Ill. Pattern Jury Instr. (Criminal) 28.00

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the

United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment to

the United States Constitution requires that any fact, other than a prior conviction, increasing the

penalty for an offense beyond the prescribed statutory maximum must be submitted to a jury and

proved beyond a reasonable doubt.

The sentencing enhancements set forth in 730 ILCS 5/5-8- 1(a)(1)(d) (West 2006), along

with the extended term factors in 730 ILCS 5/5-5- 3.2(b) (West 2006) and the natural life

enhancement factors for first degree murder set forth in 730 ILCS 5/5-8- 1(a)(1)(b) and (c) (West

2006) are included in these instructions.

730 ILCS 5/5-8-1(a)(1)(d) (West 2006) provides:

(d)(i) if the person committed the offense while armed with a firearm, 15 years shall be

added to the term of imprisonment imposed by the court;

(ii) if, during the commission of the offense, the person personally discharged a firearm,

20 years shall be added to the term of imprisonment imposed by the court;

(iii) if, during the commission of the offense, the person personally discharged a firearm

that proximately caused great bodily harm, permanent disability, permanent

disfigurement, or death to another person, 25 years or up to a term of natural life shall be

added to the term of imprisonment imposed by the court.

In People v. Sharpe , 216 Ill.2d 481, 839 N.E.2d 492, 298 Ill.Dec. 169 (2005), the court

held that the enhancement provisions in 730 ILCS 5/5-8- 1(a)(1)(d) (West 2006) did not set forth

disproportionate penalties, were not unconstitutionally vague, did not amount to improper double

enhancements and did not violate due process in the context of first degree murder.

Extended term factors may also be contained in the st atute creating the offense. For

example, the defendant is eligible for an extended term when he is convicted of aggravated

battery, domestic battery, aggravated domestic battery, unlawful restraint or aggravated unlawful

restraint in the presence of a chil d. 720 ILCS 5/12- 3.2(c) (West 2006). The defendant is also

eligible for an extended term sentence when he is convicted of predatory criminal sexual assault

of a child. 720 ILCS 5/12-14.1 (West 2006). In addition, the defendant is eligible for an extended

term when he is convicted of solicitation to commit murder and the person solicited was under

the age of 17 years. 720 ILCS 5/8- 1.1(b) (West 2006). The Committee has drafted instructions

for use in such cases. See Instructions 11.103, 11.104, 28.01[12], 28.01[13], 28.03[12],

28.03[13], 28.04[12] and 28.04[13].

In other instances, extended term factors may already be included in instructions

applicable to the offense. Examples include aggravated discharge of a firearm, Instruction 18.13,

aggravated battery w ith a firearm, Instruction 18.14, and cannabis and controlled substance

offenses, Instruction 17.00 et seq.

For an enhancement/extended term factor to be submitted to the jury, the

enhancement/extended term factor must be included in the charging instrument or otherwise

provided to the defendant through written notification before trial. 725 ILCS 5/111- 3(c-5) (West

2006). The jury should be instructed on every enhancement/extended term factor at issue when

there is sufficient evidence of that enhancement/extended term factor to submit to the jury.

Enhancement/extended term factors based on prior convictions need not be proven

beyond a reasonable doubt to a jury and are to be determined by the court at sentencing.

Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

These instructions do not include enhancement/extended term factors based on prior convictions.

Examples of prior conviction enhancement/extended term factors not submitted to the jury are

set forth in 730 ILCS 5/5-5-3.2(b)(1) and (11) (West 2006).

The defendant is eligible for an extended term sentence when he is convicted of voluntary

manslaughter, second degree murder, involuntary manslaughter or reckless homicide in which

the defendant has been convicted o f causing the death of more than one individual. 730 ILCS

5/5-5-3.2(b)(3) (West 2006). These instructions do not cover this situation because the

applicability of the extended term provision will be evident from the verdicts.

There may be cases in which t he charging instrument or written notice describes more

than one enhancement/extended term factor. In such cases, separate issues instructions under

28.03 and separate verdict forms should be given for each enhancement/extended term factor.

Because of amendments providing enhancement/extended term factors, the Committee

cautions the court and counsel to check the effective date of a particular enhancement/extended

term factor to ensure it was enacted before the defendant committed the offense.

Apprendi did not address whether the enhancement/extended term factor hearing should

be conducted as part of a unitary trial or in bifurcated proceedings. In People v. Norwood, 362

Ill.App.3d 1121, 1137, 841 N.E.2d 514, 530, 299 Ill.Dec. 102, 118 (1st Dist. 2005), the court

held that the Illinois statutes codifying the principles of Apprendi in extended term sentencing

situations do not give defendants the option to bifurcate the issues of guilt and “wanton cruelty”

or to have those issues decided by different fact finders and that Apprendi does not create such a

right. See also People v. Bowman, 357 Ill.App.3d 290, 299, 827 N.E.2d 1062, 1071, 293 Ill.Dec.

181, 191 (1st Dist. 2005) (regarding the issues of guilt and the age of the victim as an

enhancement factor).

The Committee recommended to the Illinois Supreme Court Rules Committee the

adoption of a rule that provides for unitary trials, as well as bifurcated trials in limited

circumstances. The Illinois Supreme Court Rules Committee adopted Illinois Supreme Court

Rule 451(g), effective July 1, 2006, which provides:

Proceedings When an Enhanced Sentence is Sought. When the death penalty is not being

sought and the State intends, for the purpose of sentencing, to rely on one or more

sentencing enhancement factors which are subject to the notice and proof requirements of

section 111- 3(c-5) of the Code of Criminal Procedure, the court may, within its

discretion, conduct a unitary trial through verdict on the issue of guilt and on the issue of

whether a sentencing enhancement factor exists. The court may also, within its discretion,

upon motion of a party, conduct a bifurcated trial. In deciding whether to conduct such a

bifurcated trial, the court must first hold a pretrial hearing to determine if proof of the

sentencing enhancement factor is not relevant to the question of guilt or if undue

prejudice outweighs the factor's probative value. Such bifurcated trial shall be conducted

subject to the following:

(1) The court shall first conduct a trial through verdict on the issue of guilt under the

procedures applicable to trials in other cases.

(2) If a guilty verdict is rendered, the court shall then conduct a separate proceeding

before the same jury or before the court if a jury was waived at trial or is waived for

purposes of the separate proceeding. This separate proceeding shall be confined to the

issue of whether the sentencing enhancement factor exists. The order in which the parties

may present evidence and argument and the rules governing admission of evidence shall

be the same as at trial, with the burden remaining on the State to prove the factor beyond

a reasonable doubt. After the evidence is closed, the submission and giving of

instructions shall proceed in accordance with paragraphs (a), (b), (c) and (d) of this rule.

(3) The court may enter a directed verdict or judgment notwithstanding the verdict

respecting any fact at issue in the separate proceeding.

Because a bifurcated trial “generally causes additional inconvenience to the jury, the

witnesses, and/or the parties, and causes additional cost to the parties and/or the taxpayers,” the

Committee Comments to Rule 451(g) make “unitary trials the presumptive option.” Ill. Sup. Ct.

R. 451(g), Committee Comments.