APPEAL from the Circuit Court of Henderson County; the Hon.
STEPHEN G. EVANS, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
The defendant, Gary L. Peddicord, was convicted of aggravated battery and unlawful use of weapons following a jury trial in Henderson County. He was sentenced to 8 years imprisonment for the aggravated battery and fined $1,000 for the unlawful use of weapons.
On appeal, the defendant raises the following issues, all relating to the sentence imposed: whether the factors giving rise to an extended term need be alleged in the charging instrument; whether the imposition of an extended term was proper under the circumstances of the case at bar; whether the extended-term sentence imposed punished the defendant for exercising his constitutional right to a jury trial; and whether the trial judge adequately specified on the record his reasons for imposing a fine of $1,000 upon the defendant.
The record shows that on June 26, 1978, two complaints were filed against the defendant. The first charged him with aggravated battery in that he shot Billie Jo Pierce on June 13, 1978, in violation of section 12-4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 12-4(b)(1)). The second charged the defendant with unlawful use of weapons in that he possessed a gun with the intent to use it against Ms. Pierce on June 13, 1978, in violation of section 24-1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 24-1(a)(2)). Following unsuccessful plea negotiations, the defendant was tried before a jury on both of these charges. Although a lengthy recital of the facts is not necessary to a resolution of the issues raised, a summary account of the defendant's activities will be helpful.
The evidence showed that the defendant first met the victim, Ms. Pierce, on the afternoon of June 9, 1978. They had dinner, visited a friend of the defendant's, and drove around for some time before the defendant returned Ms. Pierce to the Trail's End Motel in Galesburg, where she was staying. The defendant next saw Ms. Pierce on June 12, 1978, when he picked her up at the motel. They spent the day together, engaged in a variety of activities. In the evening the defendant drove Ms. Pierce to truck stops along I-74, where she engaged in acts of prostitution with truckers whom she had contacted on a CB radio located in the defendant's truck. At some point during the evening the defendant's wife, Eleanor Peddicord, met the defendant at a truck stop and angrily exchanged words with him.
In the early morning hours of June 13, 1978, the defendant and Ms. Pierce stopped at an empty house near Bogus Hollow in Henderson County. Ms. Pierce had been looking for a place to live, and the defendant had brought her to the house to look around. After they had looked in the windows of the house, Ms. Pierce walked back toward the defendant's truck. As she did so, Ms. Pierce was shot in the neck. She fell to her knees, crying, and covered her head. Then, according to her testimony, the defendant walked in front of her and shot her near the right eye. After firing, the defendant reportedly said, "Now are you going to do what I tell you to do?"
Following the shooting incident, the defendant helped Ms. Pierce to his truck. The two drove around for some time, obtaining some gasoline from a farm and later traveling to Burlington, Iowa to buy gas. Around 6:30 a.m. the defendant returned Ms. Pierce to her motel room where she remained for a few hours. Later in the day, she checked into Cottage Hospital in Galesburg where she called the police to report the events described above.
Upon these facts, the defendant was convicted of aggravated battery, a Class 3 felony (Ill. Rev. Stat. 1977, ch. 38, par. 12-4(b)(1)), and unlawful use of weapons, a Class A misdemeanor (Ill. Rev. Stat. 1977, ch. 38, par. 24-1(a)(2)). A Class 3 felony warrants a sentence of imprisonment, if no alternative disposition is chosen, for a determinate term of not less than 2 nor more than 5 years. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-8-1(a)(6).) The trial court may, however, apply the extended term provisions of the Unified Code of Corrections, under the following conditions:
"(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).)
In the case at bar the defendant received an extended sentence of 8 years imprisonment based on the trial judge's determination that the defendant's actions were exceptionally brutal and as such were indicative of wanton cruelty. The defendant challenges this sentence on several grounds. He first contends that the sentence is fatally defective and must be vacated, because the complaint failed to allege that the defendant's offense was accompanied by such brutal and cruel behavior as to be indicative of wanton cruelty. He takes the position that the facts justifying an extended term must be pleaded and proved at trial as a prerequisite to the imposition of an extended term.
In support of his position, the defendant cites a number of cases, placing principal reliance upon People v. Ostrand (1966), 35 Ill.2d 520, 221 N.E.2d 499, and People v. Breitweiser (1976), 44 Ill. App.3d 284, 357 N.E.2d 890. In Ostrand the defendant was convicted for unlawful use of weapons, a crime which constituted a misdemeanor offense, but one which would be upgraded to a felony if the person had been convicted of a felony within the last 5 years. (Ill. Rev. Stat. 1961, ch. 38, pars. 2-11, 2-7.) Our supreme court held that it was necessary that the prior felony be alleged and proved before the offense could be upgraded. (People v. Ostrand (1966), 35 Ill.2d 520, 529-30, 221 N.E.2d 499, 505.) In Breitweiser this court held that factors which would have raised the offense from a Class 4 felony to a Class 3 felony must be pleaded in a charging document and proved at trial. People v. Breitweiser (1976), 44 Ill. App.3d 284, 288-89, 357 N.E.2d 890, 893-94.
1 Unfortunately, Ostrand, Breitweiser, and the other cases cited by the defendant do not support his position. Those cases, in which reviewing courts> held that any facts which changed the grade or degree of an offense must be pleaded in the charging document and proved at trial, merely extend the general rule that all elements of an offense must be pleaded and proved at trial. Where a fact is essential to the grade or degree of an offense, it is, in effect, an element. However, the factors to be considered when imposing a sentence under the extended-term provision are not essential to the grade or degree of an offense, and thus are not elements of the offense charged. Therefore, these factors need not be pleaded or proved at trial.
In People v. Butler (1979), 78 Ill. App.3d 809, 396 N.E.2d 1374, the court addressed the specific issue raised by the defendant in the case at bar. The Butler court rejected the argument raised there that the extended term sentence imposed for armed robbery must be vacated because the defendant's prior conviction ...