¶1dissenting:
¶2For the reasons set forth in my dissent in People v. De La Paz, 204 Ill. 2d 426, 454-55 (2003) (Kilbride, J., dissenting), and my dissent in People v. Lee, 207 Ill. 2d 1, 6-7 (2003) (Kilbride, J., dissenting), I disagree with the majority’s conclusion that the United States Supreme Court holding in Apprendi does not apply retroactively to cases where the direct appeal process had concluded when Apprendi was announced. 213 Ill. 2d at 349. I do not dispute defendant’s underlying guilt of the offenses of armed robbery and armed violence. Rather, I simply disagree with the enhancement of defendant’s sentence based on a sentencing factor that was not proved to the jury beyond a reasonable doubt. It is axiomatic that all essential elements of guilt must be submitted to the trier of fact, for proof beyond a reasonable doubt. See De La Paz, 204 Ill. 2d at 455 (Kilbride, J., dissenting), citing In re Winship, 397 U.S. 358, 361, 25 L. Ed. 2d 368, 373-74, 90 S. Ct. 1068, 1071 (1970) (the “beyond a reasonable doubt” standard is the accepted “ ‘measure of persuasion by which the prosecution must [prove] all the essential elements of guilt,’ ” quoting C. McCormick, Evidence § 321, at 681-82 (1954)). I continue to believe that the failure to comply with this basic tenet of constitutional law is an error so injurious to fundamental civil liberty that no sentence imposed in violation of Apprendi should be upheld. See People v. Swift, 202 Ill. 2d 378, 392 (2002) (an extended-term sentence based on the trial judge’s factual finding that defendant’s crime was brutal and heinous violated Apprendi and could not stand); People v. Thurow, 203 Ill. 2d 352, 375-78 (2003) (Kilbride, J., dissenting); People v. Crespo, 203 Ill. 2d 335, 349-51 (2001) (Kilbride, J., dissenting). Here, the circuit court of Will County appropriately recognized the applicability of Apprendi, and its ruling holding the statute authorizing Lucien’s extended-term sentence unconstitutional should be upheld. Accordingly, I respectfully dissent.