IS IT EVER DEEMED UNCONSTITUTIONAL WHEN A JUDGE USE THE VICTIM IMPACT STATEMENT AS AN AGGRAVATING FACTOR OR AS FACT FINDING TO INCREASE DEFENDANT'S PUNISHMENT, WITHOUT A JURY DETERMINING THE FACTUAL BASIS RULED UNCONSTITUTIONAL IN APPRENDI V. NEW JERSEY, 530 U.S. 466, 490, 147 L.ED. 2D 435, 120 S.CT. 2348 (2000) WHEN FACTS FOUND BY THE JUDGE, RATHER THAN BY THE JURY BEYOND A REASONABLE DOUBT WAS USED TO INCREASE PUNISHMENT

Whether a judge's use of a victim impact statement as an aggravating factor or for fact-finding to increase a defendant's punishment, without a jury determining the factual basis, is unconstitutional under Apprendi v. New Jersey