The opinion
JUSTICE McLAREN, specially concurring:
I specially concur because I believe that the majority opinion unnecessarily considers issues not required for resolving the issues raised on appeal.
Rather than address the merits of the defendant’s claims, I believe we must first determine if Illinois’ statutory scheme for murder comports with Apprendi. If it does, then only the maximum penalty of death, as delimited in Apprendi, is reviewable.
Illinois’ statutory scheme for murder comports with Apprendi because it does provide that a jury must find, beyond a reasonable doubt, those elements that would or could result in the imposition of the death penalty. Illinois’ statutory scheme grants greater rights to the defendant because it not only comports with the federal constitutional requirements but also grants the defendant the right to have a jury decide whether the maximum penalty of death should be imposed. In People v. Davis, 205 Ill. 2d 349 (2002), the court stated:
“[T]he Supreme Court, in Apprendi, specifically excludefs] capital sentencing schemes in which eligibility for the death penalty must be proven to a jury beyond a reasonable doubt from its scope:
1 “*** What the cited cases hold is that, once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed... .” ’ ” (Emphasis added.) Davis, 205 Ill. 2d at 376 , quoting Apprendi, 530 U.S. at 497, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366, quoting Almendarez-Torres v. United States, 523 U.S. 224 , 257 n.2, 140 L. Ed. 2d 350 , 377 n.2, 118 S. Ct. 1219 , 1237 n.2 (1998) (Scalia, J., dissenting, joined by Stevens, Souter, and Ginsburg, JJ.).
(Since Apprendi was concerned with punishments beyond the statutory maximum and it would seem impossible to impose a punishment beyond death, the exclusion of statutory schemes, including death as the maximum penalty, would appear to be logically rational.) Having determined that Illinois’ scheme has passed muster, further review must cease because those schemes are excluded by Apprendi. See Davis, 205 Ill. 2d at 376 .
There are presently two lines of cases suggesting that the maximum penalty for murder is 60 years’ imprisonment and life imprisonment without parole, respectively. See People v. Swift, 322 Ill. App. 3d 127 (2001) (for 60 years); People v. Rivera, 333 Ill. App. 3d 1092 (2001) (for life imprisonment without parole). I submit that Davis preempts those lines of cases by declaring that there is only one statutory murder scheme and that it includes death as its maximum penalty. Davis stated unequivocally in quoting People v. Brownell, 79 Ill. 2d 508 (1980), “We noted that ‘there is only one offense of murder in Illinois; no distinction is made between capital and non-capital murder.’ [Citation.] Further, ‘[t]here is no offense of “aggravated,” as opposed to simple, murder, in Illinois. There is simply one murder statute, which includes within it a provision for the imposition of the death sentence.’ [Citation.]” (Emphasis added.) Davis, slip op. at 23.
Accepting Davis ’ s declaration that there is only one murder statute in this state and that statute imposes death, then it must follow that death is the maximum penalty. Since Apprendi has only one criterion for the review of murder that includes death as the maximum penalty and since Illinois grants greater rights than those required under the federal constitution, any further review or analysis is unnecessary and unwarranted regardless of the penalty imposed.
This interpretation is also consistent with the basic, underlying principle set forth in Apprendi. In Apprendi, the defendant pleaded guilty to a Class 2 firearm crime and was found guilty of a Class 1 hate crime. Most importantly, the sentence imposed on the hate crime was greater than any sentence that could have been imposed for the Class 2 crime to which he pleaded. In Apprendi, the United States Supreme 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.” (Emphasis added.) Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. In Apprendi, the one “fact,” hate, was a fact which resulted in a new and different conviction with a new sentencing scheme that was beyond the statutory maximum penalty for the original crime. The fact involved in Apprendi resulted in a conviction of a different crime with a greater sentence. The factors considered in this case did not result in a new conviction of a different, more serious, crime with a penalty beyond the statutory scheme for the charged crime. I consider the application of Apprendi to this case and other such cases inappropriate. My belief is based upon the understanding of judicial precedent:
“A judicial precedent attaches a specific consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy.” Allegheny County General Hospital v. National Labor Relations Board, 608 F.2d 965, 969-70 (3d Cir. 1979).
In this case the defendant pleaded guilty to murder, was found guilty of murder, and was not sentenced to the maximum penalty let alone to a penalty beyond the prescribed statutory maximum for the offense of murder. Thus, Apprendi is factually distinguishable and is not precedential by comparison of its underlying facts with the underlying facts in this case.
I, therefore, specially concur.