¶1dissenting:
¶2The majority’s invocation of the waiver doctrine is as misplaced here as it was in People v. Jackson, 199 Ill. 2d 286 (2002). As this court has recently and clearly stated:
“ ‘Waiver of a constitutional right is valid only if it is clearly established that there was “an intentional relinquishment or abandonment of a known right ….” ’ People v. Johnson, 75 Ill. 2d 180, 187 (1979), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023 (1938). Such waivers must not only be voluntary, but must be ‘ “knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” ’ Johnson, 75 Ill. 2d at 187, quoting Brady v. United States, 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463,1469 (1970).” (Emphasis added.) People v. McClanahan, 191 Ill. 2d 127, 137 (2000).
¶3It simply cannot be said that Hill knowingly relinquished his right to proof beyond a reasonable doubt when he had no notice, either through the charging instrument or otherwise, that the “brutal and heinous” element had to be submitted to the trier of fact. At the time he pleaded guilty, Apprendi had not been decided. Under the statutory scheme in place at that time, a finding of “brutal and heinous” behavior could have, unconstitutionally, been made by the judge.
¶4The majority cites People v. Barker, 83 Ill. 2d 319, 329-30 (1980), for the proposition that before accepting a guilty plea we do not require the trial court to advise a defendant of all elements of a crime. Barker does not,' however, stand for the proposition that a defendant need not have notice of all the elements of a crime in order for a subsequent guilty plea to be voluntary. In Barker we only decided whether the trial court’s admonishments were in substantial compliance with Supreme Court Rule 402. We never reached the issue of notice. Indeed, this court held in Barker that the charging instrument “adequately alleged the requisite intent to kill” (Barker, 83 Ill. 2d at 329) and “intent to kill” was the element that the defendant complained he had not been adequately admonished of by the trial court. Thus, Barker had notice and that case is inapposite to the case at hand. Simply put, in order for a guilty plea to operate as a waiver of proof beyond a reasonable doubt of the elements of a crime or of facts enhancing the penalty, a defendant, at minimum, must have notice of those elements or enhancement factors.