
      No. 2--00--0641
_________________________________________________________________

      IN THE

      APPELLATE COURT OF ILLINOIS

      SECOND DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF   )    Appeal from the Circuit Court
ILLINOIS,   )    of Lake County.
      )
      Plaintiff-Appellee,    )    No. 00--CF--114
      )
v.    )
      )
ANNETTE M. PALMER,     )     Honorable
      )     Barbara C. Gilleran-Johnson
      Defendant-Appellant.   )    Judge, Presiding.
_________________________________________________________________

      JUSTICE BYRNE delivered the opinion of the court:
      As the result  of  a  partially  negotiated  guilty  plea,  defendant,
Annette M. Palmer, pleaded guilty to the offense of armed violence  premised
on aggravated  battery.   The  January  28,  2000,  information  alleged  in
pertinent part that defendant, "while  armed  with  a  dangerous  weapon,  a
bludgeon, *** intentionally  and  without  legal  justification  cut  Pastor
Escamilla about the body thereby causing great bodily harm [to  him]."   See
720 ILCS 5/12--4(a), 33A--2 (West 1998).  This offense is a Class  2  felony
(720 ILCS 5/33A--1(c)(3), 33A--3(b) (West 1998)) having a normal  sentencing
range of three to seven years' imprisonment (730 ILCS 5/5--8--1(a)(5)  (West
1998)).  Under  certain  provisions  of  the  Unified  Code  of  Corrections
(Code), an extended sentence of 7 to 14 years' imprisonment may  be  imposed
(730  ILCS  5/5--8--2(a)(4)  (West  1998))  if  the  court   finds   certain
aggravating factors ("facts") were applicable such as where the offense  was
accompanied by  exceptionally  brutal  or  heinous  behavior  indicative  of
wanton
cruelty (wanton cruelty) (730 ILCS 5/5--5--3.2(b)(2) (West  1998)),  or  the
victim was a person 60 years of age or older at  the  time  of  the  offense
(age) (730 ILCS 5/5--5--3.2(b)(4)(ii) (West 1998)).  There was no  agreement
as to the sentence.  It appears that the trial  court  imposed  an  extended
sentence of 10  years'  imprisonment  based  on  its  consideration  at  the
sentencing hearing of two factors or "facts"--wanton cruelty and age.
      On June 2,  2000,  following  the  denial  of  defendant's  motion  to
reconsider the sentence, defendant timely appealed.  Defendant  argues  that
her extended sentence must be reduced to a nonextended sentence because,  in
violation of her right to due process, the enhancing or aggravating  factors
(wanton cruelty and age) were not charged, submitted to a jury,  and  proved
beyond a reasonable doubt.
In support of her position she relies on Apprendi v. New  Jersey,  530  U.S.
466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) (Apprendi).  For the  reasons
that we shall explain, we agree with defendant.  We vacate the sentence  and
remand the cause for resentencing consistent with the principles  enunciated
in Apprendi and with the views expressed herein.
      The record  further  reveals  that  on  January  28,  2000,  defendant
pleaded guilty to the armed  violence  charge  and,  as  part  of  the  plea
agreement, the State  nol-prossed  the  charges  of  attempted  first-degree
murder, aggravated battery, and aggravated battery of a senior citizen.   It
appears that part of the consideration for the plea was  that  the  Class  2
felony was a probationable offense.   The  court  read  the  armed  violence
charge to defendant.   The  trial  court  informed  defendant,  among  other
things, that the  offense  was  "technically  probationable"  and  that  the
sentencing range for the offense was three  to  seven  years'  imprisonment.
The court also stated that defendant could receive a term of 7 to 14  years'
imprisonment "if you have a previous conviction within  the  last  10  years
*** or if *** there is aggravation that qualifies you  for  that  category."
The court later added that it did not know whether defendant  qualified  for
an extended term due to a previous felony conviction  or  "if  the  injuries
are severe enough for this court to  consider  an  extended  term  sentence.
It's possible.  But I underline the word  possible."   The  court  explained
generally the various rights  that  defendant  would  give  up  by  pleading
guilty.
      The State presented a factual basis for the  plea,  which  is  briefly
summarized here.   The  victim,  Escamilla,  was  drinking  with  defendant.
Escamilla fell asleep.  When he woke up, defendant  was  stabbing  him.   No
weapon was found, but defendant claimed she used a  garden  tool  (bludgeon)
to attack Escamilla.  Defendant went to  the  hospital  with  blood  on  her
body.  In her statement, she claimed that she had been  sexually  assaulted.
The victim later arrived at the hospital  and  had  57  stab  wounds.   (The
record shows that there is a slight discrepancy in the exact number of  stab
wounds.)  The State characterized the wounds as "great  bodily  harm."   The
wounds required stitches, sutures,  and  surgery.   A  police  investigation
determined that defendant did the stabbing.  The  State  asserted  that  the
sexual assault claim was unfounded.   Defense  counsel  added  that  it  was
defendant who called the police initially, and the  police  transported  her
to the hospital where she remained for about  five  hours.   When  defendant
saw Escamilla at the hospital, she called the police  a  second  time.   She
later went voluntarily to the police department.  She stayed in  the  lockup
for about three days before she was charged.  The trial court  accepted  the
factual basis and the waiver of defendant's right to a  trial  and  set  the
matter for sentencing.
      The  sentencing  hearing  began  on  February  29,  2000.   The  State
presented evidence in aggravation.  The complaining witness read the  victim
impact statement expressing his fears since the commission of  the  offense.
An employee testified  regarding  a  fight  between  defendant  and  another
inmate in December 1999.  With the aid of  photographs  that  were  admitted
into evidence, Sean Hilbert, an investigator for the  North  Chicago  police
department, testified regarding the wounds  the  victim  sustained  and  the
conditions found at the scene of the crime.  Hilbert  stated  at  one  point
that the victim had  52  wounds.   Hilbert  also  testified  that  defendant
claimed the victim had sexually assaulted her.   On  cross-examination,  the
investigator admitted that  the  incident  happened  at  midnight  and  that
Escamilla did not arrive at the hospital for  medical  treatment  until  the
following morning, almost 12 hours later.
      Brian Gorcowske, an Elgin police detective,  testified  regarding  his
investigation of a June 19, 1999, incident in which  defendant's  boyfriend,
Kevin Childress, suffered  a  fatal  stab  wound  during  the  course  of  a
domestic dispute.  Gorcowske determined that defendant  inflicted  the  stab
wound.  Defendant had claimed alternatively that she acted  in  self-defense
or the fatal wound was an accident.  The State sought  to  charge  defendant
with second-degree murder, but the grand jury returned  a  "no  true  bill."
Gorcowske admitted that on a prior occasion Childress had been arrested  and
charged for punching defendant in the eye.   That  charge  was  subsequently
dropped because defendant did not choose to have him prosecuted.
      In mitigation, defendant's father  testified  regarding  the  positive
aspects of his relationship with defendant.  Defendant had been  in  abusive
relationships.  He believed she needed counseling, and he believed he  could
be of assistance to her.
      The State argued that there were aggravating factors present.
Among other things, the State argued  that  defendant  should  be  given  an
extended sentence because of the age of the victim and because  the  offense
was accompanied by brutal or heinous behavior indicative of wanton  cruelty.
 The State emphasized that there were 54 wounds.
      Defense counsel argued that there were  mitigating  circumstances  and
that defendant  had  been  in  situations  where  she  had  been  abused  or
battered.  He claimed the wounds were not indicative of wanton  cruelty  and
characterized them as slashes rather than stabs.   He  asked  the  court  to
consider  defendant's  need  for  social  services   and   substance   abuse
counseling and her potential for  rehabilitation;  he  sought  a  period  of
probation and a six-month jail term.
       The  trial  court  considered  various  aggravating  and   mitigating
factors.   The  court  noted  in  particular  that  defendant  should   have
contemplated  that  54  wounds  would  cause  harm.   The  court  could  not
determine that defendant acted  under  strong  provocation  or  had  grounds
tending to excuse or justify her conduct.  The court considered  defendant's
criminal history and her cocaine use and determined that she was  likely  to
commit another crime.  The court  found  that  the  nature  of  the  (great)
bodily harm made the  truth-in-sentencing  provisions  applicable  (see  730
ILCS 5/3--6--3(a)(2) (iii) (West 1998)  (for  certain  enumerated  offenses,
defendant must serve 85% of the sentence where there is a finding  of  great
bodily harm to victim).  The court concluded that an  extended  term  of  10
years' imprisonment was warranted because the victim was 67  years  old  and
there were 54 to 57 stab wounds.
      At the hearing on  defendant's  motion  to  reconsider  the  sentence,
defense  counsel  argued  among  other  things  that  the  offense  was  not
accompanied by brutal or heinous behavior and that, had  the  case  gone  to
trial,  the  factual  circumstances  could  have  shown   that   defendant's
unreasonable belief--that the amount of force used was  justified  in  self-
defense--was inconsistent with a finding of behavior  indicative  of  wanton
cruelty.  In support of his argument, counsel  cited  People  v.  Evans,  87
Ill. 2d 77, 88 (1981).
      The trial  court  denied  the  motion  to  reconsider,  but  issued  a
corrected mittimus on June 2, 2000, to show that the armed violence  offense
was a Class 2 felony.  We note that the original sentencing order  of  March
21, 2000, states that defendant's term of imprisonment  for  armed  violence
is 10 years.  The order further notes, "Court finds offense was  brutal  and
heinous" and "Court also finds great bodily harm."
      Defendant argues essentially that the sentencing  procedure  that  was
used to enhance  her  sentence  is  unconstitutional.   In  support  of  her
position, she relies on the general rule of Apprendi, 530 U.S. at  ___,  147
L. Ed. 2d at 455, 120 S. Ct. at 2362-63, which states, "Other 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."   Defendant  asserts  that  the  armed
violence  charge  to  which  she  pleaded  guilty  did  not  encompass   the
additional "facts" or "elements" of wanton cruelty and age, which the  trial
judge found and then  used  to  enhance  her  sentence  beyond  the  normal,
statutory maximum penalty.
      In Apprendi, the defendant, Charles C. Apprendi, Jr.,  pleaded  guilty
to certain firearms violations.  He fired several bullets into the  home  of
an African-American family.  The prosecutor for  the  State  of  New  Jersey
reserved the right to request  that  the  trial  court  impose  an  enhanced
sentence based on a hate-crime statute.  The defendant  reserved  the  right
to challenge the sentence enhancement on constitutional  grounds.   None  of
the charges referred  to  the  hate-crime  statute  and  none  alleged  that
Apprendi acted with a racially biased purpose.
      Apprendi was sentenced to an extended term after the prosecutor  moved
to enhance the sentence.  Under  the  New  Jersey  statute,  the  judge  was
called upon to extend the sentence if the judge found,  by  a  preponderance
of the evidence, that the defendant, in committing the crime, acted  with  a
purpose  to  intimidate  the  victim  based  on  the  race,  color,  gender,
handicap,  religion,  sexual  orientation,  or  ethnicity  of  the   victim.
Pursuant  to  the  statute,  the  maximum  10-year  prison  sentence   could
effectively be doubled if the requisite finding was made.  The trial  court,
sitting without a jury, found by a preponderance of the  evidence  that  the
shooting was racially motivated and sentenced the  defendant  to  a  12-year
term of imprisonment for the firearms charge.
      The United States Supreme Court characterized the  defendant's  mental
state (purpose to intimidate) as  an  element  of  the  substantive  offense
rather than merely a sentencing factor.  See Apprendi, 530 U.S. at ___,  147
L. Ed. 2d at 457-58, 120 S. Ct. at 2366.    The  Court  explained  that  due
process of law requires that the accused be afforded  a  jury  determination
that he is guilty beyond a reasonable doubt of every element  of  the  crime
with which he is charged, that is, due process protects the accused  against
a conviction except upon proof beyond  a  reasonable  doubt  of  every  fact
necessary to constitute the crime with which he is charged.   Apprendi,  530
U.S. at ___, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355-56.
      The Court pointed out that it is unconstitutional  for  a  legislature
to  remove  from  the  jury  the  assessment  of  facts  that  increase  the
prescribed range of penalties to which a criminal defendant is  exposed  and
that it is clear that such facts must be  established  beyond  a  reasonable
doubt.  Apprendi, 530 U.S. at ___, 147 L. Ed. 2d  at  455,  120  S.  Ct.  at
2363.   The  Court  concluded  that  the  New  Jersey   procedure   was   an
unacceptable departure from the jury tradition, reversed the ruling  of  the
supreme  court  of  New  Jersey,  and  remanded  the   cause   for   further
proceedings.  The Court observed  that  its  decision  was  foreshadowed  by
Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311,  119  S.  Ct.  1215
(1999) (under fifth amendment due process clause, any fact other than  prior
conviction that increases maximum penalty for crime must be  charged  in  an
indictment, submitted to a jury, and proved beyond a reasonable doubt).
      For a fuller understanding of the Court's ruling in  Apprendi,  it  is
instructive to examine briefly the New Jersey appellate court  decision  and
the dissent therein in particular.  State v. Apprendi, 304 N.J. Super.  147,
698 A.2d 1265 (N.J. Super. Ct. App. Div. 1997), aff'd,  State  v.  Apprendi,
159 N.J. 7, 731 A.2d 485 (1999), rev'd, Apprendi v.  New  Jersey,  530  U.S.
466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  In the  appellate  decision
of  State  v.  Apprendi,  the  reviewing  court  held  that  the  hate-crime
statute's authorization  for  extended  sentencing,  based  upon  the  trial
judge's finding by a preponderance of the evidence that the defendant had  a
biased motive, did not violate the due process requirement  that  the  state
must prove the elements  of  the  crime  beyond  a  reasonable  doubt.   The
majority treated the defendant's bias  or  motive  as  a  sentencing  factor
rather than as an element of the offense.
      In the dissent (State v. Apprendi,  304 N.J. Super. at ___,  698  A.2d
at 1272-75 (Wecker, J.S.C., dissenting)), Judge Wecker  explained  that  the
defendant's rights to a trial by jury and  to  be  proved  guilty  beyond  a
reasonable doubt were violated because the defendant's motive to  intimidate
was an element of the crime that  increased  the  sentence  for  the  crime.
Judge Wecker noted that  the  defendant  did  not  raise  the  right  to  an
indictment by a grand jury (the indictment did  not  allege  the  prohibited
purpose element);  his  plea  did  not  provide  a  factual  basis  for  the
prohibited purpose; and he denied such a purpose at the sentencing  hearing.
 The dissenting judge explained that, while the defendant waived  his  right
to a jury trial on the underlying charge, he did not waive  that  right,  or
the  right  to  proof  beyond  a  reasonable  doubt,  with  respect  to  the
prohibited purpose element.  State v. Apprendi,  304  N.J.  Super.  at  ___,
698 A.2d at 1273.
      Judge Wecker concluded  that,  where  the  state  intends  to  seek  a
mandatory extended sentence because the underlying crime is  accompanied  by
the forbidden purpose set forth in the hate-crime statute, then, unless  the
defendant expressly waives a jury,  only  a  jury  can  find  the  defendant
guilty and then only upon proof beyond a  reasonable  doubt.   Judge  Wecker
further concluded that the defendant's extended sentence should  be  vacated
and the cause remanded for resentencing within the normal  sentencing  range
for the underlying offense.   State v. Apprendi, 304  N.J.  Super.  at  ___,
698 A.2d at 1275.  The United States Supreme Court's decision  in  Apprendi,
which is based on these due  process  concerns,  is  consistent  with  Judge
Wecker's dissent.
       Recently,  this  court  applied  the  Apprendi  rule  in  People   v.
Chanthaloth, 318  Ill.  App.  3d  806  (2001).   There,  a  jury  found  the
defendant guilty of home  invasion  and  residential  burglary.   The  trial
court imposed a 40-year extended term and a consecutive  4-year  nonextended
term for the respective offenses.  The trial court, sitting without a  jury,
found three aggravating factors that rendered  the  defendant  eligible  for
the  extended  sentence  for  the  home  invasion  offense:  the  crime  was
exceptionally brutal and heinous; the victim was over the  age  of  60;  and
the victim was physically handicapped  at  the  time  of  the  offense.   On
appeal, this court  held  that  the  extended  sentence  for  home  invasion
violated the Apprendi rule.  This  court  determined  that  the  aggravating
factors were in effect elements of the offense.  See People v. Hope, No. 2--
00--0417 (December 28, 2001) (explaining Chanthaloth).
      In Chanthaloth, although evidence of the age of the  victim  had  been
submitted to a jury and proved  as  an  element  of  the  offense  beyond  a
reasonable doubt  in  accordance  with  Apprendi,  this  court  nevertheless
vacated the defendant's extended  sentence  because  it  appeared  that  the
trial court had considered not only the victim's age, but also the  victim's
disability and the brutal nature of the crime.  The cause was  remanded  for
resentencing consistent with the   rule  of  Apprendi.  But  cf.  People  v.
Rhoades, 323 Ill. App. 3d  644  (2001)  (exceptionally  brutal  and  heinous
nature of first-degree murder of minor  was  held  to  be  proved  beyond  a
reasonable doubt by defendant's guilty plea  where  the  plea  and  sentence
were fully negotiated, defendant was  specifically  and  clearly  admonished
regarding the possible sentence of life imprisonment if the court found  his
conduct brutal and heinous, and the State had  sought  the  death  penalty).

      In People v. Thurow, 318 Ill. App. 3d 128 (2001), petition  for  leave
to appeal allowed, 194 Ill. 2d 580 (2001), the  reviewing  court  determined
that a sentence for enhanced involuntary manslaughter  was  unconstitutional
under Apprendi where the jury was not instructed to make a finding beyond  a
reasonable doubt with respect to an element of the offense--that the  victim
was a family or  household  member.   In  sentencing  the  defendant  to  an
extended term of eight years' imprisonment, the trial judge found  that  the
victim was a child under the age of 12, a factor that was not  presented  to
the jury.
      The Thurow court  observed  that  the  Illinois  statute  in  question
imposed no burden of proof on the  judge  but  merely  stated  that  certain
factors may be considered by the judge in imposing the extended  term.   The
reviewing court held that section 5--5--3.2(b)(4)(i) of the Unified Code  of
Corrections (730 ILCS 5/5--5--3.2(b)(4)(i) (West 1998)) is  unconstitutional
under Apprendi to the extent that it allows the trial  court  to  impose  an
extended sentence "based on the  age  of  the  victim  where  that  specific
finding is not charged to the jury."  Thurow, 318 Ill. App. 3d at 135.
      In People v. Johnson, No. 5--99--0637 (October 23, 2001), following  a
bench trial, the defendant was found guilty of attempted murder,  aggravated
battery, and unlawful possession of a weapon by a felon.  At the  sentencing
stage, the trial judge found that the attempted murder  was  accompanied  by
exceptionally brutal behavior indicative of wanton cruelty.  Based  on  this
additional finding of fact, the trial judge imposed an extended sentence  of
50 years' imprisonment where  the  normal  maximum  sentence  allowed  would
otherwise have been a 30-year prison sentence.   The  reviewing  court  held
that this finding involved  an  added  element  of  the  offense;  that  the
judge's finding violated the Apprendi rule; and  that  this  element  should
have been charged and proved beyond a reasonable doubt before a  jury.   The
reviewing court reduced the sentence to the 30-year normal maximum term.
      Our careful  consideration  of  Apprendi,  the  dissent  in  State  v.
Apprendi,  Chanthaloth, Thurow, and Johnson compel us to conclude  that  the
sentencing procedure  in  the  present  case  violated  the  Apprendi  rule.
During the plea proceedings, defendant did not  plead  guilty  to  a  charge
that alleged the offense was accompanied by exceptionally brutal or  heinous
behavior, or that the victim was a person 60 years of age or  older.   These
sentence-enhancing "facts" were not clearly and specifically  made  part  of
the factual basis necessary for the trial court to accept a  plea  that  was
knowingly and voluntarily entered with respect to  the  additional  "facts."
The admonishment to  defendant  was  merely  general  with  respect  to  the
possibility of an extended sentence, and there was  no  mention  of  "brutal
and heinous" conduct or the age of the victim as part of the  plea.   As  in
Apprendi, when defendant pleaded guilty, she  did  not  know  that  she  was
giving up her right to have the State prove beyond a reasonable doubt  to  a
jury  that  the  crime  was  accompanied  by  brutal  and  heinous   conduct
indicative of wanton cruelty, or that the victim was  60  years  of  age  or
older. A defendant should not be induced to plead guilty to one offense  and
then be sentenced for another offense.
       Since  these  additional   sentence-enhancing   "facts"   in   effect
constituted elements of the offense that  warranted  punishment  beyond  the
normal maximum sentence, the judge's findings during  the  sentencing  stage
violated Apprendi.  Absent a specific waiver by  defendant  of  a  trial  by
jury and proof beyond a reasonable doubt as to these specific  elements  and
a clear and complete admonishment to defendant regarding  the  elements  and
the applicable enhanced penalties, these elements should have  been  charged
and proved to a jury beyond a reasonable doubt.  We  believe  that  Apprendi
requires no less to avoid violating a defendant's  constitutional  right  of
due process of law when entering a guilty plea.
      The State argues that our decision in People  v.  Chandler,  321  Ill.
App. 3d 292  (2001),  calls  for  a  different  result.   We  disagree.   In
Chandler, the defendant pleaded guilty to  a  series  of  offenses  and  was
sentenced to consecutive terms of six  years'  imprisonment  for  arson  and
three years' imprisonment for aggravated  battery.   The  defendant  pleaded
guilty to more than one crime, and the court did not find him guilty of  any
elements not alleged in the indictment.  The court  specifically  admonished
defendant that consecutive sentences based on his future dangerousness  were
a possibility.
      A court has the discretion to impose a consecutive sentence  based  on
the nature and circumstances of the offense and the  history  and  character
of the defendant where the court is of the  opinion  that  such  a  term  is
required to  protect  the  public  from  further  criminal  conduct  by  the
defendant.  730 ILCS 5/5--8--4(b)  (West  1998).   In  Chandler,  the  court
based its finding  of  the  defendant's  future  dangerousness  not  on  the
presence of an additional factual element but on the number  and  nature  of
the defendant's crimes.  In other words, the trial court based  its  finding
of future dangerousness  on  defendant's  criminal  record.   A  defendant's
prior  crimes  constitute  recidivism,  which  Apprendi  recognized  as   an
exception  to  the  requirement  that  the  offenses  be  proved  beyond   a
reasonable doubt before a jury.  See Chandler, 321  Ill.  App.  3d  at  296;
People v. Watson, 322 Ill. App. 3d 164 (2001); People v.  Lathon,  317  Ill.
App. 3d 573, 583-88 (2000).  Finally, we observe that our supreme court  has
held that the imposition of consecutive sentences does not violate the  rule
of Apprendi.  People v. Wagener, 196 Ill. 2d 269, 286-287  (2001).   As  can
be seen from our discussion, Chandler is distinguishable on its  facts,  and
it should be limited to those facts.
      We recognize that  in  Chandler  the  court  broadly  stated,  "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."
Chandler, 321 Ill. App. 3d at 297.  However,  we  do  not  believe  that  an
expansive reading of Chandler is warranted here,  as  the  State  urges,  so
that the defendant in this case can be said to have waived  all  the  rights
guaranteed under Apprendi.   To  the  extent  that  Chandler  even  remotely
suggests  that  a  guilty  plea  waives  deficiencies  in  the  charge,  the
admonishments, and the factual basis necessary to a  knowing  and  voluntary
plea as to all the elements  of  an  offense,  including  sentence-enhancing
elements, we decline to follow  Chandler.   To  do  otherwise  would  be  to
disregard Apprendi itself.
      We hereby vacate defendant's extended-term  sentence.   Defendant  has
not challenged her conviction, and it is  therefore  affirmed.   On  remand,
defendant must be resentenced in accordance with the rule  of  Apprendi  and
the views we have expressed herein.  See Chanthaloth, 318 Ill.  App.  3d  at
818.
      The judgment of the circuit court of Lake County is affirmed  in  part
and vacated in part, and the cause is remanded with directions.
      Affirmed in part and vacated in part; cause remanded with  directions.

      CALLUM, J., concurs.
      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,  No.  2--00--0189  (February  18,
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, No.  2--00--0417,  (December  28,
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, slip op. at 14-15.
      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.
