SECOND DIVISION
Date Filed: March 31, 2006
No. 1-05-0948
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, )
)
v. ) No. 03 CR 15878
)
TIMOTHY MOORE, ) Honorable
) Victoria A. Stewart,
Defendant-Appellant. ) Judge Presiding.
JUSTICE HALL delivered the opinion of the court:
The defendant, Timothy Moore, and the codefendant, Joseph
Caldwell, were indicted and charged with the offenses of
possession of a controlled substance with intent to deliver (720
ILCS 570/401(c)(2) (West 2002)) and possession of a controlled
substance with intent to deliver within 1,000 feet of a park (720
ILCS 570/401(c)(2), 407(b)(1) (West 2002)). Following a joint
bench trial, both the defendant and Mr. Caldwell were acquitted
of possession of a controlled substance with intent to deliver
within 1,000 feet of a park but found guilty of possession of a
controlled substance with intent to deliver. The defendant was
sentenced to six years' imprisonment in the Department of
Corrections.
The defendant appeals, raising the following issues: (1)
whether the evidence was sufficient to prove him guilty beyond a
reasonable doubt; (2) whether trial counsel's stipulation
violated the defendant's constitutional right to confrontation;
and (3) whether the defendant's Class X sentence was
unconstitutional.
No. 1-05-0948
The sole witness at the defendant's bench trial was Chicago
police officer Killeen. Officer Killeen had been a police
officer for 3 1/2 years and had made over 100 narcotics arrests.
On June 25, 2003, at approximately 5:15 p.m., Officer
Killeen was conducting a narcotics surveillance operation in the
vicinity of 6229 South Carpenter Street in Chicago. While
conducting the surveillance, he observed two individuals whom he
identified as the defendant and Mr. Caldwell. From his position
approximately 20 to 30 feet aboveground, Officer Killeen observed
Mr. Caldwell walking in the vicinity of the Carpenter Street
address and heard him yelling "Rocks," which is slang for crack
cocaine.
At three different times, black male pedestrians walked up
to Mr. Caldwell and engaged him in conversation. Mr. Caldwell
motioned the pedestrian toward the defendant by nodding his head
in the defendant's direction. The pedestrian would approach the
defendant, who was standing on the west side of the street, and
hand him an unknown amount of money. Almost simultaneously, Mr.
Caldwell would go to a leaf pile at the Carpenter Street address
and retrieve a "small item," which he covered with his hand. Mr.
Caldwell gave the item to the pedestrian after the money was
given to the defendant.
At the time Officer Killeen observed the defendant and Mr.
Caldwell, it was daylight, and he was approximately 50 feet from
them. The defendant and Mr. Caldwell were no more than 15 to 20
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No. 1-05-0948
feet apart. The defendant was about 30 feet from the leaf pile.
After the third transaction, Officer Killeen radioed Officer
Fitzpatrick, his partner, and gave him a physical description of
the defendant and Mr. Caldwell. After Officer Fitzpatrick picked
him up, both officers and officers from the "beat" car approached
the defendant and Mr. Caldwell and conducted a field interview.
Officer Killeen went to the leaf pile that Mr. Caldwell had been
retrieving items from and recovered one clear bag containing
eight smaller bags, each with a white rock-like substance. The
defendant and Mr. Caldwell were arrested. A custodial search of
the defendant revealed $95. According to Officer Killeen,
Carpenter Park is nearby, at the intersection of Carpenter Street
and 62nd Street.
Officer Killeen acknowledged that the only contact between
the defendant and Mr. Caldwell was the "head motion,"
demonstrated by the officer as "nodding the head in a forward
motion." The defendant never went to the leaf pile and never
exchanged anything with Mr. Caldwell. The defendant did not have
any drugs on his person. The defendant did not attempt to flee
when Officer Killeen approached him.
Thereafter, the parties stipulated to the chain of custody
of the recovered substance and that chemical testing established
that the recovered substances contained cocaine. The parties
further stipulated that an investigator from the State's
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No. 1-05-0948
Attorney's office measured the distance between Carpenter Park
and the Carpenter Street address as being 345 feet.
Following arguments, the defendant was found not guilty of
possession of a controlled substance with intent to deliver
within 1,000 feet of a park but guilty of possession of a
controlled substance with intent to deliver. A presentencing
investigation report (PSI) was ordered, and the case was
continued to March 19, 2004, for sentencing. On March 19, 2004,
the public defender requested leave to file a posttrial motion on
behalf of the defendant. The court was also advised that Carl
Washington, a private attorney, would be representing the
defendant. On March 23, 2004, Mr. Washington appeared and
requested time to refile the posttrial motion.
On October 13, 2004, after numerous continuances at the
request of Mr. Washington, the parties appeared for argument on
the defendant's motion for a new trial filed by the public
defender. The trial court overruled the State's objection to the
motion, finding that it was timely filed. Mr. Washington elected
not to present any argument on the motion for a new trial. The
trial court denied the motion and commenced the defendant's
sentencing hearing.
During the sentencing hearing, the following colloquy
occurred:
"MS. ALIOTO (the prosecutor): Judge, we would just
point out the defendant is class X by background. He was
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No. 1-05-0948
found guilty on a class one, count 2. In his background he
has a 1999 PCS with I. He received probation, which was
violated, and another two '99 cases that were concurrent;
both narcotics related.
THE COURT: Counsel, do you wish to add anything?
MR. WASHINGTON: I don't know if he is eligible or is
it mandatory? I am hoping that he is not.
THE COURT: He is class X by background based on the
criminal convictions he has, counsel.
MR. WASHINGTON: He has two of them.
THE COURT: If one of them was class X by background,
then that would automatically make this class X.
MS. ALIOTO: Judge, he has two convictions that are
class 2 or above."
The trial court then advised the defendant that because of
his previous convictions for two Class 2 or higher felonies, the
court was required to sentence him as a Class X offender.
Thereupon, the trial court imposed the mandatory minimum sentence
of six years' imprisonment, with credit for time served.
ANALYSIS
I. Reasonable Doubt
A. Standard of Review
When faced with a challenge to the sufficiency of the
evidence, the relevant inquiry is whether, after viewing all the
evidence in the light most favorable to the prosecution, any
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No. 1-05-0948
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. People v. Campbell, 146
Ill. 2d 363, 374, 586 N.E.2d 1261 (1992). In this case, the
defendant maintains that since he does not dispute Officer
Killeen's testimony, the de novo standard of review applies.
People v. Smith, 191 Ill. 2d 408, 411, 732 N.E.2d 513 (2000)
(where the facts are not in dispute, a defendant's guilt is a
question of law, which the court reviews de novo).
"'An inference is a factual conclusion that can rationally
be drawn by considering other facts.' (Emphasis added.)" People
v. Rizzo, 362 Ill. App. 3d 444, 449, 842 N.E.2d 727 (2005)
quoting People v. Funches, 212 Ill. 2d 334, 340, 818 N.E.2d 342
(2004). If divergent inferences could be drawn from undisputed
facts, a question of fact remains. Rizzo, 362 Ill. App. 3d at
449, citing In re Marriage of Kneitz, 341 Ill. App. 3d 299, 303,
793 N.E.2d 988 (2003). "Where the evidence presented is capable
of producing conflicting inferences, it is best left to the trier
of fact for proper resolution." Rizzo, 362 Ill. App. 3d at 449.
The elements of knowledge and possession which the State was
required to prove in this case are questions of fact that are
rarely susceptible to direct proof. People v. Cooper, 337 Ill.
App. 3d 106, 110, 785 N.E.2d 86 (2003). The State may establish
these elements through circumstantial evidence. People v.
Jones, 295 Ill. App. 3d 444, 453, 692 N.E.2d 762 (1998) (Larry
Jones). Since conflicting inferences could be drawn from the
6
No. 1-05-0948
undisputed but circumstantial evidence in this case, questions of
fact rather than law are presented. Therefore, we apply the
sufficiency of the evidence test set forth above.
B. Discussion
To convict the defendant of the crime of unlawful possession
of a controlled substance with the intent to deliver, the State
was required to prove the following: that the defendant had
knowledge of the presence of the narcotics, that the controlled
substance was in the immediate possession or control of the
defendant, and that the defendant intended to deliver the
controlled substance. People v. Burks, 343 Ill. App. 3d 765,
768, 799 N.E.2d 745 (2003); see 720 ILCS 570/401 (West 2002).
As noted above, these elements may be proved by circumstantial
evidence.
The defendant maintains that the evidence failed to
establish that he had possession of the controlled substance
recovered in this case or that he had knowledge of its presence
in the leaf pile. The defendant acknowledges that the possession
may be actual or constructive. "'A defendant has constructive
possession of drugs where there is no actual control of the drugs
but where defendant intends to and has a capacity to maintain
control over them.'" Burks, 343 Ill. App. 3d at 769, quoting
Larry Jones, 295 Ill. App. 3d at 453.
In Larry Jones, the police observed the defendant having a
brief conversation with Kenneth Marras, who handed the defendant
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No. 1-05-0948
an unknown quantity of money. The defendant then looked in the
direction of his two companions, Messrs. Baker and Mackey, and
motioned with his right hand. Mr. Baker went over to a rock,
while Mr. Mackey functioned as a lookout. Mr. Baker retrieved a
plastic bag from under the rock and removed an object from the
bag. He then crossed the street and handed the object to Mr.
Marras, who placed it in his pants pocket. The same transaction
was repeated with an Hispanic female. The police stopped Mr.
Marras, who was found to have crack cocaine in his pants pocket.
After hearing police sirens, the defendant and Messrs. Baker and
Mackey left the area. The police recovered a plastic bag
containing 77 packets of cocaine from under the rock. The
defendant was stopped, and a search revealed $78 in United States
currency. Following a jury trial, the defendant was found guilty
of possession of a controlled substance with intent to deliver.
On review, the court rejected the defendant's contention
that he did not have possession of cocaine, finding that he was
accountable for the actions of Messrs. Baker and Mackey. The
court found that the defendant's actions in engaging in a verbal
discussion with potential cocaine buyers, accepting their money
and then signaling his companions through nonverbal conduct to
retrieve the cocaine to deliver to the buyer demonstrated that
the defendant aided Messrs. Baker and Mackey in their commission
of the offense. Larry Jones, 295 Ill. App. 3d at 452-53.
Under an accountability theory, the State was required to
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No. 1-05-0948
prove that the defendant, either before or during the commission
of the offense and with the intent to promote or facilitate such
commission, solicited, aided, abetted, or attempted to aid
another person in the planning or commission of the offense.
Larry Jones, 295 Ill. App. 3d at 452; 720 ILCS 5/5-2(c) (West
2002). "A defendant's accountability for a criminal offense can
be established 'from evidence of conduct showing a design on
defendant's part to aid in the offense.'" Larry Jones, 295 Ill.
App. 3d at 452, quoting People v. Saunders, 206 Ill. App. 3d
1008, 1014, 565 N.E.2d 183 (1990).
In this case, the evidence establishes that the defendant
intended to aid Mr. Caldwell in the sale and delivery of the
cocaine. Mr. Caldwell would engage in conversation with the
potential buyer and would then, nonverbally, direct the buyer to
the defendant across the street. As the buyer was giving the
defendant the money, Mr. Caldwell would be retrieving an item
from the leaf pile. After the buyer gave the money to the
defendant, Mr. Caldwell would hand the buyer the item.
In addition, the evidence established that the defendant had
constructive possession of the cocaine. "'[N]ot only does a
defendant not need to control the premises, he does not even need
to have actual, personal, present dominion over the drugs
themselves.'" Larry Jones, 259 Ill. App. 3d at 453, quoting
People v. Adams, 161 Ill. 2d 333, 345, 641 N.E.2d 514 (1994).
"The State need only show that the defendant has not abandoned
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No. 1-05-0948
the drugs and no other person has obtained possession of the
drugs." Larry Jones, 295 Ill. App. 3d at 453. Proof that the
defendant knew the drugs were present and exercised control over
them establishes that constructive possession. Larry Jones, 295
Ill. App. 3d at 453.
The cases relied on by the defendant are distinguishable.
At issue in People v. Hagberg, 192 Ill. 2d 29, 733 N.E.2d 1271
(2000), was whether a field test conducted in that case was
sufficient to prove the substance was a narcotic. In People v.
Blue, 343 Ill. App. 3d 927, 799 N.E.2d 804 (2003), the evidence
that the defendant broke into an apartment where cocaine and
heroin were found and fled when police arrived was insufficient
to show that the defendant had constructive possession of the
drugs. The court distinguished Adams on the basis that there was
no evidence that the defendant carried the drugs into the
apartment or that the drugs otherwise belonged to him. Blue, 343
Ill. App. 3d at 940.
In People v. Macias, 299 Ill. App. 3d 480, 701 N.E.2d 212
(1998), the defendant's conviction was reversed where the only
evidence connecting him to the drugs was the fact he had a key to
the apartment, given to him by the apartment tenant who was
hospitalized. In People v. Jones, 105 Ill. App. 3d 1143, 435
N.E.2d 832 (1982) (Benjamin Jones), the evidence was insufficient
to prove constructive possession where the evidence showed that
the apartment where the drugs were located was accessible to
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No. 1-05-0948
others and the evidence was conflicting as to whether the
defendant resided in the apartment where the drugs were
discovered. Moreover, in People v. Eghan, 344 Ill. App. 3d 301,
308, 799 N.E.2d 1026 (2003), the court questioned the continued
validity of the analysis in Benjamin Jones, in light of the
supreme court's holding in Adams that a defendant need not
control the premises in order to have constructive possession of
the drugs. Eghan, 344 Ill. App. 3d at 308. Finally, in People
v. Wolski, 27 Ill. App. 3d 526, 327 N.E.2d 308 (1975), the
defendant's conviction for possession of marijuana was reversed
where others had access to the apartment, and there was no other
corroborating evidence associating the defendant with the
contraband.
None of the above cases relied on by the defendant involved
a scenario such as the present case where the actions of the
defendant in concert with another individual permitted the
inference that the defendant had constructive possession of the
drugs. In this case, the defendant's acceptance of the money
from the potential drug buyers signaled Mr. Caldwell to retrieve
an item from the leaf pile and hand it to the buyer, thus
completing the transaction. There was no evidence that the
buyers or anyone else had access to the leaf pile. The fact that
the defendant did not attempt to flee the police supports the
inference that he did not know that the leaf pile contained the
drugs. However, it is equally permissible to infer from the fact
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No. 1-05-0948
that the drugs were concealed in the leaf pile, that the
defendant knew of their presence and sought to physically
distance himself from them. See People v. McLaurin, 331 Ill.
App. 3d 498, 503, 772 N.E.2d 296 (2002).
Finally, the defendant's reliance on People v. Jackson, 318
Ill. App. 3d 321, 741 N.E.2d 1026 (2000), is misplaced. In
Jackson, a division of this court reversed the defendant's
conviction for possession of a controlled substance with intent
to deliver on the basis that there was no proof that the item
sold was a controlled substance, although the bag the police
recovered contained drugs, distinguishing Larry Jones. The court
further distinguished Larry Jones on the basis that it involved
more than one sale, unlike the single sale in the case before it.
Jackson, 318 Ill. App. 3d at 326; see Cooper, 337 Ill. App. 3d
at 113; but see People v. Little, 322 Ill. App. 3d 607, 617, 750
N.E.2d 745 (2001) (the court disagreed "with any suggestion made
by the Jackson court that the nature of an unknown object
exchanged during suspected drug activity can never be reasonably
inferred from the circumstances but, rather, must be established
by direct proof").
Recently, in People v. Bush, 214 Ill. 2d 318, 827 N.E.2d 455
(2005), our supreme court addressed whether a conviction for
possession of a controlled substance with intent to deliver
required proof that any unidentified sold items were controlled
substances. Ms. Bush sold unidentified items out of a brown
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No. 1-05-0948
paper bag. When the police searched the bag, a substance, later
proved to be crack cocaine, was recovered. Ms. Bush argued that
her conviction for possession of a controlled substance with
intent to deliver could not be based on the assumption that the
unidentified items were identical to the items recovered from the
bag, relying on Cooper and People v. Jones, 174 Ill. 2d 427, 675
N.E.2d 99 (1996) (Tony Jones). In Tony Jones, the supreme court
held that a defendant could be convicted only for the amount of
substance tested and found to contain cocaine and that no
inference could be draw from the untested packets as to their
composition. Tony Jones, 174 Ill. 2d at 429-30.
The supreme court rejected Ms. Bush's argument. First, the
court rejected Cooper, holding that allowing for all reasonable
inferences from the record in favor of the prosecution, "the
facts easily support an inference that defendant intended to
deliver the remaining contents of the brown paper bag." Bush,
214 Ill. 2d at 327. As to Ms. Bush's reliance on Tony Jones, the
court stated as follows:
"[Tony] Jones stands for the proposition that, under certain
circumstances, the nature of an untested substance cannot be
inferred from the nature of a tested substance. In this
case, the nature of an untested substance is not at issue.
We know that the substance found in the brown paper bag
tested positive for cocaine, and whether the first two
transactions likewise involved cocaine is not dispositive of
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No. 1-05-0948
defendant's intent to deliver the substance found in the
bag. To illustrate, assume that we knew with scientific
certainty that the first two transactions did involve
cocaine. We still could not infer, from this fact alone,
that defendant intended to sell the cocaine found in the
bag. As defendant suggests, the remaining cocaine could
have been for the defendant's personal use. Conversely,
knowing that the first two transactions involved Bazooka
bubble gum would not, by itself, preclude the inference that
defendant intended to also sell the cocaine." (Emphasis in
original.) Bush, 214 Ill. 2d at 328-29.
The court then noted that the facts established Ms. Bush's
intent to sell the remaining cocaine: twice after selling small
items out of the brown paper bag, Ms. Bush returned to her post
beyond the fence, indicating that she intended to engage in
further transactions. "And given that the brown paper bag
contained only cocaine, there is only one thing that defendant
could have intended to sell. Significantly, this inference has
everything to do with defendant's behavior, and nothing at all to
do with the nature of the two items defendant actually sold.
[Tony] Jones is therefore irrelevant." Bush, 214 Ill. 2d at 329.
Likewise, in the present case, regardless of whether the
first three transactions involved controlled substances, only
cocaine was found in the leaf pile. Moreover, after the third
transaction, there is no evidence that the defendant changed his
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No. 1-05-0948
location, implying that he was anticipating further transactions
involving the contents of the leaf pile. Therefore, the State
was not required to establish that the unidentified items sold
prior to the search of the leaf pile contained controlled
substances in order to convict the defendant. Moreover, unlike
Jackson, Officer Killeen testified that he witnessed three
transactions. See Jackson, 318 Ill. App. 3d at 325 (the
defendant's connection with Mr. Stidham's ultimate narcotics
transfer would have been more sufficiently established if the
police had testified to a pattern of activity wherein more than a
single customer approached the defendant, gave him money and
received an object from Mr. Stidham after a nod by the defendant
in his direction).
We conclude that the evidence, when viewed most favorably to
the State, was sufficient to establish that the defendant knew
the drugs were present and exercised control over them. See
Larry Jones, 295 Ill. App. 3d at 453-54 (the conduct of the
defendant and his accomplices supported the conclusion that the
defendant knew where the drugs were located, always intended to
maintain control of the drugs and never abandoned them).
Therefore, the defendant was properly found guilty of possession
of a controlled substance with intent to deliver beyond a
reasonable doubt.
II. Constitutional Right of Confrontation
The defendant contends that his sixth amendment right of
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No. 1-05-0948
confrontation was violated by his trial counsel's stipulation to
the chain of custody and to the chemical composition of the
recovered substance. It is undisputed that there is no
affirmative showing in the record that the defendant knowingly
and intelligently waived his constitutional right of
confrontation.
A. Standard of Review
When the issue raised is purely one of law, the court
reviews the record de novo. People v. Daniels, 187 Ill. 2d 301,
307, 718 N.E.2d 149 (1999).
B. Discussion
The defendant relied on the Third District Appellate Court's
decision in People v. Phillips, 352 Ill. App. 3d 867, 817 N.E.2d
566 (2004). In that case, the appellate court held that "in
order to waive the defendant's sixth amendment right of
confrontation by stipulating to the admission of evidence, there
must be some affirmative showing or indication by the defendant
in the record that he or she did not object to or dissent from
the attorney's decision to stipulate." Phillips, 352 Ill. App.
3d at 871.
However, recently, the supreme court reversed the appellate
decision in Phillips. People v. Phillips, 217 Ill. 2d 270, 840
N.E.2d 1194 (2005). The supreme court determined that the
appellate court had expanded the holding in People v. Campbell,
208 Ill. 2d 203, 802 N.E.2d 1205 (2003) to "require in every
16
No. 1-05-0948
conceivable situation, that a defendant be advised of the
implications and consequences of stipulation and that he approve
on the record." Phillips, 217 Ill. 2d at 284. The court
reiterated its holding in Campbell, that "'defense counsel may
waive a defendant's right of confrontation as long as the
defendant does not object and the decision to stipulate is a
matter of trial tactics and strategy.' [Citation.] However, ***
a defendant must personally waive the right of confrontation
'when the State's entire case is to be presented by stipulation
and the defendant does not present or preserve a defense ***, or
where the stipulation includes a statement that the evidence is
sufficient to convict the defendant.'" (Emphasis in original.)
Phillips, 217 Ill. 2d at 283, quoting Campbell, 208 Ill. 2d at
217-18.
The supreme court explained that in Campbell:
"[W]e attached no other restrictions to defense counsel's
authority to stipulate to the admission of evidence, and,
except in those specified instances where the stipulation is
tantamount to a guilty plea, we imposed no obligations on
the trial court or counsel to admonish the defendant and
ensure that the advisement is made a part of the record.
Insofar as the appellate court held otherwise, the court
erred." Phillips, 217 Ill. 2d at 283.
Neither of the exceptions set forth in Campbell is
applicable in this case. Although the defendant did not present
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No. 1-05-0948
a defense, in addition to the stipulation as to the chain of
custody and the chemical composition of the recovered substance,
the State presented the testimony of the police officer who
observed the alleged drug transactions and participated in the
arrest of the defendant. The stipulation was not tantamount to a
guilty plea since the defendant's position at trial was that he
never possessed the contraband and did not know that the leaf
pile contained the contraband. The defendant was present in the
courtroom at the time his attorney stipulated to the evidence but
failed to raise an objection to the stipulation.
We conclude that trial counsel's stipulation to the chain of
custody and to the composition of the recovered substance did not
violate the defendant's sixth amendment right to confront the
witnesses against him.
III. Class X Eligibility
The defendant contends that his Class X sentence is
unconstitutional in that it violates Apprendi v. New Jersey, 530
U.S. 466, 147 L. Ed 2d 435, 120 S. Ct. 2348 (2000), because the
State was not required to prove that fact of his prior
convictions beyond a reasonable doubt. The defendant further
argues that even if his sentence is constitutional, there is no
evidence in the record that he had the two prior felony
convictions required for him to be sentenced as a Class X
offender.
A. Standard of Review
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No. 1-05-0948
The court reviews the constitutionality of a statute de
novo. People v. Huddleston, 212 Ill. 2d 107, 129, 816 N.E.2d 322
(2004).
B. Discussion
The defendant acknowledges that his argument has been
rejected by prior decisions of this court. See People v. Bell,
343 Ill. App. 3d 110, 796 N.E.2d 1114 (2003). He maintains that
the United States Supreme Court's recent decision in Shepard v.
United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254
(2005), indicates that cases such as Bell have extended the prior
conviction exception too far.
In Shepard, the Government sought to enhance the defendant's
sentence based on his prior convictions. For enhancement
purposes, the sentencing statute required that a defendant have
three prior convictions for violent felonies or drug offenses.
The defendant's three prior convictions were for burglary and
were entered on pleas of guilty. Since only a "generic" burglary
was considered a violent felony for purposes of the sentencing
statute (see Taylor v. United States, 495 U.S. 575, 599, 109 L.
Ed. 2d 607, 627, 110 S. Ct. 2143, 2158 (1990)), and the
complaints charged the offenses in broader terms than generic
burglary, the district court imposed a nonenhanced sentence. The
court of appeals disagreed and vacated the sentence, remanding
for the imposition of an enhanced sentence.
The Supreme Court reversed the court of appeals' decision.
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No. 1-05-0948
The Court first determined that Taylor applied to pleas as well
as trials. The Court then held that the basis for determining if
a defendant's plea of guilty to burglary as defined by a
nongeneric statute admits the 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 25, 161 L. Ed. 2d at 218, 125
S. Ct. at 1263.
The defendant maintains that the import of Shepard is that
the Court recognized that the proof of prior convictions raised
the concerns expressed in Apprendi and Jones v. United States,
526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999). The
Shepard Court noted as follows:
"While the disputed fact here can be described as a fact
about a prior conviction, it is too far removed from the
conclusive significance of a prior judicial record, and too
much like the findings subject to Jones and Apprendi, to say
that [Almendarez-Torres v. United States, 523 U.S. 224, 140
L. Ed. 2d 350, 118 S. Ct. 1219 (1998),] clearly authorizes a
judge to resolve the dispute." Shepard, 544 U.S. at 24, 161
L. Ed. 2d at 217, 125 S. Ct. at 1262. 1
1
Without so holding, the Court did not deny possibility that
Apprendi could in the future reach the prior conviction
20
No. 1-05-0948
exception. Shepard, 544 U.S. at 25 n.5, 161 L. Ed. 2d at 217
n.5, 125 S. Ct. at 1263 n.5.
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No. 1-05-0948
In this case, the defendant was convicted of a Class 2
felony and sentenced as a Class X offender in accordance with the
provisions of section 5-5-3(c)(8) of the Unified Code of
Corrections (the Code) (730 ILCS 5/5-5-3(c)(8) (West 2002)).
Section 5-5-3(c)(8) provides in pertinent part as follows:
"When a defendant, over the age of 21 years, is
convicted of a Class 1 or Class 2 felony, after having twice
been 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 2 or greater Class felony 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 2002).
Since Shepard was decided, three decisions by this court
have addressed the continuing validity of the prior conviction
exception to Apprendi in light of Shepard and upheld it. See
People v. Yancy, No. 1-04-2605 (December 29, 2005); People v.
Matthews, 362 Ill. App. 3d 953, 842 N.E.2d 150 (2005); People v.
Rivera, 362 Ill. App. 3d 815, 841 N.E.2d 532 (2005), appeal
pending No. ______. In Rivera, the court addressed the argument
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No. 1-05-0948
the defendant raises here, that, like the sentencing statute at
issue in Shepard, section 5-5-3(c)(8) requires the State to prove
more than just the fact of a prior conviction but also the
defendant's age, proof of the sequence of prior offenses, proof
that they were separately brought and tried and proof that they
arose out of different series of acts. The Rivera court rejected
that argument, stating as follows:
"This court has held that the minimum age and other
ancillary elements of section 5-5-3(c)(8) are intertwined
with recidivism and distinct from the elements of the
underlying offense such that they fall under the exception
recognized in Apprendi." Rivera, 362 Ill. App. 3d at 820.
The defendant then argues that there is no basis in the
record for the prosecutor's assertion that the defendant had
previously been convicted of two Class 2 or greater felonies.
The defendant's PSI reflects that, on February 11, 1999, the
defendant was sentenced to 18 months' probation in case No. 99 CR
271401, and on May 13, 1999, was sentenced to three years'
imprisonment in case No. 99 CR 860901. The two convictions are
described as "Other Amount Narcotic Scheduled" and the classes of
the offenses are not set forth. The PSI lists the sources of
information, one of which was the defendant's Chicago arrest
history.
According to criminal history report from the Chicago police
department, attached to the PSI, one of the defendant's February
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No. 1-05-0948
11, 1999, convictions was for a violation of section "720-
570/401(D)" (720 ILCS 570/401(d) (West 2002)). Subsection (d)
provides that a violation of the provisions of that section is a
Class 2 felony. 720 ILCS 570/401(d) (West 2002). According to
the report, the defendant's May 13, 1999, convictions included
another violation of "720-570/401(D)" and a violation of "720
ILCS 570/407(B)(2)" (720 ILCS 570/407(b)(2) (West 2002)), a Class
1 felony. While the report did not specify the class of each of
the defendant's convictions, the class is set forth in the
statutory sections referenced in the report.
"[E]ven after Apprendi and Shepard, the State was not
constitutionally required to prove that defendant was eligible
for Class X sentencing beyond a reasonable doubt." Yancy, slip
op. at 19. In Yancy, the court relied on the Illinois State
Police Criminal History Report and Federal Criminal History
Report, which were attached to the defendant's presentencing
report, to establish that the date of his first burglary was
after the effective date of the Act of 1977 (see Pub. Act 80-
1099, eff. February 1, 1978). Yancy, slip op. at 19. In this
case, the defendant does not dispute his convictions under those
statutes set forth in the report. As the class of the charges of
which the defendant was convicted of are set forth in those
statutes, the record was sufficient to establish the defendant's
eligibility for Class X sentencing.
Notwithstanding the above, the record reflects that the
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No. 1-05-0948
defendant failed to object to the prosecutor's statement that he
had two Class 2 or greater felony convictions and did not object
to the imposition of a Class X sentence at sentencing or in a
postsentencing motion. Therefore, the defendant has waived his
contention that his Class X sentence was improper. Yancy, slip
op. at 19.
Finally, we agree with the defendant that the mittimus in
this case should be corrected to reflect that the defendant was
convicted of section 401(c)(2) (720 ILCS 570/401(c)(2) (West
2002)), not section 407(b)(1) (720 ILCS 570/407(b)(1) (West
2002)) as set forth in the mittimus.
We affirm defendant's conviction and sentence and order the
mittimus modified to reflect the offense of which the defendant
was convicted.
Affirmed; mittimus modified.
GARCIA, P.J., and WOLFSON, J., concur.
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