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 “extremely 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 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. 217 Ill. 2d at 545. 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. 217 Ill. 2d at 546. 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 Eyan’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 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:
“In 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. 217 Ill. 2d at 546-47. 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 “functional 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, XTV) 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 5—8—1(a)(1)(c) of the Unified Code of Corrections (730 ILCS 5/5—8—1(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. 217 Ill. 2d at 550. 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 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.