Appeal from Circuit Court of Vermilion County No. 97CF35 Honorable Claudia S. Anderson, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
In February 1997, the State charged defendant, Carl Givens, with one count of burglary, a Class 2 felony (720 ILCS 5/19-1 (West 1996)). In July 1999, a jury found defendant guilty as charged. In September 1999, the trial court found defendant eligible for Class X sentencing under section 5-5-3(c)(8) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3(c)(8) (West 1996) (effective until June 1, 1997)) and sentenced defendant to 18 years' imprisonment. On appeal, defendant argues section 5-5-3(c)(8) of the Unified Code is unconstitutional. We affirm.
On January 24, 1997, Keith Wilson, the victim and owner of Wilson's Body Shop (Shop), arrived at the Shop and parked his truck across the street, leaving it unlocked. Later, Wilson noticed defendant standing by his truck. Wilson noticed defendant had something in his hands and thought defendant had the cellular phone he kept in his truck. Wilson began walking toward his truck, and as he approached, defendant began running. Wilson went to the truck and discovered some cigarettes and his cellular phone were missing. Wilson got in his truck and proceeded to look for defendant.
About one block away from the Shop, a neighbor informed Wilson he had seen a man go behind a house near the city garage. Wilson then saw defendant near the city garage, got out of his truck, approached defendant, and asked for his cellular phone. Defendant denied having Wilson's cellular phone and told Wilson he had business at the city garage. Wilson stated he would wait for defendant to finish his business, but defendant did not go to the city garage. Instead, defendant started running, and Wilson followed him. As Wilson was pursuing defendant, he saw a police officer and signaled the officer to apprehend defendant.
Danville police officers Joseph Crippin and Richard Dicken responded to the burglary call. Employees of the Shop informed Officer Dicken of Wilson's pursuit of the suspected burglar. Officer Crippin drove to the area where Wilson was last seen and saw Wilson chasing defendant. Officer Crippin apprehended defendant as Officer Dicken arrived at the scene.
After talking with Wilson, the officers traced the path of the chase and found a cellular phone, two packs of cigarettes, and a cigarette lighter. Wilson identified all those items as having been taken from his truck. John Bunting, a forensic scientist with the Illinois State Police crime lab, found no fingerprints suitable for comparison on the cellular phone.
In February 1997, the State charged defendant with burglary, and in August 1997, a jury found defendant guilty as charged. In September 1997, the trial court sentenced defendant to 10 years' imprisonment, and defendant appealed. This court reversed defendant's conviction and remanded the case to the trial court. People v. Givens, No. 4-97-1072 (March 10, 1999) (unpublished order under Supreme Court Rule 23). In July 1999, a jury found defendant guilty of burglary. Because of his criminal record, the trial court found defendant eligible for sentencing as a Class X offender as provided in section 5-5-3(c)(8) of the Unified Code and sentenced him to 18 years' imprisonment. In October 1999, the trial court denied defendant's posttrial motion, and this appeal followed.
While this case was pending on appeal, the United States Supreme Court issued its decision in Apprendi v. New Jersey, 530 U.S. __, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Defendant argues Apprendi renders section 5-5-3(c)(8) of the Unified Code unconstitutional because it does not require notice of the State seeking to sentence the defendant as a Class X offender and does not provide for a jury determination beyond a reasonable doubt as to whether the qualifying facts of section 5-5-3(c)(8) exist. The State argues defendant has waived, i.e., forfeited, this issue on appeal because he failed to raise it in a posttrial motion. See People v. Reed, 177 Ill. 2d 389, 393, 686 N.E.2d 584, 586 (1997).
We first address the State's forfeiture argument. Because Apprendi was decided while defendant's case was pending on appeal, defendant could not have raised Apprendi in a posttrial motion. Furthermore, a defendant can raise a constitutional challenge to a statute at any time. People v. Bryant, 128 Ill. 2d 448, 454, 539 N.E.2d 1221, 1224 (1989). Accordingly, we address the constitutional challenge raised by defendant. We review the constitutionality of a statute de novo. People v. Fisher, 184 Ill. 2d 441, 448, 705 N.E.2d 67, 71-72 (1998).
Section 5-5-3(c)(8) of the Unified Code (730 ILCS 5/5-5-3(c)(8) (West 1996) (effective until June 1, 1997)) provides, in relevant part:
"When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second."
Thus, under section 5-5-3(c)(8) (730 ILCS 5/5-5-3(c)(8) (West 1996) (effective until June 1, 1997)), a trial court must sentence a defendant as a Class X offender when a defendant has prior felony convictions satisfying the statutory requirements. See People v. Thomas, 171 Ill. 2d 207, 222, 664 N.E.2d 76, 84 (1996) (Class X sentencing under section 5-5-3(c)(8) of the Unified Code is mandatory). Section 5-5-3(c)(8) of the Unified Code does not elevate the class of the crime but merely sets forth criteria under which a ...