                                      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


                                  2
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


                                   5
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


                                 7
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


                                  8
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


                                   9
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


                                 10
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


                                 11
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


                                 12
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


                                 13
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


                                14
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


                                15
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


                                 17
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


                                 18
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.


                                  19
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.



                                21
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


                                  23
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


                                 24
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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