People v. Brown

Docket No. 104375.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
ROBERT D. BROWN, Appellant.

Opinion filed June 19, 2008.

JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.

OPINION

Defendant, Robert D. Brown, was sentenced to natural life
imprisonment after he was adjudged an habitual criminal pursuant to
section 33B–1 of the Criminal Code of 1961 (the Habitual Criminal
Act or the Act) (720 ILCS 5/33B–1 (West 2002)). On appeal,
defendant contended that the State failed to prove him eligible for
sentencing as an habitual criminal because the State presented no
evidence at his sentencing hearing to establish that he committed his
second prior offense after the date of conviction for his first prior
offense, as required by section 33B–1(d)(4) of the Act (720 ILCS
5/33B–1(d)(4) (West 2002)). Defendant argued that this failure of
proof rendered his sentence void and, as a result, his challenge to the
natural life sentence imposed was not subject to forfeiture. He asked
the appellate court to remand for a new sentencing hearing. The
appellate court disagreed and upheld defendant’s sentence. 371 Ill.
App. 3d 450.
For the reasons that follow, we affirm the appellate court
judgment upholding defendant’s sentence.

BACKGROUND
On April 14, 2004, defendant was found guilty of home invasion
(720 ILCS 5/12–11(a)(1) (West 2002)), a Class X felony, in relation
to events which occurred on June 22, 2003. Prior to sentencing, the
State filed a motion asking the court to sentence defendant to natural
life imprisonment as an habitual criminal pursuant to the Act. 720
ILCS 5/33B–1 et seq. (West 2002).1 In its motion, the State averred
that, in two separate and unrelated prior prosecutions, defendant was
convicted for committing offenses which qualified him as an habitual
criminal, namely, that defendant was convicted of criminal sexual
assault on March 20, 1992, in case number 91 CR 0989501, and that
defendant was convicted of home invasion on October 19, 1993, in
case number 93 CR 1954401. Certified statements of conviction were
attached to the motion.2

1
The Act provides in section 33B–1:
“(a) Every person who has been twice convicted in any state or
federal court of an offense that contains the same elements as an
offense now classified in Illinois as a Class X felony, criminal
sexual assault, aggravated kidnapping or first degree murder, and
is thereafter convicted of a Class X felony, criminal sexual assault
or first degree murder, committed after the 2 prior convictions,
shall be adjudged an habitual criminal.
***
(e) Except when the death penalty is imposed, anyone
adjudged an habitual criminal shall be sentenced to life
imprisonment.”
2
Section 33B–2(b) of the Act provides in pertinent part:
“(b) A duly authenticated copy of the record of any alleged
former conviction of an offense set forth in Section 33B–1shall be
prima facie evidence of such former conviction ***.” 720 ILCS

-2-
 Later, at defendant’s sentencing hearing, the State entered into
evidence the certified statements of defendant’s two prior
convictions, as well as a presentence investigation report that
established the dates on which defendant was arrested for committing
the offenses which led to his two prior convictions. In addition, the
State presented argument in support of its motion, stating:
“Judge, it’s interesting to note that this defendant was on
parole for criminal sexual assault. He commits home
invasion. He is on parole for home invasion. He commits
another home invasion. It’s our belief this defendant is a
sociopath, and a natural life sentence is entirely appropriate in
this case.”
Defendant made no objection to the State’s evidence at his
sentencing hearing. In fact, when asked by the court whether there
were any deficiencies in the certification or anything he wanted to
bring to the court’s attention, defense counsel replied, “No, I believe
he’s complied with the certification, I believe he’s complied with
what the law is.” Further, in response to the State’s motion, one
argument posited by defense counsel was that defendant’s prior
counsel, knowing that defendant would be subject to the habitual
criminal statute, should have made a greater effort to negotiate a deal
with the State with respect to his current offense. Defendant declined
to exercise his right to allocution, stating only that he had “nothing to
say.”
After hearing the arguments of counsel and in light of the certified
statements of conviction and the presentence investigation report, the
trial court found defendant to be an habitual criminal and sentenced
him to natural life imprisonment.
Defendant filed a “Motion to Reconsider Sentence,” in which he
challenged the constitutionality of the habitual criminal statute, but
raised no claim with respect to the sufficiency of the State’s evidence
concerning his prior convictions. It was not until his appeal that
defendant questioned whether the evidence presented at his
sentencing hearing supported the circuit court’s imposition of a
natural life sentence under the Act. On appeal, defendant argued for

5/33B–2(b) (West 2002).

-3-
the first time that at sentencing the State presented no direct evidence
to establish the date on which he committed his second prior offense
and, consequently, failed to show that the commission of this second
offense came after his conviction for his first prior offense–a
requirement for habitual criminal sentencing pursuant to section
33B–1(d)(4) of the Act (720 ILCS 5/33B–1(d)(4) (West 2002)).3
The appellate court affirmed defendant’s sentence, with one
justice dissenting. 371 Ill. App. 3d 450. The appellate court majority
ruled that the issue raised on appeal was forfeited for two reasons: (1)
section 33B–2(c) of the Act (720 ILCS 5/33B–2(c) (West 2002))4
required defendant to raise any objection to the State’s evidence at his
sentencing hearing, which he did not do; and (2) defendant failed to
challenge the sufficiency of the evidence in his motion to reconsider
sentence. 371 Ill. App. 3d 450.
The dissenting justice disagreed, stating that the section 33B–2(c)
forfeiture provision did not apply because this case fit within the
forfeiture provision’s stated exception, i.e., “[t]he State’s proof itself

3
Section 33B–1(d) provides:
“This Article shall not apply unless each of the following
requirements are satisfied:
(1) the third offense was committed after the effective date of
this Act;
(2) the third offense was committed within 20 years of the date
that judgment was entered on the first conviction, provided,
however, that time spent in custody shall not be counted;
(3) the third offense was committed after conviction on the
second offense;
(4) the second offense was committed after conviction on the
first offense.”

4
Section 33B–2(c) provides:
“Any claim that a previous conviction offered by the
prosecution is not a former conviction of an offense set forth in
Section 33B–1 because of the existence of any exceptions
described in this Act, is waived unless duly raised at the hearing
on such conviction, or unless the prosecution’s proof shows the
existence of such exceptions described in this Act.”

-4-
establishes the existence of the exception contained in section
33B–1(d)(4).” 371 Ill. App. 3d at 454 (McLaren, J., dissenting).
Further, the dissenting justice held that the State failed to meet its
burden of production on one of the requirements necessary to
sentence defendant as an habitual criminal and, because of this failure
of proof, the sentence imposed by the circuit court was not statutorily
authorized. 371 Ill. App. 3d at 455 (McLaren, J., dissenting).
Accordingly, the dissenting justice opined that defendant’s challenge
to his sentence was not subject to forfeiture and should be reviewed
under the plain error doctrine. 371 Ill. App. 3d at 455-56 (McLaren,
J., dissenting).
We granted defendant’s petition for leave to appeal. 210 Ill. 2d R.
315.

ANALYSIS
We note at the outset that defendant does not contend in his brief
before this court that he is not an habitual criminal because the timing
and sequence of his prior convictions do not actually satisfy the
chronological requirements of the habitual criminal statute. Rather,
he maintains, as he did in the appellate court below, that the State has
the burden of proving a person eligible for habitual criminal
sentencing by a preponderance of the evidence and, to do so, the State
must present sufficient evidence to establish not only that the person
committed the requisite three qualifying offenses, but that those
convictions satisfy the chronological requirements set forth in section
33B–1(d) of the Act. Further, defendant maintains that, in this case,
the State failed to present any evidence to establish that he committed
his second offense after his conviction for his first offense. See 720
ILCS 5/33B–1(d)(4) (West 2002). He argues that because such proof
was not entered into evidence, his eligibility to be sentenced under the
habitual criminal statute was not established and the sentencing court
had no authority to sentence him as an habitual criminal. Defendant
concedes that he never raised any objection to the State’s evidence at
sentencing or in his postsentencing motion. He maintains, however,
that because the State failed to prove his eligibility to be sentenced as
an habitual criminal, the circuit court did not have the authority to
impose a natural life sentence. Defendant concludes that his sentence

-5-
is void and that a void sentence is not subject to forfeiture. Thus, he
asks that we remand for a new sentencing hearing.
The State disagrees. Interpreting the provisions of the habitual
Criminal Act, the State contends that to prove a defendant eligible for
habitual criminal sentencing it has the burden of proving that the
defendant has the requisite three convictions for qualifying offenses.
Thus, after a defendant has been convicted of his third offense, the
State must submit evidence of the defendant’s prior convictions at his
sentencing hearing. Certified records of conviction constitute prima
facie evidence of such convictions and, if produced by the State, will
satisfy the State’s burden of production. Thus, once the State has
produced prima facie evidence of the defendant’s prior convictions,
a presumption is created that defendant is eligible for habitual
criminal sentencing. The onus is then shifted to the defendant to rebut
the presumption of eligibility by demonstrating at his sentencing
hearing that his prior convictions come within one of the exceptions
set forth in section 33B–1(d). According to the State, if the defendant
fails to raise any defect or inaccuracy concerning his prior convictions
at his hearing, he forfeits the argument pursuant to section 33B–2(c)
of the Act.
Interpreting the Act in this manner, the State maintains that, in the
case at bar, defendant’s eligibility for sentencing as an habitual
criminal was established. The State contends that it met its burden of
production at defendant’s sentencing hearing by introducing certified
copies of defendant’s prior convictions. Further, the State maintains
that, because defendant did not object to the State’s evidence at his
sentencing hearing, he forfeited his right to challenge his habitual
criminal sentence on appeal pursuant to section 33B–2(c) of the Act.
The State further claims that, even without the section 33B–2(c)
forfeiture provision, defendant would be precluded from challenging
his sentence on appeal by application of general principles of
forfeiture because defendant did not challenge the State’s evidence at
his sentencing hearing or in his postsentencing motion. Consequently,
the State asks that we affirm defendant’s natural life sentence and
uphold the appellate court majority’s ruling that defendant forfeited
the right to challenge his sentence on appeal.
Finally, the State argues that defendant is an habitual criminal
because the timing and sequence of his prior offenses and convictions

-6-
actually satisfy the chronological requirements of the habitual
criminal statute and, as a result, any failure of proof on this matter is
harmless error. Accordingly, the State argues that no new sentencing
hearing is necessary.
Our resolution of the issues raised in this appeal requires us to
interpret and apply the statutory provisions concerning habitual
criminals under the circumstances present here. Our review, therefore,
is de novo. See In re Jaime P., 223 Ill. 2d 526 (2007) (matters of
statutory interpretation present questions of law and are subject to de
novo review). When interpreting a statute, our primary objective is to
ascertain and give effect to the intent of the legislature. People v.
Palmer, 218 Ill. 2d 148 (2006). Legislative intent is determined by
considering the language of the statute, given its plain and ordinary
meaning, as well as the purpose and necessity for the law, the evils
sought to be remedied, and goals to be achieved. In re Detention of
Lieberman, 201 Ill. 2d 300, 308 (2002). Each word, clause and
sentence of the statute must be given reasonable meaning and not
rendered superfluous, unless to do so would result in absurdity,
inconvenience, or injustice. People v. Palmer, 218 Ill. 2d at 156.
Turning to the Act, we see that it mandates a life sentence be
imposed on anyone “who has been twice convicted in any state or
federal court of an offense that contains the same elements as an
offense now classified in Illinois as a Class X felony, criminal sexual
assault, aggravated kidnapping or first degree murder, and is
thereafter convicted of [one of the above], committed after the 2 prior
convictions.” 720 ILCS 5/33B–1(a) (West 2002). Although section
33B–1(a) simply requires that a defendant have three convictions for
qualifying offenses to be adjudged an habitual criminal, paragraph (d)
provides that “[t]his Article shall not apply unless each of the
following requirements are satisfied: (1) the third offense was
committed after the effective date of this Act; (2) the third offense
was committed within 20 years of the date that judgment was entered
on the first conviction, provided, however, that time in custody shall
not be counted; (3) the third offense was committed after conviction
on the second offense; (4) the second offense was committed after
conviction on the first offense.” (Emphases added.) 720 ILCS
5/33B–1(d) (West 2002). According to the plain language of the
statute, then, a defendant may not be sentenced as an habitual

-7-
criminal unless he has three convictions for qualifying offense and
those convictions meet the additional requirements set forth in section
33B-1(d).
Section 33B–2 of the Act sets forth the manner in which a
defendant’s status as an habitual criminal is to be proved. Section
33B–2(a) provides that the State “shall not” allege a prior conviction
in the indictment, nor present evidence of such at trial, but rather
“[a]fter a plea or verdict or finding of guilty and before sentence is
imposed, the prosecutor may file with the court a verified written
statement signed by the State’s Attorney concerning any former
conviction of an offense set forth in Section 33B–1” and “unless the
defendant admits such conviction, the court shall hear and determine
such issue and shall make a written finding thereon.” 720 ILCS
5/33B–2 (West 2002).
Pursuant to this provision, a defendant’s eligibility for sentencing
as an habitual criminal is determined at the time of sentencing rather
than at trial. Accordingly, a defendant’s status as an habitual criminal
is a sentencing factor and not an element of the underlying offense for
which he is being sentenced. See Apprendi v. New Jersey, 530 U.S.
466, 485-86, 147 L. Ed. 2d 435, 452, 120 S. Ct. 2348, 2360 (2000)
(the term “sentencing factor” finds its origin in McMillan v.
Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986),
and refers to a fact that is not found by a jury but could affect the
sentence imposed by the judge).
In People v. Robinson, 167 Ill. 2d 53, 72-73 (1995), we held that,
because a defendant’s eligibility for sentencing as an habitual
criminal is determined at the time of sentencing when he is no longer
clothed with the presumption of innocence, he need not be “ ‘afforded
the full panoply of due process rights which are necessarily afforded
a criminal defendant at the evidentiary phase of trial. Those standards
which, at trial, govern the admissibility of evidence and precisely
define the manner in which the court and parties are to proceed are
absent.’ ” Robinson, 167 Ill. 2d at 72-73, quoting People v. Levin, 157
Ill. 2d 138, 153 (1993). We held, therefore, that a defendant’s
eligibility for habitual criminal sentencing need not be proved beyond
a reasonable doubt. People v. Robinson, 167 Ill. 2d at 73.
We recognized, however, that the Act “provides certain
evidentiary and procedural safeguards” and, therefore, the habitual

-8-
criminal sentencing process is “more formalistic than sentencing
under our general sentencing provision.” Levin, 157 Ill. 2d at 154.
Thus, we held in Robinson that the State bears the burden of proving
a defendant’s eligibility for sentencing under the Act by a
preponderance of the evidence. Robinson, 167 Ill. 2d at 71. “A
preponderance of the evidence is evidence that renders a fact more
likely than not.” People v. Urdiales, 225 Ill. 2d 354, 430 (2007). In
the case at bar, both the defendant and the State agree that a
preponderance of the evidence standard is the standard of proof
required to prove eligibility for sentencing as an habitual criminal.5
Although the parties agree on the standard of proof , they disagree
on what evidence the State must produce to satisfy its burden. As
noted earlier, defendant argues that, in addition to establishing that
defendant has the requisite two prior convictions, the Act requires the
State to introduce direct evidence to demonstrate compliance with the
requirements of section 33B–1(d). The State, however, interprets the
Act differently. According to the State, the introduction of prima
facie evidence of the defendant’s two prior convictions at the
defendant’s sentencing hearing creates a rebuttable presumption that
defendant is eligible for habitual criminal sentencing. If defendant
then fails to rebut this presumption by producing some evidence to
indicate that the prior convictions do not meet the requirements of the
Act, the State will have carried its burden of persuasion and the
circuit court is permitted to find the defendant eligible for habitual

5
We note, as an aside, that defendant does not argue that either Apprendi
v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348,
2362-63 (2000) (“Other 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”), or
Shepard v. United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254
(2005) (discussing the type of evidence that may be used to establish that
a prior conviction, which stemmed from a guilty plea, qualified as a violent
felony under the Armed Career Criminal Act for purposes of enhancing the
defendant’s sentence), have any application to the situation here. Thus, we
shall assume for the purposes of this appeal that the timing and sequence
of defendant’s prior convictions are facts inherent in the convictions
themselves and, as such, fall within the recidivism exception to the
Apprendi rule. See People v. Ligon, 365 Ill. App. 3d 109, 127-28 (2006).

-9-
criminal sentencing. Moreover, if defendant fails to rebut the
presumption of his eligibility at his sentencing hearing, he forfeits the
right to challenge the finding of eligibility on appeal.
We find the State’s interpretation of the Act to be the correct one.
Paragraph (b) of section 33B–2 provides that “a duly authenticated
copy of the record of any alleged former conviction of an offense set
forth in Section 33B–1 shall be prima facie evidence of such former
conviction.” In People v. Robinson, 167 Ill. 2d at 75, we interpreted
this provision as creating a permissive rebuttable presumption. We
said:
“In the criminal context, prima facie evidence is in the
nature of a presumption, more accurately described as an
instructed inference. (See M. Graham, Cleary & Graham’s
Handbook of Illinois Evidence §304.1, at 114-16 (5th ed.
1990).) Prima facie evidence may be defined as a quantum of
evidence sufficient to satisfy the burden of production
concerning a basic fact that allows an inference of a presumed
fact. (See M. Graham, Cleary & Graham’s Handbook of
Illinois Evidence §302.8, at 102 (5th ed. 1990).) Where the
burden of production is satisfied, the trier of fact is permitted
but not required to find the presumed fact. See M. Graham,
Cleary & Graham’s Handbook of Illinois Evidence §304.1, at
115-16 (5th ed. 1990).
Even where the State satisfies the burden of production
concerning a basic fact, a defendant bears no actual burden to
produce evidence to prevent operation of the inference.
However, where the State satisfies the burden of production
concerning a basic fact, a defendant does face the risk of
nonpersuasion concerning the presumed fact. As a practical
matter, the risk of nonpersuasion is greatly increased where a
defendant submits no evidence to prevent operation of the
inference.
*** Once the burden of production is satisfied, the judge
is permitted but not required to find the burden of persuasion
satisfied depending on the judge’s consideration of all the
evidence. The defendant’s introduction of contradictory
evidence does not diminish the prima facie evidence, but such

-10-
 evidence is considered by the trial judge in determining
whether the State has satisfied the burden of persuasion.”
We continue to adhere to our holding in Robinson that section
33B–2(b) creates a permissive rebuttable presumption. See also
People v. Woodrum, 223 Ill. 2d 286, 309-10 (2006) (distinguishing
the permissive presumption found in Robinson from a mandatory
presumption found to be per se unconstitutional because it relieved
the State of its burden of proving every element of an offense beyond
a reasonable doubt).
We conclude, also, that because the presumption is contained in
a sentencing statute which deals, not with guilt or innocence, but with
a defendant’s eligibility to be sentenced as an habitual criminal, the
legislature is free to impose on defendant the burden of producing
some evidence to contradict the presumption created by the State’s
introduction of prima facie evidence. See People v. Beltran, 327 Ill.
App. 3d 685 (2002) (section 5–805(2) of the Juvenile Court Act,
which creates a rebuttable presumption that transfer of juvenile to
criminal court is warranted, does not violate due process because a
transfer hearing does not determine guilt or innocence; placing burden
on juvenile to rebut the presumption that transfer is warranted does
not alter the State’s burden of proving each element of the offense
beyond a reasonable doubt).
In light of the above and reading section 33B–2(b) in conjunction
with section 33B–1, we hold that the Act requires the State to prove
a defendant eligible for habitual criminal sentencing by
demonstrating, by a preponderance of the evidence, that the defendant
has three convictions for qualifying offenses and that these
convictions meet the time and sequence requirements found in section
33B–1(d). The State may meet its burden through the introduction of
any type of evidence, but the State will satisfy its burden of
production regarding a defendant’s eligibility for habitual criminal
sentencing if it introduces certified records of the defendant’s prior
convictions. These certified records, as prima facie evidence, will
create an inference or rebuttable presumption that the defendant is
eligible for sentencing as an habitual criminal, i.e., that the
convictions are for the specified qualifying offenses and that the
convictions satisfy all of the requirements set forth in section 33B–1
of the Act. See People v. Robinson, 167 Ill. 2d 53, 75-76 (1995) (“a

-11-
certified copy of a record of conviction satisfies the State’s burden of
production regarding the fact of that conviction”). Defendant has no
actual burden to produce any evidence at his sentencing hearing.
However, once the State has produced prima facie evidence, the
sentencing court is permitted, though not required, to find that the
State has met its burden of persuasion and rule defendant eligible for
habitual criminal sentencing. The defendant, by failing to come
forward with some evidence to show that his prior convictions do not
meet the requirements of the Act, runs the risk that the inference of
eligibility will stand.
If the State meets its burden of production and defendant does not
present some evidence of a defect or discrepancy in the State’s
evidence, the sentencing court may look to all of the evidence
presented by the State to determine whether it has met its burden of
persuasion. As long as the State’s evidence does not affirmatively
demonstrate that the prior convictions do not satisfy all of the
requirements of section 33B–1 (see People v. Eaglin, 292 Ill. App. 3d
677 (1997)), the State will have carried not only its burden of
production, but its burden of persuasion, i.e., the State will have
shown, by a preponderance of the evidence, that defendant is eligible
to be sentenced as an habitual criminal. See People v. Robinson, 167
Ill. 2d at 75.
This interpretation of the Act is reinforced by the forfeiture
provision found in section 33B–2(c), which provides:
“Any claim that a previous conviction offered by the
prosecution is not a former conviction of an offense set forth
in Section 33B–1 because of the existence of any exceptions
described in this Act, is waived unless duly raised at the
hearing on such conviction, or unless the prosecution’s proof
shows the existence of such exceptions described in this Act.”
720 ILCS 5/33B–2(c) (West 2002).
This section makes clear that “a previous conviction offered by
the prosecution” will be presumed “a former conviction of an offense
set forth in Section 33B–1,” that is, a conviction which meets all of
the requirements of the Act, unless defendant produces some
evidence to contradict the inference. Further, if defendant fails to
rebut the presumption of his eligibility at his sentencing hearing, he
will have forfeited the right to do so on direct appeal.

-12-
 The forfeiture provision allows for one exception. A defendant
will not forfeit the right to challenge the presumption of eligibility for
habitual criminal sentencing on appeal if the State’s own evidence
affirmatively “shows the existence of such exceptions described in
this Act.” 720 ILCS 5/33B–2(c) (West 2002). In other words, if the
State’s evidence concerning the defendant’s prior convictions does
not support the inference of eligibility because the evidence, on its
face, demonstrates that defendant’s prior convictions do not meet all
of the requirements of section 33B-1, defendant will not be prohibited
from challenging his sentence on appeal.
An example of this exception is found in People v. Eaglin, 292
Ill. App. 3d 677 (1997). In Eaglin, the sentencing court declined to
sentence defendant as an habitual criminal and the State challenged
that ruling. The appellate court upheld the circuit court’s judgment.
The record showed that the State had submitted certified statements
of conviction at defendant’s sentencing hearing indicating that
defendant had one armed robbery conviction in 1973 and two armed
robbery convictions in 1978. However, the certified statements for the
1973 conviction (the State had submitted two) were “questionable”
(one was undated and the other had incorrect information). Moreover,
the certified statements were inconsistent with other evidence
submitted by the State. The presentence report stated that the 1973
conviction was for robbery and the State amended the report by
inserting the handwritten word “armed.” The rap sheet stated that the
conviction was for robbery, not armed robbery, and the sentence
imposed for the 1973 conviction did not conform with the statutory
dictates for armed robbery.
The certified statements regarding the 1978 convictions showed
that defendant did have two prior convictions for armed robbery.
However, the additional evidence submitted by the State showed that
these convictions did not satisfy the additional requirements of
section 33B–1(d)–the evidence produced by the State indicated that
defendant was convicted for both prior offenses on the same date and,
thus, these convictions could not have satisfied the time and sequence
requirements of section 33B–1(d)(4). Thus, the State’s proof did not
establish defendant’s eligibility for sentencing as an habitual criminal
by a preponderance of the evidence and the sentencing court correctly
declined to sentence the defendant as an habitual criminal.

-13-
 Applying our interpretation of the Habitual Criminal Act to the
case at bar, we find that defendant has forfeited the right to challenge
his habitual criminal sentence on appeal. The record shows that, at
defendant’s sentencing hearing following his conviction for the
felony offense of home invasion, the State submitted certified records
showing that defendant had been convicted, on two separate
occasions, for felony offenses that qualified him for habitual criminal
sentencing–criminal sexual assault on March 20, 1992, in case
number 91 CR 0989501, and home invasion on October 19, 1993, in
case number 93 CR 1954401. In addition, the State produced a
presentence investigation report that established the dates on which
defendant was arrested for committing the offenses which led to his
two prior convictions and the prosecutor verbally informed the court
that defendant had been on parole for criminal sexual assault when he
committed the offense of home invasion and had again been on parole
for home invasion when he committed the current offense–another
home invasion.
The certified records created the inference or rebuttable
presumption that defendant was eligible for habitual criminal
sentencing. Defendant offered no evidence to rebut this presumption
and, in fact, admitted eligibility for habitual criminal sentencing.
Thus, we must conclude that, pursuant to section 33B–2(c), he has
forfeited the right to challenge his sentence on appeal.
The exception to forfeiture does not apply here because the
State’s evidence does not affirmatively show that the requirements of
the Act were not met. Defendant’s first prior conviction occurred on
March 20, 1992, and his second prior conviction occurred more than
18 months later, on October 19, 1993. In addition, the prosecutor
informed the court that defendant had been on parole for his first
conviction when he committed his second offense. The State’s
evidence, on its face, does not “show[ ] the existence of such
exceptions described in this Act.” Thus, in the absence of any
contradictory evidence offered by defendant, the sentencing court was
authorized to find that the State had met its burden of persuasion and
the habitual criminal sentence imposed by the court is not void. For
the foregoing reasons, we affirm the appellate court majority’s
determination that, pursuant to section 33B–2(c) of the Act, defendant
forfeited his ability to challenge his sentence on appeal.

-14-
 Because we find that under the circumstances presented here the
sentencing court was authorized to find defendant eligible for habitual
criminal sentencing, we need not consider the State’s harmless-error
argument, nor do we find it necessary to address the State’s
contention that defendant also would be prevented from challenging
his natural life sentence under general principles of forfeiture.
Finally, we point out that defendant does not allege that his prior
convictions do not, in fact, satisfy the requirements of the Act. If,
however, defendant could make such a claim, our resolution of his
appeal here today would not leave him without a remedy. In that
situation, the appropriate avenue would be for defendant to file a
petition under the Post-Conviction Hearing Act (725 ILCS 5/122–1
et seq. (West 2002)) alleging ineffective assistance of counsel.
Certainly, if he could establish that his prior convictions do not satisfy
all of the requirements of the Act and that his attorney failed to bring
this to the sentencing court’s attention, defendant would have no
difficulty showing that he was prejudiced by his attorney’s deficient
conduct. In that case, defendant would have been given a sentence of
natural life when he was not eligible for the enhanced sentence.

CONCLUSION
For the reasons stated, we affirm the appellate court’s judgment
upholding defendant’s life sentence.

Appellate court judgment affirmed.

-15-