The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Thomas Tucker, Judge Presiding.
In Apprendi v. New Jersey, 530 U.S. ___, ___, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000), the United States Supreme Court articulated the following constitutional rule and held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. The Court in Apprendi concluded that a New Jersey man who fired shots into the home of an African American family was entitled to have a jury decide whether his sentence should be enhanced beyond the ordinary maximum because he acted with a purpose to intimidate based on race.
The question presented in this case is whether under Apprendi the mandatory Class X sentencing provision of section 5-5-3(c)(8) of the Unified Code of Corrections (the Code) (730 ILCS 5/5-5-3(c)(8) (West 1998)) is unconstitutional because this section required the defendant's sentence to be increased based on prior convictions which were not charged in the indictment, not submitted to a jury and not proved beyond a reasonable doubt. Defendant, John Lathon after a bench trial was convicted of attempted residential burglary, a Class 2 felony (720 ILCS 5/8-4(c)(3), 19-3 (West 1998)). Although a Class 2 felony provides for a possible prison sentence from three to seven years (730 ILCS 5/5-8-1(a)(5) (West 1998)), defendant's criminal history included two prior Class 2 felony convictions, thereby making him ineligible for a Class 2 sentence. As a result of the prior convictions, section 5-5-3(c)(8) of the Code required that defendant receive a Class X prison sentence from 6 to 30 years, and the court imposed a 25-year sentence (730 ILCS 5/5-8-1(a)(3) (West 1998)).
On appeal, defendant argues that: (1) the mandatory Class X sentencing enhancement provision based on prior convictions is unconstitutional under Apprendi as it violates due process and jury trial guarantees because the prior convictions were not alleged in the indictment, were not submitted to the jury and were not proved beyond a reasonable doubt; and (2) his sentence is excessive. We affirm and hold that the mandatory Class X sentencing provision of section 5-5-3(c)(8), which requires sentencing enhancement based on prior convictions is constitutional and does not violate defendant's due process rights or jury trial guarantees. 730 ILCS 5/5-5-3(c)(8) (West 1998).
Officer Williams testified that on February 6, 1998, in the 700 block of Garfield Avenue in Oak Park he saw the defendant walking back and forth in front of an apartment building and then stoop down out of sight. The apartment had two entrances; one was on the 700 block of Garfield Avenue and the other was on the 900 block of Wesley Avenue. Williams drove to where defendant had been standing and saw defendant crawl into the window of the apartment at 901 Wesley Avenue. According to Williams, defendant's body was about halfway into the window when defendant backed out of the window. Defendant then looked in Officer Williams' direction and walked briskly down Garfield Avenue. Officer Williams caught up with defendant and told him to stop. Officer Williams asked defendant what he was doing in the window and defendant replied, "just walking by." Defendant denied entering the window. Officer Williams went back to the apartment and saw that the screen for the apartment window had been removed and placed on the street. Officer Williams also observed the window open. Defendant was arrested.
Larry Washburn testified that on February 6, 1998, he lived in apartment G at 901 South Wesley. When he returned to his apartment later that day, the screen to his window was missing, the window was broken and he found a note from the police. He went to the police station and identified the screen that had been removed from his window. Washburn testified that he never gave permission to defendant to enter his apartment. Defendant did not testify and no evidence of defendant's criminal history was offered or admitted during trial. Based on this evidence, the trial court found defendant guilty of attempted residential burglary.
Defendant's criminal history spans 30 years. In the 1960s, defendant was convicted of loitering, unauthorized use of a weapon, and theft. In the 1970s, defendant was convicted of attempted burglary, unlawful use of weapons, armed robbery, attempted murder, burglary, and escape. More recently, in December 1985, defendant was convicted of burglary and received a five- year prison sentence. In September 1989, defendant was convicted of residential burglary and theft and received a 10-year prison sentence. Defendant was again convicted, in March 1993, of residential burglary and received another 10-year prison sentence. In mitigation, defendant explained that a serious drug addiction caused his criminal conduct. Although defendant recognized that this was not an excuse for his conduct, he told the court that since his incarceration he had entered a drug treatment program for the first time. Defendant believed that, because of the drug treatment, he could live a law-abiding and responsible life.
After reviewing the defendant's extensive criminal history and the evidence in mitigation, the trial judge stated that he believed that defendant's addiction to drugs had "motivated him and driven him through his criminality throughout his entire young life and now as he gets into midlife." The judge believed that defendant's family background and other community support provided defendant with the opportunity to deal with that addiction. The trial court refused to sentence defendant within the lower end of the Class X sentencing range. The judge acknowledged overcoming a drug addiction was "extremely difficult" and he sympathized with the defendant's inability to do that. But the judge felt it was necessary to protect society from the defendant's "continuing criminality." The court then sentenced defendant to 25 years in prison. There is no question that defendant's sentence was increased as the result of his continuing criminality and prior convictions. The court specifically found:
"The time for leniency has passed. The time for consideration for these other matters is way passed. Now is the time that we have to take the step necessary to insure that our society is kept safe from continuing criminality since you have shown an inability to do it on your own. The Court must step in and take the proper steps. * * * I'm going to sentence you to 25 years in the Illinois Department of Corrections. I'm going to indicate to you that this is a Class X sentencing due to your criminality."
The State argues that defendant has waived any challenge to the constitutionality of his sentence under section 5-5-3(c)(8). (730 ILCS 5-5-3(c)(8) (West 1998)). The defense contends that "failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication." Griffith v. Kentucky, 479 U.S. 314, 322, 93 L. Ed. 2d 649, 658, 107 S. Ct. 708, 713 (1987). Defendant's case was pending on direct review when Apprendi was decided. The Apprendi opinion was issued by the United States Supreme Court the same day the original order in this case was issued and therefore Apprendi was properly raised by defendant in the petition for rehearing. The State responds that Apprendi did not announce a new constitutional rule and contends that the decisions in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999), and Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), addressed the same general issue of enhanced penalties based upon facts presented at sentencing. According to the State, the issue and the cases upon which Apprendi was based were available for defendant to raise at his sentencing hearing or in his original brief. We reject this argument. Jones, as well as Almendarez-Torres, was decided as a matter of statutory interpretation of the federal sentencing guidelines. Jones, 526 U.S. at 251 n.11, 143 L. Ed. 2d at 331 n.11, 119 S. Ct. at 1228 n.11. Apprendi for the first time specifically applied the ...