People v. Mata

Docket No. 99890BAgenda 19BSeptember 2005.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
BERNINA MATA, Appellant.
Opinion filed December 15, 2005BModified on Denial of
Rehearing January 23, 2006.
JUSTICE KILBRIDE delivered the opinion of the court:
Defendant, Bernina Mata, was convicted of first degree murder
(720 ILCS 5/9B1(a)(2) (West 1998)), and sentenced to death.
Defendant appealed directly to this court. 134 Ill. 2d R. 603. While
her appeal was pending, the Governor commuted her death sentence
to natural life imprisonment. Thereafter, on our own motion, we
issued an order transferring the appeal to the appellate court. The
appellate court dismissed the case as moot. We granted defendant=s
petition for leave to appeal (177 Ill. 2d R. 315(a)).
In this appeal, we consider whether defendant=s challenge to the
statutory aggravating factor that made her eligible for the death
penalty or natural life imprisonment was rendered moot by the
commutation of her sentence. We hold that this issue is not moot and,
therefore, remand this matter to the appellate court for consideration
of the merits of defendant=s claims.

I. BACKGROUND
At trial in the circuit court of Boone County, Russell Grundmeier
testified that he was defendant=s roommate and they had a sexual
relationship. Grundmeier dropped defendant off at a tavern at
approximately 7 p.m. on June 27, 1998. Grundmeier went back to
their apartment for a short time. When he returned to the tavern,
Grundmeier observed defendant at the bar with a man identified as
John Draheim. During the course of the evening, defendant flirted
with Draheim and several other people in the tavern.
At approximately 10 p.m., defendant informed Grundmeier that
she was going to kill Draheim and that Grundmeier was going to
help. Grundmeier stated he would not help defendant. Defendant then
went back and sat next to Draheim. Grundmeier left the tavern and
went to the apartment he shared with defendant.
 Approximately 15 to 20 minutes later, defendant arrived at the
apartment with Draheim and a man named James Clark. Clark left
after 20 to 30 minutes. Defendant and Draheim sat on the couch
together. Grundmeier went outside because he was upset that
defendant was with Draheim. After pacing for a few minutes,
Grundmeier went back inside. Upon entering the apartment, he heard
sounds coming from defendant=s bedroom. Grundmeier went into the
bedroom and observed defendant and Draheim engaging in what
appeared to be consensual sex.
Grundmeier approached and grabbed Draheim=s arm in an effort
to stop him from having intercourse with defendant. Grundmeier
testified that he struggled with Draheim, but subdued him after a
short time. Grundmeier did not know where defendant went during
the struggle. After Grundmeier subdued Draheim, defendant
approached and stabbed Draheim in the chest with a knife.
Grundmeier released Draheim and closed his eyes. Defendant then
stabbed Draheim in the chest five or six more times.
Grundmeier testified that he ran out of the room and vomited
after observing this incident. Grundmeier later helped defendant
dispose of Draheim=s body by dumping it along a road. He also
cleaned the bedroom, painted the walls, and removed the bed in an
effort to conceal evidence of the crime. Grundmeier entered a guilty
plea to concealment of a homicidal death and was sentenced to four
years= imprisonment.
The record indicates that police officers spoke with Grundmeier
during their investigation. After speaking with him, the officers
located Draheim=s body in a rural farming area in Winnebago County.
Defendant was arrested and charged with one count of first degree
murder. Defendant made several incriminating statements to her
fellow inmates prior to her trial. According to these inmates,
defendant stated Draheim made her angry by touching her. Defendant
stated she intended to kill Draheim, and she invited him to her
apartment. The State also introduced several statements by defendant
that were recorded on audiotapes while she was in the jail. In one of
those statements, defendant asserted A[i]f they really want to check it
out, they will find out it is premeditated.@ The parties also presented
evidence on defendant=s background, psychiatric condition, and
intoxication on the night of the offense.

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 The jury found defendant guilty of first degree murder. The State
sought imposition of the death penalty, claiming the offense was
Acommitted in a cold, calculated and premeditated manner pursuant to
a preconceived plan, scheme or design to take a human life by
unlawful means, and the conduct of the defendant created a
reasonable expectation that the death of a human being would result
therefrom.@ 720 ILCS 5/9B1(b)(11) (West 1998). The jury determined
that this aggravating factor was proven beyond a reasonable doubt.
The jury further found there were no mitigating factors sufficient to
preclude imposition of the death penalty. 720 ILCS 5/9B1(h) (West
1998). Accordingly, the trial court sentenced defendant to death.
Defendant appealed her conviction and sentence directly to this
court. 134 Ill. 2d R. 603. After we heard oral argument and took the
matter under advisement, defendant filed a petition for commutation
of her death sentence with the Illinois Prisoner Review Board.
The State has submitted a copy of defendant=s petition for
commutation in the appendix to its brief. Although the petition is not
part of the record, we may take judicial notice of matters that are
readily verifiable from sources of indisputable accuracy. People v.
Henderson, 171 Ill. 2d 124, 134 (1996). The petition is a public
document that falls within the category of readily verifiable matters.
See 730 ILCS 5/3B3B2(e) (West 1998); Henderson, 171 Ill. 2d at 134.
Accordingly, we take judicial notice of the petition.
In her petition, defendant asserted Athe appropriate action to be
taken on [her] case is a commutation of the death sentence,@ and
requested commutation to Aan appropriate sentence of imprisonment.@
Defendant asserted clemency should be granted because the criminal
justice system was so broken and fundamentally flawed that it failed
to ensure a just result. She went on to describe several flaws in the
trial and sentencing proceedings. Among those errors, defendant
claimed the evidence was not sufficient to prove the aggravating
factor that made her eligible for the death penalty.
On January 10, 2003, the Governor commuted defendant=s death
sentence to natural life imprisonment. After defendant=s sentence was
commuted, this court transferred her appeal to the appellate court.
Defendant moved the appellate court for leave to withdraw all
but one of her contentions. 353 Ill. App. 3d 784, 785. The appellate
court granted defendant=s motion. 353 Ill. App. 3d at 785. In her

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remaining contention, defendant argued she was entitled to a new
sentencing hearing because the State failed to prove the aggravating
factor that made her eligible for the death penalty or natural life
imprisonment beyond a reasonable doubt. 353 Ill. App. 3d at 785.
The appellate court held that defendant=s sole contention
concerned the propriety of her sentence and the Governor=s
executively imposed sentence was not subject to judicial review. 353
Ill. App. 3d at 786. Accordingly, defendant=s appeal was dismissed as
moot. 353 Ill. App. 3d at 786. In a special concurrence, two justices
asserted that defendant should be estopped from seeking judicial
relief because she sought and received relief from the executive
branch. 353 Ill. App. 3d at 788 (McLaren, J., specially concurring,
joined by Byrne, J.). We granted defendant=s petition for leave to
appeal (177 Ill. 2d R. 315(a)).

II. ANALYSIS
In this appeal, defendant notes that the jury=s finding on the
statutory aggravating factor exposed her to a sentence of death or
natural life imprisonment. Defendant contends that the State failed to
prove the aggravating factor at trial. Accordingly, the natural life
sentence imposed by the Governor is not authorized by law.
The State responds that the Governor=s commutation power is
essentially unreviewable. The only limits on the Governor=s power
are that the commutation cannot increase the punishment or change
the nature of the conviction. The commutation of defendant=s
sentence did not increase her punishment or change the nature of her
conviction. Defendant=s challenge to her sentence is, therefore, moot.
The Illinois Constitution provides, in pertinent part, that A[t]he
Governor may grant reprieves, commutations and pardons, after
conviction, for all offenses on such terms as he thinks proper.@ Ill.
Const. 1970, art. V, '12. In People ex rel. Madigan v. Snyder, 208 Ill.
2d 457 (2004), this court examined the Governor=s constitutional
authority to commute sentences and concluded that the Governor=s
power in this regard is extremely broad. People ex rel. Madigan, 208
Ill. 2d at 473. The clemency power granted by the Illinois
Constitution is not subject to control by the courts or the legislature,
but can be controlled only by the Governor=s conscience and sense of
public duty. People ex rel. Madigan, 208 Ill. 2d at 473, quoting

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People ex rel. Smith v. Jenkins, 325 Ill. 372, 374 (1927). We
concluded that the only recognized restriction on the clemency power
is that the Governor may not change a defendant=s conviction of one
crime into a conviction of another. People ex rel. Madigan, 208 Ill.
2d at 475.
As noted by the State, however, the Governor=s clemency power
is also restricted in that the Governor may not increase a defendant=s
punishment. This restriction on the Governor=s power is apparent
from the plain language of article V, section 12. As previously noted,
this section allows the Governor to grant Areprieves, commutations
and pardons.@ Ill. Const. 1970, art. V, '12. A Acommutation@ is
defined as the change of a defendant=s punishment to a less severe
one. People ex rel. Madigan, 208 Ill. 2d at 474, citing People ex rel.
Smith, 325 Ill. at 376. A commutation removes the judicially imposed
sentence and replaces it with a lesser sentence imposed by the
Governor. People v. Rissley, 206 Ill. 2d 403, 463 (2003). Thus, it is
axiomatic from the plain language of this constitutional provision that
the Governor cannot use the commutation power to increase a
defendant=s punishment.
Defendant was eligible for the death penalty based on her
conviction of first degree murder and the finding of the statutory
aggravating factor. 720 ILCS 5/9B1(b) (West 1998). At the time the
Governor commuted defendant=s sentence, the jury had found all the
facts necessary to justify imposition of a death sentence. The
commutation to natural life imprisonment did not increase
defendant=s sentence or alter the nature of her conviction. Thus, the
commutation was a valid exercise of the Governor=s clemency power.
Defendant, nevertheless, argues that her appeal is not moot
because her constitutional right to due process of law is at issue.
Defendant explains that the maximum penalty authorized for the
basic elements of first degree murder is a term of 60 years=
imprisonment. 730 ILCS 5/5B8B1(a)(1)(a) (West 1998). Illinois law
would not allow imposition of a natural life sentence in this case
without the finding of the aggravating factor. Defendant argues that
the State failed to prove the aggravating factor at trial. The natural
life sentence, therefore, exceeds the maximum term authorized by
statute for the elements that were proven to the jury. According to
defendant, this claim implicates her constitutional right to due

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process of law, and the executively imposed sentence can only stand
if the Governor=s clemency power supercedes her constitutional right
to due process.
The resolution of this issue requires an understanding of the
nature of the statutory aggravating factor in light of the rules
established in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d
435, 120 S. Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 153
L. Ed. 2d 556, 122 S. Ct. 2428 (2002). In Apprendi, the defendant
was convicted of possession of a firearm for an unlawful purpose.
The normal sentencing range for that offense under New Jersey law
was 5 to 10 years= imprisonment (N.J. Stat. Ann. '2C:43B6(a)(2)
(West 1995)). An extended-term sentence could be imposed based on
the trial court=s finding by a preponderance of the evidence that the
defendant Aacted with a purpose to intimidate an individual or group
of individuals because of race, color, gender, handicap, religion,
sexual orientation or ethnicity.@ N.J. Stat. Ann. '2C:44B3(e) (West
Supp. 1999-2000). The extended term authorized for this offense was
10 to 20 years= imprisonment. N.J. Stat. Ann. '2C:43B7(a)(3) (West
1995).
The Supreme Court framed the issue as Awhether 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.@ Apprendi, 530 U.S. at 469,
147 L. Ed. 2d at 442, 120 S. Ct. at 2351. The Court held that A[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.@
Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-
63. Thus, Athe rule established by the Court=s decision in Apprendi
admits of a relatively simple statement: due process requires that all
facts necessary to establish the statutory sentencing range within
which the defendant=s sentence falls must be proven to a jury beyond
a reasonable doubt.@ People v. Swift, 202 Ill. 2d 378, 383 (2002)
(citing People v. Jackson, 199 Ill. 2d 286, 296 (2002), and People v.
Ford, 198 Ill. 2d 68, 73 (2001)).
With regard to the distinction between Aelements@ and
Asentencing factors,@ the Supreme Court stated Athe relevant inquiry is

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one not of form, but of effectBdoes the required finding expose the
defendant to a greater punishment than that authorized by the jury=s
guilty verdict?@ Apprendi, 530 U.S. at 494, 147 L. Ed. 2d at 457, 120
S. Ct. at 2365. A[W]hen the term >sentence enhancement= is used to
describe an increase beyond the maximum authorized statutory
sentence, it is the functional equivalent of an element of a greater
offense than the one covered by the jury=s guilty verdict. Indeed, it
fits squarely within the usual definition of an >element= of the
offense.@ Apprendi, 530 U.S. at 494 n.19, 147 L. Ed. 2d at 457 n.19,
120 S. Ct. at 2365 n.19.
The Supreme Court subsequently considered the applicability of
Apprendi in the capital sentencing context. See Ring, 536 U.S. 584,
153 L. Ed. 2d 556, 122 S. Ct. 2428. In Ring, the defendant was
convicted of felony murder. Ariz. Rev. Stat. Ann. ''13B1105(A), (B)
(West 2001). Under Arizona law, the penalty for this conviction was
death or life imprisonment. Ariz. Rev. Stat. Ann. '13B1105(C) (West
2001). The defendant could not be sentenced to death, however,
unless the court found an enumerated aggravating circumstance
existed and there were Ano mitigating circumstances sufficiently
substantial to call for leniency.@ Ariz. Rev. Stat. Ann. ''13B703(C),
(F) (West Supp. 2001).
The Supreme Court held the enumerated aggravating factors that
allowed imposition of the death penalty operated as A >the functional
equivalent of an element of a greater offense.= @ Ring, 536 U.S. at
609, 153 L. Ed. 2d at 577, 122 S. Ct. at 2443, quoting Apprendi, 530
U.S. at 494 n.19, 147 L. Ed. 2d at 457 n.19, 120 S. Ct. at 2365 n.19.
Therefore, the sixth amendment required those factors to be proven to
a jury. Ring, 536 U.S. at 609, 153 L. Ed. 2d at 577, 122 S. Ct. at
2443.
The rules established in Apprendi and Ring apply directly to the
statutory aggravating factor at issue in this case. Here, defendant was
convicted of first degree murder. 720 ILCS 5/9B1(a)(2) (West 1998).
The only authorized sentencing range for the elements of this offense
is a term of 20 to 60 years= imprisonment. 730 ILCS 5/5B8B1(a)(1)(a)
(West 1998); Swift, 202 Ill. 2d at 388. The State sought imposition of
the death penalty based on a statutory aggravating factor. 720 ILCS
5/9B1(b)(11) (West 1998). The jury=s finding of this aggravating
factor increased the maximum penalty for this offense to death. 720

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ILCS 5/9B1(g) (West 1998). Under Apprendi and Ring, the
aggravating factor is the functional equivalent of an element of a
greater offense. Defendant=s challenge to the sufficiency of proof on
the aggravating factor, therefore, clearly implicates her constitutional
right to due process of law.
The State has filed a petition for rehearing, asserting our
decision rests on the faulty premise that the statutory aggravating
factor is an element of the offense. Relying on Schriro v. Summerlin,
542 U.S. 348, 159 L. Ed. 2d 442, 124 S. Ct. 2519 (2004), the State
argues Aneither Ring nor Apprendi converted the statutory
aggravating factor found by defendant=s jury into an element of the
crime (first degree murder).@
The issue in Schriro was whether Ring applies retroactively to
cases already final on direct review. Schriro, 542 U.S. at 349, 159 L.
Ed. 2d at 447, 124 S. Ct. at 2521. Schriro does not discuss Apprendi
in its resolution of this issue. In discussing Ring, the Court stated
ARing held that, because Arizona=s statutory aggravators restricted (as
a matter of state law) the class of death-eligible defendants, those
aggravators effectively were elements for federal constitutional
purposes, and so were subject to the procedural requirements the
Constitution attaches to trial of elements.@ Schriro, 542 U.S. at 354,
159 L. Ed. 2d at 450, 124 S. Ct. at 2524. Thus, contrary to the State=s
argument, Schriro reaffirms our conclusion that the statutory
aggravating factor here is the functional equivalent of an element of
the offense for procedural due process purposes.
Defendant argues her constitutional right to due process of law is
not subordinate to the Governor=s power to grant executive clemency.
We agree.
The supremacy clause of the United States Constitution provides
that A[t]his Constitution, and the Laws of the United States *** shall
be the supreme Law of the Land *** any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.@ U.S. Const., art.
VI, cl. 2. Thus, a state law is without effect if it conflicts with a
federal law. Busch v. Graphic Color Corp., 169 Ill. 2d 325, 334
(1996). State courts have an obligation to enforce and protect every
right granted by the Constitution of the United States whenever those
rights are involved in a suit or proceeding before them. People v.
Lawton, 212 Ill. 2d 285, 300 (2004), quoting Robb v. Connolly, 111

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U.S. 624, 637, 28 L. Ed. 542, 546, 4 S. Ct. 544, 551 (1884).
Therefore, in the event of a conflict between the Governor=s clemency
power granted by the Illinois Constitution and a defendant=s right
guaranteed by the due process clause of the fourteenth amendment,
the constitutional right to due process of law must prevail.
We note that this court has considered the effect of the
Governor=s commutation on a defendant=s right to appeal in a number
of recent cases. See People v. Williams, 209 Ill. 2d 227 (2004);
People v. Evans, 209 Ill. 2d 194 (2004); People v. Shum, 207 Ill. 2d
47 (2003); People v. Moore, 207 Ill. 2d 68 (2003); People v. Graham,
206 Ill. 2d 465 (2003); People v. Rissley, 206 Ill. 2d 403 (2003);
People v. Brown, 204 Ill. 2d 422 (2002); People v. Ceja, 204 Ill. 2d
332 (2003); People v. Miller, 203 Ill. 2d 433 (2002); People v. Lucas,
203 Ill. 2d 410 (2002). The specific contention raised by defendant in
this appeal was not addressed in those cases. The State conceded in
oral argument that this is a matter of first impression in this court.
In the previous cases, however, this court explained that
commutation removes the judicially imposed sentence and replaces it
with a lesser, executively imposed sentence. Williams, 209 Ill. 2d at
232; Evans, 209 Ill. 2d at 208; Shum, 207 Ill. 2d at 51; Moore, 207
Ill. 2d at 70; Graham, 206 Ill. 2d at 470; Rissley, 206 Ill. 2d at 463;
Brown, 204 Ill. 2d at 426; Ceja, 204 Ill. 2d at 335; Miller, 203 Ill. 2d
at 438; Lucas, 203 Ill. 2d at 419. The commutations, therefore,
prevented this court from being able to render effectual relief on the
sentencing challenges raised by the defendants. Williams, 209 Ill. 2d
at 232; Evans, 209 Ill. 2d at 208; Shum, 207 Ill. 2d at 51; Moore, 207
Ill. 2d at 70; Graham, 206 Ill. 2d at 470; Rissley, 206 Ill. 2d at 463;
Brown, 204 Ill. 2d at 425; Ceja, 204 Ill. 2d at 335; Miller, 203 Ill. 2d
at 438; Lucas, 203 Ill. 2d at 418. We broadly stated that Asentencing
issues@ or Asentencing-phase issues@ are rendered moot by the
Governor=s commutation. Williams, 209 Ill. 2d at 232; Evans, 209 Ill.
2d at 208; Shum, 207 Ill. 2d at 51; Moore, 207 Ill. 2d at 70; Graham,
206 Ill. 2d at 470; Rissley, 206 Ill. 2d at 463; Brown, 204 Ill. 2d at
426; Ceja, 204 Ill. 2d at 336; Miller, 203 Ill. 2d at 438. In each case
where nonsentencing issues were raised, however, we went on to
decide those issues. See Williams, 209 Ill. 2d 227; Evans, 209 Ill. 2d
194; Shum, 207 Ill. 2d 47; Moore, 207 Ill. 2d 68; Graham, 206 Ill. 2d
465; Rissley, 206 Ill. 2d 403; Ceja, 204 Ill. 2d 332; Miller, 203 Ill. 2d
433; Lucas, 203 Ill. 2d 410.

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 The nonsentencing issues addressed in those cases include a
variety of claims. For instance, in Williams, we addressed the
defendant=s claims of juror misconduct and ineffective assistance of
appellate counsel. Williams, 209 Ill. 2d at 234-48. In Evans, this court
considered the defendant=s challenges to the sufficiency of the
evidence to prove him guilty, the denial of his motion for substitution
of judge, claims of ineffective assistance of counsel, and a claim that
he was denied a fair trial by the prosecutor=s remarks during rebuttal
argument. Evans, 209 Ill. 2d at 208-26. Other issues we have
addressed include the admissibility of evidence and denial of jury
instructions on a lesser-included offense. Ceja, 204 Ill. 2d at 346-62.
Thus, the Governor=s commutation does not render all challenges by
a defendant moot. Rather, only issues challenging the sentence are
moot.
Our decision in this case is consistent with our previous cases.
Following Apprendi and Ring, it is apparent that defendant=s
challenge is not to a sentencing issue. Rather, it is a challenge to the
sufficiency of proof on the functional equivalent of an element of the
offense. This challenge implicates defendant=s due process rights
guaranteed by the fourteenth amendment to the United States
Constitution. The Governor=s action cannot bar defendant=s right to
seek an effective, complete remedy on this claim. Defendant is
entitled to seek judicial relief on her challenge to the aggravating
factor. Thus, her claim is not moot.
The State has relied heavily on People v. Watson, 347 Ill. App.
3d 181 (2004), in arguing defendant=s claim is moot. Watson is
factually similar to this case. In Watson, the appellate court dismissed
the defendant=s appeal as moot holding, in relevant part, that the
defendant=s federal due process rights were not implicated in his
appeal. Watson, 347 Ill. App. 3d at 190-92. We note, however, that
Watson did not address the impact of Apprendi and Ring on the
defendant=s due process claim. Watson, 347 Ill. App. 3d at 190-92.
Moreover, in this case, the State did not respond in its brief to
defendant=s argument based on Apprendi and Ring. Watson is
inconsistent with our holding that defendant=s due process rights are
at issue in this appeal. Accordingly, we hereby overrule Watson to
the extent that it is inconsistent with our decision.

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 The State also argues defendant is estopped from challenging the
commuted sentence because she sought the commutation and it is an
appropriate sentence of imprisonment. According to the State, if any
deprivation of defendant=s due process rights occurred, it resulted
only by operation of the process she invoked to invalidate her death
sentence. In its brief argument on this point, the State cites Barack
Ferrazzano Kirschbaum Perlman & Nagelberg v. Loffredi, 342 Ill.
App. 3d 453 (2003). In that case, the court held the doctrine of
judicial estoppel provides that A >a party who assumes a particular
position in a legal proceeding is estopped from assuming a contrary
position in a subsequent legal proceeding.= @ Barack, 342 Ill. App. 3d
at 460, quoting Bidani v. Lewis, 285 Ill. App. 3d 545, 550 (1996).
Defendant has not taken contrary positions in her petition for
commutation and her appeal. In her petition, defendant requested an
Aappropriate sentence@ based on a variety of factors, including that
the evidence was not sufficient to prove the aggravating factor.
Defendant did not request a sentence of natural life imprisonment. In
her appeal, defendant also challenges the sufficiency of the evidence
to prove the aggravating factor. Based on this challenge, defendant
seeks a sentence for the basic elements of first degree murder in the
statutory range of 20 to 60 years= imprisonment. See 730 ILCS
5/5B8B1(a)(1)(a) (West 1998); Swift, 202 Ill. 2d at 388. These claims
are not inconsistent.
Moreover, in framing this argument, the State has
mischaracterized defendant=s claim on appeal. The State asserts that
defendant is estopped from challenging her commuted sentence.
However, as previously noted, defendant is not challenging the
Governor=s commutation of her sentence. Rather, she is contesting
the sufficiency of proof on the functional equivalent of an element of
the offense. A challenge to a sentence and a challenge to a conviction
are two separate and distinct matters. We recognized this distinction
in the cases where we found sentencing issues are rendered moot by
the Governor=s commutation, but addressed issues challenging the
underlying conviction. See Williams, 209 Ill. 2d 227; Evans, 209 Ill.
2d 194; Shum, 207 Ill. 2d 47; Moore, 207 Ill. 2d 68; Graham, 206 Ill.
2d 465; Rissley, 206 Ill. 2d 403; Ceja, 204 Ill. 2d at 332; Miller, 203
Ill. 2d 433; Lucas, 203 Ill. 2d 410.

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 Defendant did not take inconsistent positions by seeking a
commutation of her sentence from the Governor and challenging an
element of the offense in her appeal. As the defendants in the cases
cited above, defendant here is entitled to seek judicial relief on her
challenge to the underlying conviction. We conclude defendant is not
estopped from asserting this challenge simply because she sought and
received a commutation of her sentence.

III. CONCLUSION
For the foregoing reasons, we reverse the appellate court=s
dismissal of defendant=s appeal as moot. We remand the cause to the
appellate court for consideration of the merits of defendant=s
contentions.

Appellate court judgment reversed;
cause remanded.

JUSTICE GARMAN, dissenting:
The crux of the majority=s decision is that Apprendi and Ring
have altered the analysis used by courts of this state for decades
regarding sentences imposed by the use of the Governor=s clemency
power. The majority has now decided that defendants indeed can
challenge an executively imposed sentence merely by claiming that
the aggravating factor used to determine eligibility for a death
sentence was not proved beyond a reasonable doubt. Thus, courts of
review now have power to judicially review an executively imposed
sentence. Our precedents do not permit such a result. It has long been
held that the Governor=s power of clemency replaces the judicially
imposed sentence with a lesser, executively imposed sentence. See
People ex rel. Johnson v. Murphy, 257 Ill. 564, 566 (1913). This
court has recently affirmed the fact that the Governor=s clemency
power is Aextremely broad@ and not subject to the control of the
courts or the legislature. See People ex rel. Madigan v. Snyder, 208
Ill. 2d 457, 473 (2004). Prior to the issuance of today=s decision, the
only limit this court had recognized on the executive power of
clemency was that the Governor could not increase a defendant=s

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punishment or change the nature of a conviction. See People ex rel.
Madigan, 208 Ill. 2d at 475.
Apprendi held that any fact, other than a prior conviction, that
increases the penalty for an offense beyond the prescribed statutory
maximum must be submitted to a jury and proved beyond a
reasonable doubt. Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455,
120 S. Ct. at 2362-63. Ring held that the determination of the
existence of any aggravating factor or factors that make a defendant
eligible for the death penalty must be made by a jury and not by a
judge. Ring, 536 U.S. at 609, 153 L. Ed. 2d at 577, 122 S. Ct. at 2443.
Defendant=s sentencing hearing complied with these mandates in all
respects. Evidence regarding the aggravating factor was presented to
the jury and its existence was found by the jury beyond a reasonable
doubt. The majority concludes that defendant is entitled to review of
that finding because the aggravating factor is the functional
equivalent of an element of a greater offense, thereby implicating
defendant=s due process rights. Slip op. at 8. The majority further
concludes that defendant=s due process rights trump the Governor=s
power of clemency and that defendant=s appeal is therefore not moot.
Slip op. at 8. Accordingly, defendant may pursue her challenge to the
finding on the aggravating factor. If she is successful, she will
presumably be resentenced to a term of imprisonment not to exceed
60 years, the maximum nonextended term applicable to first degree
murder.
Following former Governor Ryan=s commutation of death
sentences in 2003, this court entertained requests for review from
several defendants. See, e.g., People v. Williams, 209 Ill. 2d 227
(2004); People v. Evans, 209 Ill. 2d 194 (2004); People v. Moore,
207 Ill. 2d 68 (2003); People v. Shum, 207 Ill. 2d 47 (2003); People
v. Graham, 206 Ill. 2d 465 (2003); People v. Rissley, 206 Ill. 2d 403
(2003); People v. Brown, 204 Ill. 2d 422 (2002); People v. Ceja, 204
Ill. 2d 332 (2003); People v. Miller, 203 Ill. 2d 433 (2002); People v.
Lucas, 203 Ill. 2d 410 (2002). In each case, the defendants challenged
some aspect of their sentencing. In some of the cases, this court did
not identify the sentencing issues raised, merely noting that the
commutation of the defendant=s sentence rendered the sentencing
issues moot. See, e.g., Williams, 209 Ill. 2d at 232; Evans, 209 Ill. 2d
at 208; Moore, 207 Ill. 2d at 70; Graham, 206 Ill. 2d at 470; Rissley,
206 Ill. 2d at 463; Ceja, 204 Ill. 2d at 362-63. In other cases, the

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opinions identify the sentencing issues. For instance, in Shum, the
defendant argued that his trial counsel was ineffective at his capital
sentencing hearing. This court handled that issue as follows:
AIn this appeal, defendant raises two issues challenging his
sentence, including ineffective assistance of counsel at
sentencing and improper denial of request to depose trial
counsel about the sentencing hearing. Subsequent to the
filing of his appeal, the Governor commuted his death
sentence to natural life imprisonment without the possibility
of parole or mandatory supervised release. Commutation
removes the judicially imposed sentence and replaces it with
a lesser, executively imposed sentence. [Citations.] Thus, the
commutation rendered these sentencing issues moot.
[Citations.]@ Shum, 207 Ill. 2d at 51.
In Miller, the defendant argued that he received the ineffective
assistance of counsel at the aggravation-mitigation phase of his
capital sentencing hearing because counsel had failed to investigate
and present available mitigating evidence. In an opinion filed
subsequent to the commutation of the defendant=s death sentence, this
court found the ineffective-assistance issue moot, noting that the
commutation removed the defendant=s judicially imposed sentence
and replaced it with a lesser, executively imposed sentence. Miller,
203 Ill. 2d at 437-38. The defendant in Lucas made a similar
argument. This court found the issue was rendered moot by the
commutation of the defendant=s death sentence. Lucas, 203 Ill. 2d at
418-19.
The majority concludes that a defendant=s due process rights
trump the Governor=s clemency power because the supremacy clause
of the United States Constitution mandates that precedence be given
to that constitution and federal laws. Thus, where a conflict exists
between the Governor=s clemency power and a defendant=s due
process rights under the fourteenth amendment, the due process right
must prevail. Slip op. at 8. Apparently, however, this only applies to
Apprendi issues. It is unclear why constitutional rights implicating
Apprendi take precedence over the executive clemency power, yet
constitutional rights such as the right to the effective assistance of
counsel in Miller and Lucas do not. Granted, Apprendi issues have
been referred to by the United States Supreme Court as the

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Afunctional equivalent of an element of a greater offense.@ See
Apprendi, 530 U.S. at 494 n.19, 147 L. Ed. 2d at 457 n.19, 120 S. Ct.
at 2365 n.19; Ring, 536 U.S. at 609, 153 L. Ed. 2d at 577, 122 S. Ct.
at 2443. However, a defendant=s eligibility for an enhanced sentence
may be at stake in both situations. Defendants have a due process
right to the effective assistance of counsel under the United States
Constitution (U.S. Const., amends. VI, XIV) and the Illinois
Constitution (Ill. Const. 1970, art. I, '8). Yet, as noted above, this
court has not hesitated to find such issues moot following
commutation of those defendants= death sentences. The apparent
distinction drawn by the majority between Apprendi issues and other
issues that also implicate constitutional rights is puzzling. In
situations where a single murder was committed, a clemency
defendant who alleges ineffective assistance of counsel at the
sentencing stage may, if successful on that issue, become eligible to
receive a lesser sentence than natural life in prison if the factors set
forth in section 5B8B1(a)(1)(c) of the Unified Code of Corrections
(730 ILCS 5/5B8B1(a)(1)(c) (West 2002)) are not present. In that
sense, such a defendant is in no different position than the defendant
in this case. Yet, under the majority opinion, the instant defendant
can challenge her commuted sentence while the defendant who
asserts due process rights in a different manner may not.
The majority maintains that defendant has not taken inconsistent
positions by asking for executive clemency and then challenging the
resulting sentence. According to the majority, defendant is not
challenging the commutation of her sentence; rather, she is
challenging the sufficiency of proof on the functional equivalent of
an element of a greater offense. Slip op. at 11. Reduced to its essence,
however, defendant=s challenge is to her sentence. She does not
dispute the sufficiency of the evidence that resulted in her murder
conviction. The sole purpose of her present challenge is to obtain a
reduced sentence. There can be no other reason. Defendant has
obtained what amounts to double relief. Her request for the
commutation of her death sentence was granted by the former
Governor. In addition, she will now be able to challenge her
commuted sentence by arguing that she is not eligible for natural life
imprisonment because the aggravating factor was not proved beyond
a reasonable doubt. If she loses on that argument, she faces, not
death, but natural life imprisonment. Clemency defendants who have

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other constitutional rights to assert, even if they implicate due process
and may impact the defendant=s eligibility for the commuted
sentence, are not so fortunate.
I disagree with the majority=s overruling of People v. Watson,
347 Ill. App. 3d 181 (2004). The Watson court applied well-
established precedents in concluding that the defendant=s appeal was
moot. Although the court did not mention Apprendi, the issue raised
in that case was identical to the issue raised in this case. Apprendi
was clearly implicated when the defendant argued that the due
process clauses of the United States and Illinois constitutions
guaranteed him the right to have his claim considered by the court.
Watson, 347 Ill. App. 3d at 190.
Defendant=s sentencing hearing complied with the dictates of
Apprendi and Ring. She does not challenge her conviction. She asked
for and received a commuted sentence. The majority acknowledges
that former Governor Ryan validly exercised his clemency power in
this case. Like the Watson court, I would hold that the instant
defendant=s appeal is moot.

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