-68-
any aggravating and mitigating factors ***. If the Court determines
that there are no mitigating factors sufficient to preclude the
imposition of the death sentence, the Court shall sentence the
defendant to death.” 720 ILCS 5/9–1(h) (West 2002). However, the
statute was changed in 2003, and it now directs: “the Court shall
consider any aggravating and mitigating factors ***. If the Court
determines, after weighing the factors in aggravation and mitigation,
that death is the appropriate sentence, the Court shall sentence the
defendant to death.” 720 ILCS 5/9–1(h) (West 2004). The change in
the sentencing statute was effective November 19, 2003; defendant’s
sentencing hearing began September 3, 2003, and defendant was
sentenced March 9, 2004.
Defendant raised this claim in his posttrial motions. The circuit
court acknowledged that the statute had changed and that it had not
said that death was the appropriate sentence during its imposition of
sentence. The court explained:
“When I wrote my notes on the yellow sheet of paper, I
had both standards because Mr. Baez I thought had the right
to elect both, and I certainly thought I said that death was the
appropriate sentence. Those words I do not see in the
transcript, even though I read it quickly. I certainly didn’t see
them. But it is clear that under either standard, death is the
appropriate sentence.
There were mitigating factors, but there were no
mitigating factors sufficient to preclude the imposition of
death. And, therefore, death in this Court’s opinion was the
appropriate sentence in the case.”
Later, the court added:
“I wouldn’t have used the wrong standard, but I’ve indicated
that I had the benefit of both standards, and I think that they
go hand in hand. If there were mitigating factors sufficient to
preclude the imposition of death, then of course death would
not be the appropriate sentence. Because there are no
mitigating factors sufficient to preclude the imposition of
death, then death is in fact without a doubt in my mind the
appropriate sentence.”
Thus, contrary to defendant’s argument, it is clear that the court
