1. Scope of Application
   P.A. 91-953 amends the Code of Criminal Procedure by adding new subsection (c-5) to 725 ILCS 5/111-3. That subsection requires that the State (a) put the defendant on notice of any fact which the State intends to use in order to increase the range of penalties "for the offense" beyond the maximum otherwise authorized based solely on the factual issues expressly resolved by the jury and (b) submit that alleged fact to the jury (or bench if jury is waived) for determination beyond a reasonable doubt. These requirements do not apply where: (1) the sentence enhancing fact is a prior conviction; (2) the case is to be tried in accordance with the death penalty procedure at least through the eligibility phase; or (3) the fact will increase the defendant's total sentence only by making it consecutive to another sentence without any sentence for a single offense being increased beyond the maximum for that offense. The first two exceptions are express. The third is implied by the quoted language in italics above. This implication has been confirmed indirectly by our Supreme Court's reading of the scope of Apprendi. People v. Wagener, 196 Ill.2d 269, 752 N.E.2d 430, 442, 256 Ill.Dec. 550, 562 (2001) ("The issue in Apprendi was 'whether the Due Process Clause of the Fourteenth Amendement requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.' (Emphasis added.) Apprendi, 530 U.S. at 469, 120 S.Ct. at 2351, 147 L.Ed.2d at 442.")



2. Form of Notice
   
   Section (c-5) provides that where a fact will be used to enhance the sentence beyond the range that would be applicable in its absence, "the alleged fact must be included in the charging instrument or otherwise provided to the defendant through a written notification before trial . . . ." Where there is any likelihood that the defendant will seek to strike the notice, or where the court may undertake to do so because it considers the enhanced sentence inappropriate to the case, there may appear to be an advantage to formulating two counts, one for the core offense and a second which incorporates the core offense plus an allegation of the fact, which if proved will support the increased sentence. This precaution protects against the ambiguity created if the notice were to be stricken, since the dismissal of a count in an information or indictment is clearly appealable under Supreme Court Rule 604(a)(3), but the striking of a notice is not on its face quite so clearly appealable. But the advantage is illusory. A defendant inclined to attack a notice could just as easily ask the court to strike the language alleging a sentence enhancing fact from the informaiton or indictment. The State's right to appeal would be just as unclear, because in neither case would the court's order plainly, in the language of the rule, "have the substantive effect of dismissing the charge." The enhancing fact alleged in the notice or charge is not, after all, an element of any offense. People v. De La Paz, 204 Ill.2d 426, 791 N.E.2d 489, 495-496, 274 Ill.Dec. 397, 403-404 (2003) ("Apprendi is about sentencing only.") However, an argument could be made that have removed the State's ability to present the fact to the jury the court's order was appealable because it removed a dispositional alternative otherwise available. See, People v. DeJesus, 127 Ill.2d 486, 537 N.E.2d 800, 130 Ill.Dec. 471 (1989), which held that transfer of a juvenile murder and armed robbery defendant after conviction from adult court to juvenile court for sentencing was appealable by the State for this reason.
   
   

   Thus, respecting the State's right to appeal, it is a matter of indifference whether one proceeds by creating a second count including surplus language alleging the aggravating fact or by separate notice alleging the fact. This is a departure from the view expressed in previous versions of this essay.

   Adopting the charging alternative would result in filing two counts for each offense for which an extended sentence was sought, thus:

   Count I
   [Count I is exactly the same as Count II, except that the underlined language pertaining to the enhancement factor is omitted.]
   
   Count II
   In the name of and by the authority of the People of the State of Illinois, Earnest Prosequi, State's Attorney of Exemplar County, upon oath charges that Mia Thug, hereinafter called the Defendant, on or about the 24th day of February, 2004 in said county and state committed the offense of First Degree Murder with an additional fact of exceptional brutality in violation of 720 Illinois Compiled Statutes, Section 5/9-1(a)(1) and 730 Illinois Compiled Statutes, Section 5-8-1(a)(1)(b), in that the said Defendant, without lawful justification and with the intent to kill Ima Goner beat her about the head and body with a brass-handled walking stick thereby causing the death of Ima Goner, and further, that the death was caused by exceptionally brutal or heinous behavior indicative of wanton cruelty.
   
   Note that Count II refers to the sentencing statute by citation only. The law remains that, except for the death penalty, the jury is not to be made aware of sentencing options. While it is permissible to refer to a natural life or other enhanced sentence in charging under section (c-5), such language will have to be redacted if the charge is read to the jury.
   
   

   Adopting the notice option simply involves filing, and serving upon the defendant, a document in addition to the charges of the following form:

   NOTICE TO THE DEFENDANT
   
   Earnest Prosequi, State's Attorney of Exemplar County, hereby gives notice to Mia Thug, the Defendant herein, that with respect to Count I charging First Degree Murder [Alternative language: with respect to all counts to which such fact may apply], the People intend to prove the additional fact that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty and upon proof of that fact seek a sentence in excess of the non-extended range for the offense.

   The Notice should be specific regarding the counts to which it applies, or expressly refer to "all counts" if the State intended to seek a corresponding instruction on all (a wise choice if there is a risk of acquittal on the greater offense in a multi-count case).

   Again departing from my previous view, I now recommend the notice option over the charging option for these reasons: It is simple. It simplifies the jury instructions. Most importantly, it conforms to the view taken by our Supreme Court in De La Paz that facts requiring Apprendi treatment (notice and jury verdict) are not thereby elements. Obscuring this point creates fertile ground for mischief. In a number of recent cases, defendants have attacked verdicts resulting from compliance with Section (c-5) on the ground that instructing the jury on a "new element" violated the ex post facto clause of the United States Constitution and also violated separation of powers provisions of the Illinois Constitution in that a court, rather than the legislature, "created" the element by virtue of the instruction. So far, such challenges have been rejected. See, e.g., People v. Forcum, 344 Ill.App.3d 427, 800 N.E.2d 499, 509-510, 279 Ill.Dec. 431, 441-442 (5th Dist., 2003). The notice option also avoids potential confusion regarding mandatory joinder and its speedy trial consequences, as noted below in section 3 of thsi discussion.




3. Alternative Remedy for Cases Tried Before the Effective Date
   
   Section 10 of P.A. 91-953 amends two sections of the Code of Corrections by adding identical language: 730 ILCS 5/5-5-3(d) and 730 ILCS 5/5-5-4. Where a sentence is vacated either on direct appeal or on collateral attack because of a failure to submit the factual basis of an enhanced sentence to the trier of fact at trial and obtain, as part of the verdict, that the fact exists, the amendment permits the State to elect to proceed to a new trial instead of having the sentence reduced. The State makes the election by filing a "notice of its intention to again seek the extended sentence . . . ." The amendment is silent on the question of exactly when and in which court the notice should be filed. But prudence dictates that it be filed in the court which is hearing the challenge to the enhanced sentence (e.g., the appellate court, or the post-conviction court), and that it be filed before judgment is entered by that court. A host of problems awaits the State's Attorney who, for example, waits for the appellate court to issue its order reducing the sentence and then asks the circuit court for a new trial after the mandate issues.

Independently of the language in Section 111-3(d), a simple but presuasive argument exists to the effect that the addition of a sentencing fact allegation by notice or amended charge in order to comply with 111-3(c-5) is never subject to the mandatory joinder provisioins of 720 ILCS 5/3-3. The relevant language of that section requires that "several offenses" known to the prosecutor at the time of commencing the prosecution must be prosecuted in a single prosecution (unless severed by the court in the interest of justice). But since the sentencing fact which authorized a sentence beyond the ordinary maximum is not an element (De La Paz supra), the allegation of that fact at a later date than the date the core offense was originally charged cannot constitute the charging of a new offense. Hence, the late filing is not a failure to join multiple offenses at the commencement of the prosecution. The point is clearest where the sentencing fact is alleged by notice rather than by an added count. Still, it is prudent to add enhancement counts or notices early, and be prepared for a speedy trial attack if they must be added late.