
                         No. 3--00--0038

_________________________________________________________________



    IN THE



                   APPELLATE COURT OF ILLINOIS



                         THIRD DISTRICT



                           A.D., 2001



THE PEOPLE OF THE STATE         )  Appeal from the Circuit Court

OF ILLINOIS,                    )  of the 21st Judicial Circuit,

       )  Kankakee County, Illinois

Plaintiff-Appellee,	       )

                                )

v.                         )  No. 99--CF--467

  )

LESLIE L. DIXON,                )  Honorable

  )  Daniel W. Gould,

Defendant-Appellant.       )  Judge Presiding

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MODIFIED UPON DENIAL OF REHEARING

JUSTICE LYTTON delivered the opinion of the court:

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Following a bench trial, defendant Leslie L. Dixon was convicted of residential burglary and possession of burglary tools (720 ILCS 5/19--3, 19--2 (West 1998)).  Based on prior felony convictions, defendant was sentenced as a Class X offender to 25 years' imprisonment for residential burglary.  He was sentenced to a concurrent four-year prison term for possession of burglary tools.  On direct appeal, defendant claimed that (1) the trial court erred in arraigning him and accepting his jury waiver when defendant was present only by closed circuit television; and (2) his 25-year prison sentence is excessive.  This court affirmed defendant's convictions and sentence in an unpublished summary order.

Defendant then filed a timely petition for rehearing, requesting that this court consider the constitutionality of his Class X sentence in light of the recent decision of the United States Supreme Court in 
Apprendi v. New Jersey
, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  We hereby deny the petition for rehearing, modify our original disposition and affirm defendant's convictions and sentence. 

FACTS

On July 26, 1999, defendant was charged by information with residential burglary and possession of burglary tools.  Following his first appearance, defendant appeared without objection via closed circuit television for pre-trial proceedings, including his arraignment on August 11, 1999.  On November 1, 1999, the date set for trial, defendant appeared again on closed circuit television and waived his right to a jury trial.  After admonishing defendant of the rights he was relinquishing and ensuring that defendant's decision was made knowingly and intelligently, the court accepted defendant's waiver and reset the cause for a bench trial.  Defendant's signed waiver was filed on November 3, 1999.

At trial, the State's evidence established that on July 25, 1999, defendant forcibly entered the vacant residence of Sherri Neufeld in Kankakee, Illinois.  A neighbor observed the break-in and alerted the police.  The police stopped defendant in the vicinity based on the neighbor's description and a bulge in defendant's shirt.  A search of defendant's person yielded a pry bar and a pair of gloves.  Defendant was arrested and was subsequently positively identified by the eyewitness neighbor.  Neufeld testified that she had not given defendant permission to enter her home.  Based on the evidence, the trial court found defendant guilty as charged.  

The pre-sentence investigative report revealed that the 44-year-old defendant had four prior burglary convictions, including two for residential burglary, and three drug convictions.  At the sentencing hearing, defense counsel had no additions or corrections to make to the pre-sentence investigative report and acknowledged that Class X sentencing applied.  The prosecutor characterized defendant as a "career burglar" and recommended a 30-year prison sentence.  Defense counsel argued for a six-year minimum term.  The trial court found that, on balance, the factors weighed heavily toward a lengthy prison sentence.  Accordingly, the court imposed a 25-year term.  Defendant's motion to reconsider the sentence as excessive was denied.

[Nonpublishable material under Supreme Court Rule 23 omitted here.]



CONSTITUTIONALITY OF SENTENCING STATUTE

Finally, we consider defendant's argument that the Class X sentencing statute is unconstitutional in light of the United States Supreme Court's decision in 
Apprendi v. New Jersey
, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).   Specifically, defendant contends that section 5--5--3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5--5--3(c)(8) (West 1998)) contains factors which, pursuant to 
Apprendi
, must be submitted to a jury before a Class X sentence may be imposed for residential burglary.

Section 5--5--3(c)(8) provides 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 of any Class 2 or greater Class felonies in Illinois, 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 1998).

In 
Apprendi
, the Supreme Court reviewed New Jersey's hate crime statute, which provided for an enhanced sentence upon the trial court's determination by a preponderance of the evidence that the defendant acted with racial bias.  The defendant argued that due process required that the enhancement factor be alleged in the indictment and proved to a jury beyond a reasonable doubt.  The Supreme Court agreed.  The Court ruled that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."  
Apprendi
, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.  The 
Apprendi
 Court thus carved out an exception for recidivist legislation, which had previously been found to pass constitutional muster in 
Almendarez-Torres v. United States
, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998).  

In its discussion of the 
Almendarez-Torres
 exception, the 
Apprendi
 Court observed that Almendarez-Torres had admitted his prior convictions for serious offenses, that such convictions had been entered upon proceedings with their own substantial procedural safeguards, and that no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the 
Almendarez-Torres
 Court.  The certainty that procedural safeguards attached to the "fact" of Almendarez-Torres' prior convictions and the reality that he had admitted such "fact" mitigated any due process concerns.  Based on these considerations, the 
Apprendi
 Court reaffirmed its holding in 
Almendarez-Torres
.  
Apprendi
, 530 U.S. at ___, 147 L. Ed. 2d at 454, 120 S. Ct. at 2362.

Defendant on rehearing argues that mandatory Class X sentencing pursuant to section 5--5--3(c)(8) violates the rule of 
Apprendi
 because it allows a trial judge to determine sentence enhancement factors--
i.e.
, his age and the timing, degree, number and sequence of his prior convictions--without notice and proof beyond a reasonable doubt.  He argues that 
Apprendi
's endorsement of 
Almendarez-Torres
 was "lukewarm" and that, even accepting the viability of 
Almendarez-Torres
, the sequence of his prior convictions and the requirement that defendant be "over age 21" and are non-recidivist factors that fall within the rule of 
Apprendi
.  In the alternative, defendant argues that due process guarantees under the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §§2, 7, 8) require that section 5--5--3(c)(8) enhancement factors be proved beyond a reasonable doubt.  As a second alternative, defendant proposes that, at the minimum, due process requires that sentencing enhancement factors be proved by "clear and convincing" evidence.

Following 
Apprendi
, the Illinois Appellate Court upheld the constitutionality of section 5--5--3(c)(8) upon a similar challenge in 
People v. Lathon
, 317 Ill. App. 3d 573, 740 N.E.2d 377 (2000), 
appeal denied
 No. 90628 (January 29, 2001).  Following a comprehensive review of 
Apprendi
 and its historical underpinnings, the 
Lathon
 court rejected the defendant's arguments.  The court's concluding remarks apply with equal force here and merit repeating:

"The reasons recognized by 
Apprendi
 for applying the recidivism exception exist in this case and mitigate constitutional concerns regarding defendant's due process rights and jury trial guarantees.  Here, procedural safeguards enhanced the validity of the defendant's prior convictions.  Moreover, the defendant's prior convictions were not an essential element of the underlying offense and were not related to the commission of the underlying offense.  Consequently, we hold that the mandatory Class X sentencing provision of section 5--5--3(c)(8), which provides for sentencing enhancement based on prior convictions, is constitutional and does not violate defendant's due process rights or jury trial guarantees.  [Citation.]  Under this mandatory Class X sentencing provision, a defendant's sentence is properly increased when the trial judge concludes at the sentencing hearing that evidence of the prior two convictions is accurate, reliable and satisfies the section 5--5--3(c)(8) statutory factors."  
Lathon
, 317 Ill. App. 3d at 587, 740 N.E.2d at 386-87.  

The court also rejected Lathon's contention that a heightened standard of proof should apply at sentencing hearings, noting that this argument was rejected by our supreme court in 
People v. Williams
, 149 Ill. 2d 467, 599 N.E.2d 913 (1992).  
Lathon
, 317 Ill. App. 3d at 587-88, 740 N.E.2d at 387-88.

In our opinion, 
Lathon
 is well-reasoned and adequately resolves defendant's arguments in this case.  Although it does not appear that Lathon argued that "over age 21" was a factor that removed section 5--5--3(c)(8) from the 
Almendarez-Torres
 exception and placed the statute squarely within the rule of 
Apprendi
, we believe that the above-quoted rationale applies to each discrete factor of the statutory provision.

Defendant's age was neither an essential element of the underlying offense nor a factor related to committing the offense.  Nor do we believe that the legislature intended that a defendant's age, as such, be an aggravating factor in the sentencing scheme.  By limiting the statute's applicability to persons over age 21, the legislature simply recognized youth as a mitigating circumstance that would justify excluding youthful recidivists from unduly harsh penalties for their offenses.  See 
Eddings v. Oklahoma
, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982).  Moreover, defendant did not dispute at trial that he met all of the conditions precedent, including his age, for Class X sentencing under the statute.  See 
Apprendi
, 530 U.S. at ___, 147 L. Ed. 2d at 453, 120 S. Ct. at 2361 (distinguishing 
Almendarez-Torres
).  For these reasons, we are unwilling to hold that the statute deprived defendant of his constitutional guarantees of due process, fair notice and trial by jury.

Lastly, defendant gives no reason why this court should construe due process guarantees of this state's constitution more broadly than 
Apprendi
 interpreted due process under the U.S. Constitution.  The 
Apprendi
 Court adequately explained why the additional due process safeguards imposed for sentencing under New Jersey's hate crime statute need not be imposed with respect to recidivist statutes.  See 
Lathon
, 317 Ill. App. 3d 573, 740 N.E.2d 377.  We find no reason to construe this state's due process guarantees differently from their federal counterparts.  We therefore hold that defendant has failed to establish that section 5--5--3(c)(8) is unconstitutional.  See 
Louis E. v. Spagnolo
, 186 Ill. 2d 198, 710 N.E.2d 798 (1999).

CONCLUSION

For the reasons stated, we affirm the judgment of the circuit court of Kankakee County.

Affirmed.

HOMER, P.J., and HOLDRIDGE, J., concur.

