NO. 4-06-0355
Filed 7/28/08 IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
ISAAC CURRY, ) No. 05CF800
Defendant-Appellant. )
) Honorable
) Scott B. Diamond,
) Judge Presiding.
________________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
In March 2006, a jury found defendant, Isaac Curry,
guilty of armed robbery. In April 2006, the trial court adjudged
defendant an habitual criminal and sentenced him to life in
prison under the Habitual Criminal Act (Act) (720 ILCS 5/33B-1
through 33B-3 (West 2006)).
On appeal, defendant argues his natural-life sentence
under the Act violates his rights to due process and to a jury
trial. We affirm.
I. BACKGROUND
In June 2005, the State charged defendant by amended
information with the offense of armed robbery (720 ILCS 5/18-2(a)
(West 2004)), alleging that defendant, while armed with a danger-
ous weapon, a butcher knife, knowingly took United States cur-
rency from the presence of Cynthia Summers and Diana Huddlestun
by threatening the imminent use of force. The State provided
notice of its intention to seek a sentence of natural life in
prison under the Act based on defendant's two prior Class X
felony convictions. See 720 ILCS 5/33B-1 (West 2004). Defendant
pleaded not guilty.
In March 2006, defendant's jury trial commenced. Cindi
Summers testified she was working as an assistant manager at
Walgreens in Decatur on May 29, 2005. Diana Huddlestun was
operating the cash register. At approximately 9 p.m., Summers
stated five or six customers were inside the store. An announce-
ment was made for the customers to bring their purchases to the
register as the store was about to close. Summers then locked
the entrance door while the exit door remained open.
Thereafter, an African-American male appeared at the
exit door and asked if he could buy a pack of cigarettes "real
quick." The male walked to the coolers to get something to drink
and then headed to the front register. At the checkout counter,
the man presented a bottle of orange juice and two cigarette
lighters. Summers stated the man "grabbed [her] arm and forced
[her] to the ground." The man also pulled out a butcher knife
and told her to get down on the ground or he would cut her.
While kneeling on the floor, Summers heard the cash register
open. The man told Huddlestun to get face down on the floor.
When she did, the male told them to count to 100. Once they
believed the man had left, Summers got up and locked the doors.
Huddlestun called 9-1-1. After the police arrived, Summers
determined $120 had been taken from the register. Summers was
unable to identify the individual because all she could remember
was the knife.
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Diana Huddlestun testified she worked as a cashier at
the Walgreens on May 29, 2005. When the male who asked to enter
the store walked inside, Huddlestun kept glancing at him because
it was "unusual" for someone to come in and ask to buy a pack of
cigarettes and then walk away since the cigarettes are behind the
register. Huddlestun testified she scanned the individual's
orange juice and two lighters. The male then grabbed Summers and
told her to get face down on the floor or he would cut her. He
then demanded Huddlestun open the register. She stated she was
looking at his face because she "wanted to remember exactly what
he looked like in case he hurt" them. After Summers went to the
floor, the man pointed the knife at Huddlestun and told her to
open the register or he would cut her. Huddlestun opened the
register and stepped back. The man then grabbed the money and
told Huddlestun to get on the floor. Huddlestun identified
defendant as the man with the knife.
Huddlestun testified Decatur police detective Patrick
Campbell came to her house on June 1, 2005, to show her a photo
array. She identified a photo of defendant as the person who
robbed the Walgreens. At a photo lineup, Huddlestun again
identified defendant as the one who robbed her at knifepoint.
After the conclusion of the State's evidence, defendant
exercised his constitutional right not to testify. See U.S.
Const., amend. V. Following closing arguments, the jury found
defendant guilty. In April 2006, defendant filed a motion for
judgment of acquittal or, in the alternative, for a new trial,
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which the trial court denied.
Defendant also filed a motion to bar application of
section 33B-1 of the Act (720 ILCS 5/33B-1 (West 2006)), arguing
sentencing him to life in prison as an habitual criminal would
violate the United States and Illinois Constitutions. The State
filed a notice upon conviction of its intention to pursue
natural-life sentencing based on defendant's prior criminal
convictions, those being the Class X felonies of armed robbery in
Macon County case No. 95-CF-1025 and armed robbery in Macon
County case No. 90-CF-68. The State attached certified copies of
those convictions to the notice. In case No. 95-CF-1025, the
State indicated defendant was sentenced to 20 years on the
offense of armed robbery alleged to have been committed on
October 14, 1995. In case No. 90-CF-68, defendant pleaded guilty
to two counts of armed robbery that allegedly occurred on January
27, 1990, and was sentenced to nine years in prison.
The trial court denied defendant's motion to bar the
application of section 33B-1. The court then adjudged defendant
an habitual criminal and sentenced him to life in prison without
the possibility of parole or mandatory supervised release.
Defendant filed a postsentencing motion, which the court denied.
This appeal followed.
II. ANALYSIS
Defendant argues his natural-life sentence violates his
constitutional rights to due process and to a jury trial because
he was sentenced under section 33B-1 of the Act without a finding
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by a jury beyond a reasonable doubt that his two prior armed-
robbery convictions did not result from, and were not connected
with, the same transaction. We disagree.
"In general, the Habitual Criminal Act mandates the
imposition of a natural-life sentence on a defendant convicted of
three temporally separate Class X offenses, or other eligible
serious felonies, within a 20-year period." People v. Palmer,
218 Ill. 2d 148, 154-55, 843 N.E.2d 292, 296 (2006). Specifi-
cally, section 33B-1 of the Act provides as follows:
"(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 convic-
tions, shall be adjudged an habitual crimi-
nal.
(b) The 2 prior convictions need not
have been for the same offense.
(c) Any convictions which result from or
are connected with the same transaction, or
result from offenses committed at the same
time, shall be counted for the purposes of
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this [s]ection as one conviction.
(d) This [a]rticle shall not apply un-
less 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.
(e) Except when the death penalty is
imposed, anyone adjudged an habitual criminal
shall be sentenced to life imprisonment."
720 ILCS 5/33B-1 (West 2006).
Section 33B-2(a) of the Act provides that "unless the
defendant admits [prior] conviction[s], the court shall hear and
determine such issue, and shall make a written finding thereon."
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720 ILCS 5/33B-2(a) (West 2006). "A duly authenticated copy of
the record of any alleged former conviction of an offense set
forth in [s]ection 33B-1 shall be prima facie evidence of such
former conviction." 720 ILCS 5/33B-2(b) (West 2006). "The date
that an offense was committed may be established by circumstan-
tial evidence[,] such as a certified copy of the conviction and a
presentence investigation report." People v. Walton, 240 Ill.
App. 3d 49, 57, 608 N.E.2d 59, 65 (1992). The State has the
burden of establishing the defendant's eligibility for sentencing
as an habitual criminal by a preponderance of the evidence.
People v. Eaglin, 292 Ill. App. 3d 677, 682, 686 N.E.2d 695, 698
(1997), citing People v. Robinson, 167 Ill. 2d 53, 73, 656 N.E.2d
1090, 1099 (1995).
At the sentencing hearing, the State presented a
certified copy of Macon County case No. 90-CF-68, wherein defen-
dant pleaded guilty to two counts of armed robbery. Count I
pertained to victim William Handt, and count II pertained to
victim Debbie Weltmer. The offenses in both counts were commit-
ted on January 27, 1990, and involved defendant taking currency
from the victims while armed with a knife. In April 1990, the
trial court sentenced defendant to concurrent terms of nine years
in prison.
In Macon County case No. 95-CF-1025, defendant pleaded
guilty to one count of armed robbery. The offense was committed
on October 14, 1995, and involved defendant taking money and food
stamps from Rick Yutzy while armed with a wrench handle. In
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February 1996, the trial court sentenced defendant to 20 years in
prison.
Defendant argues his life sentence violates the rule
established in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.
2d 435, 120 S. Ct. 2348 (2000), and clarified in Shepard v.
United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254
(2005), because the trial court found by a preponderance of the
evidence, not a jury beyond a reasonable doubt, that his two
prior armed-robbery convictions did not result from, and were not
connected with, the same transaction. See 720 ILCS 5/33B-1(c)
(West 2006). Defendant concedes his prior convictions were not
committed at the same time and notes the State's documents
sufficiently established the number, timing, and sequence of his
prior convictions. However, he contends the certified copies of
his prior convictions did not furnish conclusive proof that those
convictions arose from unrelated or unconnected transactions.
Initially, a short history on the pertinent case law is
in order as to the enhancement of a sentence based on a defen-
dant's conduct during the commission of the crime and any prior
convictions. In Almendarez-Torres v. United States, 523 U.S.
224, 226, 140 L. Ed. 2d 350, 357, 118 S. Ct. 1219, 1222 (1998),
the United States Supreme Court was confronted with a federal
statute prescribing a maximum prison sentence of 2 years for an
illegal-immigration offense but authorizing a 20-year maximum
sentence if the defendant had a prior aggravated felony convic-
tion. The defendant pleaded guilty to the indictment of being in
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the United States after being deported, but the indictment did
not mention his prior felony convictions. Almendarez-Torres, 523
U.S. at 227, 140 L. Ed. 2d at 357, 118 S. Ct. at 1222-23. The
defendant argued he could not be sentenced in excess of the
minimum because his indictment had not mentioned those prior
convictions. Almendarez-Torres, 523 U.S. at 227, 140 L. Ed. 2d
at 357, 118 S. Ct. at 1222-23. The district court disagreed and
sentenced him to 85 months in prison. Almendarez-Torres, 523
U.S. at 227, 140 L. Ed. 2d at 357, 118 S. Ct. at 1223.
The Supreme Court noted recidivism "is a traditional,
if not the most traditional, basis for a sentencing court's
increasing an offender's sentence." Almendarez-Torres, 523 U.S.
at 243, 140 L. Ed. 2d at 368, 118 S. Ct. at 1230. As recidivism
does not relate to the commission of the offense, the Court
concluded that "to hold that the Constitution requires that
recidivism be deemed an 'element' of petitioner's offense would
mark an abrupt departure from a longstanding tradition of treat-
ing recidivism as 'go[ing] to the punishment only.'" Almendarez-
Torres, 523 U.S. at 244, 140 L. Ed. 2d at 368-69, 118 S. Ct. at
1231, quoting Graham v. West Virginia, 224 U.S. 616, 629, 56 L.
Ed. 917, 923, 32 S. Ct. 583, 587-88 (1912). As the statute in
question "simply authorizes a court to increase the sentence for
a recidivist," the Court found the Government was not required to
include the defendant's prior convictions in the indictment.
Almendarez-Torres, 523 U.S. at 226-27, 140 L. Ed. 2d at 357, 118
S. Ct. at 1222.
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During its following term, the Supreme Court construed
the federal carjacking statute providing for an enhanced sentence
if serious bodily injury occurred during the commission of the
offense in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d
311, 119 S. Ct. 1215 (1999). There, the defendant was charged
with and found guilty of carjacking. Jones, 526 U.S. at 230, 143
L. Ed. 2d at 318, 119 S. Ct. at 1218. The issue of serious
bodily harm was not alleged in the indictment or tried to the
jury. Jones, 526 U.S. at 230-31, 143 L. Ed. 2d at 318, 119 S.
Ct. at 1218. At the sentencing hearing, the district court found
by a preponderance of the evidence that a victim had suffered
serious bodily injury and sentenced defendant to 25 years in
prison, which included a 10-year enhancement. Jones, 526 U.S. at
231, 143 L. Ed. 2d at 318, 119 S. Ct. at 1218.
The Supreme Court found "serious bodily harm" consti-
tuted an element of the offense that must be submitted to a jury
for verdict. Jones, 526 U.S. at 239, 143 L. Ed. 2d at 324, 119
S. Ct. at 1222. The Jones majority rejected the dissenting
justices' arguments that Almendarez-Torres "stood for the broad
proposition that any fact increasing the maximum permissible
punishment may be determined by a judge by a preponderance" and
would therefore be dispositive of the issues before the Court.
Jones, 526 U.S. at 249 n.10, 143 L Ed. 2d 330 n.10, 119 S. Ct. at
1227 n.10. Instead, the Court stated Almendarez-Torres "stands
for the proposition that not every fact expanding a penalty range
must be stated in a felony indictment, the precise holding being
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that recidivism increasing the maximum penalty need not be so
charged." Jones, 526 U.S. at 248, 143 L. Ed. 2d at 329, 119 S.
Ct. at 1226-27. In noting the history of treating recidivism as
a sentencing factor, the Court stated that "unlike virtually any
other consideration used to enlarge the possible penalty for an
offense ***, a prior conviction must itself have been established
through procedures satisfying the fair notice, reasonable doubt,
and jury trial guarantees." Jones, 526 U.S. at 249, 143 L. Ed.
2d at 329-30, 119 S. Ct. at 1227.
A year later in Apprendi, 530 U.S. at 469, 147 L. Ed.
2d at 442, 120 S. Ct. at 2351, the defendant in that case fired
several shots into the home of an African-American family and
later admitted being the shooter. During police questioning, he
gave a statement, which he later retracted, that he fired the
shots because of the family's race and that he did not want them
in the neighborhood. Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at
442, 120 S. Ct. at 2351. The defendant was charged with various
offenses, but none of the counts mentioned the state hate-crime
statute or alleged he acted with a racially biased purpose.
Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at 442, 120 S. Ct. at
2352. The defendant pleaded guilty to two counts of illegal
possession of a firearm and bomb possession. Apprendi, 530 U.S.
at 469-70, 147 L. Ed. 2d at 442, 120 S. Ct. at 2352. At an
evidentiary hearing, the trial court found by a preponderance of
the evidence that the defendant acted with a racially biased
purpose and sentenced him to an enhanced 12-year term on the
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firearm-possession counts. Apprendi, 530 U.S. at 471, 147 L. Ed.
2d at 443, 120 S. Ct. at 2352.
The Supreme Court found the trial court's enhancement
amounted to "an unacceptable departure from the jury tradition
that is an indispensable part of our criminal justice system."
Apprendi, 530 U.S. at 497, 147 L. Ed. 2d at 459, 120 S. Ct. at
2366. The Court held the fifth and fourteenth amendments to the
United States Constitution (U.S. Const., amends. V, XIV) required
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 reason-
able doubt." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455,
120 S. Ct. at 2362-63.
The Supreme Court revisited issues raised by Apprendi
in Shepard. In that case, the defendant pleaded guilty to
unlawful possession of a firearm by a felon. Shepard, 544 U.S.
at 16, 161 L. Ed. 2d at 211, 125 S. Ct. at 1257. At the sentenc-
ing hearing, the government argued the defendant's sentence
should be extended pursuant to the Armed Career Criminal Act of
1984 (ACCA) (18 U.S.C. §924(e) (2000)). Shepard, 544 U.S. at 16,
161 L. Ed. 2d at 211-12, 125 S. Ct. at 1257. Under federal law,
the ACCA provided for extended prison terms for defendants who
had been convicted of three prior serious drug offenses or
violent felonies. 18 U.S.C. §924(e) (2000). Under the ACCA, a
burglary committed in an enclosed space or building, a so-called
"generic burglary," qualified as a violent felony but a burglary
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committed in a boat or motor vehicle did not. Shepard, 544 U.S.
at 15-16, 161 L. Ed. 2d at 211, 125 S. Ct. at 1257. On four
previous occasions, the defendant had pleaded guilty to burglary
in Massachusetts, but the state statutes did not differentiate
between generic burglary and burglary committed in a boat or
motor vehicle. Shepard, 544 U.S. at 17, 161 L. Ed. 2d at 212,
125 S. Ct. at 1258.
The Supreme Court stated the issue centered on "whether
a sentencing court can look to police reports or complaint
applications to determine whether an earlier guilty plea neces-
sarily admitted, and supported a conviction for, generic bur-
glary." Shepard, 544 U.S. at 16, 161 L. Ed. 2d at 211, 125 S.
Ct. at 1257. Writing for a plurality of the Court, Justice
Souter noted the record was silent on whether the defendant's
prior convictions were generic burglaries as the defendant did
not admit the generic fact in a plea agreement or recorded
colloquy. Shepard, 544 U.S. at 25, 161 L. Ed. 2d at 217, 125 S.
Ct. at 1262. Justice Souter continued by stating:
"[T]he Sixth and Fourteenth Amendments
guarantee a jury standing between a defendant
and the power of the State, and they guaran-
tee a jury's finding of any disputed fact
essential to increase the ceiling of a poten-
tial sentence. While the disputed fact here
can be described as a fact about a prior
conviction, it is too far removed from the
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conclusive significance of a prior judicial
record, and too much like the findings sub-
ject to Jones and Apprendi, to say that
Almendarez-Torres clearly authorizes a judge
to resolve the dispute." Shepard, 544 U.S.
at 25, 161 L. Ed. 2d at 217, 125 S. Ct. at
1262.
The plurality concluded as follows:
"[E]nquiry under the ACCA to determine
whether a plea of guilty to burglary defined
by a nongeneric statute necessarily admitted
elements of the generic offense is limited to
the terms of the charging document, the terms
of a plea agreement or transcript of colloquy
between judge and defendant in which the
factual basis for the plea was confirmed by
the defendant, or to some comparable judicial
record of this information." Shepard, 544
U.S. at 26, 161 L. Ed. 2d at 218, 125 S. Ct.
at 1263.
Numerous Illinois courts have found section 33B-1
constitutional as it falls within the recidivism exception to the
rule set forth in Apprendi. See People v. Ligon, 365 Ill. App.
3d 109, 126, 847 N.E.2d 763, 769 (2006); People v. Allen, 335
Ill. App. 3d 773, 785, 780 N.E.2d 1133, 1143 (2002); People v.
Jones, 328 Ill. App. 3d 233, 243, 764 N.E.2d 1232, 1239-40
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(2002). Illinois courts have also found the Apprendi recidivism
exception remains valid after Shepard. See People v. Johnson,
372 Ill. App. 3d 772, 781, 867 N.E.2d 49, 56 (2007) (recidivism
exception articulated in Apprendi remains viable after Shepard);
People v. Yancey, 368 Ill. App. 3d 381, 393, 858 N.E.2d 454, 464
(2005); Ligon, 365 Ill. App. 3d at 127, 847 N.E.2d at 780.
Defendant argues section 33B-1(c) unconstitutionally
increased his Class X felony sentence to one of mandatory life
imprisonment based on facts that are, as in Shepard, "too far
removed" from the fact of a prior conviction, i.e., that his two
prior convictions did not "result from" and are not "connected
with" the same transaction. See 720 ILCS 5/33B-1(c) (West 2006).
In support of his argument, defendant relies on the Seventh
Circuit's decision in United States v. Ngo, 406 F.3d 839 (7th
Cir. 2005).
There, a jury found the defendant guilty of (1) con-
spiracy to distribute and to possess with intent to distribute
methamphetamine and (2) distributing methamphetamine. Ngo, 406
F.3d at 840. The presentence investigation recommended the
defendant be sentenced as a career offender based on his two
prior armed-robbery convictions. Ngo, 406 F.3d at 841. The
defendant, however, argued he was not a career offender because
his armed-robbery convictions were "related" and only counted as
one prior conviction. Ngo, 406 F.3d at 841. The district court
found the defendant's prior convictions were not "part of a
common scheme or plan," thereby subjecting him to sentencing as a
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career offender. Ngo, 406 F.3d at 841.
On appeal, the defendant argued the district court's
finding that his prior convictions were unrelated "exceeded the
judicial fact[-]finding exception for recidivism recognized in
Almendarez-Torres [citation], and preserved in Apprendi." Ngo,
406 F.3d at 841. The Seventh Circuit acknowledged the
Almendarez-Torres exception was still viable after Shepard but
stated the exception "is quite narrow." Ngo, 406 F.3d at 842.
The Seventh Circuit found the Shepard plurality "suggest[ed] that
the recidivism exception exempts only those findings traceable to
a prior judicial record of 'conclusive significance.'" Ngo, 406
F.3d at 842.
In finding the defendant a career offender, the dis-
trict court had looked to the fact the robberies took place 10
days apart as well as to the type of establishment burglarized.
The Seventh Circuit, however, concluded the district court's
findings were "determined by resorting to sources of information
without the 'conclusive significance' of a prior judicial record"
and were not authorized by the Supreme Court's ruling in
Almendarez-Torres. Ngo, 406 F.3d at 843. Accordingly, the
defendant's sentence was in violation of the sixth amendment as
it was "based upon impermissible fact[-]finding." Ngo, 406 F.3d
at 844.
We find Ngo distinguishable from the facts presented in
this case. Our supreme court has stated the Act requires convic-
tions on "three temporally separate Class X offenses." Palmer,
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218 Ill. 2d at 155, 843 N.E.2d at 296. The Act states multiple
convictions will only be counted as a single conviction if they
"result from or are connected with the same transaction." 720
ILCS 5/33B-1(c) (West 2006). The determination of whether the
convictions are connected can be made from sources of information
bearing the "conclusive significance of a prior judicial record."
Shepard, 544 U.S. at 25, 161 L. Ed. 2d at 217, 125 S. Ct. at
1262. Moreover, that determination bears little difference here
to the determination of the timing and sequence of a defendant's
prior convictions, which have been held to be within the purview
of the trial court. See Ligon, 365 Ill. App. 3d at 127-28, 847
N.E.2d at 780 (section 33B-1 is constitutional "because the
timing and sequence of a defendant's prior convictions are
inherent in the convictions themselves and need not be submitted
to a jury").
The fact that defendant's first two armed-robbery
convictions were not connected with the same transaction is clear
from the record. Defendant was first convicted of armed robbery
in 1990, and he was sentenced to nine years in prison. Defen-
dant's second conviction for armed robbery occurred in 1995.
Defendant's intervening stay as a guest of the government clearly
shows his convictions met the requirements of section 33B-1 of
the Act. That the qualifying offenses here were not part of the
same transaction is inherent in the convictions themselves and
not like a finding of serious bodily harm, as in Jones, or a
racially biased purpose, as in Apprendi, that would require a
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determination by a jury of defendant's peers.
We find support for this conclusion in United States v.
Thompson, 421 F.3d 278 (4th Cir. 2005), cited by the State on
appeal. There, the defendant pleaded guilty to unlawful posses-
sion of firearms. Thompson, 421 F.3d at 280. Under the ACCA, a
defendant is subject to a minimum 15-year prison term if he has
at least three prior violent felony convictions that were "'com-
mitted on occasions different from one another.'" Thompson, 421
F.3d at 280, quoting 18 U.S.C. §924(e)(1) (2000). The district
court found the conditions applied and sentenced the defendant to
15 years in prison. Thompson, 421 F.3d at 280.
On appeal, the defendant argued his rights under the
sixth amendment were violated when the district court, not a jury
or by his own admission, found his violent felonies were commit-
ted on separate occasions. Thompson, 421 F.3d at 280-81. The
Fourth Circuit, citing Shepard, found "the 'fact of a prior
conviction' remains a valid enhancement even when not found by
the jury." Thompson, 421 F.3d at 282.
In looking at whether the applicable offenses were
committed on different occasions, the court of appeals noted
"'occasions' are 'those predicate offenses that can be isolated
with a beginning and an end--ones that constitute an occurrence
unto themselves.'" Thompson, 421 F.3d at 285, quoting United
States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995). In
looking at the presentence report, the court found the defen-
dant's burglaries were committed on different occasions as they
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occurred "on distinct days in separate towns in different homes."
Thompson, 421 F.3d at 285. As a matter of common sense, conclud-
ing the offenses occurred on separate occasions could not be seen
"to represent impermissible judicial factfinding." Thompson, 421
F.3d at 285. Instead, "[t]he data necessary to determine the
'separateness' of the occasions is inherent in the fact of the
prior convictions." Thompson, 421 F.3d at 285. That determi-
nation can be made with "data normally found in conclusive
judicial records." Thompson, 421 F.3d at 286.
Likewise, in the case sub judice, whether defendant's
convictions were connected with the same transaction is readily
ascertainable from conclusive judicial records. In looking at
the charging documents and the docket sheets, we note defendant's
first two armed robberies were committed over five years apart
and were separated by a prison sentence imposed following the
first conviction. Our conclusion that defendant's convictions
were not connected cannot be seen as impermissible judicial fact
finding as the separate nature of the offenses is readily appar-
ent from the State's certified copies of the convictions. No
other conclusion can be had. We also note defendant offers
nothing to support a claim the convictions were related.
Here, defendant's criminal history included convictions
on three Class X felonies. Defendant's second offense was
committed after his first conviction. He committed his third
offense after the conviction for his second offense, and the
third offense occurred within 20 years of the date of judgment on
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his first conviction. Moreover, the three convictions neither
resulted from nor were connected with the same transaction and
were not committed at the same time. Defendant's convictions
thereby satisfied the requirements of section 33B-1 of the Act.
Under these facts, we find the trial court's sentencing defendant
to a life term as an habitual offender under the Act did not
violate defendant's constitutional rights.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we award the State its $50
statutory assessment against defendant as costs of this appeal.
Affirmed.
McCULLOUGH and MYERSCOUGH, JJ., concur.
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