Extended Term Sentencing

EXTENDED TERM SENTENCING

730 ILCS 5/5-8-2; 730 ILCS 5/5-3.2

A. Eligibility for extended term

A judge may not sentence in excess of the range of sentences provided for in 730 ILCS 5/5-8-1 for the class of the most serious offense of which the offender was convicted unless:

the factors in aggravation set forth in 730 ILCS 5/5-3.2(b)OR Section 5-8-1(a)(1)(b) are found to exist; AND

the pre-trial and trial proceedings were conducted in compliance with subsection (c-5) of 725 ILCS 5/111-3 (APPRENDI COMPLIANCE, see below) in which case the judge may sentence an offender to an extended term sentence.

THE CLASS OF THE MOST SERIOUS OFFENSE

1. An extended sentence may be imposed only “for the class of the most serious offense of which the offender was convicted.” However, extended term sentences can be imposed for more than one offense as long as they are in the class of the most serious offense. People v. Jordan 103 Ill. 2d 192 (1984).

Additionally, when a defendant is sentenced to death or natural life for murder, the defendant can be sentenced to an extended term for the next most serious offense, as a sentence of death or natural life cannot be extended and is not for a term of years. People v. Terry, 183 Ill. 2d 298 (1998).

2. Extended term sentences may be imposed on separately charged offenses of different class that arise from unrelated courses of conduct. People v. Coleman, 166 Ill. 2d 247 (1995). To determine whether multiple offenses arise from unrelated courses of conduct thus allowing extended terms regardless of class the test to be used is the “independent motivation” test used in consecutive sentencing analysis. That test determines whether the offenses were part of a “single course of conduct during which there was no substantial change in the nature of the criminal objective.” People v. Bell, 196 Ill. 2d 343 (2001).

B. FACTORS IN AGGRAVATION UNDER 730 ILCS 5/5-3.2 (b)

The following factors may be considered as reasons to impose an extended term:

1. When a defendant is convicted of any felony after having been previously convicted in Illinois or any other jurisdiction of the same, similar, or greater class felony within 10 years, excluding time spent in custody and such charges are separately brought and tried and arise out of different series of acts;

a. The Prior Convictions

*A misdemeanor offense can be enhanced to a felony and then be subject to an extended term. However, the same felony cannot be used to enhance an offense to a felony and then be used as a basis for imposition of an extended term. People v. Gonzalez, 151 Ill. 2d 79 (1992), People v. Hicks, 164 Ill. 2d 218(1995).

*However, the use of prior convictions to impose a Class X sentence under 730 ILCS 5/5-5-3 (c)(8) does not preclude the court from using the same prior convictions as an aggravating factor for extended term sentencing. People v. Thomas, 171 Ill. 2d 207 (1996). On the other hand a prior Class 2 conviction cannot be enhanced to Class X and then used to extend the term of another Class X sentence as enhancing a Class 2 felony does not change its class for the purposes of this section. People v.Olivo, 183 Ill. 2d 701 (1998).

*A juvenile adjudication does not qualify as a conviction for the purposes of this section. People v. Rankin, 297 Ill. App. 3d818 (1998).

b. Within 10 Years

*The date of the last sentence imposed for a prior felony is the date from which the 10-year period begins to run and thus the date of sentence for a probation violation is the relevant date. People v. Lemons, 191 Ill. 2d 155 (1998).

*The term “excluding time spent in custody” includes any time spent in custody between the prior conviction to be used to extend the term and the present case and the term is not interpreted to mean to exclude only time spent in custody as the result of the prior conviction. People v. Robinson, 89 Ill. 2d 469 (1982).

or

2. When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty;

a. InPeople v. Nitz, 219 Ill. 2d 400 (2006) the Illinois Supreme Court in analyzed this language(under the identical language allowing for a life sentence for first degree murder under 730ILCS 5/5-8-) as follows:

the terms "brutal," "heinous," and "indicative of wanton cruelty" are given their ordinary and popular meaning. People v. La Pointe, 88 Ill. 2d 482, 499, 431 N.E.2d 344, 59 Ill. Dec. 59 (1981). For behavior to be heinous, it must be "hatefully or shockingly evil; grossly bad; enormously and flagrantly criminal." Kaczmarek, 207 Ill. 2d at 303 (citing People v. Nielson, 187 Ill. 2d 271, 299, 718 N.E.2d 131, [**994] 240 Ill. Dec. 650 (1999), People v. Lucas, 132 Ill. 2d 399, 445, 548 N.E.2d 1003, 139 Ill. Dec. 447 (1989), and La Pointe, 88 Ill. 2d at 501). We define brutal behavior as "behavior that is grossly ruthless, [***29] devoid of mercy or compassion; cruel and cold-blooded." Kaczmarek, 207 Ill. 2d at 303 (citing Nielson, 187 Ill. 2d at 299, Lucas, 132 Ill. 2d at 445, and La Pointe, 88 Ill. 2d at 501). Brutal or heinous behavior generally involves prolonged pain, torture, or premeditation (Lucas, 132 Ill. 2d at 445), but does not necessarily require them (La Pointe, 88 Ill. 2d at 501). Behavior must qualify as either brutal or heinous for the sentencing enhancement to apply. Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-1(a) (codified as amended at 730 ILCS 5/5-8-1(a)(1)(b) (West 2004)).

In addition to being exceptionally brutal or heinous, the crime must also be indicative of wanton cruelty. " 'Wanton cruelty' requires 'proof that the defendant consciously sought to inflict pain and suffering on the victim of the offense.' " Nielson, 187 Ill. 2d at 299, quoting People v. Pastewski, 164 Ill. 2d 189, 194, 647 N.E.2d 278, 207 Ill. Dec. 316 (1995). Thus, wanton cruelty cannot be [*419] perpetrated on a corpse. Nielson, 187 Ill. 2d at 299. In Nielson, this court found that[***30] burning two victims' bodies and stuffing them in a duffle bag was brutal and heinous. Nielson, 187 Ill. 2d at 299. However, it did not indicate wanton cruelty because defendant could not inflict pain and suffering on a corpse. Nielson, 187 Ill. 2d at 299. Therefore, actions taken to conceal a murder cannot show wanton cruelty, but may still be brutal or heinous.

Nitz, at 418-419.

b. A sentence for heinous battery cannot be extended under this section as the crime by definition is accompanied by heinous behavior and thus an extended term based on this factor would constitute a double enhancement. People v. Jackson, 299 Ill. App. 3d 104 (1998).

or

3. When a defendant is convicted of second degree murder, voluntary manslaughter, involuntary manslaughter, or reckless homicide in which the defendant has been convicted of causing the death of more than one individual; or

4. When the defendant is convicted of any felony and the victim is under 12 years of age, 60 years of age or older, or physically handicapped; or

5. When the defendant is convicted of aggravated criminal sexual assault or criminal sexual assault and the assault was committed on the same victim by one or more others and the defendant voluntarily participated with the knowledge of the participation of the others and the commission of the crime was part of a single course of conduct during which there was no substantial change in the nature of the criminal objective; or

6. When a defendant is convicted of any felony involving the following misconduct as part of a ceremony, rite, initiation, observance, performance, practice or activity of any actual or ostensible religious, fraternal, or social group;

(i) the brutalizing or torturing of humans or animals;

(ii) the theft of human corpses;

(iii) the kidnapping of humans;

(iv) the desecration of any cemetery, religious, fraternal, business, governmental, educational, or other building or property;

(v) ritualized abuse of a child; or

7. When the defendant is convicted of first degree murder after having been previously convicted in Illinois of any of the non-probationable offenses listed in 730 ILCS 5/5-5-3 (c)(2) within 10 years excluding time spent in custody and such charges are separately brought and tried and arise out of different series of acts; or

8. When a defendant is convicted of a felony other than conspiracy and the court finds that the felony was committed under an agreement with 2 or more other persons to commit that offense and the defendant, with respect to the other individuals, occupied a position of organizer, supervisor, financier, or any other position of management or leadership, and the court further finds that the felony committed was related to or in furtherance of the criminal activities of an organized gang or was motivated by the defendant's leadership in an organized gang; or

9. When a defendant is convicted of a felony violation of Section 24-1 of the Criminal Code of 1961 [720 ILCS 5/24-1] (unlawful use of weapon) and the court finds that the defendant is a member of an organized gang; or

10. When a defendant committed the offense using a firearm with a laser sight attached to it. For purposes of this paragraph (10), "laser sight" has the meaning ascribed to it in Section 24.6-5 of the Criminal Code of 1961 [720 ILCS 5/24.6-5]; or

(11) When a defendant who was at least 17 years of age at the time of the commission of the offense is convicted of a felony and has been previously adjudicated a delinquent minor under the Juvenile Court Act of 1987 [705 ILCS 405/1-1 et seq.] for an act that if committed by an adult would be a Class X or Class 1 felony when the conviction has occurred within 10 years after the previous adjudication, excluding time spent in custody; or

(12) When a defendant commits an offense involving the illegal manufacture of a controlled substance under Section 401 of the Illinois Controlled Substances Act [720 ILCS 570/401], the illegal manufacture of methamphetamine under Section 25 of the Methamphetamine Control and Community Protection Act [720 ILCS 646/25], or the illegal possession of explosives and an emergency response officer in the performance of his or her duties is killed or injured at the scene of the offense while responding to the emergency caused by the commission of the offense. In this paragraph (12), "emergency" means a situation in which a person's life, health, or safety is in jeopardy; and "emergency response officer" means a peace officer, community policing volunteer, fireman, emergency medical technician-ambulance, emergency medical technician-intermediate, emergency medical technician-paramedic, ambulance driver, other medical assistance or first aid personnel, or hospital emergency room personnel; or

(13) When a defendant commits any felony and the defendant used, possessed, exercised control over, or otherwise directed an animal to assault a law enforcement officer engaged in the execution of his or her official duties or in furtherance of the criminal activities of an organized gang in which the defendant is engaged.

C. ADDITIONAL EXTENDED TERM PROVISIONS UNDER 730 ILCS 5/5-3.2 (c), (d), (e);

(c) The court may impose an extended term sentence under Section 5-8-2 [730 ILCS 5/5-8-2] upon any offender who was convicted of aggravated criminal sexual assault or predatory criminal sexual assault of a child under subsection (a)(1) of Section 12-14.1 of the Criminal Code of 1961 [720 ILCS 5/12-14.1] where the victim was under 18 years of age at the time of the commission of the offense.
(d) The court may impose an extended term sentence under Section 5-8-2 [730 ILCS 5/5-8-2] upon any offender who was convicted of unlawful use of weapons under Section 24-1 of the Criminal Code of 1961 [720 ILCS 5/24-1] for possessing a weapon that is not readily distinguishable as one of the weapons enumerated in Section 24-1 of the Criminal Code of 1961 [720 ILCS 5/24-1].
(e) The court may impose an extended term sentence under Section 5-8-2 [730 ILCS 5/5-8-2] upon an offender who has been convicted of first degree murder when the offender has previously been convicted of domestic battery or aggravated domestic battery committed against the murdered individual or has previously been convicted of violation of an order of protection in which the murdered individual was the protected person.

D. EXTENDED TERM FOR MURDER UNDER 730 ILCS 5/5-8-1(a)(1)(b)

An extended term sentence may be imposed if a trier of fact finds beyond a reasonable doubt that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or, if any of the aggravating factors listed in subsection (b) of Section 9-1 of the Criminal Code of 1961 [720 ILCS 5/9-1] are present.

E. APPRENDI AND 730 ILCS 5/111-3(c-5)

In Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the U.S. Supreme Court held that 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. Apprendi, 120 S. Ct. at 2362-63.

In response to Apprendi, Illinois adopted 730 ILCS 5/111-3(c-5) and (d) which provides a follows:

(c-5) Notwithstanding any other provision of law, in all cases in which the imposition of the death penalty is not a possibility, if an alleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be included in the charging instrument or otherwise provided to the defendant through a written notification before trial, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt. Failure to prove the fact beyond a reasonable doubt is not a bar to a conviction for commission of the offense, but is a bar to increasing, based on that fact, the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for that offense. Nothing in this subsection (c-5) requires the imposition of a sentence that increases the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense if the imposition of that sentence is not required by law.
(d) At any time prior to trial, the State on motion shall be permitted to amend the charge, whether brought by indictment, information or complaint, to make the charge comply with subsection (c) or (c-5) of this Section. Nothing in Section 103-5 of this Code [725 ILCS 5/103-5] precludes such an amendment or a written notification made in accordance with subsection (c-5) of this Section.

In sum, Section 111-3 above provides that in non-death penalty cases if:

an alleged fact (other than the fact of a prior conviction) is not an element of the offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum the alleged fact must be;

included in the charging instrument or otherwise provided to the defendant in writing before trial; and

submitted to the trier of fact as an aggravating factor; and

proved beyond a reasonable doubt.

As noted above, 730 ILCS 5/5-8-2 (as well as Apprendi) provides that 730 ILCS 5/111-3(c-5) be complied with in order to allow for the imposition of an extended term sentence. (See above for a discussion of bifurcated and unitary trials under Supreme Court Rule 451(g).