FOURTH DIVISION
NOVEMBER 8, 2001

Defendant, Dickey Dunn, was charged by information with onecount of burglary pursuant to section 19-1(a) (720 ILCS 5/19-1(a)(West 2000) (section 19-1(a))) of the Criminal Code of 1961 (720ILCS 5/1-1 et seq. (West 2000) (Criminal Code)). Tried by thecircuit court, he was found guilty and sentenced to eight years incustody of the Illinois Department of Corrections as a Class Xoffender. Defendant appeals both his conviction and sentence.

The issues presented on appeal include whether: (1) thiscause should be remanded for an evidentiary hearing to determinewhether a witness committed perjury at trial; (2) the circuit courterred by considering information outside the record during itsdeliberations; and (3) the mandatory Class X sentencing provisionof section 5-5-3(c)(8) (730 ILCS 5/5-5-3(c)(8) (West 2000) (section5-5-3(c)(8))) of the Unified Code of Corrections (730 ILCS 5/1-1-1et seq. (West 2000) (Code of Corrections)) is unconstitutional.

On July 31, 1998, at 5:00 a.m., Chicago Police Officersarrested defendant and Kenneth Wilson after observing defendantleaning into the broken rear passenger window of a parked 1998Buick Regal, taking compact discs and audio cassettes, while Wilsonsat in the passenger seat of the car. Defendant and Wilson eachwere charged by information with one count of burglary undersection 19-1(a), but were tried separately.

At an August 3, 1998 preliminary hearing, the State sought toprove probable cause to hold defendant for trial. Chicago PoliceOfficer D. Colt, the only officer who testified at the preliminaryhearing, stated that on July 31, 1998, at 5:00 a.m., while sittingin the passenger seat of his patrol car in the vicinity of 158 WestDivision Street, he observed defendant leaning into the brokenwindow of a parked Buick Regal, and taking several items. Colt didnot see defendant or Wilson break the vehicle's window. Colt thenstopped defendant, who was holding compact discs and audiocassettes in his hands. Additionally, Colt noticed a brick andshattered glass lying on the back seat of the car. Neither theState nor defense counsel asked Colt questions regarding thepresence of other officers at the scene.

At trial, Chicago Police Officer P. Kelly testified that onthe occurrence date, between 4:45 a.m. and 5:00 a.m., he was onroutine patrol with his partner, Officer Bausch. While Bauschdrove their squad car east on Division Street, between LaSalle andWells Streets, Kelly, from a distance of 35 or 40 feet, vieweddefendant leaning into the rear window of a parked vehicle withhalf of his body in the aperture, and Wilson sitting in thepassenger seat of that vehicle.

Officer Kelly instructed Officer Bausch to make a u-turn andpull up behind the parked car. Meanwhile defendant and Wilson leftthe car, crossed the street and walked in different directions. Bausch stopped defendant and Kelly intercepted Wilson, and theyreturned the offenders to the parked car. Kelly observed that therear window of the vehicle was broken and shattered glass and abrick lay on the back seat. Bausch recovered two compact discs anda children's audiotape from defendant and Kelly found Wilsonholding audio cassettes. Defendant and Wilson both told theofficers that they had not broken the window and were "just goingthrough the car."

After arresting defendant and Wilson,⁽¹⁾ the officers locatedCharles Beach, the car owner's brother, who parked the vehicle at158 West Division Street. Beach went to the scene with the twoofficers and identified the property recovered from defendant andWilson as his own.

Officer Colt did not testify at trial. Officer Kelly was notquestioned about Colt being at the scene.

At the close of the State's evidence, defendant's motion fora finding of not guilty was denied. Defendant did not testify. The circuit court then found defendant guilty of burglary. Thecourt observed that the crime occurred at "Division Streetsomewhere between Wells and LaSalle. It's quite lit up aroundthere at all times of the day. There was nothing that impeachedthe officer as to his ability to see the defendant in any manner."

At defendant's sentencing hearing, the State presentedevidence that defendant was convicted of two prior felonies,thereby making him subject to Class X sentencing under section 5-5-3(c)(8) of the Code of Corrections. The circuit court found thatdefendant qualified as a Class X offender and sentenced him toeight years in custody of the Illinois Department of Corrections.Defendant filed a timely notice of appeal.

Defendant initially asserts that this cause should be remandedfor an evidentiary hearing to determine whether Officer Kellycommitted perjury because he and Officer Colt each testified thatthey were the arresting officer who first observed him leaning intothe parked car. According to defendant, because Kelly nevermentioned the presence of Colt at the scene and Colt did nottestify as to Kelly's presence, a question is raised as to whetherone of the officers was lying.⁽²⁾

The State responds that defendant's reliance on Officer Colt'spreliminary hearing testimony is improper because it was notpresented to the circuit court at trial and does not suggest thatOfficer Kelly committed perjury. Also, the State argues thatdefendant has waived this argument for review since he failed toraise the issue of perjury at trial and in his post-trial motion.

To preserve an issue for appeal, a litigant must raise theissue at trial and in a post-trial motion. People v. Enoch, 122Ill. 2d 176, 186, 522 N.E.2d 1124 (1988) (Enoch). Although failureto raise an issue at trial or in a post-trial motion may waive thatissue for review, the rule of waiver is a limitation on the partiesand not on the courts, and a reviewing court may ignore the waiverrule in order to achieve a just result. People v. Lopez, 152 Ill.App. 3d 667, 676, 504 N.E.2d 862 (1987). Here, because defendant'sclaim that he was convicted on perjured testimony sufficientlyalleges a violation of substantial constitutional rights, hisargument will be considered under the plain error rule. See Peoplev. Thomas, 178 Ill. 2d 215, 235, 687 N.E.2d 892 (1997); 134 Ill. 2dR. 615(a).

Claims of perjury generally will not be considered inreviewing a judgment of conviction in most cases, where the issuehas not been presented to or passed upon by the circuit court andthe facts in support of the claim do not appear in the record. People v. Macias, 39 Ill. 2d 208, 211, 234 N.E.2d 783 (1968)(Macias), citing People v. Grayson, 29 Ill. 2d 229, 193 N.E.2d 801(1963). The supreme court in Macias observed that the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2000)) is the appropriate remedy for assertion of a perjury claim so that theprosecution may have an opportunity to offer evidence to meet it. 39 Ill. 2d at 211-12.

The principle of reviewing court preclusion from consideringevidence never presented to the factfinder applies to situations asin the present case, where defendant supplements the record onappeal with a pretrial hearing transcript that previously was notintroduced at trial. See People v. Owens, 46 Ill. App. 3d 978,988-89, 361 N.E.2d 644 (1977) (Owens); People v. Bounds, 36 Ill.App. 3d 330, 336, 343 N.E.2d 622 (1976) (Bounds).

In the instant case, neither party presented the preliminaryhearing transcript to the circuit court during the course ofdefendant's bench trial. As a result, the transcript was not partof the trial record and the court never considered the preliminaryhearing testimony when it deliberated and found defendant guilty ofburglary. Following Owens and Bounds, Officer Colt's preliminaryhearing testimony will not be considered.⁽³⁾

Nevertheless, as above-noted, the fact that Officer Kelly'strial testimony failed to mention Officer Colt's presence at thescene, based on the record, is immaterial to defendant's guilt orinnocence and does not suggest that Kelly committed perjury. People v. Henderson, 36 Ill. App. 3d 355, 384, 344 N.E.2d 239(1976). The arrest report contained in the record showed bothColt and Kelly as arresting officers. There is no necessity for anadditional evidentiary hearing.

Next, defendant contends that his conviction should bereversed and the cause remanded for a new trial because the circuitcourt considered information outside the record, namely, that thearea where the crime occurred was well-lighted. Defendant insistshis due process rights thereby were violated.

The State responds that defendant's failure to object to thecircuit court's comments regarding the lighting and to raise theissue in his post-trial motion, resulted in waiver of this issue onappeal. Enoch, 122 Ill. 2d at 186.

The supreme court previously has held that a less rigidapplication of the waiver rule must prevail where misconduct of thecircuit judge is involved. People v. Tyner, 30 Ill. 2d 101, 105,195 N.E.2d 675 (1964); People v. Sprinkle, 27 Ill. 2d 398, 399,401, 189 N.E.2d 295 (1963). Here, the circuit court's comments arereviewable as plain error because the court's statements affectdefendant's substantial rights.

Considering the merits of defendant's argument, the supremecourt has held that the deliberations of the circuit judge in abench trial are limited to the record made before him or her duringthe course of the trial. People v. Nelson, 58 Ill. 2d 61, 66, 317N.E.2d 31 (1974); People v. Wallenberg, 24 Ill. 2d 350, 354, 181N.E.2d 143 (1962) (Wallenberg). A judge's determination, basedupon a private investigation or private knowledge of the court,untested by cross-examination or any of the rules of evidence,constitutes a denial of due process. Wallenberg, 24 Ill. 2d at354.

The circuit court here erred by considering facts outside therecord. In Wallenberg, however, the circuit judge used evidence ofhis own knowledge to contradict important testimony offered by thedefense. In the present case, although the court considered thelighting on Division Street in its deliberations, defendant neverraised the issue of faulty identification due to poor lighting asa defense at trial and, as a result, the court was not addressinga defense argument or alibi. In addition, the court is not immunefrom knowledge of the nature of an area in the city. See People v.Mack, 17 Ill. App. 3d 352, 355, 307 N.E.2d 646 (1974); People v.Biocic, 80 Ill. App. 2d 65, 70-71, 224 N.E.2d 572 (1967).

Harmless error is determined by considering the particularfacts of each case and the entire record. People v. Traina, 230Ill. App. 3d 149, 154, 595 N.E.2d 635 (1992) (Traina). An error isharmless where a reviewing court safely can conclude that a trial,without the error, would produce no different result. Traina, 230Ill. App. 3d at 154.

Based on the foregoing and considering the entire record,beyond a reasonable doubt the trial would not have produced adifferent result without the circuit court's mention of personalknowledge of facts not in the record. Police officers witnesseddefendant take several items from the parked vehicle andapprehended him in possession of those items, which Beachsubsequently identified as his belongings. Accordingly, thecircuit court's comments regarding the lighting at the scene washarmless error.

Defendant, citing Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S. Ct. 2348 (2000) (Apprendi), next argues that themandatory Class X sentencing provision of section 5-5-3(c)(8)⁽⁴⁾violates his right to due process and trial by jury because itsubjects him to increased punishment without notice or a juryfinding upon proof beyond a reasonable doubt. Defendant challengesthe constitutionality of section 5-5-3(c)(8), contending that thecircuit court did not have authority to sentence him as a Class Xoffender where the charging instrument failed to provide notice ofhis Class X status.

Defendant's contention was resolved by the recent appellatecourt decision, People v. Lathon, 317 Ill. App. 3d 573, 587, 740N.E.2d 377 (2000) (Lathon), where the court held that the mandatoryClass X sentencing provision of section 5-5-3(c)(8), which providesfor sentencing enhancement based on prior convictions, isconstitutional and does not violate a defendant's due processrights or jury trial guarantees.

Defendant urges this court not to follow the holding in Lathonbecause, while discussing Almendarez-Torres v. United States, 523U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998) (Almendarez-Torres) being questioned by the Apprendi decision, the Lathon courtdid not resolve his argument involving the specific issue ofwhether the rule announced in Apprendi applies to recidivism.

The Lathon court addresses the instant defendant's concernsregarding the Apprendi court's questioning of the Almendarez-Torresdecision, citing Jones v. United States, 526 U.S. 227, 143 L. Ed.2d 311, 119 S. Ct. 1215 (1999) (Jones). The Lathon courtcontextualized the Apprendi court's comments regarding Almendarez-Torres, stating that the discussion of Almendarez-Torres "ends withthe Apprendi court, based on a re-examination of case law andhistory, confirming the opinion expressed in Jones and recognizingthat prior convictions are an exception to the general rule thatfacts which increase a sentence beyond the statutory maximum mustbe submitted to a jury and proved beyond a reasonable doubt." 317Ill. App. 3d at 584; 526 U.S. at 243 n. 6, 143 L. Ed. 2d at 326 n.6, 119 S. Ct. at 1224 n. 6.

The Supreme Court in Jones concluded that an increase in anoffender's penalty because of recidivism need not be alleged in theindictment, stating "[t]he [Almendarez-Torres] Court's repeatedemphasis on the distinctive significance of recidivism leaves noquestion that the Court regarded that fact as potentiallydistinguishable for constitutional purposes from other facts thatmight extend the range of possible sentencing." 526 U.S. at 249,143 L. Ed. 2d at 329, 119 S. Ct. at 1227. Explaining one basis forthe constitutional distinctiveness of prior convictions, the Jonescourt noted, "[u]nlike virtually any other consideration used toenlarge the possible penalty for an offense, *** a prior convictionmust itself have been established through procedures satisfying thefair notice, reasonable doubt, and jury trial guarantees." 526U.S. at 249, 143 L. Ed. 2d at 329-30, 119 S. Ct. at 1227.

The Apprendi decision endorsed the recidivism exception andarticulated reasons for the exception, including the fact thatprocedural safeguards enhance the validity of any prior conviction,recidivism is not an essential element of the underlying criminaloffense and recidivism does not relate to the commission of theunderlying offense. 317 Ill. App. 3d at 585; 530 U.S. at 495-96,147 L. Ed. 2d at 457-58, 120 S. Ct. at 2365-66. The Lathon courtadopted these same reasons. 317 Ill. App. 3d at 585.

In the instant case, the prior convictions that provided thebasis for defendant's enhanced sentence were obtained throughprocedures satisfying the fair notice, reasonable doubt and trialguarantees. Class X sentencing qualifications pursuant to section5-5-3(c)(8) are possible only as the result of proceedings thatprovided substantial procedural safeguards. Lathon, 317 Ill. App.3d at 585, 587. The recidivism exception recognized in Apprendi isapplicable here because defendant's prior convictions are not anessential element of the underlying criminal offense and the priorconvictions do not relate to the commission of the underlyingoffense. Lathon, 317 Ill. App. 3d at 585. As a result, whendefendant's punishment was increased based on prior convictions,those convictions need not have been alleged in the chargingdocument, submitted for trial or proved beyond a reasonable doubt. 317 Ill. App. 3d at 587.

Defendant insists that Lathon did not address the distinctionbetween general recidivism and "additional facts" apart from themere existence of prior convictions, which must be present in order to qualify his sentencing as a Class X offender. Our supreme courtin People v. Jameson, 162 Ill. 2d 282, 290-91, 642 N.E.2d 1207(1994) (Jameson) analyzed one additional fact specific to thiscase, namely, lack of notice of increased punishment. The Jamesoncourt found that defendant must receive notice of the offense withwhich he is charged, but not the sentence imposed. 162 Ill. 2d at290-92. According to the supreme court, "[a] criminal defendanthas no corresponding due process right to receive pretrial noticeof the sentence he will receive upon conviction." Jameson, 162Ill. 2d at 291.

Defendant additionally avers that his age, the specifictiming, degree, number and sequence of his prior convictions areall facts which had to be submitted to a jury under Apprendi priorto his sentencing as a Class X offender. The jury, however, playsno role here in imposing punishment. People v. Neeley, 18 Ill.App. 3d 287, 309 N.E.2d 725 (1974). Further, presenting these"facts" would have forced the State to introduce evidence of priorcrimes during the guilt phase of defendant's trial, posing the riskof significant prejudice to defendant. Spencer v. Texas, 385 U.S.554, 560, 17 L. Ed. 2d 606, 612, 87 S. Ct. 648, 651-52 (1967);Lathon, 317 Ill. App. 3d at 586. Such a procedure was notprescribed by the Apprendi court. Section 5-5-3(c)(8) isconstitutional under Apprendi.

For the foregoing reasons, defendant's conviction and sentenceare affirmed.

Affirmed.

HOFFMAN, P.J., and THEIS, J., concurring.

1. Defendant's arrest report listed Officers Colt, Kelly andBausch as the arresting officers.

2. Defendant also raised an ineffective assistance of counselargument due to defense counsel's failure to introduce Colt'spreliminary hearing testimony at trial. Defendant's contention,however, does not meet the two-pronged test prescribed inStrickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.Ct. 2052 (1984), requiring (1) deficient performance by trialcounsel which (2) resulted in prejudice against defendant. Here,defense counsel's failure to introduce Colt's testimony was astrategic decision, which was not prejudicial because thecontradicting testimony was immaterial to the issue of defendant'sguilt or innocence.

3. People v. Laboy, 227 Ill. App. 3d 654, 592 N.E.2d 179 (1992)(Laboy) and People v. Holmes, 238 Ill. App. 3d 480, 606 N.E.2d 439(1992) (Holmes), two cases upon which defendant relies, areinapplicable to the instant case because Laboy involved a priorinconsistent statement of the same witness from a post-trial motionand Holmes involved the State misleading the jury as to whatevidence previously had been presented at a preliminary hearing.

4. Section 5-5-3(c)(8) provides in pertinent part:

"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 Class2 or greater Class felonies in Illinois, andsuch charges are separately brought and triedand arise out of different series of acts,such defendant shall be sentenced as a Class Xoffender." 730 ILCS 5/5-5-5(c)(8) (West2000).