APPEAL from the Circuit Court of Williamson County; the Hon.
SNYDER HOWELL, Judge, presiding.
MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Defendant pleaded guilty to armed robbery and was sentenced to 60 years' imprisonment. He appeals, contending (1) that the information filed should have charged him with extended-term armed robbery, (2) the trial court erroneously applied the extended-arm statute, and (3) the sentence was excessive. We affirm.
Defendant was charged by information on February 3, 1978, and by amended information on April 12, 1978, with armed robbery and other offenses. On March 3, 1978, defendant initially entered his plea of not guilty and requested a jury trial. But pursuant to a plea negotiation, he subsequently entered a plea of guilty to the armed robbery charge alone. At that plea proceeding on May 23, 1978, the trial court gave the Supreme Court Rule 402 admonitions, explained the charge and outlined the penalty alternatives, including mandatory supervised release and extended sentencing terms. The State presented the factual basis for the charge, which included the use of a pistol, all of which defendant acknowledged. The trial court found that defendant knowingly and understandingly waived his right to a jury trial and entered a plea of guilty which was accepted by the court. A presentence report was ordered.
The report showed defendant to be 62 years of age with a long criminal record dating back to 1932. That record reflects the following: A conviction for burglary and theft in 1932, with a sentence of one year to life; release on parole in 1934; reincarceration four times for parole violations; conviction of two counts of robbery in 1944, with a sentence of five years to life; a parole violation in 1948; convictions for burglary, theft and kidnapping in 1951, with a sentence of 5 years to life; twice reincarcerated for parole violations; conviction for escape in 1961, with a sentence of six months; a conviction for burglary and theft in 1962, with a sentence of 10 years to life; reincarcerated for parole violation for 10 years to life; a conviction for armed robbery in 1972, with a sentence of 8 to 30 years; and on parole for the last offense at the time of the armed robbery in question. Based on this record the State, at the June 19, 1978, sentencing hearing, argued for the maximum 60-year sentence under the extended-term statute. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-8-2(a)(2).) The defendant presented two witnesses in mitigation who testified to the effect that he was remorseful, had recently acknowledged his problem with alcohol, and should be given a sentence that offered some hope for eventual release. The trial court held that the 1972 armed robbery conviction made defendant eligible for an extended term, and in light of his lengthy record, defendant was sentenced to 60 years' imprisonment.
A motion to withdraw the plea of guilty and vacate the judgment was filed, and later amended, alleging that the sentence imposed was excessive and the extended-term statute was erroneously applied. The trial court denied the motion and defendant appeals.
Appellant first contends that the amended information charging him with armed robbery failed to set forth the necessary factors in aggravation, i.e., the 1972 armed robbery conviction, under which the court could sentence him to an extended prison term and that, therefore, the sentence imposed must be vacated. Those factors in aggravation which can be considered by the trial court are as follows:
"(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts; or
(2) When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-5-3.2(b).)
If those factors are found to exist, the extended-term statute then becomes operative at the discretion of the trial court, to-wit:
"(a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5-8-1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5-5-3.2 were found to be present. Where the judge finds that such factors were present, he may sentence an offender to the following:
(2) for a Class X felony, a term shall be not less than 30 years and not more than 60 years." Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-8-2(a).
1, 2 The aggravating factors by the terms of the statutes themselves are relevant only in regard to sentencing. They are not necessary elements proof of which is required to find appellant guilty of the crime in the first place. He was charged and convicted under section 18-2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 18-2(a)), the elements of which are taking property from the person or presence of another by the use of force or by threatening the imminent use of force while carrying or otherwise armed with a dangerous weapon. That statute under subparagraph (b) states that the sentence to be imposed for armed robbery shall be in accordance with Class X felonies. And under section 5-8-2(a) and section 5-5-3.2(b)(1), any prior conviction for the same or greater class felony is only a basis to impose an extended-term sentence. Appellant was not charged with, nor could he be, extended-term armed robbery. No such offense exists. He was charged with armed robbery. The extended-term statute is operative only at the sentencing level, and not at the indictment level.
Appellant cites the Illinois Supreme Court cases of People v. Ostrand (1966), 35 Ill.2d 520, 221 N.E.2d 499, and People v. Booker (1966), 34 Ill.2d 16, 213 N.E.2d 542, cert. denied (1967), 386 U.S. 929, 17 L.Ed.2d 800, 87 S.Ct. 872, for the proposition that since his 1972 armed robbery conviction raised the possibility of increased punishment, it was an element of the present offense which needed to be alleged in the information. Ostrand does not come close to appellant's hypothesis. There the defendant was charged in a separate count of an indictment with a prior felony because he was being prosecuted under a statute which made carrying a concealed weapon by one with a previous felony conviction a felony rather than a misdemeanor. The court there was correct in holding that the prior conviction had to be alleged in the indictment "in order to prove defendant's commission of the felony of carrying a concealed weapon." (35 Ill.2d 520, 529.) The statute mandated such an allegation in order to prove the charge. Such is not the case here. Appellant's 1972 armed robbery conviction was not a necessary allegation or element to be proved in order to convict him of the armed robbery here at issue. As noted above, only after it was determined that he was guilty of the present offense was his prior conviction relevant. And it was relevant only with respect to the sentence he received, and not his guilt or innocence in the first place.
Booker involved a habitual criminal statute which mandated increased punishment if the defendant was twice or more convicted of any of a number of certain crimes. Such sentencing if a second conviction was found was not discretionary with the trial court, as in the present case, but mandatory. It is true, as appellant points out, that "the Habitual Criminal Act did not create a new crime requiring a separate indictment but, to the contrary, merely increased the punishment for subsequent offenses, and placed the burden upon the State to charge and prove the prior conviction as a part of the subsequent trial." (34 Ill.2d 16, 19.) But appellant herein neglects to realize the importance of the sentence following the above quote: "Such proof thereby became an issue in the case, just as motive or intent * * *." (Emphasis added.) (34 Ill.2d 16, 19.) The reason it was at issue was because the habitual criminal act required that "such former conviction, or convictions, and judgment or judgments shall be set forth in apt words in the ...