The opinion of the court was delivered by: Justice Hartman
Appeal from the Circuit Court of Cook County. Honorable Catherine Haberkorn, Judge Presiding.
Defendant, Dickey Dunn, was charged by information with one count of burglary pursuant to section 19-1(a) (720 ILCS 5/19-1(a) (West 2000) (section 19-1(a))) of the Criminal Code of 1961 (720 ILCS 5/1-1 et seq. (West 2000) (Criminal Code)). Tried by the circuit court, he was found guilty and sentenced to eight years in custody of the Illinois Department of Corrections as a Class X offender. Defendant appeals both his conviction and sentence.
The issues presented on appeal include whether: (1) this cause should be remanded for an evidentiary hearing to determine whether a witness committed perjury at trial; (2) the circuit court erred by considering information outside the record during its deliberations; and (3) the mandatory Class X sentencing provision of section 5-5-3(c)(8) (730 ILCS 5/5-5-3(c)(8) (West 2000) (section 5-5-3(c)(8))) of the Unified Code of Corrections (730 ILCS 5/1-1-1 et seq. (West 2000) (Code of Corrections)) is unconstitutional.
On July 31, 1998, at 5:00 a.m., Chicago Police Officers arrested defendant and Kenneth Wilson after observing defendant leaning into the broken rear passenger window of a parked 1998 Buick Regal, taking compact discs and audio cassettes, while Wilson sat in the passenger seat of the car. Defendant and Wilson each were charged by information with one count of burglary under section 19-1(a), but were tried separately.
At an August 3, 1998 preliminary hearing, the State sought to prove probable cause to hold defendant for trial. Chicago Police Officer D. Colt, the only officer who testified at the preliminary hearing, stated that on July 31, 1998, at 5:00 a.m., while sitting in the passenger seat of his patrol car in the vicinity of 158 West Division Street, he observed defendant leaning into the broken window of a parked Buick Regal, and taking several items. Colt did not see defendant or Wilson break the vehicle's window. Colt then stopped defendant, who was holding compact discs and audio cassettes in his hands. Additionally, Colt noticed a brick and shattered glass lying on the back seat of the car. Neither the State nor defense counsel asked Colt questions regarding the presence of other officers at the scene.
At trial, Chicago Police Officer P. Kelly testified that on the occurrence date, between 4:45 a.m. and 5:00 a.m., he was on routine patrol with his partner, Officer Bausch. While Bausch drove their squad car east on Division Street, between LaSalle and Wells Streets, Kelly, from a distance of 35 or 40 feet, viewed defendant leaning into the rear window of a parked vehicle with half of his body in the aperture, and Wilson sitting in the passenger seat of that vehicle.
Officer Kelly instructed Officer Bausch to make a u-turn and pull up behind the parked car. Meanwhile defendant and Wilson left the car, crossed the street and walked in different directions. Bausch stopped defendant and Kelly intercepted Wilson, and they returned the offenders to the parked car. Kelly observed that the rear window of the vehicle was broken and shattered glass and a brick lay on the back seat. Bausch recovered two compact discs and a children's audiotape from defendant and Kelly found Wilson holding audio cassettes. Defendant and Wilson both told the officers that they had not broken the window and were "just going through the car."
After arresting defendant and Wilson, *fn1 the officers located Charles Beach, the car owner's brother, who parked the vehicle at 158 West Division Street. Beach went to the scene with the two officers and identified the property recovered from defendant and Wilson as his own.
Officer Colt did not testify at trial. Officer Kelly was not questioned about Colt being at the scene.
At the close of the State's evidence, defendant's motion for a finding of not guilty was denied. Defendant did not testify. The circuit court then found defendant guilty of burglary. The court observed that the crime occurred at "Division Street somewhere between Wells and LaSalle. It's quite lit up around there at all times of the day. There was nothing that impeached the officer as to his ability to see the defendant in any manner."
At defendant's sentencing hearing, the State presented evidence that defendant was convicted of two prior felonies, thereby making him subject to Class X sentencing under section 5-5-3(c)(8) of the Code of Corrections. The circuit court found that defendant qualified as a Class X offender and sentenced him to eight years in custody of the Illinois Department of Corrections. Defendant filed a timely notice of appeal.
Defendant initially asserts that this cause should be remanded for an evidentiary hearing to determine whether Officer Kelly committed perjury because he and Officer Colt each testified that they were the arresting officer who first observed him leaning into the parked car. According to defendant, because Kelly never mentioned the presence of Colt at the scene and Colt did not ...