APPEAL from the Circuit Court of Cook County; the Hon. BRIAN
L. CROWE, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a bench trial, Sidney Collins (defendant) was found guilty of burglary and acquitted of armed violence. Defendant was sentenced to 12 years. He appeals.
Although defendant raises no issue regarding the sufficiency of the evidence to prove guilt beyond reasonable doubt, a short factual statement is required. Two young ladies, Suria Salame and Aziza Salame, observed a man, later identified as defendant, walk up to their back porch, stand there for a time and then go back downstairs. They watched the man and saw him walk along a sidewalk to a nearby house. This was a two-flat building occupied by Majideh Muslah and her husband, Abdullah Muslah.
The young ladies observed defendant as he pushed up the window to enter the Muslah home. The defendant actually entered the home. The young ladies summoned the police. The two girls saw the defendant climb back out of the window, remove a mask and jump to the ground. About that time the police officers arrived. Mrs. Muslah saw a stranger standing in the gangway. She told the police about this man and then told them the man had started to run away. The young Salame ladies also helped to point out the man to the police. The police gave chase. They saw a man answering defendant's description walking through an empty lot. They took him into custody. Mrs. Muslah found that a radio which had been on her dresser was on the floor and several drawers in her children's bedroom had been opened. After a search the police found a mask in the backyard of a nearby building and a discarded pair of blue socks.
Defendant testified that on the day in question he left at noon to go to work. He went to the cleaners with trousers to be pressed. He was then arrested and searched. Defendant denied having entered the Muslah home. In our opinion, the evidence is sufficient to prove defendant's guilt beyond any reasonable doubt.
The contentions raised by defendant in this court are:
The trial judge sentenced defendant to an extended term. The pertinent statute provides that for a Class 2 felony, such as burglary (see Ill. Rev. Stat. 1979, ch. 38, par. 19-1(b)), the extended term shall not be less than 7 and not more than 14 years. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2(4).) The trial court considered the pertinent factors in aggravation in determining whether the extended term was proper. The statutory test is whether defendant was previously convicted in Illinois of the same or a greater class felony within 10 years or, alternatively, if the offense was accompanied by brutal behavior. See Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b).
• 1 Defendant contends this statutory framework which permits an extended term deprives defendant of equal protection of the law because it is limited in its application to persons who have "been previously convicted in Illinois of the same or greater class felony * * *" (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)(1)). The record before us shows this point was never raised in the trial court and was not included in defendant's motion for new trial. The constitutionality of a statute may be passed upon by this court "only when it has been raised in and passed upon the trial court." (People v. Luckey (1969), 42 Ill.2d 115, 117, 245 N.E.2d 769, cert. denied (1970), 397 U.S. 942, 25 L.Ed.2d 122, 90 S.Ct. 955.) This same rule "applies to constitutional and non-constitutional issues." (People v. Lykins (1979), 77 Ill.2d 35, 38, 394 N.E.2d 1182, cert. denied (1980), 445 U.S. 952, 63 L.Ed.2d 787, 100 S.Ct. 1602. See also People v. Price (1979), 76 Ill. App.3d 613, 636, 394 N.E.2d 1256, and People v. McNair (1979), 71 Ill. App.3d 782, 786, 390 N.E.2d 142.) We hold the issue of equal protection as applied to the statute in question has been waived.
The parties stipulated in the trial court that on September 13, 1967, defendant was convicted of burglary, attempt rape and attempt burglary. On June 9, 1975, he was convicted of burglary. On January 19, 1978, he was convicted of robbery. In each instance he was released from the penitentiary less than 10 years before his trial here involved.
For certainty we will repeat the pertinent statute (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)(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; * * *."
Defendant urges the drafters of this statute should have added therein a modification of the words "the same or greater class felony" by adding after ...