{ "id": 25368, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE SMITH, Defendant-Appellant", "name_abbreviation": "People v. Smith", "decision_date": "2003-04-18", "docket_number": "No. 1-01-4468", "first_page": "555", "last_page": "564", "citations": [ { "type": "official", "cite": "338 Ill. App. 3d 555" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "123 S. Ct. 180", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2002, "opinion_index": 0 }, { "cite": "154 L. Ed. 2d 163", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "537 U.S. 895", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9242144, 9242052, 9241989, 9242024, 9242121, 9242218, 9242191, 9242098, 9241972, 9242165, 9242006, 9242076, 9242269, 9242239 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/537/0895-09", "/us/537/0895-05", "/us/537/0895-02", "/us/537/0895-04", "/us/537/0895-08", "/us/537/0895-12", "/us/537/0895-11", "/us/537/0895-07", "/us/537/0895-01", "/us/537/0895-10", "/us/537/0895-03", "/us/537/0895-06", "/us/537/0895-14", "/us/537/0895-13" ] }, { "cite": "198 Ill. 2d 628", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "740 N.E.2d 377", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "298 Ill. 11", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5030898 ], "weight": 2, "year": 1921, "pin_cites": [ { "page": "21" }, { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/ill/298/0011-01" ] }, { "cite": "4 Ill. 2d 598", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2701662 ], "weight": 3, "year": 1955, "pin_cites": [ { "page": "603" }, { "page": "603-04" }, { "page": "603" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/4/0598-01" ] }, { "cite": "126 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557280 ], "year": 1988, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0209-01" ] }, { "cite": "326 Ill. App. 3d 297", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281396 ], "weight": 7, "year": 2001, "pin_cites": [ { "page": "300" }, { "page": "300" }, { "page": "301" }, { "page": "301" }, { "page": "301" }, { "page": "301" }, { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/0297-01" ] }, { "cite": "316 Ill. 609", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5143587 ], "weight": 2, "year": 1925, "pin_cites": [ { "page": "616" }, { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/ill/316/0609-01" ] }, { "cite": "319 Ill. App. 3d 910", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527751 ], "year": 2001, "pin_cites": [ { "page": "913-14", "parenthetical": "Apprendi does not render section 5 - 5- 3(c)(8) unconstitutional" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0910-01" ] }, { "cite": "319 Ill. App. 3d 881", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527785 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "886", "parenthetical": "following Lathon" }, { "page": "886", "parenthetical": "finding no reason \"why this court should construe due process guarantees of this state's constitution more broadly than Apprendi interpreted due process under the United States Constitution\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0881-01" ] }, { "cite": "322 Ill. App. 3d 236", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126336 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "243", "parenthetical": "section 5 - 5-3(c)(8) does not violate Apprendi" }, { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/322/0236-01" ] }, { "cite": "322 Ill. App. 3d 164", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126365 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "167-68", "parenthetical": "agreeing with Lathon's analysis" }, { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/322/0164-01" ] }, { "cite": "318 Ill. App. 3d 181", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279716 ], "year": 2000, "pin_cites": [ { "page": "193", "parenthetical": "Apprendi exempts recidivist statutes" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0181-01" ] }, { "cite": "318 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279503 ], "year": 2000, "pin_cites": [ { "page": "729", "parenthetical": "recidivist provisions are not unconstitutional under Apprendi" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0719-01" ] }, { "cite": "325 Ill. App. 3d 515", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570575 ], "year": 2001, "pin_cites": [ { "page": "516-17", "parenthetical": "following Lathon" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0515-01" ] }, { "cite": "326 Ill. App. 3d 281", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281471 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "289", "parenthetical": "section 5 - 5- 3(c)(8) is constitutional under Apprendi." }, { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/0281-01" ] }, { "cite": "328 Ill. App. 3d 233", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2183355 ], "year": 2002, "pin_cites": [ { "page": "243", "parenthetical": "noting section 5 - 5-3(c)(8) does not violate Apprendi" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/328/0233-01" ] }, { "cite": "331 Ill. App. 3d 822", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209137 ], "year": 2002, "pin_cites": [ { "page": "838", "parenthetical": "following Lathon" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0822-01" ] }, { "cite": "334 Ill. App. 3d 785", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521956 ], "year": 2002, "pin_cites": [ { "page": "794", "parenthetical": "the Lathon reasoning is sound; Apprendi does not render the enhanced sentencing provision in section 5 - 5-3(c)(8) unconstitutional" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0785-01" ] }, { "cite": "334 Ill. App. 3d 819", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521973 ], "year": 2002, "pin_cites": [ { "page": "834", "parenthetical": "section 5 - 5-3(c)(8) is constitutional under Apprendi" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0819-01" ] }, { "cite": "317 Ill. App. 3d 573", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026052 ], "weight": 9, "year": 2000, "pin_cites": [ { "parenthetical": "section 5 - 5-3(c)(8) is constitutional under Apprendi" }, { "page": "576" }, { "page": "587" }, { "page": "587" }, { "page": "587" }, { "page": "587" }, { "page": "587" }, { "page": "587" }, { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0573-01" ] }, { "cite": "526 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11133049 ], "weight": 9, "year": 1999, "pin_cites": [ { "page": "252-53", "parenthetical": "Stevens, J., concurring" }, { "page": "332", "parenthetical": "Stevens, J., concurring" }, { "page": "1228-29", "parenthetical": "Stevens, J., concurring" }, { "page": "249" }, { "page": "329-30" }, { "page": "1227", "parenthetical": "a prior conviction, unlike any other factor used to enhance a sentence, must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees" } ], "opinion_index": 0, "case_paths": [ "/us/526/0227-01" ] }, { "cite": "523 U.S. 224", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11503479 ], "weight": 6, "year": 1998, "pin_cites": [ { "page": "247-48" }, { "page": "371" }, { "page": "1233" } ], "opinion_index": 0, "case_paths": [ "/us/523/0224-01" ] }, { "cite": "184 Ill. 2d 441", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926965 ], "year": 1998, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0441-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 21, "year": 2000, "pin_cites": [ { "page": "489-90" }, { "page": "454-55" }, { "page": "2362-63" }, { "page": "489-90" }, { "page": "454-66" }, { "page": "2362-63" }, { "page": "494-96" }, { "page": "457-58" }, { "page": "2365-66" }, { "page": "476" }, { "page": "446" }, { "page": "2355" }, { "page": "496" }, { "page": "458-59" }, { "page": "2366" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] } ], "analysis": { "cardinality": 813, "char_count": 22501, "ocr_confidence": 0.77, "pagerank": { "raw": 9.520328065241791e-08, "percentile": 0.5243222674372136 }, "sha256": "475a6b1788bba2fdc8d48a46672906fa4eceffe23a96077cd640da739cffef5d", "simhash": "1:e41dacb5fba09495", "word_count": 3771 }, "last_updated": "2023-07-14T21:28:15.941926+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. MAURICE SMITH, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019MARA FROSSARD\ndelivered the opinion of the court:\nFollowing a bench trial defendant was found guilty of attempted aggravated robbery. Defendant was sentenced to a nine-year prison term. On appeal defendant contends the mandatory Class X sentencing provision of the Unified Code of Corrections (Code) (730 ILCS 5/5 \u2014 5\u20143(c)(8) (West 2000)) is unconstitutional under the holding of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For the reasons stated below, we affirm.\nBACKGROUND\nSantokh Bains testified that at approximately 4:30 a.m. on January 10, 2001, a man wearing a mask entered the 7-Eleven store on Pratt Street in Chicago. He indicated he had a gun and ordered Bains to open the register. A police car pulled into the parking lot and the man took off his mask, asked Bains for a pack of cigarettes and a lighter, paid Bains $5, and left the store. Bains triggered the burglar alarm and informed the police in the parking lot that a man had just attempted to rob the store. Within 10 minutes, the police returned to the store with defendant, Maurice Smith. Bains identified Smith at the show-up in the store and in court as the man who attempted to rob the store.\nSmith testified that at approximately 4:30 a.m. on January 10, 2001, he bought a pack of cigarettes and a lighter from Bains at the 7-Eleven store. Smith said he had the mask on his face and his right hand inside his pocket because he was coming in from the cold. He denied indicating that he had a gun in his right coat pocket and denied ordering Bains to open the register. Smith further explained that he took the mask off to show Bains that he was not a threat.\nDefendant was found guilty of attempted aggravated robbery after a bench trial. The judge imposed a nine-year Class X felony sentence pursuant to section 5 \u2014 5\u20143(c)(8) of the Code. 730 ILCS 5/5 \u2014 5\u2014 3(c)(8) (West 2000). Defendant appeals.\nIMPOSITION OF CLASS X FELONY SENTENCE PURSUANT TO SECTION 5 \u2014 5\u20143(c)(8) DOES NOT VIOLATE THE UNITED STATES CONSTITUTION\nWe review the constitutionality of a statute de novo. People v. Fisher, 184 Ill. 2d 441, 448 (1998). Defendant was found guilty of attempted aggravated robbery, a Class 2 felony carrying a sentence of not less than three years and not more than seven years. A Class X felony carries a sentence of not less than 6 years and not more than 30 years. 730 ILCS 5/5 \u2014 8\u20141(a)(3) (West 2000). Defendant\u2019s previous convictions, including 6 for armed robbery, 2 for aggravated robbery and 1 for attempted robbery, made defendant eligible for sentencing as a Class X felon under section 5 \u2014 5\u20143(c)(8) of the Code. The trial court sentenced Smith to a nine-year prison term as a Class X felon under the Code, which states:\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. 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.\u201d 730 ILCS 5/5 \u2014 5\u20143(c)(8) (West 2000).\nDefendant contends section 5 \u2014 5\u20143(c)(8) violates due process and trial by jury guaranteed by the United States Constitution. Defendant argues that pursuant to Apprendi, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348, the State is required to submit to a jury and prove beyond a reasonable doubt the fact of defendant\u2019s age and prior convictions, and the fact of timing, degree, number, and sequence of the defendant\u2019s prior convictions.\nDefendant argues that because Apprendi questions whether Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), was correctly decided, we should find that Ap-prendi requires prior convictions to be charged, submitted to a jury, and proved beyond a reasonable doubt and hold that Class X sentencing under section 5 \u2014 5\u20143(c)(8) violates defendant\u2019s right to trial by jury and due process.\nWe note that the Court in Almendarez-Torres found no violation of defendant\u2019s constitutional rights by a federal statute authorizing the trial judge to enhance defendant\u2019s sentence based on a prior conviction. Almendarez-Torres, 523 U.S. at 247-48, 140 L. Ed. 2d at 371, 118 S. Ct. at 1233. Defendant is accurate in stating that Apprendi indicated it is arguable that Almendarez-Torres was incorrectly decided. However, the meaning of that statement is better understood when not taken out of context. Regarding the correctness of the Almendarez-Torres decision, the Court in Apprendi stated, in context, the following:\n\u201cEven though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision\u2019s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence.\nIn sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other 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. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: \u2018[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.\u2019 \u201d Apprendi, 530 U.S. at 489-90, 147 L. Ed. 2d at 454-55, 120 S. Ct. at 2362-63, quoting Jones v. United States, 526 U.S. 227, 252-53, 143 L. Ed. 2d 311, 332, 119 S. Ct. 1215, 1228-29 (1999) (Stevens, J., concurring).\nThe Apprendi Court recognized that Apprendi did not contest the validity of the Almendarez-Torres decision, but noted that it was arguable that Almendarez-Torres was incorrectly decided. However, Ap-prendi\u2019s discussion of Almendarez-Torres concludes with the Apprendi Court, based on a reexamination of case law and history, affirmatively confirming its opinion, previously expressed in Jones, that prior convictions are an exception to the holding that any fact which increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Ap-prendi, 530 U.S. at 489-90, 147 L. Ed. 2d at 454-66, 120 S. Ct. at 2362-63.\nWe note that Apprendi not only endorsed the recidivism exception, but articulated various reasons for the recidivism exception, including the fact that procedural safeguards enhance the validity of a 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. Apprendi, 530 U.S. at 494-96, 147 L. Ed. 2d at 457-58, 120 S. Ct. at 2365-66. These reasons support application of the Apprendi recidivism exception to the instant case. Defendant\u2019s enhanced sentence based on prior convictions was obtained through procedures satisfying the fair notice, reasonable doubt, jury trial, and due process guarantees. Jones, 526 U.S. at 249, 143 L. Ed. 2d at 329-30, 119 S. Ct. at 1227 (a prior conviction, unlike any other factor used to enhance a sentence, must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees).\nThe Illinois Appellate Court has repeatedly addressed and rejected defendant\u2019s contention that section 5 \u2014 5\u20143(c)(8) is unconstitutional under Apprendi. People v. Lathon, 317 Ill. App. 3d 573 (1st Dist., 1st Div. 2000) (section 5 \u2014 5\u20143(c)(8) is constitutional under Apprendi); People v. Lundy, 334 Ill. App. 3d 819, 834 (1st Dist., 1st Div. 2002) (section 5 \u2014 5\u20143(c)(8) is constitutional under Apprendi); People v. Young, 334 Ill. App. 3d 785, 794 (1st Dist., 1st Div. 2002) (the Lathon reasoning is sound; Apprendi does not render the enhanced sentencing provision in section 5 \u2014 5\u20143(c)(8) unconstitutional); People v. Wallace, 331 Ill. App. 3d 822, 838 (1st Dist., 5th Div. 2002) (following Lathon); People v. Jones, 328 Ill. App. 3d 233, 243 (1st Dist., 3d Div. 2002) (noting section 5 \u2014 5\u20143(c)(8) does not violate Apprendi); People v. Dunn, 326 Ill. App. 3d 281, 289 (1st Dist., 4th Div. 2001) (section 5 \u2014 5\u2014 3(c)(8) is constitutional under Apprendi.); People v. Echols, 325 Ill. App. 3d 515, 516-17 (1st Dist., 6th Div. 2001) (following Lathon); People v. Roberts, 318 Ill. App. 3d 719, 729 (1st Dist., 5th Div. 2000) (recidivist provisions are not unconstitutional under Apprendi); People v. Ramos, 318 Ill. App. 3d 181, 193 (1st Dist., 4th Div. 2000) (Apprendi exempts recidivist statutes); People v. Watson, 322 Ill. App. 3d 164, 167-68 (2d Dist. 2001) (agreeing with Lathon\u2019s analysis); People v. Jones, 322 Ill. App. 3d 236, 243 (3d Dist. 2001) (section 5 \u2014 5\u20143(c)(8) does not violate Apprendi); People v. Dixon, 319 Ill. App. 3d 881, 886 (3d Dist. 2001) (following Lathon); People v. Givens, 319 Ill. App. 3d 910, 913-14 (4th Dist. 2001) (Apprendi does not render section 5 \u2014 5\u2014 3(c)(8) unconstitutional).\nIn Lathon, the defendant was convicted of attempted residential burglary. Based on prior felony convictions, he was sentenced under section 5 \u2014 5\u20143(c)(8) to the mandatory enhanced sentence. Lathon, 317 Ill. App. 3d at 576. Lathon contended section 5 \u2014 5\u20143(c)(8) was unconstitutional because it violated Apprendi's mandate that \u201c \u2018any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a juror, and proven beyond a reasonable doubt.\u2019 \u201d Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355, quoting Jones, 526 U.S. at 243 n.6, 143 L. Ed. 2d at 326 n.6, 119 S. Ct. at 1224 n.6.\nIn Lathon, the court rejected the defendant\u2019s argument and noted that a defendant\u2019s recidivism is a narrow exception to the general rule articulated in Apprendi. Lathon, 317 Ill. App. 3d at 587. Lathon further noted that the defendant\u2019s prior convictions were not an essential element of the underlying criminal offense and the prior convictions did not relate to the commission of the underlying offense. Lathon, 317 Ill. App. 3d at 587. The court reasoned that a defendant\u2019s sentence is properly increased when the trial judge concludes that the evidence of the prior two convictions is accurate, reliable, and satisfies section 5 \u2014 5\u20143(c)(8) statutory factors. Lathon, 317 Ill. App. 3d at 587. The prior convictions are the result of proceedings in which the defendant had the right to a trial by jury and the State was required to establish his guilt beyond a reasonable doubt, and these safeguards \u201cmitigate constitutional concerns regarding the defendant\u2019s due process rights and jury trial guarantees.\u201d Lathon, 317 Ill. App. 3d at 587. For those reasons, the Lathon court held that when a defendant\u2019s punishment is increased based on prior convictions, the prior convictions need not be alleged in the charging document, submitted to the jury, or proven beyond a reasonable doubt. Lathon, 317 Ill. App. 3d at 587. \u201c[T]he 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 defendant\u2019s due process rights or jury trial guarantees.\u201d Lathon, 317 Ill. App. 3d at 587.\nIn agreeing with the Lathon analysis, the court in Watson, 322 Ill. App. 3d at 167, noted that cases considering application of the Apprendi recidivism exception have identified four reasons for not requiring the State to prove a defendant\u2019s prior convictions at the guilt-innocence phase of a trial.\n\u201cFirst, historically, recidivism has been \u2018a traditional, if not the most traditional, basis for a sentencing court\u2019s increasing an offender\u2019s sentence.\u2019 [Citations.] Second, the prior convictions must themselves have been established through procedures that complied with due process. Thus, the rights of fair notice, proof beyond a reasonable doubt, and a jury trial inherent in due process have already been met with regard to these convictions. [Citations.] Third, prior convictions are \u2018highly verifiable matters of record which need not be subject to jury inquiry.\u2019 [Citations.] Fourth, making prior convictions an element of the offense would force the State to put such evidence before the jury, which would severely prejudice the defendant. [Citations.]\u201d Watson, 322 Ill. App. 3d at 167.\nThese reasons support application of the Apprendi recidivism exception to the instant case. We hold that the Class X sentencing enhancement provision found in section 5 \u2014 5\u20143(c)(8) did not violate defendant\u2019s due process and trial by jury guaranteed by the Constitution of the United States. We further note that this court has also upheld the minimum age and other ancillary elements of section 5 \u2014 5\u20143(c)(8), finding that they are sufficiently intertwined with recidivism and distinct from the elements of the underlying offense to fall under the recidivism exception recognized in Apprendi. Jones, 322 Ill. App. 3d at 243 (sequence of the prior offenses and subject\u2019s age fall under recidivism exception); Dunn, 326 Ill. App. 3d at 289. For the reasons previously discussed, we reject defendant\u2019s argument that the State is required to submit to a jury and prove beyond a reasonable doubt defendant\u2019s age and prior convictions, and the timing, degree, number, and sequence of defendant\u2019s prior convictions.\nIMPOSITION OF CLASS X FELONY SENTENCE PURSUANT TO SECTION 5 \u2014 5\u20143(c)(8) DOES NOT VIOLATE THE ILLINOIS CONSTITUTION\nDefendant contends that the Class X sentencing enhancement provision under section 5 \u2014 5\u20143(c)(8) violates the right to trial by jury guaranteed by the Illinois Constitution. Defendant relies upon article I, section 13, which provides that \u201c[t]he right of trial by jury as heretofore enjoyed shall remain inviolate.\u201d Ill. Const. 1970, art. I, \u00a7 13. The Illinois Constitution of 1870 contains the same provision. Ill. Const. 1870, art. I, \u00a7 5. The Illinois Constitutions of 1818 (Ill. Const. 1818, art. VIII, \u00a7 6) and 1848 (Ill. Const. 1848, art. XII, \u00a7 6) contain the same provision without the phrase \u201cas heretofore enjoyed.\u201d\nWe note that the right to trial by jury is not defined in any of these provisions; however, the meaning of these similar provisions was explained in Sinopoli v. Chicago Rys. Co., 316 Ill. 609, 616 (1925), as follows:\n\u201cThe right of trial by jury is not defined in either constitution. The provision in each means the same thing, which is the right of trial by jury as it existed at common law and was enjoyed at the adoption of the respective constitutions.\u201d Sinopoli, 316 Ill. at 616.\nAs recently articulated by the appellate court in People v. Pittman, 326 Ill. App. 3d 297, 300 (2001), the right provided by article I, section 13, of the Illinois Constitution of 1970 is \u201c \u2018the common law right to jury trial as enjoyed at the time of the adoption of the 1970 Constitution.\u2019 \u201d (Emphasis omitted.) Pittman, 326 Ill. App. 3d at 300, quoting People ex rel. Daley v. Joyce, 126 Ill. 2d 209, 215 (1988). Pittman addressed whether imposition of an extended-term sentence pursuant to sections 5 \u2014 5\u20143.2(b)(1) and 5 \u2014 8\u20142 violated defendant\u2019s right to a jury trial under the Illinois Constitution. Although section 5 \u2014 5\u2014 3(c)(8) is at issue in the instant case, we find Pittman instructive. Defendant recognized that Pittman indicated that the rule that a prior conviction used to enhance a sentence should be alleged in the indictment is a rule that could be altered by statute. Pittman, 326 Ill. App. 3d at 301.\nWe note that in addressing whether sentencing enhancement violated the Illinois Constitution, the Pittman court noted language in People v. Long, 4 Ill. 2d 598, 603 (1955), stating that \u201c \u2018[ujnless controlled by statute,\u2019 it is the general rule that a prior conviction used to enhance the defendant\u2019s sentence must be alleged in the indictment.\u201d Pittman, 326 Ill. App. 3d at 301, quoting Long, 4 Ill. 2d at 603-04. The Pittman court reasoned, however, that the phrase \u201cunless controlled by statute\u201d suggested that in Illinois this rule could be altered by statute and is not constitutionally based. Pittman, 326 Ill. App. 3d at 301, citing Long, 4 Ill. 2d at 603. Defendant argues that Pittman\u2019s reasoning is wrong in that \u201cthis particular common law principle cannot be superseded by statute because, as previously mentioned, the Illinois Constitution protects it from hostile legislation.\u201d\nIn support of this argument, defendant relies on People v. Boykin, 298 Ill. 11, 21 (1921), which recognized that \u201c[ejvery fact necessary to sustain a sentence imposed by a court in a criminal case must be alleged in the information or in the indictment, and an indictment under which it is sought to impose a higher penalty by reason of a previous conviction must allege the fact of such conviction.\u201d Boykin, 298 Ill. at 21. That same argument was rejected in Pittman, where the court noted that while Boykin required prior convictions to be pled in the information and proved at trial, the decision was not based on any provision of the Illinois Constitution. Pittman, 326 Ill. App. 3d at 301.\nPittman further reasoned as follows:\n\u201cDespite the fact that substantive differences exist between the federal and Illinois constitutional provisions providing the right to a jury trial, we find persuasive the United States Supreme Court\u2019s reasoning in carving out an exception whereby prior convictions used to enhance a sentence need not be proven beyond a reasonable doubt b\u00e9fore a jury. The Apprendi Court noted that a defendant\u2019s prior conviction does not relate to the commission of the offense with which he stands charged and that the prior conviction is the result of proceedings in which the defendant had the right to a trial by jury and the State was required to establish his guilt beyond a reasonable doubt. Apprendi, 530 U. S. at 496, 147 L. Ed. 2d at 458-59, 120 S. Ct. at 2366. We find that these safeguards \u2018mitigate constitutional concerns regarding defendant\u2019s due process rights and jury trial guarantees.\u2019 People v. Lathon, 317 Ill. App. 3d 573, 587, 740 N.E.2d 377 (2000).\u201d Pittman, 326 Ill. App. 3d at 301.\nWe note that Pittman was appealed to the Illinois Supreme Court, and that appeal was denied; we further note that the United States Supreme Court also denied certiorari. Pittman, 326 Ill. App. 3d at 297, appeal denied, 198 Ill. 2d 628 (2002), cert, denied sub nom. Pittman v. Illinois, 537 U.S. 895, 154 L. Ed. 2d 163, 123 S. Ct. 180 (2002). We find Justice Hofffman\u2019s reasoning in Pittman to be sound and elect to follow it in the instant case. See also Dixon, 319 Ill. App. 3d at 886 (finding no reason \u201cwhy this court should construe due process guarantees of this state\u2019s constitution more broadly than Apprendi interpreted due process under the United States Constitution\u201d); Jones, 322 Ill. App. 3d at 243. Increasing a sentence based on prior convictions does not violate the defendant\u2019s right to a jury trial pursuant to the Illinois Constitution. Pittman, 326 Ill. App. at 301. We hold that the Class X sentencing enhancement provision found in section 5 \u2014 5\u20143(c)(8) of the statute controls and does not violate the defendant\u2019s right to a jury trial pursuant to the Illinois Constitution.\nCONCLUSION\nThe defendant\u2019s prior convictions were the result of proceedings satisfying due process. Defendant did not challenge the accuracy of the previous convictions relied upon by the trial judge in imposing the enhanced nine-year Class X felony sentence pursuant to section 5 \u2014 5\u20143(c)(8) of the Code. Regarding defendant\u2019s prior convictions, six were for armed robbery, two for aggravated robbery and one for attempted robbery. The record reflects that defendant pled guilty to several of the armed robbery charges that were used in aggravation to enhance his sentence in the instant case. In 1989 he pled guilty to five armed robbery charges and was sentenced to nine years concurrent in the Illinois state penitentiary. He was paroled on July 6, 1992. On March 12, 1993, defendant pled guilty to attempted robbery and was sentenced to 30 months\u2019 probation. On October 27, 1994, his probation was violated and he was sentenced to five years in the Illinois state penitentiary. On October 28, 1994, he was sentenced to 10 years concurrent on two aggravated robbery charges and one armed robbery charge. Defendant was paroled on October 1, 1999. Fifteen months later, on January 10, 2001, the attempted aggravated robbery occurred in the instant case. The prior convictions are the result of proceedings in which the defendant had the right to a trial by jury and the State was required to establish his guilt beyond a reasonable doubt. These safeguards mitigate concerns regarding the defendant\u2019s due process rights and jury trial guarantees under the United States Constitution and the Illinois Constitution.\nFor the reasons previously discussed, we hold that the Class X sentencing enhancement provision of section 5 \u2014 5\u20143(c)(8) does not violate the defendant\u2019s right to due process and trial by jury as guaranteed by the Constitution of the United States. We hold that the Class X sentencing enhancement provision of section 5 \u2014 5\u20143(c)(8) does not violate the defendant\u2019s right to trial by jury as guaranteed by the Illinois Constitution.\nAffirmed.\nO\u2019BRIEN, EJ., and GALLAGHER, J., concur.", "type": "majority", "author": "JUSTICE O\u2019MARA FROSSARD" } ], "attorneys": [ "Michael J. Pelletier and Adolfo Mondragon, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb and Alan J. Spellberg, Assistant State\u2019s Attorney, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE SMITH, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1 \u2014 01\u20144468\nOpinion filed April 18, 2003.\nMichael J. Pelletier and Adolfo Mondragon, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb and Alan J. Spellberg, Assistant State\u2019s Attorney, of counsel), for the People." }, "file_name": "0555-01", "first_page_order": 573, "last_page_order": 582 }