{ "id": 171760, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYREK S. GARRY, Defendant-Appellant", "name_abbreviation": "People v. Garry", "decision_date": "2001-07-06", "docket_number": "No. 4\u201400\u20140205", "first_page": "292", "last_page": "303", "citations": [ { "type": "official", "cite": "323 Ill. App. 3d 292" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "670 N.E.2d 606", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "623", "parenthetical": "where the reviewing court can determine from the record that the weight the trial court placed upon the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, it is not necessary to remand for resentencing" } ], "opinion_index": 0 }, { "cite": "172 Ill. 2d 484", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55985 ], "year": 1996, "pin_cites": [ { "page": "521", "parenthetical": "where the reviewing court can determine from the record that the weight the trial court placed upon the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, it is not necessary to remand for resentencing" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0484-01" ] }, { "cite": "550 N.E.2d 691", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "694-95", "parenthetical": "holding that the trial court did not err by considering the amount of harm inflicted upon the victim in sentencing the defendant for armed violence premised upon the offense of aggravated battery" } ], "opinion_index": 0 }, { "cite": "193 Ill. App. 3d 737", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2499482 ], "year": 1990, "pin_cites": [ { "page": "743", "parenthetical": "holding that the trial court did not err by considering the amount of harm inflicted upon the victim in sentencing the defendant for armed violence premised upon the offense of aggravated battery" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0737-01" ] }, { "cite": "579 N.E.2d 1120", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1121-22", "parenthetical": "\"the nature of the force employed and the degree of harm caused to the victim are permissible factors to be considered in aggravation\"; holding that the trial court did not err by considering those factors in sentencing the defendant for home invasion" } ], "opinion_index": 0 }, { "cite": "219 Ill. App. 3d 252", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5800435 ], "year": 1991, "pin_cites": [ { "page": "254-55", "parenthetical": "\"the nature of the force employed and the degree of harm caused to the victim are permissible factors to be considered in aggravation\"; holding that the trial court did not err by considering those factors in sentencing the defendant for home invasion" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0252-01" ] }, { "cite": "428 N.E.2d 666", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "668" } ], "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 692", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3084327 ], "year": 1981, "pin_cites": [ { "page": "694" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0692-01" ] }, { "cite": "497 N.E.2d 1138", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "1143" }, { "page": "1143" } ], "opinion_index": 0 }, { "cite": "113 Ill. 2d 256", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173780 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "268-69" }, { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0256-01" ] }, { "cite": "109 F. Supp. 2d 381", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11237731 ], "year": 2000, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/109/0381-01" ] }, { "cite": "454 U.S. 370", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187985 ], "weight": 3, "year": 1982, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/us/454/0370-01" ] }, { "cite": "460 U.S. 533", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6195685 ], "weight": 3, "year": 1983, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/us/460/0533-01" ] }, { "cite": "743 N.E.2d 1025", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1033" } ], "opinion_index": 0 }, { "cite": "318 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279503 ], "year": 2000, "pin_cites": [ { "page": "728-29" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0719-01" ] }, { "cite": "745 N.E.2d 185", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "191" } ], "opinion_index": 0 }, { "cite": "319 Ill. App. 3d 102", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527795 ], "year": 2001, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0102-01" ] }, { "cite": "523 U.S. 224", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11503479 ], "weight": 3, "year": 1998, "pin_cites": [ { "parenthetical": "in which the Court upheld a federal law allowing a judge to impose an enhanced sentence based on prior convictions not alleged in the indictment" }, { "parenthetical": "in which the Court upheld a federal law allowing a judge to impose an enhanced sentence based on prior convictions not alleged in the indictment" }, { "parenthetical": "in which the Court upheld a federal law allowing a judge to impose an enhanced sentence based on prior convictions not alleged in the indictment" } ], "opinion_index": 0, "case_paths": [ "/us/523/0224-01" ] }, { "cite": "526 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11133049 ], "weight": 3, "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/0227-01" ] }, { "cite": "747 N.E.2d 339", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "349" } ], "opinion_index": 0 }, { "cite": "195 Ill. 2d 336", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725359 ], "year": 2001, "pin_cites": [ { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0336-01" ] }, { "cite": "710 N.E.2d 507", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "509" } ], "opinion_index": 0 }, { "cite": "304 Ill. App. 3d 250", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564562 ], "year": 1999, "pin_cites": [ { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0250-01" ] }, { "cite": "576 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "1092" }, { "page": "1092", "parenthetical": "whether the victim's injuries constitute great bodily harm is \"neither dependent upon hospitalization of the victim, nor the permanency of his disability or disfigurement\"" } ], "opinion_index": 0 }, { "cite": "216 Ill. App. 3d 398", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5287587 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "401" }, { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0398-01" ] }, { "cite": "628 N.E.2d 908", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "923" } ], "opinion_index": 0 }, { "cite": "257 Ill. App. 3d 516", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2891741 ], "year": 1993, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/257/0516-01" ] }, { "cite": "401 N.E.2d 528", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "533" } ], "opinion_index": 0 }, { "cite": "78 Ill. 2d 477", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3075782 ], "year": 1980, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/78/0477-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 30, "year": 2000, "pin_cites": [ { "page": "490" }, { "page": "455" }, { "page": "2362-63" }, { "page": "490" }, { "page": "455" }, { "page": "2362-63" }, { "page": "490" }, { "page": "455" }, { "page": "2362-63" }, { "page": "468" }, { "page": "442" }, { "page": "2351" }, { "page": "468-69" }, { "page": "442" }, { "page": "2351" }, { "page": "471" }, { "page": "443" }, { "page": "2352" }, { "page": "476" }, { "page": "446" }, { "page": "2355" }, { "page": "490" }, { "page": "455" }, { "page": "2362-63" }, { "page": "476" }, { "page": "446" }, { "page": "2355" }, { "page": "489" }, { "page": "454" }, { "page": "2362" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] } ], "analysis": { "cardinality": 1079, "char_count": 25536, "ocr_confidence": 0.789, "pagerank": { "raw": 2.2215624733752608e-07, "percentile": 0.7776748760255907 }, "sha256": "1badc2d24dd46efe268f1a1be4bc43fe3e33e00bdbd2c06a39718d21f4e459df", "simhash": "1:7bfcb00e3a6df956", "word_count": 4291 }, "last_updated": "2023-07-14T16:00:03.625992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYREK S. GARRY, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn November 1999, a jury convicted defendant, Tyrek S. Garry, of home invasion, armed robbery, and armed violence (720 ILCS 5/12\u2014 11, 18\u20142(a), 33A\u20142 (West 1998)). In January 2000, the trial court sentenced him to an extended-term of 45 years in prison for the armed violence conviction, based on his prior Class X felony conviction (730 ILCS 5/5\u20145\u20143.2(b)(1) (West 1998)), 25 years in prison for the home invasion conviction, and 25 years in prison for the armed robbery conviction, with all sentences to run concurrently. The court also ordered that defendant serve 85% of his sentence, pursuant to the truth-in-sentencing provision set forth in section 3\u20146\u20143(a)(2)(iii) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/3\u20146\u2014 3(a)(2)(iii) (West 1998)), upon agreeing with the jury\u2019s finding that defendant had inflicted great bodily harm upon the victim. Later that month, defendant filed a motion to reconsider his sentence, which the court denied.\nDefendant appeals, arguing that (1) the State failed to prove beyond a reasonable doubt that he inflicted great bodily harm upon the victim; (2) the truth-in-sentencing provision set forth in section 3\u20146\u2014 3(a) (2) (iii) of the Unified Code (730 ILCS 5/3\u20146\u20143(a) (2) (iii) (West 1998)) is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000); (3) the extended-term sentencing provision set forth in section 5\u20145\u2014 3.2(b)(1) of the Unified Code (730 ILCS 5/5\u20145\u20143.2(b)(1) (West 1998)) is unconstitutional pursuant to Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63; and (4) the trial court erred by considering an improper aggravating factor in sentencing him. We affirm.\nI. BACKGROUND\nIn July 1999, the State charged defendant with home invasion (count I), armed robbery (count II), and armed violence (count III). Count III alleged that defendant committed the offense of armed violence in that he \u201cwhile armed with a dangerous weapon, a handgun, performed acts prohibited by [section 12\u20144(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/12\u20144(a) (West 1998))], in that [he committed the offense of aggravated battery when he] intentionally and without legal justification struck R.A. on the face with the handgun, thereby causing great bodily harm to [her].\u201d\nAt defendant\u2019s November 1999 trial, R.A. testified that around 5:15 a.m. on July 11, 1999, she awakened to find three masked men in her apartment. The intruders, one of whom R.A. later identified as defendant, tried to intimidate R.A. into giving them money and drugs by opening and closing the slides on their automatic pistols and pointing the weapons at her. When R.A. told them she did not have any money, defendant and his codefendant, Brandon Pugh, began beating the left side of her head and hip with their weapons. R.A. stated that they hit her in the head so many times that she \u201cactually saw a vision of Jesus Christ on the wall.\u201d Pugh continued to beat R.A. with his gun, and with the help of the third intruder, held her down while defendant straddled her. Defendant then put one of his hands around R.A.\u2019s throat and choked her so hard that she gasped for air, urinated on herself three times, and started menstruating. The beating continued for about 30 minutes, until police officers arrived and kicked open the apartment door. At that point, defendant, Pugh, and the other intruder fled through a window, taking R.A.\u2019s car keys and a gold necklace.\nR.A. stated that after assisting the police officers with their investigation on July 11, 1999, she drove herself to the emergency room, where doctors X-rayed her head and sutured a laceration near her left eye. The emergency room doctor instructed R.A. to take ibuprofen and apply ice to her injuries. For one to two weeks following the beating, her left hip and thigh were bruised and swollen. At the time of defendant\u2019s trial, R.A. still had a \u201cbig round circle\u201d on her left hip and a scar from the laceration. As a result of R.A.\u2019s struggle with her attackers, she was unable to hold one of her hands steady.\nEric Waggoner, a Decatur police officer, testified that around 5:30 a.m. on July 11, 1999, in response to a disturbance call, he approached R.A.\u2019s apartment door. After announcing that he was a police officer, he heard a woman screaming for help. He then kicked open the door and saw a man climbing out a window. Waggoner also observed that R.A.\u2019s face was bloody and swollen, and she had a one- or two-inch-long laceration on the left side of her face and a severe, 10-inch-wide bruise on her left upper thigh. About 20 minutes after entering R.A.\u2019s apartment, Waggoner drove R.A. to the location where other officers had apprehended defendant, and R.A. identified him as one of her attackers.\nOn this evidence, the jury convicted defendant on all counts.\nIn January 2000, the trial court conducted a sentencing hearing. Milton Pozo, an emergency room physician, testified that R.A.\u2019s injuries consisted of the following: (1) a quarter-inch-long laceration near her left eyebrow, which required three or four sutures, (2) bruises to both eyelids, (3) a mild hemorrhage in her left eye, and (4) a 10-inch-wide bruise on her left thigh. Pozo opined that R.A. did not sustain any \u201cmajor injuries to her functioning or well-being.\u201d Defendant, his girlfriend, and his maternal grandmother testified in his behalf. The court also considered the presentence report, which showed that (a) defendant was 24 years old at the time of the incident; (b) he had prior juvenile convictions; (c) in 1994, he was convicted of home invasion, a Class X felony; and (d) he committed the present offenses seven months after being released from prison. After considering the evidence, defendant\u2019s statement, and counsel\u2019s arguments, the court sentenced defendant as stated. Defendant later filed a motion to reconsider his sentence, which the court denied.\nThis appeal followed.\nII. ANALYSIS\nA. Sufficiency of the Evidence\nDefendant first argues that the State failed to prove him guilty of aggravated battery (which served as the predicate felony for armed violence) because the State did not prove that he inflicted great bodily harm upon R.A. In support of this argument, defendant cites the following: (1) R.A.\u2019s injuries, which consisted of a \u201csmall laceration and some bruises,\u201d did not constitute \u201cgreat bodily harm\u201d; (2) R.A. did not go to the emergency room immediately following the attack; (3) the treatment she received at the emergency room was \u201csimple\u201d; (4) she was not hospitalized; and (5) at the sentencing hearing, Pozo testified that R.A.\u2019s bruises would have disappeared in a few weeks. According to defendant, because the State failed to prove that R.A. suffered great bodily harm, (1) his armed violence conviction cannot stand; and (2) the trial court erred by requiring him to serve 85% of his sentence, pursuant to section 3\u20146\u20143(a)(2)(iii) of the Unified Code (730 ILCS 5/3\u20146\u20143(a)(2)(iii) (West 1998)).\nIn response, the State argues that the evidence was sufficient to support the jury\u2019s finding that R.A. suffered great bodily harm. In support of its argument, the State cites the following: (1) \u201cR.A. was beaten in the head and torso with the butts of two guns and choked for a period of 30 minutes\u201d; (2) as a result of the beating, RA. suffered (a) a laceration near her left eye, which required sutures and resulted in a permanent scar, and (b) severe bruising of her hip and thigh; and (3) months after the attack, RA. was still unable to hold one of her hands steady. We agree with the State.\nel Initially, we note that evidence that was not before the jury should not be used by a reviewing court to determine the sufficiency of the evidence on appeal. People v. Tipton, 78 Ill. 2d 477, 487, 401 N.E.2d 528, 533 (1980); People v. Kluppelberg, 257 Ill. App. 3d 516, 536, 628 N.E.2d 908, 923 (1993). Thus, in addressing this issue, we will not consider Pozo\u2019s testimony at the January 2000 sentencing hearing.\n\u20222 Defendant\u2019s armed violence conviction was based upon the predicate felony of aggravated battery. See 720 ILCS 5/12\u20144(a), 33A\u20142 (West 1998). Section 12\u20144(a) of the Code defines aggravated battery as follows: \u201cA person who, in committing a battery, intentionally or knowingly causes great bodily harm *** commits aggravated battery.\u201d 720 ILCS 5/12\u20144(a) (West 1998).\nWhether the victim\u2019s injuries rise to the level of great bodily harm is a question for the trier of fact. People v. Figures, 216 Ill. App. 3d 398, 401, 576 N.E.2d 1089, 1092 (1991). In making that determination, the relevant inquiry is \u201cnot what the victim did or did not do to treat the injury but what injuries the victim in fact received.\u201d People v. Edwards, 304 Ill. App. 3d 250, 254, 710 N.E.2d 507, 509 (1999); see also Figures, 216 Ill. App. 3d at 401, 576 N.E.2d at 1092 (whether the victim\u2019s injuries constitute great bodily harm is \u201cneither dependent upon hospitalization of the victim, nor the permanency of his disability or disfigurement\u201d).\n\u20223 In People v. Maggette, 195 Ill. 2d 336, 353, 747 N.E.2d 339, 349 (2001), the supreme court addressed a defendant\u2019s argument that the State\u2019s evidence was not sufficient to sustain his conviction and wrote the following:\n\u201cA reviewing court will not set aside a criminal conviction on grounds of insufficient evidence unless the proof is so improbable or unsatisfactory that there exists a reasonable doubt of the defendant\u2019s guilt. When considering the sufficiency of the evidence, it is not the function of a reviewing court to retry the defendant. Rather, the relevant question is whether, after reviewing all of the evidence in the light most favorable to the prosecution, any rational fact finder could have found beyond a reasonable doubt the essential elements of the crime.\u201d\nReviewing the evidence presented under the appropriate standard of review, we conclude that a rational trier of fact reasonably could have found that defendant inflicted great bodily harm upon R.A.\nB. Constitutionality of Section 3\u20146\u20143(a)(2)(iii) Under Apprendi\n\u20224 Defendant next argues that the truth-in-sentencing provision of section 3\u20146\u20143 (a) (2) (iii) of the Code is unconstitutional under Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Specifically, he contends that section 3\u20146\u20143(a)(2)(iii) violates his right to due process and trial by jury because the statute does not require the State to prove to a jury beyond a reasonable doubt that the defendant\u2019s conduct resulted in great bodily harm to the victim. We disagree.\nSection 3\u20146\u20143(a)(2)(iii) of the Code requires:\n\u201c[A] prisoner serving a sentence for home invasion, armed robbery, aggravated vehicular hijacking, aggravated discharge of a firearm, or armed violence with a category I weapon or category II weapon, when the court has made and entered a finding *** that the conduct leading to conviction for the enumerated offense resulted in great bodily harm to a victim, shall receive no more than 4.5 days of good[-]conduct credit for each month of his or her sentence of imprisonment.\u201d 730 ILCS 5/3\u20146\u20143(a)(2)(iii) (West 1998).\nIn Apprendi, the United States Supreme Court considered three New Jersey statutes. One statute classified the possession of a firearm for an unlawful purpose as a \u201csecond degree\u201d offense. Another statute provided that a second degree offense was punishable by imprisonment for \u201c \u2018between five years and 10 years.\u2019 \u201d Apprendi, 530 U.S. at 468, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351, quoting N.J. Stat. Ann. \u00a7 2C:43\u20146(a)(2) (West 1995). A third statute, which the New Jersey Supreme Court labeled a \u201chate-crime\u201d statute, authorized an extended term of 10 to 20 years\u2019 in prison for a second degree offense if the trial court found by a preponderance of the evidence that \u201c[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation[,] ethnicity.\u201d Apprendi, 530 U.S. at 468-69, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351. The trial court sentenced the defendant in Apprendi to 12 years in prison for possession of a firearm because the court found that he had violated the hate-crime statute. Apprendi, 530 U.S. at 471, 147 L. Ed. 2d at 443, 120 S. Ct. at 2352.\nOn appeal, the Supreme Court concluded that New Jersey\u2019s hate-crime statute violated due process and held that \u201c \u2018under the [d]ue [pjrocess [cjlause of the [fjifth [ajmendment and the notice and jury trial guarantees of the [sjixth [ajmendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.\u2019 \u201d (Emphasis added.) Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355, quoting Jones v. United States, 526 U.S. 227, 243 n.6, 143 L. Ed. 2d 311, 326 n.6, 119 S. Ct. 1215, 1224 n.6 (1999).\nThe truth-in-sentencing provision set forth in section 3\u20146\u2014 3(a)(2)(iii) of the Unified Code (730 ILCS 5/3\u20146\u20143(a)(2)(iii) (West 1998)) does not alter the prescribed maximum penalty imposed for the offenses of home invasion, armed robbery, and armed violence. The jury\u2019s guilty verdicts for home invasion and armed robbery, both of which are Class X felonies (720 ILCS 5/12\u201411(c), 18\u20142(b) (West 1998)), allowed a nonextended-term sentence of 6 to 30 years for each conviction (730 ILCS 5/5\u20148\u20141(a)(3) (West 1998)). The jury\u2019s guilty verdict for armed violence, which is also a Class X felony, allowed a nonextended-term sentence of 15 to 30 years (720 ILCS 5/33A\u20143 (West 1998)). In addition, based upon defendant\u2019s prior Class X felony conviction, the trial court, within its discretion, could have sentenced defendant to an extended term ranging from 30 to 60 years in prison (730 ILCS 5/5\u20145\u20143.2(b)(1), 5\u20148\u20142(b)(2) (West 1998)). In contrast to the maximum penalties triggered by the jury\u2019s guilty verdicts, the court\u2019s finding, pursuant to section 3\u20146\u20143(a)(2)(iii) of the Unified Code (730 ILCS 5/3\u20146\u20143(a)(2)(iii) (West 1998)), that defendant\u2019s conduct leading to his convictions for home invasion, armed robbery, and armed violence resulted in great bodily harm to R.A. did not trigger any penalty for those crimes\u2014much less increase the maximum penalty. Instead, the finding of great bodily harm simply had an impact upon the amount of time by which defendant\u2014through his own \u201cgood conduct\u201d\u2014could decrease his sentence. See 730 ILCS Ann. 5/3\u20146\u20143, Council Commentary, at 133 (Smith-Hurd 1997) (this section \u201c[pjrovides for \u2018good time\u2019 whereby sentenced offenders can decrease their sentence by good conduct and special services\u201d). Accordingly, because Apprendi concerns are not implicated by section 3\u20146\u2014 3(a)(2)(iii) of the Unified Code, we reject defendant\u2019s contention that Apprendi renders that section unconstitutional.\nEven if we were to assume that Apprendi concerns are implicated by section 3\u20146\u20143 (a) (2) (iii) of the Unified Code, we would conclude that the State complied with Apprendi in this case because (1) count III of the information alleged that in committing the offense of aggravated battery (which served as the predicate felony for armed violence), defendant caused great bodily harm to R.A.; (2) that allegation was submitted to the jury; and (3) the jury found that the State proved beyond a reasonable doubt that defendant inflicted great bodily harm upon R.A. At the January 2000 sentencing hearing, the trial court merely adopted the jury\u2019s finding.\nC. Constitutionality of Section 5\u20145\u20143.2(b)(1) Under Apprendi\n\u20225 Defendant next argues that the enhanced sentencing provision of section 5\u20145\u20143.2(b)(1) of the Unified Code is unconstitutional under Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Defendant concedes that the Apprendi Court explicitly recognized that prior convictions constitute an exception to the general rule that facts that increase a sentence beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355. Nonetheless, he contends that because the Apprendi Court called into question whether its prior decision in Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998) (in which the Court upheld a federal law allowing a judge to impose an enhanced sentence based on prior convictions not alleged in the indictment), was correctly decided, we should (1) conclude that Apprendi requires prior convictions to be charged, submitted to a jury, and proved beyond a reasonable doubt; and (2) hold that section 5\u20145\u20143.2(b)(1) of the Unified Code violates a defendant\u2019s right to trial by jury and due process. We decline to do so.\nIn People v. Dillard, 319 Ill. App. 3d 102, 109, 745 N.E.2d 185, 191 (2001), we addressed this same issue and wrote as follows:\n\u201cAlthough the Apprendi Court stated that \u2018it is arguable that Almendarez-Torres was incorrectly decided,\u2019 the Court was clear that it was not overruling its prior decision. Apprendi, 530 U.S. at 489, 147 L. Ed. 2d at 454, 120 S. Ct. at 2362. We agree with the court in People v. Roberts, 318 Ill. App. 3d 719, 728-29[, 743 N.E.2d 1025, 1033] (2000), which found the following language from a case in the District Court for the Eastern District of Pennsylvania to be on point:\n\u2018 \u201c[D] espite the [Apprendi] Court\u2019s reservations about its continuing validity, the Court chose not to overrule AlmendarezTorres. \u2018Needless to say, only [the Supreme Court] may overrule one of its precedents. Until that occurs, [Almendarez-Torres] is the law.\u2019 Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 103 S. Ct. 1343, 75 L. Ed. 2d 260 (1983) (per curiam); see also Hutto v. Davis, 454 U.S. 370, 102 S. Ct. 703, 70 L. Ed. 2d 556 (1982) (per curiam) (\u2018But unless we wish anarchy to prevail within the federal judicial system, a precedent of this court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.\u2019). Since Almendarez-Torres was plainly addressed, but not overruled by the Supreme Court in Apprendi, the court is obligated to apply it in this case.\u201d United States v. Powell, 109 F. Supp. 2d 381, 383 (E.D. Pa. 2000).\u2019 Because Almendarez-Torres is still good law, we reject defendant\u2019s assertion that Apprendi renders unconstitutional section 5\u20145\u2014 3.2(b)(1) of the Unified Code, which provides for sentencing enhancement based on prior convictions.\u201d\nWe adhere to our holding in Dillard and thus reject defendant\u2019s contention that Apprendi renders unconstitutional section 5\u20145\u2014 3.2(b)(1) of the Unified Code.\nD. Defendant\u2019s Contention That the Trial Court Considered an\nImproper Aggravating Factor in Sentencing Him\nLast, defendant argues that the trial court erred by considering an improper aggravating factor in sentencing him. Specifically, he contends that because (1) great bodily harm is a factor implicit in the offense of armed violence and (2) \u201cany injury\u201d is a factor implicit in the offense of home invasion, the court improperly considered the infliction of great bodily harm as an aggravating factor in determining defendant\u2019s sentences for armed violence and home invasion. We disagree.\nIn People v. Saldivar, 113 Ill. 2d 256, 268-69, 497 N.E.2d 1138, 1143 (1986), quoting People v. Hunter, 101 Ill. App. 3d 692, 694, 428 N.E.2d 666, 668 (1981), the supreme court held:\n\u201cA reasoned judgment as to the proper penalty to be imposed must *** be based upon the particular circumstances of each individual case. [Citations.] Such a judgment depends upon many relevant factors, including the defendant\u2019s demeanor, habits, age, mentality, credibility, general moral character, and social environment [citations], as well as 1 \u201cthe nature and circumstances of the offense, including the nature and extent of each element of the offense as committed by the defendant\u201d \u2019 [citations].\u201d (Emphasis in original.)\nIn so holding, the Saldivar court reasoned as follows:\n\u201cSound public policy demands that a defendant\u2019s sentence be varied in accordance with the particular circumstances of the criminal offense committed. Certain criminal conduct may warrant a harsher penalty than other conduct, even though both are technically punishable under the same statute. Likewise, the commission of any offense, regardless of whether the offense itself deals with harm, can have varying degrees of harm or threatened harm. The legislature clearly and unequivocally intended that this varying quantum of harm may constitute an aggravating factor [(emphasis added)]. While the classification of a crime determines the sentencing range, the severity of the sentence depends upon the degree of harm caused to the victim and as such may be considered as an aggravating factor in determining the exact length of a particular sentence, even in cases where serious bodily harm is arguably im plicit in the offense for which a defendant is convicted. [Citations.]\u201d (Emphasis in original.) Saldivar, 113 Ill. 2d at 269, 497 N.E.2d at 1143.\nSee also People v. McGlasson, 219 Ill. App. 3d 252, 254-55, 579 N.E.2d 1120, 1121-22 (1991) (\u201cthe nature of the force employed and the degree of harm caused to the victim are permissible factors to be considered in aggravation\u201d; holding that the trial court did not err by considering those factors in sentencing the defendant for home invasion); People v. Duffie, 193 Ill. App. 3d 737, 743, 550 N.E.2d 691, 694-95 (1990) (holding that the trial court did not err by considering the amount of harm inflicted upon the victim in sentencing the defendant for armed violence premised upon the offense of aggravated battery).\nIn sentencing defendant, the trial court specifically considered the following mitigating and aggravating factors: (1) the presence of Pugh and the third attacker during the incident, both of whom facilitated defendant\u2019s criminal conduct; (2) that defendant\u2019s incarceration would create extensive hardship for his dependents and his grandmother; (3) defendant\u2019s age; (4) his criminal history; (5) the need to deter others from committing the same crimes; and (6) that defendant committed the present offenses while he was serving a period of mandatory supervised release for his 1994 home invasion conviction. The court also stated, in pertinent part, as follows:\n\u201cWith respect to [defendant], the factors in aggravation the court has specifically considered are the same ones that the court has considered with respect to [Pugh], Factor number 1, the defendants caused or threatened serious harm. And certainly with respect to [defendant], he was the one who caused most of the harm, the physical harm.\u201d\nAt the hearing on defendant\u2019s motion to reconsider his sentence, the trial court addressed defendant\u2019s contention that it had considered an improper aggravating factor and stated, in pertinent part, as follows:\n\u201c[0]bviously[,] as we have all agreedL,] great bodily harm is one of the elements of armed violence. It seems to me, however, that the degree of harm and the method of infliction of the harm are things that are appropriately considered. But even setting that aside, the sentences in this case are based on an individual consideration [o\u00ed] each of the defendant\u2019s prior record of criminality. *** I don\u2019t see [that] there is much[,] if any[,] rehabilitative [potential] for [defendant]. I think [defendant] is a brutal animal, and that is the reason I imposed the type of sentence on him; and *** frankly I don\u2019t want him out in public in the reasonably near future.\u201d (Emphasis added.)\nViewing the trial court\u2019s statements in context, we conclude (as did the trial court) that the court\u2019s consideration of the factor that defendant \u201ccaused most of *** the physical harm\u201d to R.A. was an entirely proper consideration of (1) the nature of the force defendant employed in attacking R.A. and (2) the degree of harm defendant caused to R.A. We thus hold that the court did not err by considering an improper aggravating factor in sentencing defendant for his armed violence and home invasion convictions.\nEven if we were to accept defendant\u2019s contention that the trial court considered an improper aggravating factor, we would not remand for resentencing. See People v. Gilliam, 172 Ill. 2d 484, 521, 670 N.E.2d 606, 623 (1996) (where the reviewing court can determine from the record that the weight the trial court placed upon the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, it is not necessary to remand for resentencing). In this case, the court\u2019s comments at the hearing on defendant\u2019s motion to reconsider his sentence clearly show that the aggravating factor of bodily harm caused to R.A. did not lead to the sentence the court imposed for the armed violence and home invasion convictions.\nIII. CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment.\nAffirmed.\nKNECHT and COOK, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE STEIGMANN" } ], "attorneys": [ "Charles M. Schiedel and Allen H. Andrews, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Scott Rueter, State\u2019s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYREK S. GARRY, Defendant-Appellant.\nFourth District\nNo. 4\u201400\u20140205\nOpinion filed July 6, 2001.\nCharles M. Schiedel and Allen H. Andrews, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nScott Rueter, State\u2019s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0292-01", "first_page_order": 310, "last_page_order": 321 }