                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Crawford, 2011 IL App (2d) 100533




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     DARRELL O. CRAWFORD, Defendant-Appellant.



District & No.              Second District
                            Docket No. 2-10-0533


Filed                       November 21, 2011


Held                        Defendant’s five-year sentence for forgery was upheld on appeal,
(Note: This syllabus        notwithstanding defendant’s contention that the sentence was
constitutes no part of      unconstitutional because the trial court’s finding that probation would
the opinion of the court    deprecate the seriousness of the offense was not alleged in the indictment
but has been prepared       and proved to a jury beyond a reasonable doubt in accord with Apprendi,
by the Reporter of          since a five-year sentence is the maximum sentence for forgery, and the
Decisions for the           mere fact that section 5-6-1 of the Unified Code of Corrections requires
convenience of the          the trial court to make one of three findings in order to impose a prison
reader.)
                            term rather than probation does not violate Apprendi.


Decision Under              Appeal from the Circuit Court of Du Page County, No. 09-CF-3041;
Review                      Kathryn E. Creswell, Judge, presiding.



Judgment                    Affirmed.
Counsel on                  Thomas A. Lilien and Mark G. Levine, both of State Appellate
Appeal                      Defender’s Office, of Elgin, for appellant.

                            Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman,
                            Lawrence M. Bauer, and Marshall M. Stevens, all of State’s Attorneys
                            Appellate Prosecutor’s Office, of counsel), for the People.


Panel                       JUSTICE McLAREN delivered the judgment of the court, with opinion.
                            Justices Hutchinson and Burke concurred in the judgment and opinion.




                                              OPINION

¶1          Following a jury trial, defendant, Darrell O. Crawford, was convicted of forgery (720
        ILCS 5/17-3(a)(2) (West 2008)). Finding that probation would deprecate the seriousness of
        the offense, the trial court sentenced defendant to five years’ imprisonment. Defendant
        appeals, contending that his prison sentence is unconstitutional because the finding the trial
        court made in sentencing him to prison was not alleged in the indictment and proved to a jury
        beyond a reasonable doubt. We affirm.
¶2          An indictment charged defendant with forgery in that he “with intent to defraud,
        knowingly delivered to Shoe Carnival, a document apparently capable of defrauding another,
        in that it was purported to have been made by another, the United States Treasury, said
        document being a counterfeit one hundred dollar bill ($100.00), knowing the document to
        have been thus made.”
¶3          A jury found defendant guilty. Defendant moved for a new trial and to preclude any
        sentence other than probation. Defendant’s sentencing motion argued that the Unified Code
        of Corrections required that he be sentenced to probation unless the trial court found that
        probation was inappropriate for one of several reasons. See 730 ILCS 5/5-6-1(a) (West
        2008). However, the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000),
        that, except for 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.” Id. at 490. Defendant argued that, because the State had not presented
        the jury with facts to support any of the statutory bases for rejecting probation, the trial court
        could not make such findings and, thus, had to sentence him to probation.
¶4          The trial court found that probation would deprecate the seriousness of the offense (730
        ILCS 5/5-6-1(a)(2) (West 2008)) and sentenced defendant to five years’ imprisonment.
        Defendant moved the trial court to reconsider the sentence, renewing his Apprendi argument.
        The trial court denied the motion, stating that the issue should be resolved on appeal.
        Defendant timely appeals.

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¶5       On appeal, defendant argues, as he did in the trial court, that his prison sentence violates
     Apprendi. His argument is premised on section 5-6-1(a), which provides as follows:
             “(a) Except where specifically prohibited by other provisions of this Code, the court
         shall impose a sentence of probation or conditional discharge upon an offender unless,
         having regard to the nature and circumstance of the offense, and to the history, character
         and condition of the offender, the court is of the opinion that:
                  (1) his imprisonment or periodic imprisonment is necessary for the protection of
             the public; or
                  (2) probation or conditional discharge would deprecate the seriousness of the
             offender’s conduct and would be inconsistent with the ends of justice; or
                  (3) a combination of imprisonment with concurrent or consecutive probation
             when an offender has been admitted into a drug court program under Section 20 of
             the Drug Court Treatment Act is necessary for the protection of the public and for the
             rehabilitation of the offender.” 730 ILCS 5/5-6-1(a) (West 2008).
¶6       Defendant notes that the Supreme Court held in Apprendi, 530 U.S. 466, that, except for
     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.” Id. at 490. Defendant reasons that, because section 5-6-1 requires the court to make
     one of three findings in order to impose a prison term rather than probation, probation is the
     maximum sentence and any finding the court makes to increase that sentence violates
     Apprendi. The State responds that the maximum sentence for forgery, a Class 3 felony, is
     five years’ imprisonment and that a finding that requires or authorizes the court to impose
     a particular sentence up to the maximum does not run afoul of Apprendi.
¶7       The threshold question we must answer is, what is the maximum sentence for forgery?
     In answering this question, we begin with Apprendi itself.
¶8       There, Apprendi pleaded guilty to, inter alia, the second-degree felony of unlawful
     possession of a weapon for an unlawful purpose. Under New Jersey law, this exposed him
     to a sentencing range of 5 to 10 years’ imprisonment. Id. at 469-70. However, after finding
     that the offense was a “hate crime,” the trial court sentenced Apprendi to an extended term
     of 12 years in prison. Id. at 470-71. The Supreme Court held that exposing Apprendi to a
     greater maximum penalty based on a finding made by the trial judge violated his rights to an
     indictment alleging every element of the offense and to have a jury find each element of the
     offense beyond a reasonable doubt. Id. at 490.
¶9       Two years later, in Harris v. United States, 536 U.S. 545 (2002), the Court reaffirmed
     its pre-Apprendi decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986), that factual
     findings triggering a mandatory minimum sentence did not offend the constitution. The Court
     reiterated its previous holdings that the State must prove each element of an offense beyond
     a reasonable doubt. Harris, 536 U.S. at 549 (citing In re Winship, 397 U.S. 358, 364 (1970)).
     The Court then observed that not every fact affecting a defendant’s sentence is an element
     of the offense. The Court continued:
         “After the accused is convicted, the judge may impose a sentence within a range provided
         by statute, basing it on various facts relating to the defendant and the manner in which

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           the offense was committed. Though these facts may have a substantial impact on the
           sentence, they are not elements, and are thus not subject to the Constitution’s indictment,
           jury, and proof requirements. Some statutes also direct judges to give specific weight to
           certain facts when choosing the sentence. The statutes do not require these facts,
           sometimes referred to as sentencing factors, to be alleged in the indictment, submitted
           to the jury, or established beyond a reasonable doubt.” Id. at 549-50.
¶ 10       Harris specifically considered a federal statute (18 U.S.C. § 924(c)(1)(A) (2000))
       providing for certain minimum penalties for brandishing a firearm in the course of a drug-
       trafficking offense. Id. at 550-51. To answer the threshold question of the maximum penalty
       for the offense, the Court looked to the structure of the statute creating the offense, as well
       as the Court’s historical experience with Congress’s intent in drafting criminal statutes. After
       examining the statute in light of Congress’s past practices in enacting similar statutes, the
       Court concluded that there was only one drug-trafficking offense and that the brandishing
       of a weapon was merely a sentencing factor requiring the court to impose a sentence in
       excess of a particular minimum, but still within the statutory range. Harris, 536 U.S. at 552-
       55.
¶ 11       To similarly discern the maximum sentence for forgery, we must consider three statutes.
       The Criminal Code of 1961 defines forgery, as charged here, as follows:
               “(a) A person commits forgery when, with intent to defraud, he knowingly:
                   (1) makes or alters any document apparently capable of defrauding another in
               such manner that it purports to have been made by another or at another time, or with
               different provisions, or by authority of one who did not give such authority; or
                   (2) issues or delivers such document knowing it to have been thus made or altered
               ***.
                                                 ***
               (d) Sentence.
               Forgery is a Class 3 felony.” 720 ILCS 5/17-3(a)(1), (a)(2), (d) (West 2008).
¶ 12       The Unified Code of Corrections provides that, in general:
           “The following are appropriate dispositions, alone or in combination, for all felonies and
           misdemeanors [with exceptions not relevant here]:
                   (1) A period of probation.
                   (2) A term of periodic imprisonment.
                   (3) A term of conditional discharge.
                   (4) A term of imprisonment.” 730 ILCS 5/5-4.5-15(a)(1) through (a)(4) (West
               2008).
¶ 13       The Unified Code of Corrections further provides that, for a Class 3 felony, “[t]he
       sentence of imprisonment shall be a determinate sentence of not less than 2 years and not
       more than 5 years.” 730 ILCS 5/5-4.5-40(a) (West 2008).
¶ 14       Reading the three statutes together reveals the following. If a jury finds all of the
       elements listed in the statute defining the offense (and defendant does not dispute that the


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       jury did so here), the defendant is guilty of a Class 3 felony. The Unified Code of
       Corrections, in turn, provides that an “appropriate” sentence for a Class 3 felony includes a
       term of imprisonment (730 ILCS 5/5-4.5-15(a) (West 2008)), which may not exceed five
       years (730 ILCS 5/5-4.5-40(a) (West 2008)). Thus, defendant’s five-year sentence, while the
       maximum, is still an “appropriate” disposition for a Class 3 felony. We find nothing in this
       statutory scheme suggesting that probation is the maximum sentence.
¶ 15       The language on which defendant relies is not in the part of the Unified Code of
       Corrections dealing with authorized sentences, but is in a later section dealing only with
       sentences of probation and conditional discharge (730 ILCS 5/5-6-1(a) (West 2008)). If the
       legislature had intended to make probation the maximum sentence for a Class 3 felony absent
       some special finding, it could have done so far more clearly than by burying the requirement
       in a section of the Unified Code of Corrections relating to probation and conditional
       discharge.
¶ 16       Defendant insists, however, that the provision that the court “shall impose a sentence of
       probation” unless it makes one of the enumerated findings (730 ILCS 5/5-6-1(a) (West
       2008)) means that probation is the maximum sentence that may be imposed without finding
       an additional fact.
¶ 17       Defendant’s argument that, because the trial court had to find an additional fact in order
       to impose a sentence other than probation or conditional discharge, that fact necessarily
       became an element of the offense, runs contrary to Harris’s statement that not every fact that
       affects a defendant’s sentence is an element of the offense. Harris, 536 U.S. at 549-50.
       Harris acknowledged that the legislature may properly make some facts sentencing factors
       rather than elements of the offense and that, so long as those sentencing factors merely guide
       the trial court’s discretion in imposing a sentence at or below the statutory maximum, those
       facts need not be alleged in the indictment or proved to a jury beyond a reasonable doubt. Id.
¶ 18       We find the provision defendant cites to be much more like the minimum-sentence
       provisions approved in McMillan and Harris than the extended-term provision at issue in
       Apprendi. We have already held that the maximum sentence for a Class 3 felony is five
       years’ imprisonment. Section 5-6-1(a) requires a trial court to impose a less severe sentence
       within the applicable range unless it makes one of the findings. Under Harris, such a fact
       need not be proved to a jury beyond a reasonable doubt.
¶ 19       We note parenthetically that it is not clear that the additional “fact” that the trial court
       found is really a fact at all. The statute labels it an opinion. See 730 ILCS 5/5-6-1(a) (West
       2008) (“the court shall impose a sentence of probation or conditional discharge upon an
       offender unless *** the court is of the opinion”). While we agree with defendant that the
       label the legislature uses is not dispositive, it appears to us that the required “finding” is truly
       an opinion. We can conceive of no objectively verifiable facts the State could prove to
       establish defendant’s hypothetical offense of “forgery in which probation would deprecate
       the seriousness of the offense.”
¶ 20       In any event, the conclusion that granting a particular defendant probation is appropriate
       is unquestionably a sentencing factor rather than an element of a new and distinct offense.
       Deciding whether probation or imprisonment is appropriate for a given defendant after


                                                   -5-
       considering the circumstances of the offense and the defendant’s individual characteristics
       is the type of decision that judges routinely make in sentencing. See People v. Fern, 189 Ill.
       2d 48, 55 (1999) (“trial court is charged with fashioning a sentence based upon the particular
       circumstances of the individual case, including the nature of the offense and the character of
       the defendant”).
¶ 21        The lead opinion in Harris reiterated the long-standing rule that not “ ‘every fact with a
       bearing on sentencing must be found by a jury.’ ” Harris, 536 U.S. at 558 (quoting Jones v.
       United States, 526 U.S. 227, 248 (1999)). Illinois has long followed the rule that juries
       should not concern themselves with sentencing issues. See Illinois Pattern Jury Instructions,
       Criminal, No. 1.01(4) (4th ed. 2000). The upshot of defendant’s argument would be to
       intimately involve juries in sentencing issues whenever probation is a possible sentence. We
       are confident that this was not the legislature’s intent in enacting section 5-6-1(a).
¶ 22        People v. Swift, 202 Ill. 2d 378 (2002), which defendant cites, is consistent with our
       conclusion here. In Swift, the court held that the defendant’s 80-year sentence for first-degree
       murder violated Apprendi because the aggravating factor that the murder was exceptionally
       brutal and heinous was found by the judge and not proved beyond a reasonable doubt to the
       jury. In so holding, though, the court held that the maximum sentence for murder was 60
       years’ imprisonment, the maximum nonextended-term prison sentence. Id. at 388-89. We
       similarly conclude that the maximum sentence for forgery is five years’ imprisonment, the
       maximum nonextended prison term.
¶ 23        Accordingly, defendant’s five-year prison sentence was proper, and we affirm the
       judgment of the circuit court of Du Page County.

¶ 24      Affirmed.




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