{
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  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT SMITH, Defendant-Appellant",
  "name_abbreviation": "People v. Smith",
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  "casebody": {
    "judges": [
      "HUTCHINSON, RJ., and KAPALA, J., concur."
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    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT SMITH, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE GROMETER\ndelivered the opinion of the court:\nDefendant, Vincent Smith, pleaded guilty to forgery (720 ILCS 5/17 \u2014 3(a)(2) (West 2000)) and was sentenced to probation. The circuit court revoked his probation and sentenced him to an extended term of six years\u2019 imprisonment. Defendant appeals, contending that the trial court erroneously gave him an extended-term sentence without finding beyond a reasonable doubt the existence of an aggravating factor. We affirm.\nOn October 4, 2000, defendant entered an open guilty plea to one count of forgery. Before accepting the plea, the trial court gave defendant the required admonishments, including admonishing him that he could be eligible for an extended-term prison sentence.\nAt the sentencing hearing, the prosecutor argued that defendant had previously been sentenced to prison for aggravated battery, attempted arson, and delivery of a controlled substance. He also had been convicted of aggravated assault in Mississippi and sentenced to 2% years in prison. The State asked the court to sentence defendant to an extended term of six years\u2019 imprisonment.\nDefense counsel, Neil Levine, asked the court to sentence defendant to probation. Conceding that it was an \u201codd request,\u201d Levine noted that defendant had been sent to prison three times but had never been on probation. Levine cited defendant\u2019s employment history and drug addiction and asked the court to give defendant a chance at probation. The court sentenced defendant to 30 months\u2019 probation, but warned him that \u201c[i]f you mess up and don\u2019t go to probation or commit another offense, you\u2019re going to the penitentiary.\u201d\nOn January 7, 2002, the State petitioned to revoke defendant\u2019s probation. The State later filed a superceding petition to revoke and defendant stipulated to its contents. The court asked if defendant was eligible for an extended-term sentence and Levine said that he was. Based on defendant\u2019s stipulation, the court found that defendant had violated his probation and continued the cause for sentencing.\nAt the sentencing hearing, the court asked Levine if he had any additions or corrections to the presentence report. Levine stated that an attempted aggravated arson conviction shown in the report was actually a conviction of attempted arson. Levine also discussed two failures to report to probation listed in the report. He argued that defendant was in the Cook County jail on the second date. Levine said, \u201cThose are the only errors that I am aware of.\u201d Following arguments, the court sentenced defendant to six years\u2019 imprisonment. Defendant filed a pro se notice of appeal on June 3, 2002.\nOn June 5, 2002, Levine filed a motion to reconsider the sentence. Defendant filed a pro se postconviction petition and a pro se motion to reduce the sentence. Levine moved to dismiss the June 3 notice of appeal. On June 25, 2002, the court granted the motion to dismiss the notice of appeal, denied the motion to reconsider the sentence, and dismissed the postconviction petition. Defendant filed a timely notice of appeal.\nDefendant contends that in sentencing him to an extended term, the trial court failed to comply with section 5 \u2014 8\u20142(a) of the Unified Code of Corrections (730 ILCS 5/5 \u2014 8\u20142(a) (West 2000)). The version of that section that applied at the time of the sentencing hearing provided in relevant part that a trial court shall not impose an extended-term sentence \u201cunless the factors in aggravation set forth in paragraph (b) of Section 5 \u2014 5\u20143.2 were found to be present. Where a trier of fact finds beyond a reasonable doubt that such factors were present,\u201d the court may impose a sentence within the extended range. 730 ILCS 5/5 \u2014 8\u20142(a) (West 2000). One of the aggravating factors specified in section 5 \u2014 5\u20143.2(b)(1) is that the defendant was convicted of any felony \u201cafter having been previously convicted in Illinois or any other jurisdiction of the same or similar class felony or greater class felony, when such conviction has occurred within 10 years after the previous conviction.\u201d 730 ILCS 5/5 \u2014 5\u20143.2(b)(1) (West 2000). Defendant contends that his extended-term sentence is invalid because the trial court did not find the existence of the aggravating factor beyond a reasonable doubt as the statute required.\nThe applicable version of section 5 \u2014 8\u20142(a) was enacted in response to the Supreme Court\u2019s decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Apprendi holds that, \u201c[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury[ ] and proved beyond a reasonable doubt.\u201d Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Thus, although Apprendi expressly excluded from its reach extended-term sentences based on recidivism, the applicable version of section 5 \u2014 8\u20142 at issue here did not embody this exception.\nWe note that the legislature then amended section 5 \u2014 8\u20142(a) again. Pub. Act 92 \u2014 591, \u00a7 5, eff. June 27, 2002. The latest version of section 5 \u2014 8\u20142(a) provides that the court may impose an extended-term sentence \u201c[i]f the pre-trial and trial proceedings were conducted in compliance with subsection (c \u2014 5) of Section 111 \u2014 3 of the Code of Criminal Procedure of 1963.\u201d 730 ILCS 5/5 \u2014 8\u20142(a) (West 2002). Section 111 \u2014 3(c\u20145) provides for the procedural safeguards Apprendi requires where the prosecution seeks to use a fact to increase the range of penalties for the offense beyond the normal statutory maximum. 725 ILCS 5/111 \u2014 3(o\u20145) (West 2002). However, in accordance with Apprendi\u2019s recidivism exception, the statute expressly excludes \u201cthe fact of a prior conviction\u201d from its scope. 725 ILCS 5/111 \u2014 3(c\u20145) (West 2002).\nInitially, we note that defendant waived this argument because he did not raise it in the trial court. See People v. Enoch, 122 Ill. 2d 176, 188 (1988). When asked, Levine conceded that defendant was eligible for an extended-term sentence. Defendant never argued that the court had to find beyond a reasonable doubt that he was eligible for extended-term sentencing. His postsentencing motion does not raise the issue either. Although defendant\u2019s postconviction petition mentions Apprendi, he concedes on appeal that Apprendi does not apply because of its recidivism exception. This is a particularly appropriate case to apply waiver, because it is apparent that the trial court could easily have addressed defendant\u2019s concerns \u2014 i.e., by specifying the standard of proof it was applying \u2014 had defendant raised the issue there.\nEven if we overlooked the waiver here, defendant\u2019s argument would still be without merit. The First District recently rejected the same argument defendant now makes. The court held that the omission of the recidivism exception from the earlier version of section 5 \u2014 8\u20142(a) was a legislative oversight. People v. Askew, 341 Ill. App. 3d 548, 554 (2003). The court held that section 111 \u2014 3(c\u20145), which expressly excludes prior convictions, conflicted with the then-extant version of section 5 \u2014 8\u20142(a), and the court had to resolve the ambiguity by discerning the legislature\u2019s true intention. Given the statute\u2019s obvious purpose to codify the Apprendi holding, the court concluded that the recidivism exception should be read into section 5 \u2014 8\u20142(a). Askew, 341 Ill. App. 3d at 554. The court also cited the subsequent amendment to section 5 \u2014 8\u20142(a) as evidencing the legislature\u2019s actual intention to exclude recidivism from the requirement that enhancing factors be proved beyond a reasonable doubt.\nWe agree with Askew\u2019s analysis. The legislature amended section 5 \u2014 8\u20142(a) to codify Apprendi, which expressly excludes prior convictions from its rule. Section 111 \u2014 3(c\u20145) of the Code of Criminal Procedure expressly incorporates the recidivism exception. The legislature quickly amended section 5 \u2014 8\u20142(a) to include the exception there as well. Under these circumstances, it would be anomalous to hold that the legislature intended to exclude the recidivism exception from section 5 \u2014 8\u20142(a).\nThe judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nHUTCHINSON, RJ., and KAPALA, J., concur.",
        "type": "majority",
        "author": "JUSTICE GROMETER"
      }
    ],
    "attorneys": [
      "G. Joseph Weller and Darren E. Miller, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.",
      "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Martin P Moltz and Diane L. Campbell, both 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. VINCENT SMITH, Defendant-Appellant.\nSecond District\nNo. 2\u201402\u20140655\nOpinion filed October 23, 2003.\nG. Joseph Weller and Darren E. Miller, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Martin P Moltz and Diane L. Campbell, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0613-01",
  "first_page_order": 631,
  "last_page_order": 634
}