Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois No. 99--CF--467 Honorable Daniel W. Gould, Judge Presiding
The opinion of the court was delivered by: Justice Lytton
MODIFIED UPON DENIAL OF REHEARING
Following a bench trial, defendant Leslie L. Dixon was convicted of residential burglary and possession of burglary tools (720 ILCS 5/19--3, 19--2 (West 1998)). Based on prior felony convictions, defendant was sentenced as a Class X offender to 25 years' imprisonment for residential burglary. He was sentenced to a concurrent four-year prison term for possession of burglary tools. On direct appeal, defendant claimed that (1) the trial court erred in arraigning him and accepting his jury waiver when defendant was present only by closed circuit television; and (2) his 25-year prison sentence is excessive. This court affirmed defendant's convictions and sentence in an unpublished summary order.
Defendant then filed a timely petition for rehearing, requesting that this court consider the constitutionality of his Class X sentence in light of the recent decision of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We hereby deny the petition for rehearing, modify our original disposition and affirm defendant's convictions and sentence.
On July 26, 1999, defendant was charged by information with residential burglary and possession of burglary tools. Following his first appearance, defendant appeared without objection via closed circuit television for pre-trial proceedings, including his arraignment on August 11, 1999. On November 1, 1999, the date set for trial, defendant appeared again on closed circuit television and waived his right to a jury trial. After admonishing defendant of the rights he was relinquishing and ensuring that defendant's decision was made knowingly and intelligently, the court accepted defendant's waiver and reset the cause for a bench trial. Defendant's signed waiver was filed on November 3, 1999.
At trial, the State's evidence established that on July 25, 1999, defendant forcibly entered the vacant residence of Sherri Neufeld in Kankakee, Illinois. A neighbor observed the break-in and alerted the police. The police stopped defendant in the vicinity based on the neighbor's description and a bulge in defendant's shirt. A search of defendant's person yielded a pry bar and a pair of gloves. Defendant was arrested and was subsequently positively identified by the eyewitness neighbor. Neufeld testified that she had not given defendant permission to enter her home. Based on the evidence, the trial court found defendant guilty as charged.
The pre-sentence investigative report revealed that the 44-year-old defendant had four prior burglary convictions, including two for residential burglary, and three drug convictions. At the sentencing hearing, defense counsel had no additions or corrections to make to the pre-sentence investigative report and acknowledged that Class X sentencing applied. The prosecutor characterized defendant as a "career burglar" and recommended a 30-year prison sentence. Defense counsel argued for a six-year minimum term. The trial court found that, on balance, the factors weighed heavily toward a lengthy prison sentence. Accordingly, the court imposed a 25-year term. Defendant's motion to reconsider the sentence as excessive was denied.
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CONSTITUTIONALITY OF SENTENCING STATUTE
Finally, we consider defendant's argument that the Class X sentencing statute is unconstitutional in light of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Specifically, defendant contends that section 5--5--3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5--5--3(c)(8) (West 1998)) contains factors which, pursuant to Apprendi, must be submitted to a jury before a Class X sentence may be imposed for residential burglary.
Section 5--5--3(c)(8) provides as follows:
"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." 730 ILCS 5/5--5--3(c)(8) (West 1998).
In Apprendi, the Supreme Court reviewed New Jersey's hate crime statute, which provided for an enhanced sentence upon the trial court's determination by a preponderance of the evidence that the defendant acted with racial bias. The defendant argued that due process required that the enhancement factor be alleged in the indictment and proved to a jury beyond a reasonable doubt. The Supreme Court agreed. The Court ruled that "[o]ther 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 Apprendi Court thus carved out an ...