified Code of Corrections on the ground

that the murder victim was 71 years old.  730 ILCS 5/5-5-

3.2(b)(4)(ii) (West 1998).  The trial court also concluded that

defendant was eligible for consecutive sentences under section 5-

8-4(b) of the Unified Code of Corrections because defendant

inflicted severe bodily harm on the attempted murder victim.  730

ILCS 5/5-8-4(b) (West 1998).  We affirm the trial court for the following reasons.

	The constitutionality of extended-term sentencing under the

Apprendi decision was recently addressed by this court in People v. Vida, No. 1-99-2922 (June 22, 2001).  In Vida, the State first argued, as it does here, that defendant waived the issue by

failing to raise it in the trial court.  The Vida court disagreed citing People v. Wright, 194 Ill. 2d 1, 23, 740 N.E.2d 755, 766 (2000)(holding that defendants' argument was not waived because

the constitutionality of a statute may be raised at any time). 

People v. Vida, slip op. at 16.  Thus, we conclude that defendant has not waived the issue.

	We note that in Apprendi, cited above, the Supreme Court held a New Jersey statute unconstitutional that allowed a judge

to increase the sentencing range for an offense where the court

found that the defendant committed the crime with the purpose of

intimidating an individual or group based on a particular

characteristic.  Specifically, the Supreme Court stated, "[o]ther

than the fact of a prior conviction, any fact that increases the

sentence for a crime beyond the prescribed statutory maximum for

the relevant offense must be submitted to a jury and proved

beyond a reasonable doubt."  Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 442, 120 S.Ct. at 2362-63.

	As pointed out above, the trial court in the instant case

imposed an extended-term sentence based on the fact that the

victim's age exceeded 60 years at the time of the offense.  In

his brief, defendant maintains that the trial court's failure to

submit to a jury the question of the victim's age as it pertained

to extended-term sentencing was unconstitutional under Apprendi.

	The State maintains that the sentencing range for first

degree murder can be 20 years' imprisonment up to and including

the death penalty.  Several Illinois cases have rejected that

same argument.  Those cases have held that the maximum statutory

penalty for first degree murder is that provided in section 5-8-

1(a)(1)(a) of the Unified Code of Corrections (930 ILCS 5/5-8-

1(a)(1)(a) (West 1994)(stating that a term shall be not less than

20 years and not more than 60 years)), and that the imposition of an extended-term sentence based on a finding by the trial court

that the offense was accompanied by exceptionally brutal or

heinous behavior indicative of wanton cruelty violates Apprendi where such findings are based on a relaxed evidentiary standard. 

See e.g., People v. Beachem, 317 Ill. App. 3d 693, 708, 740 N.E.2d 389 (2000) (holding that 60 years is the "the prescribed

maximum sentence for first degree murder in this State" and that

an extended-term sentence of more than 60 years that is based on

a finding of exceptionally brutal and heinous behavior "clearly

offends" Apprendi).

	We also recognize that another division of this court in

Vida, slip op. at 15-25, recently held instead that the statutory sections regarding extended-term sentencing and sentences of

imprisonment for a felony should be read together as part of an

overall sentencing scheme for murder when determining the

statutory range of possible penalties for first degree murder. 

Under such an approach, an extended-term sentence imposed upon a

judicial finding at sentencing that a statutory aggravating

factor existed would not necessarily violate Apprendi.  Thus, there is a split in authority in this district regarding how the

maximum statutory penalty for first degree murder is to be

determined.  We need not adopt either of the approaches taken in

the above cases, however, because even assuming an Apprendi violation occurred, we find it to be harmless error.

	We have recently addressed whether the failure to present proof of the victim's age under Apprendi could be subject to the harmless error rule in People v. Taki Peacock, No. 1-98-3552 (August 21, 2001).  We concluded in that case that, although an 

Apprendi violation may have occurred where the age of the victim was not presented to the trier of fact as part of the indictment

and subjected to proof beyond a reasonable doubt, any violation

that did occur was harmless error and defendant's extended-term

sentence was affirmed.  Peacock, slip op. at 21.  Our reasoning was based on a review of the following cases.  

	In United States v. Nance, 236 F. 3d 820, 825, (7th Cir. 2000), the court found an Apprendi violation where the defendant was subjected to a sentence in excess of the default statutory

maximum based on a finding by the trial court at sentencing

regarding the amount of drugs involved.  The court went on to

hold that the failure to include an amount of drugs in the

indictment and to submit that issue to a jury for proof beyond a

reasonable doubt was subject to harmless error analysis.  Nance, 236 F.3d at 825-26.  The question to be asked, the court held,

was whether it was clear beyond a reasonable doubt that a

rational jury would have found the  defendant guilty absent the

error.  Nance, 236 F.3d at 825.  The court answered this inquiry in the affirmative and upheld defendant's sentence.  Nance, 236 F.3d at 826.  

	Likewise, in People v. Anderson, 236 F.3d 427 (8th Cir. 2001), the defendant was found guilty of conspiring to manufacture methamphetamine based on an instruction that told the

jury it need only find a "measurable amount" of methamphetamine

to convict, rather than a specific amount.  At sentencing, the

trial court made a finding that the conspiracy intended to

manufacture more than 50 grams of methamphetamine.  Based on its

finding, the court sentenced the defendant to 30 years'

imprisonment, more than the maximum 20-year sentence allowed

where only a "measurable amount" of methamphetamine was involved.  Upon review, the court determined that although the imposition of

the 30 year sentence contravened the rule in Apprendi, it was harmless beyond a reasonable doubt where no rational jury could

have found the appellants guilty of the substantive offense and

at the same time found that amount of methamphetamine the

conspiracy sought to produce was less than the amount necessary

to support the sentence ultimately imposed by the court. 

Anderson, 236 F.3d at 429-30.

	Finally, in People v. Rohlfs, No. 4-99-0048 (June 14, 2001), the defendant contended that his extended-term sentence violated

Apprendi where it was imposed based on age of the victim and that fact was not submitted to a jury and proved beyond a reasonable

doubt.  The Fourth District held that the failure to ask the jury

to determine the victim's age may have been harmless error where

the victim testified she was 93 years old, there was no dispute

regarding her age, and no reasonable jury could have found her to

be under the age of 60.  Rohlfs, slip op. at 10-11.  Although the court in Rohlfs ultimately affirmed the extended-term sentence on a different basis, we conclude its analysis of the age issue to

be relevant to our decision.  

	In the instant case, an extended-term was imposed based on

at least one aggravating factor that the deceased victim was 60

years of age or older.  "A trial court need only a single

statutory factor in aggravation to impose an extended sentence." 

People v. Benkowski, 215 Ill. App. 3d 615, 621, 575 N.E.2d 587 (1991).  During the trial in the instant case, Davis testified

that Harris was 71 years old at the time of her death.  Such fact

was undisputed by the parties and the finding by the trial court

did not involve a weighing of evidence or an examination of

defendant's mental state.  We determine, therefore, that had the

issue of the victim's age been submitted to a jury, a jury would

have still found defendant guilty beyond a reasonable doubt. As a

result, although an Apprendi violation may have occurred here where the age of the victim was not submitted to a jury, such

violation amounted to harmless error and defendant's extended-

term sentence for first degree murder is affirmed.

	Defendant next claims that the consecutive sentences imposed by the trial judge were unconstitutional under Apprendi.  The constitutionality of the consecutive sentencing statute under the

Apprendi decision was addressed by our supreme court in People v. Wagener, No. 88843 (Ill. Sup. Ct., June 1, 2001).  See section 5- 8-4(b) of the Unified Code of Corrections,  730 ILCS 5/5-8-4(b) (West 1998).  As we noted above, "a party may challenge the

constitutionality of a statute at any time. [Citation.]" 

Wagener, slip op. at 9.  Thus, defendant has not waived this question based on his failure to raise it in the trial court as

suggested by the State.

	In Wagener, the court observed that, "Apprendi explicitly disclaimed any holding regarding consecutive sentencing," and

that "decisions holding that consecutive sentencing triggers

Apprendi concerns are extending that case beyond its facts ***."  Wagener, slip op. at 13-14.  The court further recognized that, "[i]t is a well settled rule in this state that sentences which

run consecutively are not transmuted thereby into a single

sentence. [Citations]."  Wagener, slip op. at 14-15.  Thus, we find that Apprendi, which only addressed sentences for individual crimes, is not implicated in the instant case.  Wagener, slip op. at 14-15.

	Defendant here was sentenced to an extended term of 84

years' imprisonment for murder.  We concluded above that such

sentence was within the proper sentencing range.  The applicable

sentencing range for attempted murder is not less than six years

and not more than 30 years.  730 ILCS 5/5-8-1(3) (West 1998). 

The trial judge sentenced defendant to 27 years for attempted

murder.  The judge further found that, based on the severe harm

caused to the injured victim,a consecutive sentence for attempted

murder was proper.  See 730 ILCS 5/5-8-4(b) West 1998.  We note that the trial judge's sentences for murder and for attempted

murder were within the statutory sentencing range.  That is all

that is required by Apprendi.  Wagener, slip op. at 16.  Thus, the trial court's judgment is affirmed on the question of

consecutive sentencing.

	Defendant next claims that his sentences were excessive on

the grounds that he was young at the time of the offense, did not

have a significant criminal record, was enrolled in school,

maintained strong family connections, and possessed a strong

potential for rehabilitation.  We apply an abuse of discretion

standard when evaluating a sentencing order.  People v. Maldonado, 240 Ill.  App. 3d 470, 485, 608 N.E.2d 499 (1992).  The supreme court has stated, "[o]ur decisions have firmly

established that the imposition of a sentence is a matter of

judicial discretion and that, absent an abuse of discretion, the

sentence of the trial court may not be altered on review.

[Citations.]"  People v. Perrequet, 68 Ill. 2d 149, 153, 368 N.E.2d 882 (1977).  Moreover, when the sentence chosen by the

trial court falls within the statutory range permissible for the

pertinent criminal offense for which the defendant has been

convicted, the sentence will not be disturbed absent an abuse of

discretion.  People v. Jones, 168 Ill. 2d 367, 373, 659 N.E.2d 1306 (1995).  "The reviewing court will find an abuse of discretion 'only if the judgment of the trial court is manifestly

unjust or palpably erroneous.' [Citation.]"  People v. Dotson, 214 Ill. App. 3d 637, 648, 574 N.E.2d 143 (1991).

	Defendant claims that the trial court abused its discretion

in imposing sentences on defendant because it failed to consider

mitigating factors such as defendant's age, absence of

significant criminal record, matriculation in school, close

family ties, and  rehabilitative potential.  The record reveals,

however, that the trial court did consider factors in mitigation

and allowed the mitigation testimony of defendant's mother,

brother, cousin, and attorney.  

	We note that, "the seriousness of the crime is the most

important factor in determining an appropriate sentence, not the

presence of mitigating factors such as the lack of prior record,

and the [sentencing] statute does not mandate that the absence of

aggravating factors requires the minimum sentence be imposed.

[Citation.]"  People v. Redmond, 265 Ill. App. 3d 292, 307, 637 N.E.2d 526 (1994).  "Nor is the trial court required to accord

greater weight to defendant's potential for rehabilitation than

the seriousness of the crime. [Citations.]" People v. Boclair, 225 Ill. App. 3d 331, 335-36, 587 N.E.2d 1221 (1992).  In this

case, the trial court did consider mitigating factors which were

weighed against the severity of defendant's crimes which resulted

in the death of a senior citizen and severe injury to a young

man.  Based on the facts in this case, we do not find the

sentences imposed upon defendant to be manifestly unjust or

palpably erroneous.  Thus, we conclude that the trial court did not abuse its discretion  in regard to sentencing defendant. 

	Moreover, we are not persuaded by the sentences imposed upon

other criminal defendants in the unrelated authority relied on by

defendant.  The supreme court has stated that, "[i]f a sentence

is appropriate given the particular facts of that case, it may

not be attacked on the ground that a lesser sentence was imposed

in a similar, but unrelated, case."  People v. Fern, 189 Ill. 2d 48, 62, 723 N.E.2d 207 (1999).  We also note that the trial judge

sentenced defendant within the applicable range for the

convictions of first degree murder and attempted murder.  

	The judgment of the trial court is affirmed.

	Affirmed. 

	GORDON and COUSINS, JJ., concur.