We therefore hold that section 5-8-2 of the Code is unconstitutional under Apprendi because it allows the imposition of a prison sentence of 60 to 100 years when the court determines that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty without affording defendant the right to a jury determination of whether the State proved the fact beyond a reasonable doubt. Accord People v. Chanthaloth, 318 Ill. App.3d 806, 816 (2001) (section 5-8-2(a)(2) unconstitutional as applied); People v. Beachem, 317 Ill. App.3d 693, 708 (2000) (section 5-8-2(a) unconstitutional as applied); cf. People v. Lee, 318 Ill. App.3d 417, 421 (2000) (section 5-8-1(a)(1)(b) unconstitutional as applied); Joyner, 317 Ill. App.3d at 110 (section 5-8-1(a)(1)(b) unconstitutional as applied). The State argues that the statutory sentencing range for first-degree murder is not 20 to 60 years' imprisonment but, rather, that the range is 20 years' imprisonment up to and including death.

We disagree.        We rejected this argument in People v. Lee, 318 Ill.App.3d 417, 421-22, 252 Ill.Dec. 863, 743 N.E.2d 1019 (2000). In that case, we held that the statutory sentencing range for first degree murder is 20 to 60 years' imprisonment, not 20 years' imprisonment up to and including the death penalty.

730 ILCS 5/5-8-1(a)(1)(b) (West 1994). Several Illinois courts have applied Apprendi and concluded that section 5-8-1(a)(1)(b) is unconstitutional because it violates a defendant's constitutional rights to due process and trial by a jury.People v. Lee, 318 Ill. App.3d 417 (2000); People v. Joyner, 317 Ill. App.3d 93, 739 N.E.2d 594 (2000). The courts have found that section 5-8-1(a)(1)(b) authorized a sentence of natural life for first degree murder based upon a finding that the murder was exceptionally brutal and heinous without requiring that that issue be submitted to a jury or proven beyond a reasonable doubt.

Subsequently, this court held that the imposition of a natural life sentence based on the trial court's finding that the murder was "exceptionally brutal and heinous" violated Apprendi, and that the extended-term 50-year sentence for armed robbery was improper because a defendant should only be sentenced to an extended-term sentence for the most serious class of felony of which he is convicted. See People v. Lee, 318 Ill. App. 3d 417, 423-24 (2000). Consequently, this court affirmed defendant's convictions, vacated his sentences, and remanded the cause for resentencing.

We recognize that there is currently a division of authority among the districts of this court (as well as among the divisions of this district) with respect to whether judicial fact-finding of the type allowed under section 5-8-1(a)(1)(b) violates the rule set forth in Apprendi. Compare People v. Lee, 318 Ill. App.3d 417, 422 (1st Dist. 2000) (finding section 5-8-1(a)(1)(b) unconstitutional as applied), and People v. Joyner, 317 Ill. App.3d 93, 109-110 (2nd Dist. 2000) (same) with People v. Vida, 323 Ill. App.3d 554, 573 (1st Dist. 2001) (finding no constitutional violation where the trial court made a finding of "brutal and heinous behavior" under the related 60 to 100-year extended term provision of section 5-5-3.2(b)(2) of the Code ( 730 ILCS 5/5-8-2(a)(1), 5-5-3.2(b)(2) (West 1998)). See also People v. Ford 198 Ill.2d 68, 76-77 (2001) (Harrison, C.J., dissenting), People v. Swift, 322 Ill. App.3d 127, 130 (2nd Dist. 2001); People v. Chanthaloth, 318 Ill. App.3d 806, 816-18 (2nd Dist. 2001); People v. Kaczmarek, 318 Ill. App.3d 340, 353-54 (1st Dist. 2000); and People v. Beachem, 317 Ill. App.3d 693, 708 (1st Dist. 2000) (all finding Apprendi violations in related provisions of the Code)

While a sentence of 80 years may be greater than 20 years in prison and less severe than the death penalty, section 5-8-1 makes no provision for such a sentence and thus such a sentence cannot be said to be within the statutory sentencing range for first degree murder in a non-capital case.          This court rejected the argument that the maximum sentence for murder is life in prison or the death penalty in People v. Kaczmarek, 318 Ill.App.3d 340, 741 N.E.2d 1131 (2000), and in People v. Lee, 318 Ill.App.3d 417, 741 N.E.2d 1131 (2000). The Kaczmarek court held that 60 years is the prescribed maximum penalty for first degree murder.

As noted by the Apprendi majority, the maximum penalty for first degree murder under Arizona law is death, but Arizona law interposes procedural safeguards, including additional factual determinations, between a finding of guilt and the imposition of a death sentence. Cf. People v. Lee, 318 Ill.App.3d 417, 252 Ill.Dec. 863, 743 N.E.2d 1019, 1023 (2000) (stating that Apprendi procedures apply to Illinois' capital scheme because Illinois, unlike Arizona, sets a maximum penalty of 60 years for first degree murder and then allows a greater sentence upon proof of additional facts). And, as Justice Thomas explained in his concurrence, the additional safeguards provided by Arizona do not necessarily reflect a legislative determination that the elements of first degree murder are, by themselves, insufficient to justify capital punishment; rather, those safeguards were enacted to comply with the strict Eighth Amendment requirements that govern capital cases, which do not include proof beyond a reasonable doubt or fact-finding by a jury.

Hampton's 60-year extended term sentence rests upon a sentencing statute that has now been declared unconstitutional by several Illinois appellate panels. See, e.g., People v. Beachem, 317 Ill. App.3d 693, 700, 740 N.E.2d 389, 393-94 (2000); People v. Lee, 318 Ill. App.3d 417, 421, 743 N.E.2d 1019, 1022 (2000); People v. Lee, 319 Ill. App.3d 289, 307-08, 745 N.E.2d 78, 93 (2001). These courts found that the principles expressed by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), invalidated the extended term statute, 730 ILCS 5/5-5-3.2, which permits a sentencing judge to impose a sentence in excess of the statutory maximum upon making certain findings at the time of sentencing.

Because of those deficiencies, extended terms imposed under the statutes cannot, as a general rule, pass constitutional muster under Apprendi. See People v. Swift, 322 Ill. App.3d 127, 130 (2001); People v. Lee, 319 Ill. App.3d 289, 307-08 (2001); People v. Chanthaloth, 318 Ill. App.3d 806, 816-18 (2001); People v. Kaczmarek, 318 Ill. App.3d 340, 353 (2000); People v. Lee, 318 Ill. App.3d 417, 422 (2000); People v. Beachem, 317 Ill. App.3d 693, 708 (2000); People v. Joyner, 317 Ill. App.3d 93, 109-10 (2000). Public Act 91-953, § 10, which took effect February 23, 2001, amended section 5-8-1(a)(1)(b) and section 5-8-2(a) to specify that the aggravating factors necessary to support enhanced sentences must now to be found by the trier of fact beyond a reasonable doubt.

This court affirmed the convictions but reversed the sentences and remanded for a new sentencing proceeding, finding that the sentences violated the requirements of Apprendi v. New Jersey, 530 U.S. 466 (2000). See People v. Lee, 318 Ill.App.3d 417 (2000) (Lee II).