Appeal from the Circuit Court of Cook County Honorable Shelley Sutker-Dermer, Judge Presiding.
The opinion of the court was delivered by: Justice O'mara Frossard
Following a bench trial defendant was found guilty of attempted aggravated robbery. Defendant was sentenced to a nine-year prison term. On appeal defendant contends the mandatory Class X sentencing provision of the Unified Code of Corrections (Code) (730 ILCS 5/5-5-3(c)(8) (West 2000)) is unconstitutional under the holding of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For the reasons stated below, we affirm.
Santokh Bains testified that at approximately 4:30 a.m. on January 10, 2001, a man wearing a mask entered the 7-Eleven store on Pratt Street in Chicago. He indicated he had a gun and ordered Bains to open the register. A police car pulled into the parking lot and the man took off his mask, asked Bains for a pack of cigarettes and a lighter, paid Bains $5, and left the store. Bains triggered the burglar alarm and informed the police in the parking lot that a man had just attempted to rob the store. Within 10 minutes, the police returned to the store with defendant, Maurice Smith. Bains identified Smith at the show-up in the store and in court as the man who attempted to rob the store.
Smith testified that at approximately 4:30 a.m. on January 10, 2001, he bought a pack of cigarettes and a lighter from Bains at the 7-Eleven store. Smith said he had the mask on his face and his right hand inside his pocket because he was coming in from the cold. He denied indicating that he had a gun in his right coat pocket and denied ordering Bains to open the register. Smith further explained that he took the mask off to show Bains that he was not a threat.
Defendant was found guilty of attempted aggravated robbery after a bench trial. The judge imposed a nine-year Class X felony sentence pursuant to section 5-5-3(c)(8) of the Code. 730 ILCS 5/5-5-3(c)(8) (West 2000). Defendant appeals.
IMPOSITION OF CLASS X FELONY SENTENCE PURSUANT TO SECTION 5-5-3(c)(8) DOES NOT VIOLATE THE UNITED STATES CONSTITUTION
We review the constitutionality of a statute de novo. People v. Fisher, 184 Ill. 2d 441, 448 (1998). Defendant was found guilty of attempted aggravated robbery, a Class 2 felony carrying a sentence of not less than three years and not more than seven years. A Class X felony carries a sentence of not less than 6 years and not more than 30 years. 730 ILCS 5/5-8-1(a)(3) (West 2000). Defendant's previous convictions, including 6 for armed robbery, 2 for aggravated robbery and 1 for attempted robbery, made defendant eligible for sentencing as a Class X felon under section 5-5-3(c)(8) of the Code. The trial court sentenced Smith to a nine-year prison term as a Class X felon under the Code, which states:
"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 2000).
Defendant contends section 5-5-3(c)(8) violates due process and trial by jury guaranteed by the United States Constitution. Defendant argues that pursuant to Apprendi, 530 U.S. at 466, 147 L. Ed. 2d at 435, 120 S. Ct. at 2348, the State is required to submit to a jury and prove beyond a reasonable doubt the fact of defendant's age and prior convictions, and the fact of timing, degree, number, and sequence of the defendant's prior convictions.
Defendant argues that because Apprendi questions whether Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), was correctly decided, we should find that Apprendi requires prior convictions to be charged, submitted to a jury, and proved beyond a reasonable doubt and hold that Class X sentencing under section 5-5-3(c)(8) violates defendant's right to trial by jury and due process.
We note that the Court in Almendarez-Torres found no violation of defendant's constitutional rights by a federal statute authorizing the trial judge to enhance defendant's sentence based on a prior conviction. Almendarez-Torres, 523 U.S. at 247-48, 140 L. Ed. 2d at 371, 118 S. Ct. at 1233. Defendant is accurate in stating that Apprendi indicated it is arguable that Almendarez-Torres was incorrectly decided. However, the meaning of that statement is better understood when not taken out of context. Regarding the correctness of the Almendarez-Torres decision, the Court in Apprendi stated, in context, the following:
"Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision's validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not ...