Nos. 2--99--1308 & 2--99--1321 cons.

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Kane County.

	)

	Plaintiff-Appellee,	)	Nos. 98--CF--2812 

                                )       98--CF--2818              

v.	)

	)

BRIAN R. CHANDLER,	)	Honorable

	)	Philip L. DiMarzio,	

	Defendant-Appellant.	)	Judge, Presiding.

________________________________________________________________

	JUSTICE BOWMAN delivered the opinion of the court:	

	Defendant, Brian Chandler, pleaded guilty to arson (720 ILCS

5/20--1(a) (West 1998)) and aggravated battery (720 ILCS 5/12--4(a)

(West 1998)).  The court sentenced him to consecutive six- and

three-year terms of imprisonment.  Defendant appeals, contending

that the court abused its discretion by (1) imposing a six-year

sentence for arson and (2) making the sentences consecutive.  In a

supplemental brief, defendant argues that the consecutive sentences

were improper under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

	Defendant pleaded guilty to a series of offenses committed

against his estranged wife, Ann Marie Chandler.  Ann Marie

testified at the sentencing hearing that on October 31, 1998, after

an altercation with defendant, she moved out of the parties' home

on Randall Road.  She obtained an order of protection against

defendant.  Later, she and the parties' children moved into a new home on West Plum Street.

	On November 20, she took the children to the Randall Road home

to visit defendant.  Defendant got in her car and asked if they

could work things out.  When she said no, defendant grabbed her

hair and punched her in the face.  He then kept her in the house

for several hours arguing with her.  The following day, defendant

showed up at Ann Marie's Plum Street house.  He saw a truck in the

driveway and accused her of being with another man.  After she

denied it, defendant said, "I'm coming back in 20 minutes to

destroy you."

	On November 22, Ann Marie called defendant to arrange to pick

up the girls from visitation.  Defendant said he wanted to move in

with her because he would soon be evicted from the Randall Road

house.  Ann Marie said that he could not move in.  Defendant

replied that if she did not let him move in with her, he would

"torture [her] for two days while [she] begged him to kill [her],"

and would eventually kill her after two days.

	The following morning, when Ann Marie went to take her

children to school, she discovered that a tire on her car was flat. 

She had the tire replaced and left.  When she returned, she

discovered that a different tire had been cut.  She reported the

incidents to the police and went to work.  At 9 p.m., an officer

called to tell her that the Plum Street home was on fire.

	As part of the factual basis for defendant's pleas, the

prosecutor stated that defendant returned to the Plum Street house

around 7:15 p.m. on November 23.  He entered the house by breaking

a window, poured gasoline in the living room and, after checking to ensure that no one was home, set the gasoline on fire.  The Aurora

police arrested defendant the next day, and he confessed to

slashing Ann Marie's tires, violating the order of protection, and

setting her house on fire.

	Shortly after these incidents, Ann Marie quit her job and left

the state.  She testified that after the move her older daughter 

earned lower grades, had difficulty sleeping, and had become

aggressive, abusive, and suicidal.  At the time of the sentencing

hearing, the daughter was in therapy.

	The presentence report shows that defendant had prior

convictions of illegal transportation of alcohol, driving with a

suspended license, and driving under the influence of alcohol

(DUI).  Other evidence at the hearing reflected defendant's

problems with drugs and alcohol.  Greg Fields, a case manager with

Treatment Alternatives for Safe Communities, opined that defendant

was addicted to alcohol and cocaine.  Defendant had attempted

suicide several times and was taking psychotropic medication.

	Defendant testified that he had been abusing alcohol since age

18.  As a result of the DUI conviction, the court ordered him to

undergo alcohol treatment.  He went to the first class drunk and

eventually stopped attending classes when he concluded that they

were a "sham."  He never thought of himself as an alcoholic.

	Defendant said that after surgery in 1996 he stopped working

and stayed home with his children.  He cared for the children while

his wife worked.  He said that he committed the offenses while

drunk and he never actually meant to hurt anyone.  He cried when he

found out that his daughter had been traumatized by his actions.  He further testified, "I seen myself in the mirror and punched

myself in the face till both my eyes were closed and I could just

see no more."

	Wade Thompson, a mental health worker at the Kane County jail,

testified that defendant was placed on a suicide watch at the jail. 

He attempted suicide several times.  Defendant told Thompson that

he was angry because Ann Marie had lied about him and that, because

she had lied, she had given herself "the death penalty."  Defendant

said that if he ever got probation he would "go get her."

	The court sentenced defendant to six years' imprisonment for

arson and three years' imprisonment for aggravated battery. The

court ordered the sentences to be served consecutively, finding

that defendant would continue to be a danger to Ann Marie.  The

court imposed sentences for additional misdemeanors, with those

sentences to be served concurrently with the felony sentences and

with each other.  After the court denied his motion to reconsider

the sentences, defendant perfected this appeal.

	Defendant first contends that the six-year sentence for arson

failed to account for his rehabilitative potential and,

accordingly, was an abuse of discretion.  He argues that he had an

insignificant criminal history, that the offenses were the result

of a momentary loss of control due to his alcohol use, and that he

never intended to harm anyone.

	The trial court has broad discretion in sentencing and its 

decision is entitled to great deference.  People v. Perruquet, 68 Ill. 2d 149, 154 (1977).  The trial court is granted such deference

because it has a superior opportunity to weigh such factors as the defendant's credibility, demeanor, general moral character,

mentality, social environment, habits, and age.  People v. Stacey, 193 Ill. 2d 203, 209 (2000); Perruquet, 68 Ill. 2d at 154.  Consequently, the reviewing court must not substitute its judgment

for that of the trial court merely because it would have weighed

these factors differently.  People v. Streit, 142 Ill. 2d 13, 19 (1991).  Although the sentencing court is required to consider a

defendant's rehabilitative potential, it need not accord that

factor greater weight than the seriousness of the offense.  People v. Coleman, 166 Ill. 2d 247, 261 (1995).

	The six-year sentence was not an abuse of discretion.  It is

only two years longer than the minimum sentence for a Class 1

felony.  See 730 ILCS 5/5--8--1(a)(4) (West 1998).  Setting his

wife's house on fire was not, as defendant claims, the result of a

momentary loss of control due to alcohol use, but the culmination

of a nearly week-long campaign of harassment against her.  Although

defendant seeks to blame his conduct on his alcoholism, he was

given a prior opportunity to obtain treatment, but refused to take

it seriously.  It is doubtful that defendant has significant

rehabilitative potential unless he can control his alcohol and drug

problems, something he has thus far been unable or unwilling to do.

	Defendant alternatively contends that the court abused its

discretion by ordering the six-year and three-year sentences to run

consecutively.  He emphasizes that the trial court characterized

his criminal history as "not significant."  He again argues that

the crimes were the result of a momentary loss of control due to

alcohol use and that there is no evidence that he poses a continuing threat to the public.

	Section 5--8--4(b) of the Unified Code of Corrections provides

in relevant part as follows:

		"The court shall not impose a consecutive sentence ***

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 1998).

	 Consecutive sentences should be imposed sparingly (People v. O'Neal, 125 Ill. 2d 291, 298 (1988)) and should be imposed only where the circumstances of the offense and defendant's history and

character indicate that a consecutive term is required to protect

the public from his further criminal conduct.  People v. Clark, 278 Ill. App. 3d 996, 1006 (1996).

	 While defendant does not have a long criminal history, the

record supports the trial court's finding that he will continue to

be dangerous.  He was convicted of a series of crimes committed

against his wife.  He repeatedly expressed his rage when his wife

showed that she no longer wanted him to be a part of her life, and

he terrorized her when she would not accede to his wishes. 

Defendant continued to threaten Ann Marie even while he was in

jail.  The record amply supports the conclusion that defendant

would continue to be a threat to his wife and, indirectly, his

children, if he were released from prison.  Thus, the court's

imposition of consecutive sentences was not an abuse of discretion.

	In a supplemental brief, defendant contends that his

consecutive sentences must be vacated in light of the Supreme

Court's decision in Apprendi.  There, the court struck down a New Jersey statute that allowed the trial court to impose a five-year

sentence beyond what would normally have been the statutory maximum

if the court found by a preponderance of the evidence that

defendant acted in order to intimidate an individual or group

because of race, color, gender, or other similar factors.  The

court held that the New Jersey scheme defeated a defendant's right

to have a jury determine that he is guilty of every element of an

offense beyond a reasonable doubt.  See Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366-67.

	Apprendi does not apply in this situation.  Although defendant presents his Apprendi claim as a sentencing issue, the constitutional rights effectuated by that decision were the right

to a jury trial and the right to have the state prove all the

elements of the offense beyond a reasonable doubt.  In other words,

the argument that the Supreme Court accepted in Apprendi was not that Apprendi's sentence was too long but, rather, that defendant

had a right to have a jury decide whether the State proved beyond

a reasonable doubt the factor that resulted in the longer sentence. 

Here, defendant waived those rights by pleading guilty.

	A defendant who pleads guilty does not have the same appeal

rights as one convicted following a trial.  People v. Wendt, 283 Ill. App. 3d 947, 956 (1996).  Generally, after pleading guilty, a

defendant may not raise claims of the deprivation of constitutional

rights that occurred before the entry of the plea.  Wendt, 283 Ill. App. 3d at 957.  Before defendant entered his plea, the court

informed him of the sentencing ranges for the offenses and

specifically admonished him of the possibility of consecutive

sentences.  Having waived a jury trial on all issues, defendant

cannot now claim that he was deprived of the right to have a jury

determine the issue of his future dangerousness.  Similarly, he

cannot claim that he was unfairly deprived of the right to have the

State prove that point beyond a reasonable doubt.

	Although Apprendi itself was an appeal following a guilty plea, the defendant there expressly reserved the right to challenge

on appeal the constitutionality of the sentence-enhancement

statute.  Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 443, 120 S. Ct. at 2352.  Moreover, the indictment did not allege that Apprendi

committed the crimes with an improper purpose; therefore, his

guilty plea did not waive a jury trial as to that element.  See

State v. Apprendi, 304 N.J. Super. 147, 163, 698 A.2d 1265, 1273 ((N.J. Super A.D. 1997) (Wecker, J.S.C., dissenting).

	Here, by contrast, the trial court did not find any element

not alleged in the indictment.  The court specifically admonished

defendant that consecutive sentences based on his future

dangerousness were a possibility.  The court based its finding of future dangerousness not on the presence of an additional factual

element but on the number and nature of defendant's crimes.  By his

plea, defendant declined to place the number and nature of his

crimes in issue.  See State v. Cody, ___ Kan. App. 2d ___, ___, 10 P.3d 789, 790-91 ((Kan. App. 2000); Weeks v. State, 761 A.2d 804, 806 (Del. 2000).  This court has declined to apply Apprendi to consecutive sentences imposed under section 5--8--4(b) even where the defendant

was raising the claim following a jury trial.  People v. Hindson, No. 2--99--1360, slip op. at 17 (March 2, 2001), slip op. at 17.  This court

observed that the trial court based its finding of future

dangerousness primarily on defendant's criminal record, which

Apprendi recognized as an exception to the requirement of proof beyond a reasonable doubt.  The other factors the court recited in

support of consecutive sentences "merely constituted other

circumstances evidencing the need to protect the public *** from

further criminal conduct by defendant."  Hindson, slip op. at 17.  Under those circumstances, we held Apprendi inapplicable.  Hindson, slip op. at 17.  

	Moreover, defendant filed only a motion to reconsider the

sentence, not a motion to withdraw the plea.  If we vacated his

sentence on Apprendi grounds and remanded the cause, it is unclear what relief the circuit court could provide.  That court would not

be able to effectuate defendant's rights to a jury trial and to

proof beyond a reasonable doubt in any case.  Thus, defendant may

not raise an Apprendi claim at this stage of the proceedings.

	The judgment of the circuit court of Kane County is affirmed.

	Affirmed.

	HUTCHINSON, P.J., and O'MALLEY, J., concur.