April 26, 2001

No. 3--00--0038

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

Defendant then filed a timely petition for rehearing,requesting that this court consider the constitutionality of hisClass X sentence in light of the recent decision of the UnitedStates Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 147L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We hereby deny thepetition for rehearing, modify our original disposition andaffirm defendant's convictions and sentence.

On July 26, 1999, defendant was charged by information withresidential burglary and possession of burglary tools. Followinghis first appearance, defendant appeared without objection viaclosed circuit television for pre-trial proceedings, includinghis arraignment on August 11, 1999. On November 1, 1999, thedate set for trial, defendant appeared again on closed circuittelevision and waived his right to a jury trial. Afteradmonishing defendant of the rights he was relinquishing andensuring that defendant's decision was made knowingly andintelligently, the court accepted defendant's waiver and resetthe cause for a bench trial. Defendant's signed waiver was filedon November 3, 1999.

At trial, the State's evidence established that on July 25,1999, defendant forcibly entered the vacant residence of SherriNeufeld in Kankakee, Illinois. A neighbor observed the break-inand alerted the police. The police stopped defendant in thevicinity based on the neighbor's description and a bulge indefendant's shirt. A search of defendant's person yielded a prybar and a pair of gloves. Defendant was arrested and wassubsequently positively identified by the eyewitness neighbor. Neufeld testified that she had not given defendant permission toenter her home. Based on the evidence, the trial court founddefendant guilty as charged.

The pre-sentence investigative report revealed that the 44-year-old defendant had four prior burglary convictions, includingtwo for residential burglary, and three drug convictions. At thesentencing hearing, defense counsel had no additions orcorrections to make to the pre-sentence investigative report andacknowledged that Class X sentencing applied. The prosecutorcharacterized defendant as a "career burglar" and recommended a30-year prison sentence. Defense counsel argued for a six-yearminimum term. The trial court found that, on balance, thefactors weighed heavily toward a lengthy prison sentence. Accordingly, the court imposed a 25-year term. Defendant'smotion to reconsider the sentence as excessive was denied.

[Nonpublishable material under Supreme CourtRule 23 omitted here.]

Finally, we consider defendant's argument that the Class Xsentencing statute is unconstitutional in light of the UnitedStates Supreme Court's decision in Apprendi v. New Jersey, 530U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Specifically, defendant contends that section 5--5--3(c)(8) ofthe Unified Code of Corrections (730 ILCS 5/5--5--3(c)(8) (West1998)) contains factors which, pursuant to Apprendi, must besubmitted to a jury before a Class X sentence may be imposed forresidential burglary.

Section 5--5--3(c)(8) provides as follows:

"When a defendant, over the age of 21 years, isconvicted of a Class 1 or Class 2 felony, after havingtwice been convicted of any Class 2 or greater Classfelonies in Illinois, and such charges are separatelybrought and tried and arise out of different series ofacts, such defendant shall be sentenced as a Class Xoffender. This paragraph shall not apply unless (1)the first felony was committed after the effective dateof this amendatory Act of 1977; and (2) the secondfelony was committed after conviction on the first; and(3) the third felony was committed after conviction onthe second." 730 ILCS 5/5--5--3(c)(8) (West 1998).

In Apprendi, the Supreme Court reviewed New Jersey's hatecrime statute, which provided for an enhanced sentence upon thetrial court's determination by a preponderance of the evidencethat the defendant acted with racial bias. The defendant arguedthat due process required that the enhancement factor be allegedin the indictment and proved to a jury beyond a reasonable doubt. The Supreme Court agreed. The Court ruled that "[o]ther than thefact of a prior conviction, any fact that increases the penaltyfor a crime beyond the prescribed statutory maximum must besubmitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at2362-63. The Apprendi Court thus carved out an exception forrecidivist legislation, which had previously been found to passconstitutional muster in Almendarez-Torres v. United States, 523U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998).

In its discussion of the Almendarez-Torres exception, theApprendi Court observed that Almendarez-Torres had admitted hisprior convictions for serious offenses, that such convictions hadbeen entered upon proceedings with their own substantialprocedural safeguards, and that no question concerning the rightto a jury trial or the standard of proof that would apply to acontested issue of fact was before the Almendarez-Torres Court. The certainty that procedural safeguards attached to the "fact"of Almendarez-Torres' prior convictions and the reality that hehad admitted such "fact" mitigated any due process concerns. Based on these considerations, the Apprendi Court reaffirmed itsholding in Almendarez-Torres. Apprendi, 530 U.S. at ___, 147 L.Ed. 2d at 454, 120 S. Ct. at 2362.

Defendant on rehearing argues that mandatory Class Xsentencing pursuant to section 5--5--3(c)(8) violates the rule ofApprendi because it allows a trial judge to determine sentenceenhancement factors--i.e., his age and the timing, degree, numberand sequence of his prior convictions--without notice and proofbeyond a reasonable doubt. He argues that Apprendi's endorsementof Almendarez-Torres was "lukewarm" and that, even accepting theviability of Almendarez-Torres, the sequence of his priorconvictions and the requirement that defendant be "over age 21"and are non-recidivist factors that fall within the rule ofApprendi. In the alternative, defendant argues that due processguarantees under the Illinois Constitution of 1970 (Ill. Const.1970, art. I,