The opinion
PRESIDING JUSTICE HUTCHINSON, dissenting:
I must again dissent from the Apprendi analysis and conclusion reached by the majority. I would affirm the order sentencing the defendant to an extended term of 10 years’ imprisonment for the offense of armed violence, a Class 2 felony. I would do so for two reasons: (1) defendant entered a guilty plea to the charge after proper mandatory admonitions and notice of the possibility of an extended-term sentence, and (2) the age of a victim is an easily proved fact that does not require a trial court to weigh or examine a defendant’s mental state, and here the victim’s age was not disputed.
Most recently, in People v. Black, 327 Ill. App. 3d 662 (2002), I dissented after a defendant entered a guilty plea, received an extended sentence, and then challenged his sentence on the basis of Apprendi. In that case, the majority accepted the Apprendi argument and remanded the cause for a new sentencing hearing because the trial court had used the age of the victims as the basis for the extended-term sentence. The reviewing court found that the victims’ ages were not identified at the time of the plea but were specifically articulated by the trial court during the sentencing phase of the case. While conceding that the defendant in Black had been advised that an extended-term sentence was possible and that the number of years for such extended-term sentence had been identified, the majority held that, because the defendant was not forewarned, prior to sentencing, regarding the factors that could result in such a sentence, the principles of Apprendi had been violated.
My dissent in Black focused on the defendant’s voluntary guilty plea, the fact that he had notice of the victims’ ages based upon statements he made during the commission of the offense, and his waiver of all nonjurisdictional errors or irregularities as a result of the voluntary guilty plea. The situation, in my opinion, is no different in this case.
Here, the defendant entered a voluntary plea of guilty to the charge of armed violence premised on aggravated battery. Another charge arising out of the same incident and involving the same victim, aggravated battery to a senior citizen, was nol-prossed at that time, and there was evidence before the trial court that the defendant and the victim were involved in a personal relationship. The trial court specifically noted the number of stab wounds and the age of the victim when the extended-term sentence was imposed. Therefore, the defendant was on notice of the victim’s age by virtue of her personal relationship with him and the dismissed charge, and she pleaded guilty, waiving all nonjurisdictional errors and irregularities.
In coming to my conclusion in this case, and as I came to my conclusion in the Black case, I relied on People v. Chandler, 321 Ill. App. 3d 292 (2001). In particular, this court said in Chandler:
“A defendant who pleads guilty does not have the same appeal rights as one convicted following a trial. [Citation.] Generally, after pleading guilty, a defendant may not raise claims of the deprivation of constitutional rights that occurred before the entry of the plea. [Citation.] 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.” People v. Chandler, 321 Ill. App. 3d at 297 .
I also take issue with the majority on another Apprendi-related matter as it relates to its reliance on People v. Chanthaloth. As I noted in another recent dissent (People v. Hope, 326 Ill. App. 3d 857 (2001)), I was the author of Chanthaloth, and I disagreed with the majority’s use of that case to mandate a remand for resentencing when the victim’s age was used to extend a sentence. In the Hope dissent, I noted that several other cases were decided after Chanthaloth that sharpened and clarified the Illinois sentencing law as it relates to Apprendi challenges, and, in particular, I cited a First District case, People v. Blackwell, 325 Ill. App. 3d 354 (2001). Hope, 326 Ill. App. 3d at 865-66 .
Reasoning that a trial court need find only one single statutory factor in aggravation to impose an extended sentence (Blackwell, 325 Ill. App. 3d at 359 ), the majority there determined that, although an Apprendi violation may have occurred where the age of the victim was not submitted to a jury, the victim’s age was known, it was undisputed by the parties, it was easily proved, and, therefore, it was harmless error. See also People v. Rohlfs, 322 Ill. App. 3d 965 (2001) (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).
Returning to this case, the defendant was on notice of the victim’s age, the victim’s age was not disputed by the parties, and the victim’s age was a fact easily proved. Furthermore, the determination of the victim’s age did not require that the trial court weigh any evidence or examine the defendant’s mental state. Therefore, the trial court’s use of the victim’s age to extend the sentence of the defendant was, at worst, harmless error.
Accordingly, I would affirm the trial court’s order imposing an extended-term sentence upon defendant.