{ "id": 1281471, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DICKEY DUNN, Defendant-Appellant", "name_abbreviation": "People v. Dunn", "decision_date": "2001-11-08", "docket_number": "No. 1-99-3304", "first_page": "281", "last_page": "289", "citations": [ { "type": "official", "cite": "326 Ill. App. 3d 281" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "606 N.E.2d 439", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "Holmes" } ], "opinion_index": 0 }, { "cite": "238 Ill. App. 3d 480", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5156687 ], "year": 1992, "pin_cites": [ { "parenthetical": "Holmes" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0480-01" ] }, { "cite": "592 N.E.2d 179", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "Laboy" } ], "opinion_index": 0 }, { "cite": "227 Ill. App. 3d 654", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5794945 ], "year": 1992, "pin_cites": [ { "parenthetical": "Laboy" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/227/0654-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "385 U.S. 554", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11341302 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "560" }, { "page": "612" }, { "page": "651-52" } ], "opinion_index": 0, "case_paths": [ "/us/385/0554-01" ] }, { "cite": "309 N.E.2d 725", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "18 Ill. App. 3d 287", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2615464 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0287-01" ] }, { "cite": "642 N.E.2d 1207", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "Jameson" } ], "opinion_index": 0 }, { "cite": "162 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477545 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "290-91", "parenthetical": "Jameson" }, { "page": "290-92" }, { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0282-01" ] }, { "cite": "526 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11133049 ], "weight": 12, "year": 1999, "pin_cites": [ { "parenthetical": "Jones" }, { "parenthetical": "Jones" }, { "parenthetical": "Jones" }, { "page": "249" }, { "page": "329" }, { "page": "1227" }, { "page": "249" }, { "page": "329-30" }, { "page": "1227" } ], "opinion_index": 0, "case_paths": [ "/us/526/0227-01" ] }, { "cite": "523 U.S. 224", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11503479 ], "weight": 3, "year": 1998, "pin_cites": [ { "parenthetical": "Almendarez-Torres" }, { "parenthetical": "Almendarez-Torres" }, { "parenthetical": "Almendarez-Torres" } ], "opinion_index": 0, "case_paths": [ "/us/523/0224-01" ] }, { "cite": "740 N.E.2d 377", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "Lathon" } ], "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 573", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026052 ], "weight": 8, "year": 2000, "pin_cites": [ { "page": "587", "parenthetical": "Lathon" }, { "page": "584" }, { "page": "585" }, { "page": "585" }, { "page": "585, 587" }, { "page": "585" }, { "page": "587" }, { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0573-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 6, "year": 2000, "pin_cites": [ { "parenthetical": "Apprendi" }, { "parenthetical": "Apprendi" }, { "parenthetical": "Apprendi" }, { "page": "495-96" }, { "page": "457-58" }, { "page": "2365-66" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "595 N.E.2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "Traina" } ], "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 149", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5210170 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "154", "parenthetical": "Traina" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0149-01" ] }, { "cite": "224 N.E.2d 572", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "80 Ill. App. 2d 65", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2561457 ], "year": 1967, "pin_cites": [ { "page": "70-71" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/80/0065-01" ] }, { "cite": "307 N.E.2d 646", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "17 Ill. App. 3d 352", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2513937 ], "year": 1974, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0352-01" ] }, { "cite": "181 N.E.2d 143", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "pin_cites": [ { "parenthetical": "Wallenberg" } ], "opinion_index": 0 }, { "cite": "24 Ill. 2d 350", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2802161 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "354", "parenthetical": "Wallenberg" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/24/0350-01" ] }, { "cite": "317 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "58 Ill. 2d 61", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2954144 ], "year": 1974, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/58/0061-01" ] }, { "cite": "189 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "27 Ill. 2d 398", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360433 ], "year": 1963, "pin_cites": [ { "page": "399, 401" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0398-01" ] }, { "cite": "195 N.E.2d 675", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "30 Ill. 2d 101", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2828193 ], "year": 1964, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0101-01" ] }, { "cite": "344 N.E.2d 239", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "36 Ill. App. 3d 355", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2631304 ], "year": 1976, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0355-01" ] }, { "cite": "343 N.E.2d 622", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "Bounds" } ], "opinion_index": 0 }, { "cite": "36 Ill. App. 3d 330", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2633320 ], "year": 1976, "pin_cites": [ { "page": "336", "parenthetical": "Bounds" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0330-01" ] }, { "cite": "361 N.E.2d 644", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "parenthetical": "Owens" } ], "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2976462 ], "year": 1977, "pin_cites": [ { "page": "988-89", "parenthetical": "Owens" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0978-01" ] }, { "cite": "193 N.E.2d 801", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "29 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2823717 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-2d/29/0229-01" ] }, { "cite": "234 N.E.2d 783", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "pin_cites": [ { "parenthetical": "Macias" } ], "opinion_index": 0 }, { "cite": "39 Ill. 2d 208", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2859083 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "211", "parenthetical": "Macias" }, { "page": "211-12" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0208-01" ] }, { "cite": "687 N.E.2d 892", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "178 Ill. 2d 215", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385544 ], "year": 1997, "pin_cites": [ { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0215-01" ] }, { "cite": "504 N.E.2d 862", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 667", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3576078 ], "year": 1987, "pin_cites": [ { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0667-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "Enoch" } ], "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "186", "parenthetical": "Enoch" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] } ], "analysis": { "cardinality": 901, "char_count": 19753, "ocr_confidence": 0.83, "pagerank": { "raw": 1.1534829449077545e-07, "percentile": 0.5819310315002921 }, "sha256": "6cd02d923e4e6d4917f23b2daeb6e448e52bd49c525d589e01f73f9ebcbff33a", "simhash": "1:765d3c757e37bbf7", "word_count": 3247 }, "last_updated": "2023-07-14T21:10:13.053989+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. DICKEY DUNN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nDefendant, Dickey Dunn, was charged by information with one count of burglary pursuant to section 19 \u2014 1(a) (720 ILCS 5/19 \u2014 1(a) (West 2000)) (section 19 \u2014 1(a)) of the Criminal Code of 1961 (720 ILCS 5/1 \u2014 1 et seq. (West 2000)) (Criminal Code). Tried by the circuit court, he was found guilty and sentenced to eight years in custody of the Illinois Department of Corrections as a Class X offender. Defendant appeals both his conviction and sentence.\nThe issues presented on appeal include whether: (1) this cause should be remanded for an evidentiary hearing to determine whether a witness committed perjury at trial; (2) the circuit court erred by considering information outside the record during its deliberations; and (3) the mandatory Class X sentencing provision of section 5 \u2014 5\u2014 3(c)(8) (730 ILCS 5/5 \u2014 5\u20143(c)(8) (West 2000)) (section 5 \u2014 5\u20143(c)(8)) of the Unified Code of Corrections (730 ILCS 5/1 \u2014 1\u20141 et seq. (West 2000)) (Code of Corrections) is unconstitutional.\nOn July 31, 1998, at 5 a.m., Chicago police officers arrested defendant and Kenneth Wilson after observing defendant leaning into the broken rear passenger window of a parked 1998 Buick Regal, taking compact discs and audio cassettes, while Wilson sat in the passenger seat of the car. Defendant and Wilson each were charged by information with one count of burglary under section 19 \u2014 1(a), but were tried separately.\nAt an August 3, 1998, preliminary hearing, the State sought to prove probable cause to hold defendant for trial. Chicago police officer D. Colt, the only officer who testified at the preliminary hearing, stated that on July 31, 1998, at 5 a.m., while sitting in the passenger seat of his patrol car in the vicinity of 158 West Division Street, he observed defendant leaning into the broken window of a parked Buick Regal and taking several items. Colt did not see defendant or Wilson break the vehicle\u2019s window. Colt then stopped defendant, who was holding compact discs and audio cassettes in his hands. Additionally, Colt noticed a brick and shattered glass lying on the backseat of the car. Neither the State nor defense counsel asked Colt questions regarding the presence of other officers at the scene.\nAt trial, Chicago police officer E Kelly testified that on the occurrence date, between 4:45 a.m. and 5 a.m., he was on routine patrol with his partner, Officer Bausch. While Bausch drove their squad car east on Division Street, between LaSalle and Wells Streets, Kelly, from a distance of 35 or 40 feet, viewed defendant leaning into the rear window of a parked vehicle with half of his body in the aperture and Wilson sitting in the passenger seat of that vehicle.\nOfficer Kelly instructed Officer Bausch to make a U-turn and pull up behind the parked car. Meanwhile defendant and Wilson left the car, crossed the street and walked in different directions. Bausch stopped defendant and Kelly intercepted Wilson, and they returned the offenders to the parked car. Kelly observed that the rear window of the vehicle was broken and shattered glass and a brick lay on the backseat. Bausch recovered two compact discs and a children\u2019s audiotape from defendant, and Kelly found Wilson holding audio cassettes. Defendant and Wilson both told the officers that they had not broken the window and were \u201cjust going through the car.\u201d\nAfter arresting defendant and Wilson, the officers located Charles Beach, the car owner\u2019s brother, who parked the vehicle at 158 West Division Street. Beach went to the scene with the two officers and identified the property recovered from defendant and Wilson as his own.\nOfficer Colt did not testify at trial. Officer Kelly was not questioned about Colt being at the scene.\nAt the close of the State\u2019s evidence, defendant\u2019s motion for a finding of not guilty was denied. Defendant did not testify. The circuit court then found defendant guilty of burglary. The court observed that the crime occurred at \u201cDivision Street somewhere between Wells and LaSalle. It\u2019s quite lit up around there at all times of the day. There was nothing that impeached the officer as to his ability to see the defendant in any manner.\u201d\nAt defendant\u2019s sentencing hearing, the State presented evidence that defendant was convicted of two prior felonies, thereby making him subject to Class X sentencing under section 5 \u2014 5\u20143(c)(8) of the Code of Corrections. The circuit court found that defendant qualified as a Class X offender and sentenced him to eight years in custody of the Illinois Department of Corrections. Defendant filed a timely notice of appeal.\nI\nDefendant initially asserts that this cause should be remanded for an evidentiary hearing to determine whether Officer Kelly committed perjury because he and Officer Colt each testified that they were the arresting officers who first observed him leaning into the parked car. According to defendant, because Kelly never mentioned the presence of Colt at the scene and Colt did not testify as to Kelly\u2019s presence, a question is raised as to whether one of the officers was lying.\nThe State responds that defendant\u2019s reliance on Officer Colt\u2019s preliminary hearing testimony is improper because it was not presented to the circuit court at trial and does not suggest that Officer Kelly committed perjury. Also, the State argues that defendant has waived this argument for review since he failed to raise the issue of perjury at trial and in his posttrial motion.\nTo preserve an issue for appeal, a litigant must raise the issue at trial and in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988) (Enoch). Although failure to raise an issue at trial or in a posttrial motion may waive that issue for review, the rule of waiver is a limitation on the parties and not on the courts, and a reviewing court may ignore the waiver rule in order to achieve a just result. People v. Lopez, 152 Ill. App. 3d 667, 676, 504 N.E.2d 862 (1987). Here, because defendant\u2019s claim that he was convicted on perjured testimony sufficiently alleges a violation of substantial constitutional rights, his argument will be considered under the plain error rule. See People v. Thomas, 178 Ill. 2d 215, 235, 687 N.E.2d 892 (1997); 134 Ill. 2d R. 615(a).\nClaims of perjury generally will not be considered in reviewing a judgment of conviction in most cases, where the issue has not been presented to or passed upon by the circuit court and the facts in support of the claim do not appear in the record. People v. Macias, 39 Ill. 2d 208, 211, 234 N.E.2d 783 (1968) (Macias), citing People v. Grayson, 29 Ill. 2d 229, 193 N.E.2d 801 (1963). The supreme court in Macias observed that the Post-Conviction Hearing Act (725 ILCS 5/122 \u2014 1 et seq. (West 2000)) is the appropriate remedy for assertion of a perjury claim so that the prosecution may have an opportunity to offer evidence to meet it. 39 Ill. 2d at 211-12.\nThe principle of reviewing court preclusion from considering evidence never presented to the fact finder applies to situations as in the present case, where defendant supplements the record on appeal with a pretrial hearing transcript that previously was not introduced at trial. See People v. Owens, 46 Ill. App. 3d 978, 988-89, 361 N.E.2d 644 (1977) (Owens); People v. Bounds, 36 Ill. App. 3d 330, 336, 343 N.E.2d 622 (1976) (Bounds).\nIn the instant case, neither party presented the preliminary hearing transcript to the circuit court during the course of defendant\u2019s bench trial. As a result, the transcript was not part of the trial record and the court never considered the preliminary hearing testimony when it deliberated and found defendant guilty of burglary. Following Owens and Bounds, Officer Colt\u2019s preliminary hearing testimony will not be considered.\nNevertheless, as above-noted, the fact that Officer Kelly\u2019s trial testimony failed to mention Officer Colt\u2019s presence at the scene, based on the record, is immaterial to defendant\u2019s guilt or innocence and does not suggest that Kelly committed perjury. People v. Henderson, 36 Ill. App. 3d 355, 384, 344 N.E.2d 239 (1976). The arrest report contained in the record showed both Colt and Kelly as arresting officers. There is no necessity for an additional evidentiary hearing.\nII\nNext, defendant contends that his conviction should be reversed and the cause remanded for a new trial because the circuit court considered information outside the record, namely, that the area where the crime occurred was well-lighted. Defendant insists his due process rights thereby were violated.\nThe State responds that defendant\u2019s failure to object to the circuit court\u2019s comments regarding the lighting and to raise the issue in his posttrial motion resulted in waiver of this issue on appeal. Enoch, 122 Ill. 2d at 186.\nThe supreme court previously has held that a less rigid application of the waiver rule must prevail where misconduct of the circuit judge is involved. People v. Tyner, 30 Ill. 2d 101, 105, 195 N.E.2d 675 (1964); People v. Sprinkle, 27 Ill. 2d 398, 399, 401, 189 N.E.2d 295 (1963). Here, the circuit court\u2019s comments are reviewable as plain error because the court\u2019s statements affect defendant\u2019s substantial rights.\nConsidering the merits of defendant\u2019s argument, the supreme court has held that the deliberations of the circuit judge in a bench trial are limited to the record made before him or her during the course of the trial. People v. Nelson, 58 Ill. 2d 61, 66, 317 N.E.2d 31 (1974); People v. Wallenberg, 24 Ill. 2d 350, 354, 181 N.E.2d 143 (1962) (Wallenberg). A judge\u2019s determination, based upon a private investigation or private knowledge of the court, untested by cross-examination or any of the rules of evidence, constitutes a denial of due process. Wallenberg, 24 Ill. 2d at 354.\nThe circuit court here erred by considering facts outside the record. In Wallenberg, however, the circuit judge used evidence of his own knowledge to contradict important testimony offered by the defense. In the present case, although the court considered the lighting on Division Street in its deliberations, defendant never raised the issue of faulty identification due to poor lighting as a defense at trial and, as a result, the court was not addressing a defense argument or alibi. In addition, the court is not immune from knowledge of the nature of an area in the city. See People v. Mack, 17 Ill. App. 3d 352, 355, 307 N.E.2d 646 (1974); People v. Biocic, 80 Ill. App. 2d 65, 70-71, 224 N.E.2d 572 (1967).\nHarmless error is determined by considering the particular facts of each case and the entire record. People v. Tra\u00edna, 230 Ill. App. 3d 149, 154, 595 N.E.2d 635 (1992) (Tra\u00edna). An error is harmless where a reviewing court safely can conclude that a trial, without the error, would produce no different result. Tra\u00edna, 230 Ill. App. 3d at 154.\nBased on the foregoing and considering the entire record, beyond a reasonable doubt the trial would not have produced a different result without the circuit court\u2019s mention of personal knowledge of facts not in the record. Police officers witnessed defendant take several items from the parked vehicle and apprehended him in possession of those items, which Beach subsequently identified as his belongings. Accordingly, the circuit court\u2019s comments regarding the lighting at the scene was harmless error.\nIll\nDefendant, citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) (Apprendi), next argues that the mandatory Class X sentencing provision of section 5 \u2014 5\u20143(c)(8) violates his right to due process and trial by jury because it subjects him to increased punishment without notice or a jury finding upon proof beyond a reasonable doubt. Defendant challenges the constitutionality of section 5 \u2014 5\u20143(c)(8), contending that the circuit court did not have authority to sentence him as a Class X offender where the charging instrument failed to provide notice of his Class X status.\nDefendant\u2019s contention was resolved by the recent appellate court decision People v. Lathon, 317 Ill. App. 3d 573, 587, 740 N.E.2d 377 (2000) (Lathon), where the court held that the mandatory Class X sentencing provision of section 5 \u2014 5\u20143(c)(8), which provides for sentencing enhancement based on prior convictions, is constitutional and does not violate a defendant\u2019s due process rights or jury trial guarantees.\nDefendant urges this court not to follow the holding in Lathon because, while discussing Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998) (Almendarez-Torres), being questioned by the Apprendi decision, the Lathon court did not resolve his argument involving the specific issue of whether the rule announced in Apprendi applies to recidivism.\nThe Lathon court addresses the instant defendant\u2019s concerns regarding the Apprendi Court\u2019s questioning of the Almendarez-Torres decision, citing Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999) (Jones). The Lathon court contextualized the Apprendi Court\u2019s comments regarding Almendarez-Torres, stating that the discussion of Almendarez-Torres \u201cends with the Apprendi Court, based on a reexamination of case law and history, confirming the opinion expressed in Jones and recognizing that prior convictions are an exception to the general rule that facts which increase a sentence beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.\u201d Lathon, 317 Ill. App. 3d at 584; Jones, 526 U.S. at 243 n.6, 143 L. Ed. 2d at 326 n.6, 119 S. Ct. at 1224 n.6.\nThe Supreme Court in Jones concluded that an increase in an offender\u2019s penalty because of recidivism need not be alleged in the indictment, stating \u201c[t]he [.Almendarez-Torres] Court\u2019s repeated emphasis on the distinctive significance of recidivism leaves no question that the Court regarded that fact as potentially distinguishable for constitutional purposes from other facts that might extend the range of possible sentencing.\u201d Jones, 526 U.S. at 249, 143 L. Ed. 2d at 329, 119 S. Ct. at 1227. Explaining one basis for the constitutional distinctiveness of prior convictions, the Jones Court noted, \u201cunlike virtually any other consideration used to enlarge the possible penalty for an offense, *** a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.\u201d 526 U.S. at 249, 143 L. Ed. 2d at 329-30, 119 S. Ct. at 1227.\nThe Apprendi decision endorsed the recidivism exception and articulated reasons for the exception, including the fact that procedural safeguards enhance the validity of any prior conviction, recidivism is not an essential element of the underlying criminal offense and recidivism does not relate to the commission of the underlying offense. Lathon, 317 Ill. App. 3d at 585; Apprendi, 530 U.S. at 495-96, 147 L. Ed. 2d at 457-58, 120 S. Ct. at 2365-66. The Lathon court adopted these same reasons. Lathon, 317 Ill. App. 3d at 585.\nIn the instant case, the prior convictions that provided the basis for defendant\u2019s enhanced sentence were obtained through procedures satisfying the fair notice, reasonable doubt and trial guarantees. Class X sentencing qualifications pursuant to section 5 \u2014 5\u20143(c)(8) are possible only as the result of proceedings that provided substantial procedural safeguards. Lathon, 317 Ill. App. 3d at 585, 587. The recidivism exception recognized in Apprendi is applicable here because defendant\u2019s prior convictions are not an essential element of the underlying criminal offense and the prior convictions do not relate to the commission of the underlying offense. Lathon, 317 Ill. App. 3d at 585. As a result, when defendant\u2019s punishment was increased based on prior convictions, those convictions need not have been alleged in the charging document, submitted for trial or proved beyond a reasonable doubt. Lathon, 317 Ill. App. 3d at 587.\nDefendant insists that Lathon did not address the distinction between general recidivism and \u201cadditional facts\u201d apart from the mere existence of prior convictions, which must be present in order to qualify his sentencing as a Class X offender. Our supreme court in People v. Jameson, 162 Ill. 2d 282, 290-91, 642 N.E.2d 1207 (1994) (Jameson), analyzed one additional fact specific to this case, namely, lack of notice of increased punishment. The Jameson court found that defendant must receive notice of the offense with which he is charged, but not the sentence imposed. Jameson, 162 Ill. 2d at 290-92. According to the supreme court, \u201c[a] criminal defendant has no corresponding due process right to receive pretrial notice of the sentence he will receive upon conviction.\u201d Jameson, 162 Ill. 2d at 291.\nDefendant additionally avers that his age and the specific timing, degree, number and sequence of his prior convictions are all facts which had to be submitted to a jury under Apprendi prior to his sentencing as a Class X offender. The jury, however, plays no role here in imposing punishment. People v. Neeley, 18 Ill. App. 3d 287, 309 N.E.2d 725 (1974). Further, presenting these \u201cfacts\u201d would have forced the State to introduce evidence of prior crimes during the guilt phase of defendant\u2019s trial, posing the risk of significant prejudice to defendant. Spencer v. Texas, 385 U.S. 554, 560, 17 L. Ed. 2d 606, 612, 87 S. Ct. 648, 651-52 (1967); Lathon, 317 Ill. App. 3d at 586. Such a procedure was not prescribed by the Apprendi Court. Section 5 \u2014 5\u2014 3(c)(8) is constitutional under Apprendi.\nFor the foregoing reasons, defendant\u2019s conviction and sentence are affirmed.\nAffirmed.\nHOFFMAN, EJ., and THEIS, J\u201e concur.\nDefendant\u2019s arrest report listed Officers Colt, Kelly and Bausch as the arresting officers.\nDefendant also raised an ineffective assistance of counsel argument due to defense counsel\u2019s failure to introduce Colt\u2019s preliminary hearing testimony at trial. Defendant\u2019s contention, however, does not meet the two-pronged test prescribed in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), requiring (1) deficient performance by trial counsel which (2) resulted in prejudice against defendant. Here, defense counsel\u2019s failure to introduce Colt\u2019s testimony was a strategic decision, which was not prejudicial because the contradicting testimony was immaterial to the issue of defendant\u2019s guilt or innocence.\nPeople v. Laboy, 227 Ill. App. 3d 654, 592 N.E.2d 179 (1992) (Laboy), and People v. Holmes, 238 Ill. App. 3d 480, 606 N.E.2d 439 (1992) (Holmes), two cases upon which defendant relies, are inapplicable to the instant case because Laboy involved a prior inconsistent statement of the same witness from a posttrial motion and Holmes involved the State misleading the jury as to what evidence previously had been presented at a preliminary hearing.\nSection 5 \u2014 -5\u2014-3(c)(8) provides in pertinent part:\n\u201cWhen 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.\u201d 730 ILCS 5/5 \u2014 5\u2014 3(c)(8) (West 2000).", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Michael J. Pelletier and Maria Harrigan, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Alan Spellberg, Annette Collins, and Zachary Raimi, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DICKEY DUNN, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1 \u2014 99\u20143304\nOpinion filed November 8, 2001.\nMichael J. Pelletier and Maria Harrigan, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Alan Spellberg, Annette Collins, and Zachary Raimi, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0281-01", "first_page_order": 299, "last_page_order": 307 }