Appeal from the Circuit Court of Cook County No. 01 CR 7090 Honorable Evelyn B. Clay, Judge Presiding.
The opinion of the court was delivered by: Justice Smith
Following a bench trial, defendant, Thomas Askew, was found guilty of possession of a controlled substance. At the sentencing hearing on July 16, 2001, the trial court sentenced defendant to an extended-term sentence of four years in prison, based on defendant's prior convictions.
On appeal, defendant does not challenge the sufficiency of the evidence that led to his conviction. Instead, he argues that the trial court improperly imposed an extended term sentence based on his prior convictions, because: (1) the trial court did not find the existence of his prior convictions beyond a reasonable doubt, as required by the version of 5/5-8-2 of the Unified Code of Corrections (the Code) (730 ILCS 5/5-8-2(a) (West 2000)) under which he was sentenced, and (2) the extended-term sentencing provision found in section 5-5-3.2(b)(1) (730 ILCS 5/5-5-3.2(b)(1) (West 2001)) is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,120 S. Ct. 2348 (2000), because it does not require that his prior convictions be pled in the charging instrument or proven at trial. Defendant alleges that these errors entitle him to a new sentencing hearing.
In Apprendi, the Supreme Court held unconstitutional a New Jersey hate crime statute that increased the normal 5 - 10 year range of imprisonment for possession of a firearm for an unlawful purpose to a 10 - 20 year term if the trial judge found by a preponderance of the evidence that the defendant, when committing the offense for which he was being sentenced, had acted with a racially biased purpose. Apprendi, 530 U.S. at 468-69, 147 L. Ed. 2d 435,120 S. Ct. at 2531. The Court held 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 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.
In recognizing that prior convictions are an exception to the general rule that facts which increase a sentence beyond the statutory maximum must be proven beyond a reasonable doubt, the Apprendi Court relied on its holding in Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S.Ct. 1219 (1998). The Court explained that the procedural safeguards attached to any "fact" of a prior conviction mitigate the due process concerns otherwise implicated in allowing a judge to determine a "fact" which increases punishment beyond the statutory maximum penalty. Apprendi, 530 U.S. at 488-90, 147 L. Ed. 2d at 454, 120 S. Ct. 2362. Further, the Court reasoned that recidivism is not an essential element of the underlying criminal offense and recidivism does not relate to the commission of the underlying offense.
This court has held that these same reasons support applying the recidivism exception recognized in Apprendi to Illinois cases. People v. Lathon, 317 Ill. App. 3d 573 (2000) (defendant's sentencing as a recidivist was not subject to Apprendi rule generally requiring a jury determination of fact issues relating to sentencing); People v. Childress, 321 Ill. App. 3d 13 (2001) (same).
Against this backdrop, the legislature amended the Code of Criminal Procedure of 1963 (Procedure Code) by Public Act 91-953 (Pub. Act 91-953, eff. Feb. 23, 2001). The central amended provision was section 111-3(c-5) (725 ILCS 5/111-3(c-5) (West 2000)), which now provides in pertinent part:
"Notwithstanding any other provision of law, in all cases in which the imposition of the death penalty is not a possibility, if an alleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be included in the charging instrument or otherwise provided to the defendant through a written notification before trial, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt."
Sections 5-5-3(d) and 5-5-4 of the Code were amended with the language:
"If a sentence is vacated on appeal or on collateral attack due to the failure of the trier of fact at trial to determine beyond a reasonable doubt the existence of a fact (other than a prior conviction) necessary to increase the punishment for the offense beyond the statutory maximum otherwise applicable, either the defendant may be re-sentenced to a term within the range otherwise provided or, if the State files notice of its intention to again seek the extended sentence, the defendant shall be afforded a new trial."
(Emphasis added.) (730 ILCS 5/5-5-3(d) and 730 ILCS 5/5-5-4 (West 2000).
These amendments reflect the legislature's intention to bring the Code into conformity with the Apprendi decision both in terms of the burden of proof and other due process protections where extended sentences are sought, and in terms of the exemption from that burden and ...