Chad Landrum (defendant) entered an open plea of guilty to one count of obstructingjustice (720 ILCS 5/31(4)(a) (West 1998)). He was sentenced to an extended, five-year termof imprisonment, which was to run consecutively to sentences he was already serving. Following a hearing on a motion to reconsider sentence, his sentence was modified to anextended, four-year term of imprisonment, which was still to run consecutively. Defendantraises two issues on appeal: (1) whether his extended-term sentence of imprisonment mustbe vacated and a non-extended-term sentence imposed because the extended term violatesdue process and (2) whether the discretionary consecutive-sentencing provision of theUnified Code of Corrections (Code) (730 ILCS 5/5-8-4(b) (West 1998)) violates the rightsof a defendant to due process and a trial by jury. We affirm.

Defendant argues that because the extended-term statute does not provide for noticeto the defendant, a jury deliberation of the qualifying facts, or proof beyond a reasonabledoubt of the qualifying facts, the imposition of an extended term is unconstitutional underApprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and heis entitled to a new sentencing hearing. In Apprendi the United States Supreme Court heldthe sentencing under a New Jersey hate-crime statute unconstitutional because itcommissioned judges to make a factual finding that enhanced their power to punish beyondthe maximum penalties prescribed for any given criminal offense.

In Apprendi, the Court recognized that it is permissible for judges to exercisediscretion in imposing a sentence within the range prescribed by statute, based on aconsideration of factors related both to the offense and to the offender. Apprendi, 530 U.S.at 481, 147 L. Ed. 2d at 449, 120 S. Ct. at 2358. If, however, the defendant faces moresevere punishment than the statutory maximum he would receive if punished according tothe facts reflected in the jury verdict alone, he must be given notice in the indictment, andthe facts that increased the penalty for the crime, other than a prior conviction, must besubmitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 147L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

Section 5-8-2(a) of the Code (730 ILCS 5/5-8-2(a) (West 1998)), read together withsection 5-5-3.2(b)(1) of the Code (730 ILCS 5/5-5-3.2(b)(1) (West 1998)), provides that thecourt may sentence a defendant to an extended term of imprisonment when a defendant isconvicted of any felony after having been previously convicted of the same, a similar, or agreater class felony, when the latter conviction has occurred within 10 years after theprevious conviction, excluding time spent in custody, and such charges are separatelybrought and tried and arise out of a different series of acts. Defendant argues that becausethe extended-term statute includes qualifying facts beyond the mere fact of the priorconviction, the imposition of an extended sentence under it is unconstitutional. Defendantclaims that the State should be required to prove to a jury beyond a reasonable doubt that hisprior conviction occurred within 10 years of the current conviction, that the charges wereseparately brought and tried, and that the charges arise out of a different series of acts.

Apprendi held, "Other than the fact of a prior conviction, any fact that increases thepenalty for a crime beyond the prescribed statutory maximum must be submitted to a jury[]and proved beyond a reasonable doubt." (Emphasis added.) Apprendi, 530 U.S. at 490, 147L. Ed. 2d at 455, 120 S. Ct. at 2362-63. The extended-term sentence at issue here is basedupon the fact of a prior conviction. Thus, it appears that Apprendi explicitly refutes theargument defendant proposes.

Defendant seizes upon dicta in the Apprendi opinion wherein the Court, in reviewingthe history of sentencing factors versus facts traditionally considered elements of an offense,took note of its prior decision in Almendarez-Torres v. United States, 523 U.S. 224, 140 L.Ed. 2d 350, 118 S. Ct. 1219 (1998), and noted that it may have been incorrectly decided inview of its current analysis. In Almendarez-Torres, the Court held that an indictment mustset forth each element of a crime that is charged but that it need not set forth factors relevantonly to the sentencing of an offender found guilty of the charged crime. Almendarez-Torres,523 U.S. at 228, 140 L. Ed. 2d 350, 118 S. Ct. at 1223. Noting that recidivism is likely themost traditional basis for a sentencing court's decision to increase an offender's sentence, theCourt refused to make recidivism an element of the offense that required its allegation in anindictment and its proof beyond a reasonable doubt, even though the prior convictiontriggered an increase in the maximum permissive sentence. Almendarez-Torres, 523 U.S.at 244, 140 L. Ed. 2d 350, 118 S. Ct. at 1231.

The Supreme Court continued to adhere to this position in the case that next precededApprendi, Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999). In Jones, the Court expanded on the rationale for its holding in Almendarez-Torres, notingthat recidivism carries with it unique characteristics that ensure its constitutionaltrustworthiness: "[U]nlike virtually any other consideration used to enlarge the possiblepenalty for an offense, and certainly unlike the factor before us in this case, a priorconviction must itself have been established through procedures satisfying the fair notice,reasonable doubt, and jury trial guarantees." Jones, 526 U.S. at 249, 143 L. Ed. 2d 311, 119S. Ct. at 1227.

The Supreme Court has not overruled or abandoned Almendarez-Torres, and inapparent recognition of this fact, the Apprendi Court specifically excluded the considerationof prior convictions from the rule of law it announced. Accordingly, the First District hasalready applied the recidivism exception in People v. Lathon, 317 Ill. App. 3d 573, 740N.E.2d 377 (2000).

In Lathon, the defendant was convicted of attempted residential burglary and receiveda mandatory sentencing enhancement based on prior felony convictions. Lathon held thatwhen a defendant's punishment is increased based on prior convictions, the priorconvictions need not be alleged in the charging document, submitted to the jury, or provenbeyond a reasonable doubt because the prior convictions were obtained as the result ofproceedings that provided procedural safeguards, the prior convictions were not an essentialelement of the underlying offense, and the prior convictions were unrelated to thecommission of the offense. Lathon, 317 Ill. App. 3d at 588, 740 N.E.2d at 387.

The only true factual inquiry involved in section 5-5-3.2(b)(1) is whether thedefendant has a prior conviction. In the case at bar, defendant's prior conviction is not anessential element of the underlying offense and is unrelated to the commission of theoffense. Thus, the imposition of an extended term, under section 5-5-3.2(b)(1), is notunconstitutional and is excluded from the general rule announced in Apprendi. Defendant'sfour-year, extended-term sentence is therefore affirmed.

Defendant next argues that the imposition of a discretionary consecutive sentenceunder section 5-8-4(b) of the Code (730 ILCS 5/5-8-4(b) (West 1998)) violates his rightsto due process and a trial by jury. Section 5-8-4(b) allows courts the discretion to imposeconsecutive sentences in certain situations if the court believes such a sentence is requiredto protect the public from further criminal conduct by the defendant. Citing Apprendi,defendant argues that any legislative scheme that removes from the jury the determinationof a fact that, if found, increases the range of penalties beyond that dictated by the factsreflected in the jury verdict alone violates the defendant's rights to due process, notice, anda trial by jury. Apprendi, 530 U.S. at 483-84, 147 L. Ed. 2d at 450-51, 120 S. Ct. at 2359. Defendant argues that because the statute as applied did not require that he be given noticein the indictment of the facts qualifying him for consecutive sentencing or that the facts bedetermined by a jury upon proof beyond a reasonable doubt, his consecutive sentence mustbe vacated and the sentence must be ordered to be served concurrently.

The State argues that Apprendi does not apply to consecutive-sentencing situationsunder section 5-8-4(b) of the Code and that the considerations addressed in Apprendi are notthe same as the considerations of a trial judge who is applying section 5-8-4(b). Severalappellate decisions have addressed the issue of consecutive sentencing under section 5-8-4(a) of the Code (730 ILCS 5/5-8-4(a) (West 1998)) in light of Apprendi. Although therehas been a conflict among the appellate court districts, that conflict has now been resolved. Recently, the Illinois Supreme Court addressed the constitutionality of consecutive sentencespursuant to section 5-8-4(b) of the Code. People v. Wagener, No. 88843 (June 1, 2001).

In Wagener, after a bench trial, the defendant was found guilty but mentally ill ofboth first-degree murder and concealment of a homicidal death. The trial court imposedconsecutive sentences on the defendant pursuant to section 5-8-4(b), based on a finding thatconsecutive sentences were required to protect the public from the defendant. The defendantwas sentenced to consecutive prison sentences of 50 years for his murder conviction and 5years for his conviction of concealment of a homicidal death. The appellate court affirmed,and the Illinois Supreme Court granted the defendant leave to appeal. In a supplementalbriefing, the defendant argued, relying on Apprendi, that his sentence should be vacatedbecause a consecutive sentence under section 5-8-4(b) of the Code is unconstitutional. Thecourt affirmed the defendant's convictions and sentence. Wagener, slip op. at 16.

In Wagener, the court noted that Apprendi explicitly disclaimed any holdingregarding consecutive sentencing and that decisions holding that consecutive sentencingtriggers Apprendi concerns extend Apprendi beyond its facts. Wagener, slip op. at 13-14. The court concluded that sentences which run consecutively to each other are not transmutedinto a single sentence and that Apprendi concerns are not implicated by consecutivesentencing. Wagener, slip op. at 14-15.

In view of the supreme court's decision in Wagener, we affirm the trial court'ssentencing of defendant to an extended term of four years' imprisonment to be servedconsecutively to sentences already imposed.

Affirmed.

HOPKINS and RARICK, JJ., concur.