                                No. 2--04--1099
______________________________________________________________________________

                                              IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 03--CF--1756
                                       )
ROBERT D. BROWN,                       ) Honorable
                                       ) Joseph G. McGraw,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE CALLUM delivered the opinion of the court:

       Following a jury trial, defendant, Robert D. Brown, was convicted of home invasion (720

ILCS 5/12--11(a)(1) (West 2002)). The State moved to sentence defendant as an habitual criminal

pursuant to section 33B--1 of the Criminal Code of 1961 (Code) (720 ILCS 5/33B--1 (West 2002)).

After a sentencing hearing, the trial court adjudged defendant an habitual criminal and sentenced him

to the Department of Corrections for natural life in prison without chance for parole. Defendant's

motion to reconsider the sentence was denied, and this appeal followed. We affirm.

       Defendant contends that the trial court erred in sentencing him under the habitual offender

statute. Section 33B--1 of the Code provides:

               "(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
No. 2--04--1099


       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.

                (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 this

       Section as one conviction.

                (d) 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.

                (e) Except when the death penalty is imposed, anyone adjudged an habitual criminal

       shall be sentenced to life imprisonment." (Emphasis added.) 720 ILCS 5/33B--1 (West

       2002).

Defendant does not dispute that he has the prior convictions necessary for the imposition of habitual

criminal sentencing. However, he argues that the State did not prove, pursuant to section 33B--

1(d)(4), that his second offense was committed after he was convicted of his first offense.

       A defendant's eligibility for sentencing as an habitual criminal must be proved by a

preponderance of the evidence. People v. Eaglin, 292 Ill. App. 3d 677, 682 (1997). "The date that



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an offense was committed may be established by circumstantial evidence[,] such as a certified copy

of the conviction or a presentence investigation report." People v. Walton, 240 Ill. App. 3d 49, 57

(1992).

          At sentencing, the State submitted a verified statement that averred, in part, that defendant

was convicted of criminal sexual assault (720 ILCS 5/12--13 (West 1992)) on March 20, 1992, and

of home invasion (720 ILCS 5/12--11(a)(1) (West 1992)) on October 18, 1993. Attached to the

statement were certified statements of conviction for case Nos. 91--CR--0989501 and 93--CR--

1954401. Regarding these certified statements, the trial court asked the following:

                "THE COURT: All right. Mr. Kline [defense counsel], do you agree that the

      certification establishes that prior to the commission of this offense, that [defendant] was

      convicted of criminal sexual assault on March 20, 1992, in Cook County in case No. 91--CR--

      0989501?

                MR. KLINE: Yes.

                THE COURT: All right. Do you agree that prior to the conviction for this offense,

      [defendant] was found guilty of a Class X felony of home invasion on October 18, 1993, in

      Cook County in case No. 93--CR--1954401?

                MR. KLINE: Yes."

          The court also considered the presentence report. The criminal history portion showed that,

in case No. 91--CF--0989501, defendant was arrested on March 27, 1991, and sentenced on March

20, 1992. In case No. 93--CF--1954401, defendant was arrested on July 22, 1993, and sentenced

on October 18, 1993. The court adjudged defendant an habitual criminal and sentenced him to life

imprisonment.



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         We conclude that defendant's argument is waived for two independent reasons. First, section

 33B--2(c) of the Code 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).

        Here, relying upon the exception found in section 33B--1(d)(4), defendant argues that the trial

court mistakenly considered his second conviction, because the evidence did not show when that crime

was committed. However, he did not raise this argument at sentencing. In People v. Walton, 240 Ill.

App. 3d 49, 57-59 (1992), the defendant argued that the State failed to present evidence regarding the

date when his second offense was committed. The court held that the defendant did not, at his

sentencing hearing, argue that the State failed to meet its burden of proof regarding when the second

felony was committed and that the issue was therefore waived: "[A]ny allegation that the State has not

proved a defendant's prior convictions with sufficient competent evidence must be brought to the

attention of the sentencing court, and a failure to do so results in a waiver of the issue on appeal."

Walton, 240 Ill. App. 3d at 59.

        We believe that the legislature enacted section 33B--2(c) to avoid the precise situation

presented here. If defendant wished to challenge the State's presentation of the home invasion

conviction and the trial court's consideration thereof in determining whether he was an habitual

offender, the statute required that he raise the issue at sentencing for the trial court's consideration.

The dissent's focus on general waiver principles and due process, declaring that we cannot require



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defendant to raise issues pertaining to failures of proof at sentencing, misses the mark. It completely

ignores--indeed, it does not even mention--the fact that the waiver here is codified. We note, too, that,

contrary to the dissent's assertion, this is not a situation where the State's proof showed the existence

of the exception. Indeed, the State's proof did not directly establish whether the second offense was

committed before or after the first conviction. Either way, defendant remained silent regarding the

possible application of section 33B--1(d)(4).

        Defendant's objection to his sentence is waived also because he failed to raise this issue before

the trial court in his motion to reconsider the sentence. See People v. Poole, 167 Ill. App. 3d 7, 16-17

(1988); see also People v. Davis, 205 Ill. App. 3d 865, 872 (1990). Nowhere in his written motion

to reconsider, or at oral argument on the motion, did defendant object that the court had erred in

sentencing him as an habitual offender because there was no evidence that his second offense was

committed after his first conviction. While we have the discretion, under the plain-error rule, to

address issues that would otherwise be waived, including errors or defects affecting substantial rights

(see 134 Ill. 2d R. 615(a); People v. Burke, 362 Ill. App. 3d 99, 103 (2005)), an alleged error that

consists solely of a question of proof concerning a defendant's sentence is not subject to the plain-error

rule. Poole, 167 Ill. App. 3d at 17 (holding plain-error rule did not apply and the defendant's argument

that trial judge improperly considered a previous conviction when imposing a life sentence upon him

was waived). Accordingly, defendant's argument fails.

        The judgment of the circuit court of Winnebago County is affirmed.

        Affirmed.

        GROMETER, P.J., concurs.

        JUSTICE McLAREN, dissenting:



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        It is clear that the State never alleged or proved the date of the commission of defendant's

second offense, a required element of habitual criminal sentencing. However, the majority finds waiver

in defendant's failure to object to an allegation not made, evidence not adduced, and proofs not

established by any legal standard. The concept of waiver relates to failure to object to evidence

introduced, not to a failure of proof. An allegation must be made, and a fact must be presented, before

a defendant's silence can waive objection to it. We cannot require a defendant to be prescient,

anticipating nonissues and objecting to questions that have not been asked. Furthermore, failure of

proof is not established by proving the contrary conclusion, and a defendant cannot prove the negative

of an allegation that is never made.

        The majority has placed the burden of proof upon the defendant to prove that he is not eligible

for sentencing as an habitual offender. This is particularly egregious in light of the fact that the State

so clearly failed to present a prima facie case that defendant was eligible to be so sentenced. A party

fails to make out a prima facie case when it fails to present at least some evidence on every element

essential to the cause of action. People v. Gibson, 357 Ill. App. 3d 480, 486 (2005). Only where the

burden of production is satisfied is the trier of fact permitted to find the burden of persuasion satisfied.

People v. Robinson, 167 Ill. 2d 53, 75 (1995). Even where the State satisfies its burden of production

regarding a basic fact, a defendant bears no burden to produce his own evidence to prevent the court

from finding facts that may be inferred from prima facie evidence. Robinson, 167 Ill. 2d at 75. I

cannot conclude that the legislature intended that a defendant should be required to carry the burden

of proof to establish nonqualification as an habitual offender.

        Furthermore, the relationship between a defendant and his counsel and the effectiveness of

counsel's representation are called into question if a defendant is required to object and bring to the



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State's attention a deficiency in its pleadings and proofs. "At a minimum, defense counsel must act

as a true advocate for the accused, subjecting the prosecutor's case to meaningful adversarial testing."

People v. Shelton, 281 Ill. App. 3d 1027, 1037 (1996), citing United States v. Cronic, 466 U.S. 648,

656, 80 L. Ed. 2d 657, 666, 104 S. Ct. 2039, 2045 (1984). In considering a defendant's claim of

ineffective assistance of counsel, we must examine the "fundamental fairness of the proceeding and

consider 'whether *** the result of the particular proceeding is unreliable because of a breakdown in

the adversarial process that our system counts on to produce just results.' " Shelton, 281 Ill. App. 3d

at 1036-37, quoting Strickland v. Washington, 466 U.S. 668, 696, 80 L. Ed. 2d 674, 699, 104 S. Ct.

2052, 2069 (1984). Defense counsel cannot act as a true advocate for a defendant and an adversary

to the State if he is required to remind the State that it forgot to submit some of its proofs.

        The State's proof itself establishes the existence of the exception contained in section 33B--

1(d)(4) (the second offense was committed after the conviction of the first offense), thereby negating

any claim of waiver under section 33B--2. The State failed to present any proof of the date on which

the second offense was committed. Considering that the burden of proving the dates of the first

conviction and the second offense was on the State, this complete failure of proof is no less evidence

of the existence of the exception than if the State had affirmatively proved that the second offense had

occurred before the conviction in the first case. See Eaglin, 292 Ill. App. 3d at 684 (trial court did not

err in declining to sentence the defendant as an habitual criminal where the record did not establish a

conviction on the first offense before the commission of the second offense and thus the "elements of

the Act have not been satisfied").

        While a defendant does indeed bear the burden of objecting in the trial court to incompetent

evidence proffered by the State, the State also carries the burden of alleging and proving all the



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required elements of its case, and the trial court is burdened with finding that all of the required

elements are proven by a preponderance of the evidence before imposing a life sentence. In this case,

it is undisputed that the State failed to properly allege or prove that defendant committed his second

offense after he was convicted of his first offense. It is also undisputed that the trial court imposed

a sentence of life imprisonment in the absence of any evidence regarding this requirement. Yet the

majority holds only defendant accountable for his nonobjection to the State's failure to present a prima

facie case. The majority lets pass without comment the State's failure to allege and prove a proper

cause of action and, egregiously, the trial court's imposition of a life sentence in the clear absence of

evidence regarding a statutory requirement. The majority seems more concerned about the issue of

defendant's waiver than it does about the imposition of a life sentence in a situation where the Act

"shall not apply." See 720 ILCS 5/33B--1(d) (West 2002). This is not a game of "Gotcha," where

the trial court can impose a life sentence because defendant was not quick enough to object to the

State's failure to prove its case. The habitual criminal statute provides very precise guidelines for its

application. People v. Glover, 173 Ill. App. 3d 678, 685 (1988). The sentence is not to be imposed

when the requirements are not met, whether or not the defendant objects.

       A defendant has a fundamental right to be lawfully sentenced. People v. Rivera, 307 Ill. App.

3d 821, 834 (1999). It is well established that a trial court cannot impose a penalty not allowed by the

sentencing statute in question, and "[a] sentence imposed without statutory authority is not subject to

a defendant's forfeiture." People v. Palmer, 218 Ill. 2d 148, 154 (2006) (involving contentions

regarding the application of the habitual criminal statute that were neither raised at the sentencing

hearing nor included in a posttrial motion). The plain-error doctrine "permits review of illegal or

impermissible sentences." Burke, 362 Ill. App. 3d at 103. If ever a case called out for a plain-error



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analysis, this is it. This doctrine encompasses those errors that are obvious, that affect substantial

rights, and that would be an affront to the integrity and reputation of the judicial system. In re G.W.,

357 Ill. App. 3d 1058, 1061 (2005). Clearly, such an error occurred in this case. Few rights can be

more substantial than the liberty interest implicated by a sentence of life in prison, and the imposition

of such a sentence in light of the State's obvious failure of proof would, indeed, be an affront to the

integrity of the judicial system. Such an outcome cannot be allowed to stand, even if a defendant fails

to point out the State's failure in the trial court.

        The majority argues that "an alleged error that consists solely of a question of proof concerning

a defendant's sentence is not subject to the plain-error rule." Slip op. at 5. Would plain error apply

if the State presented evidence of only one prior conviction? No evidence at all? There already is no

requirement that the State give a defendant notice prior to the sentencing hearing that it will seek

habitual criminal sentencing; "notice is sufficient if the petition is first read to the defendant at the

hearing and he is allowed to respond to the recidivist charges before a sentence is imposed." People

v. Levin, 157 Ill. 2d 138, 152 (1993). The majority would seem to hold that the State is required to

do nothing other than ask the court for habitual criminal sentencing. If a trial court can impose it in

the absence of one requirement, it surely can impose it in the absence of all requirements. According

to the majority's logic, this court would not review such a sentencing because it dealt with a "question

of proof."

        Instead of dealing with this miscarriage of justice now, the majority chooses to sit back and

await the inevitable postconviction petition alleging ineffective assistance of counsel. Obviously, the

performance of a defense counsel who fails to object to the State's failure to allege and prove all

elements of its case, thereby prejudicing his client with a sentence of life in prison, must be considered



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to have fallen below an objective standard of reasonableness. See Strickland, 466 U.S. at 687, 80 L.

Ed. 2d at 693, 104 S. Ct. at 2064. Based upon its interpretation of waiver and its placing of the

burden to object on defendant and his counsel, the majority has affirmed defendant's sentence even

though his attorney failed to test the pleadings, proofs, and evidence and literally provided no

representation at all. This is a situation where the proceedings were so defective that they call into

question the integrity of a judicial process that, incredibly, the majority construes as having correctly

imprisoned a man for his natural life. It is ironic that defense counsel is required to know all the

requirements of habitual criminal sentencing, and yet the majority would not find him ineffective for

failing to object to a failure of proof and would allow the trial court to sentence a defendant

represented by patently ineffective counsel to life in prison without proper pleadings and proofs.

       The real question is not whether defendant was deserving of such a sentence but whether the

State properly alleged and proved that he was deserving. The State failed miserably in its prosecution.

The majority has reconstituted the concept of waiver and has perverted the Latin legal maxim, "nemo

tenetur seipsum accusare," "that no man is bound to accuse himself," so that a man can now accuse

himself (make defective pleadings proper) and incriminate himself (fail to object to defective pleadings

and proof) by remaining silent during this proceeding. The majority, through its perversion of the

concept of waiver, has created a proceeding where pleadings and proofs are unnecessary so long as

the defendant and his learned but ineffective counsel fail to object in the trial court. Furthermore,

appellate review is meaningless because waiver has now been expanded to include the issue of failure

of proof below. So much for due process.




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