Opinion
No. 1-02-0161.
March 15, 2004.
Appeal from the Circuit Court of Cook County, No. 00 CR 22705, Shelley Sutker-Dermer, Judge, presiding.
Following a bench trial, defendant was found guilty of aggravated battery against Randall Blackburn and the burglary of David Demulemeester's home. He was sentenced to six concurrent years' imprisonment. On appeal, defendant asks: (1) whether his burglary conviction should be reversed because the amendment to the residential burglary statute including burglary as a lesser offense of residential burglary was not effective until after his conviction; (2) whether he was proved guilty beyond a reasonable doubt of committing aggravated battery with a "deadly weapon" to wit, a club, which was approximately 30 inches long and 2 inches thick and the injuries sustained by Blackburn were not consistent with "great bodily harm"; and (3) whether he must be resentenced because the mandatory Class X sentencing statute and the extended-term sentencing statute violate his right to due process and trial by jury by increasing the maximum sentence without notice or a jury finding upon proof beyond a reasonable doubt of the facts qualifying him for sentences beyond the prescribed sentencing range, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348 (2000).
For the reasons set forth below, we affirm.
BACKGROUND
Defendant was charged with residential burglary ( 720 ILCS 5/19-3 (West 2000)) of David Demulemeester's home on the afternoon of September 7, 2000. Defendant was also charged with aggravated battery against Harold DeLeo and Randall Blackburn while using a deadly weapon, "a club." See 720 ILCS 5/12-4(b)(1) (West 2000). Two additional counts charged that the aggravated batteries occurred while on or about a public way. See 720 ILCS 5/12-4 (b)(8) (West 2000).
Homeowner David Demulemeester testified at trial that on September 7, 2000, although he was having his house "remodeled," he was still living in and occupying the house. Workers had been remodeling the home for approximately five months prior to the September 7 unauthorized entry. Demulemeester further testified that none of his property was missing from his home after defendant's unauthorized entry.
Harold DeLeo testified at defendant's bench trial that on September 7, 2000, he was completing remodeling work on the home of David Demulemeester. The doors of the home were not locked because workers were bringing materials and tools in and out. At approximately 2:30 p.m., DeLeo saw defendant in the front room picking up tools off of the floor. DeLeo testified that defendant is not a construction worker with his company. DeLeo ran toward defendant and told him to stop. They began fighting and defendant dropped the tools and tried to get out of the house. The struggle moved to the outdoor front porch, and DeLeo noticed his company phone in defendant's pocket. Eventually, DeLeo took the phone from defendant. Defendant ran away. When defendant returned to the client's home, DeLeo saw defendant holding a "stick" that was "[t]wo inches by two inches by approximately forty-two inches." DeLeo testified that defendant was swinging the stick "pretty wildly." Eventually, DeLeo took the stick from defendant.
Randall Blackburn testified that he observed defendant picking up tools inside the house. Blackburn and DeLeo told defendant to leave. Blackburn, DeLeo and defendant went outside. Blackburn and defendant fought outside. Then defendant ran down the street. About two minutes later, defendant returned, running toward him "with a stick." Blackburn described the "stick" as a "[t]wo by two Wolmanized water-treated spindle for a railing." Defendant hit Blackburn in the forehead. The blow rolled Blackburn back, but he did not fall. Blackburn also testified that he suffered a scratch on his right forearm. Pictures of his head and forearm were identified at trial and are in the record. Blackburn stated that the picture did not accurately reflect the injury to his head because his hair concealed the swelling.
Officer Jessie Avila, one of the arresting officers, testified that Blackburn only reported the first incident, which started inside the house, and being hit with a stick. Blackburn did not report that after the initial altercation, defendant returned to the scene some time later and hit Blackburn with a stick. The property inventory report completed by Officer Avila described the weapon used as a "2 x 2 stick approx. 30 inches in length."
The State rested its case and defendant moved for directed finding on counts IV and V (aggravated battery in a public way). Defendant was found not guilty of counts IV and V. Following argument, defendant was also found not guilty of count II (aggravated battery with a deadly weapon against DeLeo). Counts I and III, residential burglary and aggravated battery against Blackburn, remained.
In defendant's case in chief, the parties stipulated that on September 8, 2000, defendant was hospitalized and treated for a collapsed lung. The defense then rested its case in chief.
The court stated that it was "not convinced beyond a reasonable doubt that a residential burglary occurred." In finding defendant guilty of burglary and aggravated battery, the court reasoned: "I'm finding him guilty of the lesser included of burglary because of the situation of the house and the way it was under construction and the fact that there were workmen there." Moreover, the court noted that defendant was discovered taking the property of the construction company, not the homeowner. In fact, the homeowner testified that none of his personal property was missing after defendant's unlawful entry. The court also held that the "stick" was a deadly weapon for purposes of the aggravated battery conviction.
Defendant moved for a new trial, arguing that at the time of the offense, burglary was specifically not a lesser-included offense of residential burglary and that the amendment to the residential burglary statute, which became effective on June 1, 2001, some eight months subsequent to the offense, was not retroactive. He further contended that the State failed to prove that the "stick" used was a deadly weapon pursuant to section 12-4 of the Criminal Code of 1961 ( 720 ILCS 5/12-4(b)(1) (West 2000)). The State responded that the legislative intent of the statutes at the time of defendant's offense was to include burglary as a lesser offense of residential burglary. The State also argued that based on the court's interpretation of the evidence that the home was not being used as a residence at the time but, rather, as a work site, defendant could be found guilty of burglary. The trial court reasoned that because the amendment was a procedural change and not a substantive one, it could be applied retroactively and it was, therefore, proper to find defendant guilty of burglary. Defendant's motion for a new trial was denied.
At sentencing, the court found that defendant was eligible for mandatory Class X sentencing on the burglary conviction and found him eligible for an extended-term sentence for the aggravated battery conviction. Based on his criminal history, defendant was sentenced to an extended-term of six years for aggravated battery and a concurrent term of six years for burglary. Defendant now appeals his burglary conviction and aggravated battery conviction, and challenges the constitutionality of the Class X and extended-term sentences.
Burglary is a Class 2 felony ( 720 ILCS 5/19-1(b) (West 2000)), for which the sentence shall be three to seven years' imprisonment ( 730 ILCS 5/5-8-1(a)(5) (West 2000)). However, pursuant to the Unified Code of Corrections ( 730 ILCS 5/5-5-3 (c)(8) (West 2000)), when a defendant has two Class 2 or greater convictions in his background (here, armed robbery and attempted burglary) defendant receives a mandatory Class X sentence, for which the sentence shall be 6 to 30 years' imprisonment ( 730 ILCS 5/5-8-1 (a)(3) (West 2000)).
Aggravated battery is a Class 3 felony ( 720 ILCS 5/12-4(e) (West 2000)) for which one may be sentenced to two to five years' imprisonment ( 730 ILCS 5/5-8-1(a)(6) (West 2000)). However, pursuant to the Unified Code of Corrections ( 730 ILCS 5/5-5-3.2 (b)(1) (West 2000)), defendant's prior aggravated battery conviction made him eligible for an extended-term sentence of 5 to 10 years' imprisonment (( 730 ILCS 5/5-8-2(a)(5) (West 2000)) for the present Class 3 felony.
ANALYSIS I
Defendant in the case sub judice was found guilty of burglary, instead of the charged offense of residential burglary, "because of the situation of the house and the way it was under construction." Defendant contends that his conviction must be reversed because he could not be found guilty of burglary where the unauthorized entry was to a dwelling place and burglary and residential burglary were mutually exclusive offenses at the time of the offense. See 720 ILCS 5/19-3(a), 19-1(a) (West 2000). Moreover, he maintains that, contrary to the trial court's ruling, the amendment to the residential burglary statute, which now includes burglary as a lesser-included offense, was a substantive change that could not be applied retroactively. The State contends that the trial court was correct in holding that the amendment to the statute did not make a substantive change in the law, in that the elements of neither residential burglary nor burglary changed as a result of the amendment. We agree with the State and affirm defendant's burglary conviction for the reasons that follow.
In matters of statutory interpretation, the appropriate standard of review is de novo. People v. Swift, 202 Ill.2d 378, 385, 781 N.E.2d 292 (2002). When construing a statute, a court's primary objective is to ascertain and give effect to the legislature's intent. People v. O'Brien, 197 Ill.2d 88, 90, 754 N.E.2d 327 (2001). Our inquiry always must begin with the language of the statute, which is the most reliable indicator of legislative intent. People v. Pullen, 192 Ill.2d 36, 42, 733 N.E.2d 1235 (2000). Where a statute is unambiguous, a court must give it effect as written without reading into it exceptions, limitations, or conditions that the legislature did not express. People v. Rivera, 198 Ill.2d 364, 371, 763 N.E.2d 306 (2001).
Generally, an amendment to a statute will be construed to apply prospectively and not retroactively. Rivard v. Chicago Fire Fighters Union Local No. 2, 122 Ill.2d 303, 309, 522 N.E.2d 1195 (1988). The long-standing rule is that the prospective application of statutes is to be preferred to retroactive application because of the fundamental principle of jurisprudence that the retroactive application of new laws is usually unfair and the general consensus that notice or warning of the rule should be given in advance of the action whose effects are to be judged. Harraz v. Snyder, 283 Ill. App.3d 254, 259, 669 N.E.2d 911 (1996). The presumption of prospectivity may be rebutted by express statutory language or by necessary implication. People v. Digirolamo, 179 Ill.2d 24, 50, 688 N.E.2d 116 (1997).
In determining whether an amendment is to be applied prospectively or retroactively, we first note that there is no bright-line test for reaching this conclusion. Notably, though, our supreme court has adopted the reasoning in Landgraf v. USI Film Products, 511 U.S. 244, 128 L.Ed.2d 229, 114 S.Ct. 1483, (1994), for determining when new legislation should be applied to existing controversies. Commonwealth Edison Co. v. Will County Collector, 196 Ill.2d 27, 39, 749 N.E.2d 964 (2001). In quoting Landgraf, the Commonwealth Edison court remarked:
"[W]hen the legislature has not indicated what the reach of a statute should be, then the court must determine whether applying the statute would have a retroactive impact, i.e., `whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.' [Citation.] If there would be no retroactive impact, as that term is defined by the court, then the amended law may be applied." Commonwealth Edison, 196 Ill.2d at 38, quoting Landgraf, 511 U.S. at 280, 128 L. Ed.2d at 261-62, 114 S.Ct. at 1505.
Moreover:
"`[T]he court must ask whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates "retroactively" comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.'" Commonwealth Edison, 196 Ill.2d at 39, quoting Landgraf, 511 U.S. at 269-70, 128 L. Ed.2d at 254-55, 114 S.Ct. at 1499.
The court must not only look to the language of the amendment, but also must consider the purpose and objective of the amendment and the legislative history. People v. Fiorini, 143 Ill.2d 318, 333, 574 N.E.2d 612 (1991). For an amendment to be applied retroactively, the act must clearly indicate that the legislature intended a retroactive application. People v. Kellick, 102 Ill.2d 162, 180, 464 N.E.2d 1037 (1984). Where the legislature intends a retroactive application of the amendment and the statutory amendment relates to changes in procedure or remedies, it applies retroactively to pending cases. Digirolamo, 179 Ill.2d at 50. If the amendment is procedural, legislative intent may be divined through any of the ordinary devices of statutory interpretation: (1) the evil to be remedied and the object to be obtained, (2) the reason and necessity for the statute, and (3) the history of legislation, including statements made by the sponsors of the legislation during the legislative debates. Rivard, 122 Ill.2d at 310. Amendments to statutes involving substantive rights cannot be applied retroactively. Digirolamo, 179 Ill.2d at 50.
In general, procedural law is "`[t]hat which prescribes the method of enforcing rights or obtaining redress for their invasion; machinery for carrying on a suit.'" People v. Ruiz, 107 Ill.2d 19, 22-23, 479 N.E.2d 922 (1985), quoting Black's Law Dictionary 1367 (4th ed. 1951). In contrast, a substantive law establishes the rights whose invasion may be redressed through a particular procedure. Rivard, 122 Ill.2d at 310-11.
We now turn to the specifics of this case. On the date of defendant's unauthorized entry, the Criminal Code of 1961 defined the offense of burglary as follows:
"(a) A person commits burglary when without authority he knowingly enters or without authority remains within a building * * * with intent to commit therein a felony or theft. This offense shall not include * * * the offense of residential burglary as defined in Section 19-3 hereof." 720 ILCS 5/19-1(a) (West 2000).
The residential burglary statute provided:
"(a) A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft." 720 ILCS 5/19-3(a) (West 2000).
The residential burglary statute was amended by Public Act 91-928, which became effective on June 1, 2001, some eight months after the commission of the crime charged here. The amended residential burglary statute now provides, in pertinent part, "This offense includes the offense of burglary as defined in Section 19-1," which means that burglary is a lesser-included offense of residential burglary. See 720 ILCS 5/19-3(a) (West 2000)). A lesser-included offense is defined as an offense that "`[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.'" People v. Jones, 149 Ill.2d 288, 292-93, 595 N.E.2d 1071 (1992), quoting Ill. Rev. Stat. 1987, ch. 38, par. 2-9(a).
Initially, we acknowledge that there is no express language in the amendment indicating a legislative intent for retroactive application. Therefore, we must turn to the text of the amendment to determine whether the amendment applies only to changes in procedure or remedies, rather than substantive rights. See Fiorini, 143 Ill.2d at 335.
Although the cases infra do not involve the precise question before us of whether to apply the amendment to the residential burglary statute retroactively or prospectively, we found them helpful nonetheless: People v. Ruiz, 107 Ill.2d 19, 23, 479 N.E.2d 922 (1985) (postconviction petition amendment requiring that petitions be reviewed by a judge not involved in the original case, which became effective after defendant's conviction, could be applied retroactively as a law of procedure); People v. Fiorini, 143 Ill.2d 318, 336, 574 N.E.2d 612 (1991) (the amendment that required proof of knowledge or intent constituted a substantive change in the law and could only be applied prospectively); Rivard, 122 Ill.2d at 312 (statements of the legislation's sponsors cannot overcome prospective application of substantive change to statute); and Commonwealth Edison Co. v. Will County Collector, 196 Ill.2d 27, 42, 749 N.E.2d 964 (2001) (based on express language of statute, legislature intended retroactive application of statutory amendments exempting from a rate cap county property taxes to fund workers' compensation and liability insurance).
We hold that the amendment here constitutes a procedural change, not a substantive one. First, the elements of residential burglary and burglary have not changed at all as a result of the amendment. See 720 ILCS 5/19-3(a), 19-1(a) (West 2000). An element is defined as "[a] constituent part of a claim that must be proved for the claim to succeed." Black's Law Dictionary 538 (7th ed. 1999). By definition, the lesser-included crime of burglary within the new residential burglary statute is proven now by the same or less than all of the facts required to establish residential burglary and was prior to the enactment of the amendment. Nor does the amendment represent an ex post facto law.
Generally, an ex post facto law is one that is retrospective, affects substantial rights, and disadvantages the defendant. People v. Felella, 131 Ill.2d 525, 536, 546 N.E.2d 492 (1989). "Moreover, it is well settled that the ex post facto clause does not limit the legislature's control of remedies or modes of procedure, so long as they do not affect matters of substance." Felella, 131 Ill.2d at 537, citing Beazell v. Ohio, 269 U.S. 167, 70 L.Ed. 216, 46 S.Ct. 68 (1925); see U.S. Const., art. I, § 10; Ill. Const. 1970, art. I, § 16. Here, the amendment merely affects a mode of procedure. The amendment allows the trial court to find the defendant guilty of the lesser-included crime of burglary. It is a clarification of a logical inference that in order to commit residential burglary, one must commit burglary, which contains identical elements, except that the commission of residential burglary requires that the building entered must be a dwelling place.
The legislative debates also support the conclusion that there has been no change in the elements of residential burglary, as the amended version contains "the same language that currently exists for residential burglary." 91st Ill. Gen. Assem., House Proceedings, April 13, 2000, at 42 (statements of Representative Winkel).
Second, no new crime was created. The amendment does not impair rights a party had when he acted, increase liability for past conduct or impose new duties with respect to transactions already completed. See Commonwealth Edison, 196 Ill.2d at 38, quoting Landgraf, 511 U.S. at 280, 128 L. Ed.2d at 261-62, 114 S.Ct. at 1505. The legislature intended that the language of the amendment simply make burglary a lesser-included crime of residential burglary. 91st Ill. Gen. Assem., House Proceedings, April 13, 2000, at 42 (statements of Representative Winkel). It is well established that the legislature, under its police power, has broad discretion to define offenses and prescribe penalties and aggravating factors for the offenses. People v. Torres, 327 Ill. App.3d 1106, 1113, 764 N.E.2d 1206 (2002). As a general rule, the legislature may amend a statute that it has enacted. Teerling Landscaping, Inc. v. Chicago Title Trust Co., 271 Ill. App.3d 858, 868, 649 N.E.2d 538 (1995).
Finally, no substantial rights are jeopardized by the retroactive application of this amended statute and the sentences are the same. Burglary and residential burglary contain the same elements they did prior to the amendment. Here, by finding defendant guilty of burglary, a Class 2 felony (punishable by three to seven years' imprisonment), instead of residential burglary, a Class 1 felony (subject to 4 to 15 years' imprisonment), defendant is subject to a shorter sentence. See 730 ILCS 5/5-8-1(a)(4) (West 2000).
Defendant here relies on People v. Childress, ( 158 Ill.2d 275, 302, 633 N.E.2d 635 (1994)), to support the proposition that he could not be found guilty of burglary when the factual elements of residential burglary were present. In Childress, decided prior to this crime, the Illinois Supreme Court explicitly held that the two offenses of residential burglary and burglary are "mutually exclusive." Childress, 158 Ill.2d at 302. The court stated: "Residential burglary can be committed only in dwelling places, while simple burglary cannot occur in a dwelling place." Childress, 158 Ill.2d at 302. The court then determined that the defendant in that case could not have been guilty of burglary because the victim was attacked and killed in her own home, which was a dwelling place. Childress, 158 Ill.2d at 302.
Prior to Childress, by practice or convention, our courts recognized burglary as a lesser-included offense of residential burglary. See People v. Edgeston, 243 Ill. App.3d 1, 10, 611 N.E.2d 49 (1993); People v. Wiley, 169 Ill. App.3d 140, 523 N.E.2d 1344 (1988); People v. Johnson, 129 Ill. App.3d 399, 401, 472 N.E.2d 854 (1984); People v. Dawson, 116 Ill. App.3d 672, 452 N.E.2d 385 (1983). The June 2001 amendment extinguishes the concept of mutual exclusivity articulated in Childress. "The legislature has an ongoing right to amend a statute." First of America Trust Co. v. Armstead, 171 Ill.2d 282, 291, 664 N.E.2d 36 (1996). The amendment here allows trial courts to follow their former practice of including burglary as a lesser-included offense of residential burglary and we believe that it may be applied retroactively in this case. Thus, with this amendment, the Childress concept of mutual exclusivity of residential burglary and burglary charges is obviated.
We note that in finding defendant guilty of burglary, the trial court here found it significant that the home was undergoing remodeling or construction at the time of defendant's entry. Further, the court noted that defendant was discovered taking the property of the construction company, not the homeowner. For purposes of section 19-3, "`dwelling' means a house, apartment, * * * or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside." 720 ILCS 5/2-6(b) (West 2000). At trial, the homeowner testified that despite the remodeling, he was still living in the house on September 7, 2000. Therefore, there can be no question that the building where the crime took place was a residence for purposes of the residential burglary statute. Nonetheless, because the amendment, as applied retroactively, makes burglary a lesser-included offense of residential burglary, it was reasonable to find defendant guilty of burglary.
Because the elements of the crimes at issue did not change and no new crime or sentence was created, we hold that the amendment may be applied retroactively to pending cases. We note that no prejudice occurs where the amendment is applied retroactively here because defendant is no more or less responsible for this particular conduct after the amendment than he was before. The amendment merely seems to facilitate or codify what had been the practice of criminal court judges prior to Childress, that is to treat burglary as a lesser-included offense of residential burglary. Accordingly, defendant's conviction for burglary is affirmed.
II
Defendant next asserts that he was not proven guilty of aggravated battery beyond a reasonable doubt because the alleged "club" used against Blackburn was a 30-inch-long, 2-inch-thick "stick," which was not brought to court or entered into evidence. He also contends that the injuries suffered by Blackburn were not consistent with the use of a deadly weapon. The State contends that there was sufficient evidence to show that the club or stick, regardless of its measurement, was used as a deadly weapon.
The indictment against defendant charged that he committed a battery, in that he intentionally or knowingly caused bodily harm to Randall Blackburn, while using a deadly weapon, other than by discharge of a firearm, to wit "with a club." Section 12-4 of the Criminal Code of 1961 provides that aggravated battery is committed when in "committing a battery, a person commits aggravated battery if he or she: (1) Uses a deadly weapon other than by the discharge of a firearm." 720 ILCS 5/12-4(b)(1) (West 2000).
A deadly weapon is not necessarily one manufactured for the special purpose of taking a life nor need it be of any particular size or description. People v. Carter, 410 Ill. 462, 465, 102 N.E.2d 312 (1951). It is an instrument that is used or may be used for the purpose of an offense and is capable of producing death. Carter, 410 Ill. at 465. "Some weapons are deadly per se; others, owing to the manner in which they are used, become deadly. A gun, pistol, or dirk-knife is itself deadly, while a small pocket knife, a cane, a riding whip, a club or baseball bat may be so used as to be a deadly weapon." People v. Dwyer, 324 Ill. 363, 364-65, 155 N.E. 316 (1927). Those instrumentalities not considered deadly per se may clearly become such by the manner in which they are used. People v. Lee, 46 Ill. App.3d 343, 348, 360 N.E.2d 1173 (1977). When the character of the weapon is doubtful or the question depends upon the manner of its use, it is a question for the fact finder to determine from a description of the weapon, the manner of its use, and the circumstances of the case. Dwyer, 324 Ill. at 365.
Here, the victim testified that defendant was swinging a "stick" that was 30 inches long and 2 inches thick. Though the object was not brought in for examination, another witness testified that it was approximately 30 inches long and one witness described it as approximately 42 inches long. Defendant was "wildly" swinging at both DeLeo and Blackburn and landed a blow on Blackburn's forehead, a vital part of anyone's body. In our view, a rational trier of fact could have concluded that the instrument used, while not by definition deadly per se, became a deadly weapon when used in the manner in which defendant used it here.
Defendant also claims he cannot be guilty of aggravated battery because the victim's injuries could not be properly regarded as caused by a deadly weapon. However, it is not necessary that more severe injuries be shown where we have found the weapon used to be a deadly weapon and that fact provides the aggravating factor which satisfies the statute. See 720 ILCS 5/12-4(b)(1) (West 2000). A criminal conviction will not be set aside on grounds of insufficient evidence, unless the proof is so improbable or unsatisfactory that there exists a reasonable doubt of the defendant's guilt. People v. Pollock, 202 Ill.2d 189, 217, 780 N.E.2d 669 (2002). The appellate court, viewing all of the evidence in the light most favorable to the prosecution, determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Pollock, 202 Ill.2d at 217. Based on the record here, including the evidence of Blackburn's injury, the trial court had sufficient evidence to find defendant guilty of aggravated battery beyond a reasonable doubt predicated upon his use of a deadly weapon to commit a batter pursuant to the Criminal Code ( 720 ILCS 5/12-4(b)(1) (West 2000)).
III
Defendant asserts that his sentences are unconstitutional because the Class X sentencing statute and the extended-term sentencing statute violate his right to due process and trial by jury by increasing the maximum sentence without notice or a jury finding upon proof beyond a reasonable doubt of the facts qualifying him for sentences beyond the prescribed sentencing range. See Apprendi, 530 U.S. 466, 147 L.Ed.2d 435, 120 So. Ct. 2348. The determination of the constitutionality of a statute is question of law; therefore, our review is de novo. People v. Lathon, 317 Ill. App.3d 573, 578-79, 740 N.E.2d 377 (2000).
Burglary is a Class 2 felony ( 720 ILCS 5/19-1(b) (West 2000)), for which the sentence shall be three to seven years' imprisonment ( 730 ILCS 5/5-8-1(a)(5) (West 2000)). However, pursuant to the Unified Code of Corrections (Code) ( 730 ILCS 5/5-5-3 (c)(8) (West 2000)), when a defendant has two Class 2 or greater convictions in his background, he or she receives a mandatory Class X sentence, for which the sentence shall be 6 to 30 years' imprisonment ( 730 ILCS 5/5-8-1(a)(3) (West 2000)).
Here, Class X armed robbery ( 720 ILCS 5/18-2 (West 1998)) and Class 3 attempted burglary. The sentence for attempt to commit a Class 2 felony is the sentence for a Class 3 felony. 720 ILCS 5/8-4(4) (West 2000).
Defendant here received a Class X sentence of six years for his burglary conviction. Defendant was sentenced as a Class X felon under the Code, which states:
"When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second." 730 ILCS 5/5-5-3 (c)(8) (West 2000).
Defendant contends section 5-5-3(c)(8) violates due process and trial by jury guaranteed by the United States Constitution. Specifically, defendant argues that pursuant to Apprendi, the State is required to submit to a jury and prove beyond a reasonable doubt defendant's age and specific timing, degree, number and sequence of his prior convictions to establish eligibility for a Class X sentence.
Similarly, in defendant's view, the extended-term sentencing statute unconstitutionally fails to require the State to prove beyond a reasonable doubt the existence and timing of defendant's prior conviction to establish his eligibility for an extended term. Defendant was eligible for an extended-term sentence under section 5-8-2 ( 730 ILCS 5/5-8-2 (West 2000)) because he had been previously convicted of armed robbery and attempted burglary.
Aggravated battery is a Class 3 felony ( 720 ILCS 5/12-4(e) (West 2000)), for which the sentence shall be two to five years' imprisonment ( 730 ILCS 5/5-8-1(a)(6) (West 2000)). However, a defendant may be sentenced to an extended term when he or she has been "previously convicted in Illinois * * * of the same or similar class felony or greater class felony, when such conviction has occurred within 10 years after the previous conviction." 730 ILCS 5/5-5-3.2(b)(1) (West 2000). In the instant case, defendant's prior aggravated battery conviction made him eligible for an extended-term sentence.
Defendant's reliance on Apprendi is misplaced. Apprendi not only endorsed the recidivism exception, but provided various reasons for the recidivism exception, including the fact that procedural safeguards enhance the validity of a prior conviction, recidivism is not an essential element of the underlying criminal offense, and recidivism does not relate to the commission of the underlying offense. Apprendi, 530 U.S. at 494-96, 147 L. Ed.2d at 457-58, 120 S.Ct. at 2365-66. These reasons support application of the Apprendi recidivism exception to the instant case.
Defendant also postulates that because the Apprendi decision calls into question whether Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), was correctly decided, this court should conclude that the reasoning of Apprendi applies to sentencing enhancement factors even where based on prior convictions, such as those present in the Class X sentencing provision of section 5-5-3(c)(8). We note that the Apprendi Court did recognize that while the defendant in Almendarez-Torres did not contest the validity of the Almendarez-Torres decision, it was arguable that the case was decided incorrectly. People v. Smith, 338 Ill. App.3d 555, 559, 788 N.E.2d 1204 (2003). However, Apprendi affirmed its opinion that prior convictions are an exception to the holding that any fact which increases the penalty for a crime beyond prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Smith, 338 Ill. App.3d at 559, citing Apprendi, 530 U.S. at 489-90, 147 L. Ed.2d at 454-66, 120 S.Ct. 2362-63.
In our view, defendant's enhanced sentences based on prior convictions were obtained through procedures satisfying the fair notice, reasonable doubt, jury trial, and due process guarantees. Smith, 338 Ill. App.3d at 559, citing Jones v. United States, 526 U.S. 227, 249, 143 L.Ed.2d 311, 329-30, 119 S.Ct. 1215, 1227 (1999) (a prior conviction, unlike any other factor used to enhance a sentence, must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees). We also note that defendant does not deny the existence of his prior felony conviction or that the prior conviction was entered in a fair proceeding in which he was afforded due process.
Defendant next asserts that the burglary indictment gave him no notice that he qualified for sentencing as a Class X offender or qualified for an extended-term. We hold that when a defendant's punishment is based on prior convictions, it need not be alleged in the charging document, submitted to the jury or proven beyond a reasonable doubt. People v. Young, 334 Ill. App.3d 785, 794, 779 N.E.2d 293 (2002), citing Lathon, 317 Ill. App.3d at 587.
Finally, the Illinois Appellate Court has repeatedly addressed and rejected defendant's contention that section 5-5-3(c)(8) is unconstitutional under Apprendi. People v. Smith, 338 Ill. App.3d 555, 788 N.E.2d 1204 (2003) (section 5-5-3(c)(8) does not violate due process or trial by jury guarantees); People v. Lathon, 317 Ill. App.3d 573, 740 N.E.2d 377 (2000) (section 5-5-3(c)(8) is constitutional under Apprendi); People v. Lundy, 334 Ill. App.3d 819, 834, 779 N.E.2d 404 (2002) (section 5-5-3(c)(8) is constitutional under Apprendi); People v. Young, 334 Ill. App.3d 785, 794, 779 N.E.2d 293 (2002) (following Lathon); People v. Wallace, 331 Ill. App.3d 822, 838, 772 N.E.2d 785 (2002) (following Lathon); People v. Jones, 328 Ill. App.3d 233, 243, 764 N.E.2d 1232 (2002) (noting section 5-5-3(c)(8) does not violate Apprendi); People v. Dunn, 326 Ill. App.3d 281, 289, 760 N.E.2d 511 (2001) (section 5-5-3(c)(8) is constitutional under Apprendi); People v. Echols, 325 Ill. App.3d 515, 516-17, 758 N.E.2d 878 (2001) (following Lathon); People v. Roberts, 318 Ill. App.3d 719, 729, 743 N.E.2d 1025 (2000) (recidivist provisions are not unconstitutional under Apprendi); People v. Ramos, 318 Ill. App.3d 181, 193, 742 N.E.2d 763 (2000) ( Apprendi exempts recidivist statutes); People v. Watson, 322 Ill. App.3d 164, 167-68, 749 N.E.2d 1078 (2001) (agreeing with Lathon's analysis); People v. Jones, 322 Ill. App.3d 236, 243, 749 N.E.2d 466 (2001) (section 5-5-3(c)(8) does not violate Apprendi); People v. Dixon, 319 Ill. App.3d 881, 886, 747 N.E.2d 1 (2001) (following Lathon); People v. Givens, 319 Ill. App.3d 910, 913-14, 747 N.E.2d 436 (2001) ( Apprendi does not render section 5-5-3(c)(8) unconstitutional).
We hold that the mandatory Class X sentencing-enhancement provision found in section 5-5-3(c)(8) did not violate defendant's rights to due process and trial by jury guaranteed by the Constitution of the United States, and therefore, his sentence for burglary is affirmed. Lathon, 317 Ill. App.3d at 587. We also hold that the extended-term sentencing provision of section 5-5-3.2(b)(1) ( 730 ILCS 5/5-5-3.2(b)(1) (West 2000)), which allows discretionary extended-term sentencing based on prior convictions, is constitutional and does not violate defendant's due process or jury trial guarantees.
For the forgoing reasons, defendant's convictions for burglary and aggravated battery are affirmed. Also, the State's request for fees in the sum of $100 is granted pursuant to section 4-2002.1(a) of the Counties Code ( 55 ILCS 5/4-2002.1(a) (West 1992)).
Affirmed.
GORDON and McBRIDE, JJ., concur.