dissenting:
During the pendency of this appeal, our appellate court has had numerous opportunities to consider the validity of Illinois’ extended-term sentencing provisions in light of the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Those opinions have declared the law unconstitutional under Apprendi because it increases the penalty range for an offense beyond the maximum permitted by statute without requiring the State to prove the requisite aggravating factor beyond a reasonable doubt and without affording the defendant the right to have the existence of the aggravating factor determined by a jury.1 See People v. Bryant, 325 Ill. App. 3d 448, 457 (2001); People v. Swift, 322 Ill. App. 3d 127, 130 (2001); People v. Lucas, 321 Ill. App. 3d 49, 53-54 (2001); People v. Chanthaloth, 318 Ill. App. 3d 806, 816 (2001).
This case falls squarely within the Apprendi rule. Jackson’s extended-term sentence was imposed in accordance with a sentencing procedure which did not require the State to prove the existence of the aggravating factor beyond a reasonable doubt and did not afford Jackson the right to have the existence of the aggravating factor decided by a jury. Under Apprendi, the extended-term portion of her sentence therefore violates due process and cannot stand.
Our court has recently concluded that no Apprendi violation occurs when a defendant who has been found guilty of first degree murder and is eligible for the death penalty receives an extended term of imprisonment rather than death (People v. Ford, 198 Ill. 2d 68, 73-75 (2001)), but those circumstances are not present in this case. Jackson did not commit murder, she was not death eligible, and her sentence was clearly in excess of the normal statutory maximum.
Although Apprendi was not decided until after Jackson was convicted and sentenced, she is not foreclosed from availing herself of that decision. In Ford, 198 Ill. 2d at 72-73, we specifically held that because Apprendi announced a new constitutional rule applicable to criminal cases, it applies to all cases pending on direct review at the time the new constitutional rule was declared. This is such a case.
The majority’s assertion that Jackson waived her right to challenge the extended-term portion of her sentence when she pleaded guilty is contrary to settled principles of law. In Illinois, a statute found to be unconstitutional is considered void ab initio. It is as if the law never existed. People v. Gersch, 135 Ill. 2d 384, 399 (1990). That being so, there was no statutory authority for the extended-term portion of Jackson’s sentence. Where, as here, a sentence is void because it was beyond the trial court’s statutory authority to impose, the sentence may be corrected at any time. People v. Arna, 168 Ill. 2d 107, 113 (1995). A defendant is not foreclosed from challenging it because he or she has pleaded guilty. Indeed, under Illinois law, a defendant challenging his sentence as void may not only do so despite having pleaded guilty. He may do so without first moving for withdrawal of the plea as would normally be required. People v. Wagener, 196 Ill. 2d 269, 280 (2001); People v. Wilson, 181 Ill. 2d 409, 413 (1998); People v. Williams, 179 Ill. 2d 331, 333 (1997).
The majority’s attempt to avoid these principles on the theory that they are limited to situations where a sentencing scheme is declared unconstitutional on its face is untenable. Our court specifically rejected that theory when it was advanced by the State in People v. Wagener, 196 Ill. 2d at 279-80, decided just nine months ago.
The court’s sudden turnabout is inexplicable. It is also unsound. For purposes of applying waiver rules, there is no principled basis for granting relief where a sentencing statute is facially invalid, but denying relief where it is unconstitutional as applied. In either case, the defendant is suffering from an invalid sentence which the constitution prohibits the state from imposing.
I note, moreover, that while the extended-term sentencing scheme contained in sections 5 — 5—3.2(b)(2) and 5 — 8—2(a) of the Unified Code of Corrections may not be invalid in all its applications, it is nearly so. Aside from capital murder cases where the defendant has been found death eligible (Ford, 198 Ill. 2d 68), there is no set of circumstances in which the statutory scheme challenged here can pass constitutional muster under Apprendi. Accordingly, this is a singularly inappropriate case to create a new set of waiver rules.
The majority’s approach is flawed for another reason as well. In holding that a sentencing scheme must be incapable of any valid application before waiver rules will be relaxed, the majority overlooks an entire line of cases dealing with sentences that are not unconstitutional, but are invalid because they are not authorized by statute. In those cases, the reason the sentence is invalid is not because of any inherent deficiency in the sentencing statute. It is because the sentencing statute did not permit the disposition ordered by the trial court under the particular facts present in that case. See, e.g., People v. Arna, 168 Ill. 2d 107 (1995) (order imposing concurrent terms was void where the statutory requirements for mandatory consecutive sentences were established at trial).
To hold that a sentence is void because it is not authorized by statute under the facts of the case is no different, analytically, from holding that it is void because it is unconstitutional as applied. In the former situation, we allow the defendant to protest his sentence even where he has pleaded guilty and has not first moved to have his guilty plea withdrawn. Williams, 179 Ill. 2d at 333; Wilson, 181 Ill. 2d at 413 (challenge to a trial court’s statutory authority to impose a particular sentence not waived when a defendant fails to withdraw his guilty plea and vacate the judgment). Reason and justice dictate the same outcome in the latter situation, where the sentence is invalid because it is unconstitutional as applied. Accordingly, a defendant’s plea of guilty should not result in a waiver of his right to have the sentence vacated based on Apprendi.
It is no answer to say, as the majority does, that under the governing statutes, the circuit court had the power to impose an extended term when the defendant in this case was sentenced. The circuit court had no such power. The statutory extended-term sentencing scheme was just as invalid at the time of sentencing as it was when the-United States Supreme Court announced its decision in Apprendi. Under the reasoning of Apprendi, the circuit court never had the power to increase the sentence beyond the maximum permitted by statute without requiring the State to prove the requisite aggravating factor beyond a reasonable doubt and without affording the defendant the right to have the existence of the aggravating factor determined by a jury. Due process prohibited it.
The majority’s argument would make sense only if Apprendi were limited in its application to sentencing proceedings conducted after the decision was announced. The United States Supreme Court, however, has imposed no such limitation. To the contrary, in Apprendi itself the Court applied the new rule retroactively to invalidate a sentence imposed before the rule was announced. Furthermore, as noted earlier in this dissent, this court specifically held in Ford, 198 Ill. 2d at 72-73, that the decision in Apprendi applies retroactively to all cases which were still pending on direct review, as this one was, when the decision was issued.
I must also take issue with the majority’s assertion that “Apprendi did not deal with novel constitutional rights.” 199 Ill. 2d at 302. While the basis for the Apprendi rule — the due process clause and the right to trial by jury — are scarcely novel, the way in which those constitutional guarantees were interpreted and applied in that case is. At least four members of the United States Supreme Court have characterized the decision as announcing “what will surely be remembered as a watershed change in constitutional law.” Apprendi, 530 U.S. at 524, 147 L. Ed. 2d at 475, 120 S. Ct. at 2380 (O’Connor, J., dissenting, joined by Rehnquist, C.J., Kennedy and Breyer, JJ.).
When the defendant in this case pleaded guilty, neither she nor the trial court knew that this watershed change would be implemented by the United States Supreme Court. That being so, the defendant could not possibly have made a knowing and intelligent waiver of her constitutional rights as Apprendi defined them. To hold otherwise, as my colleagues do today, makes the concept of knowing and intelligent waiver farcical.
The majority attempts to justify its position by relying on appellate court decisions in People v. Rhoades, 323 Ill. App. 3d 644 (2001), and People v. Chandler, 321 Ill. App. 3d 292 (2001), but those cases offer scant support. Chandler involved consecutive sentences to which Apprendi is inapplicable (People v. Wagener, 196 Ill. 2d 269 (2001)), while Rhoades is based on the same appellate decision from which the defendant in this case was granted leave to appeal.
I note, moreover, that the appellate court has not spoken with a single voice on this matter. People v. Kidd, 327 Ill. App. 3d 973 (2002), decided after Chandler and Rhoades, reached a contrary conclusion. It correctly held that a defendant’s plea of guilty did not waive his right to raise an Apprendi challenge to his extended-term sentence where, as in the case before us today, the element used to enhance his sentence was never charged in the indictment.
Finally, we must not overlook that regardless of whether the technical requirements for waiver are present, the ultimate decision as to whether a criminal defendant should he permitted to press his claim for relief is a matter for this court’s discretion. As we have often repeated, waiver is a limitation on the parties, not on the court. The waiver rule is one of administrative convenience rather than jurisdiction, and considerations of waiver may be overridden when necessary to obtain a just result and maintain a sound body of precedent. People v. Farmer, 165 Ill. 2d 194, 200 (1995).
In considering whether waiver rules should be relaxed, the importance of the rights at issue is a critical factor. Few rights are as more worthy of consideration than those present here. At stake are constitutional protections which the United States Supreme Court has characterized as being “of surpassing importance.” Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355. To turn Jackson’s claims aside based on waiver denigrates these core values and elevates technical formalities above basic justice.
No less than the procedure challenged in Apprendi, the extended-term sentencing provisions under which Jackson was sentenced constitute “an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.” Apprendi, 530 U.S. at 497, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366. Under these circumstances, and for all of the foregoing reasons, I would hold that Jackson’s challenge to her extended-term sentence was not barred by her decision to plead guilty and is meritorious. Accordingly, I would reverse the judgments of the circuit and appellate courts and vacate the extended-term portion of Jackson’s sentence. I therefore dissent.
JUSTICE KILBRIDE joins in this dissent.
section 5 — 8—2(a) was amended by Public Act 91 — 953, § 10, which took effect February 23, 2001, to specify that the aggravating factors necessary to support enhanced sentences must now be found by the trier of fact beyond a reasonable doubt.