{ "id": 5606652, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS BUTLER, Defendant-Appellant", "name_abbreviation": "People v. Butler", "decision_date": "1979-11-16", "docket_number": "No. 79-92", "first_page": "809", "last_page": "820", "citations": [ { "type": "official", "cite": "78 Ill. App. 3d 809" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "279 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill. 2d 196", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2912609 ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0196-01" ] }, { "cite": "242 N.E.2d 258", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. 2d 297", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853523 ], "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0297-01" ] }, { "cite": "385 N.E.2d 175", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "67 Ill. App. 3d 620", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3312001 ], "pin_cites": [ { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/67/0620-01" ] }, { "cite": "75 S. Ct. 895", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "99 L. Ed. 1285", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "349 U.S. 963", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11370404, 11370468, 11370633, 11370185, 11370123, 11370700, 11370319, 11370546, 11370044 ], "opinion_index": 0, "case_paths": [ "/us/349/0963-05", "/us/349/0963-06", "/us/349/0963-08", "/us/349/0963-03", "/us/349/0963-02", "/us/349/0963-09", "/us/349/0963-04", "/us/349/0963-07", "/us/349/0963-01" ] }, { "cite": "125 N.E.2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "5 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2704003 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ill-2d/5/0384-01" ] }, { "cite": "394 N.E.2d 90", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 1009", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3272299 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/1009-01" ] }, { "cite": "46 N.E.2d 929", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "382 Ill. 213", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2478877 ], "pin_cites": [ { "page": "215-16" } ], "opinion_index": 0, "case_paths": [ "/ill/382/0213-01" ] }, { "cite": "389 N.E.2d 670", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 267", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5581330 ], "weight": 2, "pin_cites": [ { "page": "273" }, { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0267-01" ] }, { "cite": "357 N.E.2d 1180", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "65 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5434916 ], "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0366-01" ] }, { "cite": "66 Ill. B. J. 344", "category": "journals:journal", "reporter": "Ill. B.J.", "year": 1978, "pin_cites": [ { "page": "349" } ], "opinion_index": 0 }, { "cite": "128 N.E.2d 892", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill. 2d 346", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2707858 ], "weight": 2, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/6/0346-01" ] }, { "cite": "87 S. Ct. 872", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "17 L. Ed. 2d 800", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "386 U.S. 929", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6229696, 6230305, 6229101, 6229422, 6230014 ], "opinion_index": 0, "case_paths": [ "/us/386/0929-03", "/us/386/0929-05", "/us/386/0929-01", "/us/386/0929-02", "/us/386/0929-04" ] }, { "cite": "213 N.E.2d 542", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "34 Ill. 2d 16", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2881100 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "19" }, { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0016-01" ] }, { "cite": "221 N.E.2d 499", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "35 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5379341 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0520-01" ] } ], "analysis": { "cardinality": 1120, "char_count": 29305, "ocr_confidence": 0.911, "pagerank": { "raw": 3.0191754856426174e-07, "percentile": 0.8537677293154929 }, "sha256": "9dc7b5ac7f4bec5d3555b3158780f5778c5f035f721635a8eba37bb4c974d8b3", "simhash": "1:efb694be122e95bc", "word_count": 4945 }, "last_updated": "2023-07-14T14:30:08.757403+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. THOMAS BUTLER, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE HARRISON\ndelivered the opinion of the court:\nDefendant pleaded guilty to armed robbery and was sentenced to 60 years\u2019 imprisonment. He appeals, contending (1) that the information filed should have charged him with extended-term armed robbery, (2) the trial court erroneously applied the extended-arm statute, and (3) the sentence was excessive. We affirm.\nDefendant was charged by information on February 3, 1978, and by amended information on April 12, 1978, with armed robbery and other offenses. On March 3, 1978, defendant initially entered his plea of not guilty and requested a jury trial. But pursuant to a plea negotiation, he subsequently entered a plea of guilty to the armed robbery charge alone. At that plea proceeding on May 23,1978, the trial court gave the Supreme Court Rule 402 admonitions, explained the charge and outlined the penalty alternatives, including mandatory supervised release and extended sentencing terms. The State presented the factual basis for the charge, which included the use of a pistol, all of which defendant acknowledged. The trial court found that defendant knowingly and understandingly waived his right to a jury trial and entered a plea of guilty which was accepted by the court. A presentence report was ordered.\nThe report showed defendant to be 62 years of age with a long criminal record dating back to 1932. That record reflects the following: A conviction for burglary and theft in 1932, with a sentence of one year to life; release on parole in 1934; reincarceration four times for parole violations; conviction of two counts of robbery in 1944, with a sentence of five years to life; a parole violation in 1948; convictions for burglary, theft and kidnapping in 1951, with a sentence of 5 years to life; twice reincarcerated for parole violations; conviction for escape in 1961, with a sentence of six months; a conviction for burglary and theft in 1962, with a sentence of 10 years to life; reincarcerated for parole violation for 10 years to life; a conviction for armed robbery in 1972, with a sentence of 8 to 30 years; and on parole for the last offense at the time of the armed robbery in question. Based on this record the State, at the June 19,1978, sentencing hearing, argued for the maximum 60-year sentence under the extended-term statute. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 \u2014 8\u20142(a)(2).) The defendant presented two witnesses in mitigation who testified to the effect that he was remorseful, had recently acknowledged his problem with alcohol, and should be given a sentence that offered some hope for eventual release. The trial court held that the 1972 armed robbery conviction made defendant eligible for an extended term, and in light of his lengthy record, defendant was sentenced to 60 years\u2019 imprisonment.\nA motion to withdraw the plea of guilty and vacate the judgment was filed, and later amended, alleging that the sentence imposed was excessive and the extended-term statute was erroneously applied. The trial court denied the motion and defendant appeals.\nAppellant first contends that the amended information charging him with armed robbery failed to set forth the necessary factors in aggravation, i.e., the 1972 armed robbery conviction, under which the court could sentence him to an extended prison term and that, therefore, the sentence imposed must be vacated. Those factors in aggravation which can be considered by the trial court are as follows:\n\u201c(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts; or\n(2) When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.\u201d (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 \u2014 5\u20143.2(b).)\nIf those factors are found to exist, the extended-term statute then becomes operative at the discretion of the trial court, to-wit:\n\u201c(a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 \u2014 8\u20141 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 \u2014 5\u20143.2 were found to be present. Where the judge finds that such factors were present, he may sentence an offender to the following:\n(2) for a Class X felony, a term shall be not less than 30 years and not more than 60 years.\u201d Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 \u2014 8\u20142(a).\nThe aggravating factors by the terms of the statutes themselves are relevant only in regard to sentencing. They are not necessary elements proof of which is required to find appellant guilty of the crime in the first place. He was charged and convicted under section 18 \u2014 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 18 \u2014 2(a)), the elements of which are taking property from the person or presence of another by the use of force or by threatening the imminent use of force while carrying or otherwise armed with a dangerous weapon. That statute under subparagraph (b) states that the sentence to be imposed for armed robbery shall be in accordance with Class X felonies. And under section 5 \u2014 8\u20142(a) and section 5 \u2014 5\u20143.2(b) (1), any prior conviction for the same or greater class felony is only a basis to impose an extended-term sentence. Appellant was not charged with, nor could he be, extended-term armed robbery. No such offense exists. He was charged with armed robbery. The extended-term statute is operative only at the sentencing level, and not at the indictment level.\nAppellant cites the Illinois Supreme Court cases of People v. Ostrand (1966), 35 Ill. 2d 520, 221 N.E.2d 499, and People v. Booker (1966), 34 Ill. 2d 16, 213 N.E.2d 542, cert. denied (1967), 386 U.S. 929, 17 L. Ed. 2d 800, 87 S. Ct. 872, for the proposition that since his 1972 armed robbery conviction raised the possibility of increased punishment, it was an element of the present offense which needed to be alleged in the information. Ostrand does not come close to appellant\u2019s hypothesis. There the defendant was charged in a separate count of an indictment with a prior felony because he was being prosecuted under a statute which made carrying a concealed weapon by one with a previous felony conviction a felony rather than a misdemeanor. The court there was correct in holding that the prior conviction had to be alleged in the indictment \u201cin order to prove defendant\u2019s commission of the felony of carrying a concealed weapon.\u201d (35 Ill. 2d 520, 529.) The statute mandated such an allegation in order to prove the charge. Such is not the case here. Appellant\u2019s 1972 armed robbery conviction was not a necessary allegation or element to be proved in order to convict him of the armed robbery here at issue. As noted above, only after it was determined that he was guilty of the present offense was his prior conviction relevant. And it was relevant only with respect to the sentence he received, and not his guilt or innocence in the first place.\nBooker involved a habitual criminal statute which mandated increased punishment if the defendant was twice or more convicted of any of a number of certain crimes. Such sentencing if a second conviction was found was not discretionary with the trial court, as in the present case, but mandatory. It is true, as appellant points out, that \u201cthe Habitual Criminal Act did not create a new crime requiring a separate indictment but, to the contrary, merely increased the punishment for subsequent offenses, and placed the burden upon the State to charge and prove the prior conviction as a part of the subsequent trial.\u201d (34 Ill. 2d 16, 19.) But appellant herein neglects to realize the importance of the sentence following the above quote: \u201cSuch proof thereby became an issue in the case, just as motive or intent \u00b0 * (Emphasis added.) (34 Ill. 2d 16, 19.) The reason it was at issue was because the habitual criminal act required that \u201csuch former conviction, or convictions, and judgment or judgments shall be set forth in apt words in the indictment.\u201d (Emphasis added.) (Ill. Rev. Stat. 1955, ch. 38, par. 602.) Although not a separate crime, the prior conviction was in controversy in a cause tried under the habitual criminal act because of legislative mandate. However, no such legislative directive exists here.\nThat this interpretation is correct is borne out by the fact that the Booker court relied on People v. Lamphear (1955), 6 Ill. 2d 346, 128 N.E.2d 892, a case cited by appellant. There the court acknowledged that the habitual criminal act did not create a new crime, but \u201c[r]ather , the statute fixes a mandatory punishment for the subsequent crimes of which defendant may be found guilty. Moreover, in directing that the former conviction be set forth in apt words in the [sic] indictment, the legislature showed it intended the fact of the prior conviction to be alleged in the indictment for which it is sought to administer the enhanced punishment.\u201d (Emphasis added.) (6 Ill. 2d 346, 350.) Thus it can be seen that neither Ostrand nor Booker st\u00e1nd for the general proposition that just because the potential for enhanced punishment exists, therefore such factor must be alleged in the indictment. On the contrary, those cases stand for the doctrine that when a statute mandates allegation and proof of a specific item, the State must so act.\nSuch is not the case here. While appellant argues that a prior conviction within the same or greater class felony must be alleged before an extended term can be imposed, it is clear that no such requirement exists in the statute. All of the aforesaid sections are encompassed within chapter V of the amended Unified Code of Corrections, entitled \u201cSentencing,\u201d and not title III of the revised Criminal Code of 1961, entitled \u201cSpecific Offenses.\u201d Furthermore, this is not a case of mandatory increased punishment as in Booker and Lamphear. Rather, the extended-term statute only gives the trial court discretion to sentence thereunder: \u201cWhere the judge finds that such factors were present, he may sentence an offender to the following [extended term].\u201d (Emphasis added.) (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 \u2014 8\u20142(a).) Such discretionary matters need not be charged in an information.\nMoreover, while the legislature does not require the allegation of a prior conviction in the information, it does by its own terms mandate the warning with which appellant herein is concerned.\n\u201cIf the conviction was by plea, it shall appear on the record that the plea was entered with the defendant\u2019s knowledge that a sentence under this Section was a possibility. If it does not so appear on the record, the defendant shall not be subject to such a sentence unless he is first given an opportunity to withdraw his plea without prejudice.\u201d (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005\u2014 8 \u2014 2(b).)\nNoteworthy, then, is the fact that appellant already received what he is now asking for. He acknowledges that he was admonished concerning the possibility of an extended prison term during the plea proceeding, and prior to his entering,a plea of guilty. The trial court therefore complied with the statute. Appellant was given the same warning which he now contends should have been placed in the information, and there was no error in the procedure followed.\nAppellant next contends that he could not be sentenced under the extended-term statute because he was not convicted of \u201cthe same or greater class felony, within 10 years,\u201d as required by section 5 \u2014 5\u2014 3.2(b)(1). As appellant notes, armed robbery was a class 1 felony in 1972 when he was previously convicted of this offense. However, effective February 1,1978, armed robbery became a class X felony, and that is the class felony of which appellant was previously convicted. Nothing in section 5 \u2014 5\u20143.2(b)(1) expressly indicates at what point in time the determination of the prior class felony is to be made. No Illinois case has come to our attention which has directly addressed this issue. Appellant argues that such determination is to be made at the time of each individual conviction, while the State counters that this resolution should be based on the class schedule operative on the effective date of the Revised Code of Corrections, February 1,1978. We find that a review of the Criminal Code of 1961, as amended by Public Act 80-1099, effective February 1, 1978, and particularly the amended Unified Code of Corrections, compels us to conclude that the legislature adopted the position suggested by the State.\nWe are here faced with two convictions for the same crime, armed robbery, both based on the same statutory elements, with the only difference being a time separation of six years. Effective February 1,1978, armed robbery as well as numerous other offenses were reclassified as Class X felonies with determinate, rather than indeterminate, sentences. Hence, the lapse of time between appellant\u2019s two convictions has only affected the possible sentences and not the requisite substantive components of the offense of armed robbery.\nBut beyond the initial conviction, the legislature envisioned additional sentences for repeat offenders. Based on the apparent shift in emphasis from rehabilitation to punishment as the controlling consideration in sentencing, the legislature adopted the extended-term statute, still premised on determinate sentences, but in accordance with its mandate toward \u201cpractices and procedures as will promote a uniformity and parity of sentences * 9 (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 \u2014 5\u20144.2.) The extended-term statute was designed to impose; in the trial court\u2019s discretion, a more severe penalty for an offender who repeats a felonious act \u201cof the same or greater class\u201d than his previous offense and conviction. Yet, this was still to be accomplished by a determinate sentence in \"order to equalize sentences imposed on recidivists for given crimes and classes of crimes.\nTherefore, if the equalization concept was to have any real effect as envisioned and constructed by the legislature, then an extended term had to be available against one who committed the exact same crime twice within the 10-year limitation period. The same crime is encompassed in \u201cthe same 9 9 9 class felony\u201d restriction of section 5 \u2014 5\u20143.2(b)(1) (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 \u2014 5\u20143.2(b)(1)), or else the extended-term statute is ineffectual with respect to the problem it was designed to immediately deal with, repetition of the same or worse crimes. If this were not true, appellant could not have received a sentence greater than for an initial armed robbery conviction under the amended Unified Code of Corrections, and the extended-term statute would serve no rational legislative purpose. We do not see the legislative alteration of the classification and punishment for the crime of armed robbery as pivotal in this case, for appellant was charged with the Class X felony of armed robbery, was admonished about the possible extended-term sentence, and therefore had knowledge of the substance of and potential punishment for the alleged crime prior to his voluntarily and understandingly entering his plea of guilty thereto. What is crucial in our view, however, is appellant\u2019s prior conviction for that same offense. For appellant to argue that an individual convicted in 1972 of armed robbery can now defy both the legislature and the courts by arguing that he really committed a different crime, because the classification names were distinctive, and that he should not be treated as a repeat offender for purposes of sentencing, simply because the sentences for the same crime differed at two relative points in time, is patently absurd as form over substance and contrary to the wording and intent of the legislature.\nWe are persuaded as to the correctness of this application because the legislature set forth no time strictures in the extended-term scheme. Section 5 \u2014 8\u20142(a) simply states that no extended term shall be imposed unless the aggravating factors of section 1005 \u2014 5\u20143.2(b) are found to exist. And the latter section specifies no point in time when the aggravating factors of \u201cthe same or greater class felony\u201d should be determined to exist. However, in other sections of the Unified Code of Corrections, where the legislature deemed it proper to impose limitations on sentencing, it explicitly did so. Section 5 \u2014 5\u20143(c)(6) (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 \u2014 5\u20143(c)(6)) 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 1 or Class 2 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\nSimilarly, the habitual criminal act, which establishes mandatory life sentences, contains such limiting language. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33B \u2014 1.) It is clear from this last statute, as well as the former, that \u201cthe prior convictions must have occurred in Illinois subsequent to the effective date of the new law. Therefore, it is unlikely that this provision will be utilized for several years.\u201d (Aspen, New Class X Sentencing Law: An Analysis, 66 Ill. B. J. 344, 349 (1978).) Yet, no such limitations are apparent in the extended-term system, and we decline appellant\u2019s invitation to adopt them on behalf of the legislature.\nAppellant contends that this interpretation violates the principles of statutory construction such that we are, in effect, rewriting the statute. Some of the canons of statutory interpretation, as noted by appellant, were aptly set forth in People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 369, 357 N.E.2d 1180:\n\u201cWhere the meaning of a statute is in dispute, the threshold task of a court is to examine the terms of the statute itself. 0 0 0 \u2018The cardinal rule of all statutory construction, to which other rules are subordinate, is that the true intent and meaning of the legislature must be ascertained and given effect. [Citation.] The language used in a statute is the primary source for determining this intent, and where that language is certain and unambiguous, the proper function of the courts is to enforce the statute as enacted.\u2019 \u201d\nBut as recognized by the Gibson court, the statute is not to be construed in a vacuum, but in conjunction with other related sections. Therefore, other principles of statutory construction dictate that \u201cthe reason for the new law and the evil to be remedied, as well as the objectives and purposes of the statute * 0 *\u201d may be considered. (People v. Choate (1979), 71 Ill. App. 3d 267, 273, 389 N.E.2d 670.) Only if it becomes obvious after such review that the statute is ambiguous does the age-old declaration that \u201cthe interpretation most favorable to the accused shall be adopted\u201d become operative. (People v. Lund (1943), 382 Ill. 213, 215-16, 46 N.E.2d 929.) However, we find no such ambiguity or inconsistency here, and based on the foregoing analysis, we conclude that the trial court did not err in resolving that the appellant\u2019s 1972 armed robbery conviction was one of the same class felony and sufficient to invoke the extended-term statute.\nAppellant further argues that both section 1005 \u2014 5\u20143.2(b) aggravating factors must be present before the extended-term statute applies. To reach that conclusion, he focuses on the language of the extended term statute, section 5 \u2014 8\u20142(a) (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 \u2014 8\u20142(a)), to the effect that \u201cunless the factors in aggravation\u201d are found to exist, an extended term cannot be imposed. (Emphasis added.) However, section 5 \u2014 5\u20143.2(b) (Ill. Rev. St\u00e1t., 1978 Supp., ch. 38, par. 1005 \u2014 5\u20143.2(b)) adopts that plural form in stating that \u201cthe following factors may be considered by the court as reasons to impose an extended term sentence \u00b0 # but goes on to list those considerations by using the disjunctive \u201cor.\u201d (Emphasis added.) This district recently ruled in People v. Lewis (1979), 75 Ill. App. 3d 1009, 394 N.E.2d 90, in compliance with People v. Vraniak (1955), 5 Ill. 2d 384, 125 N.E.2d 513, cert. denied (1955), 349 U.S. 963, 99 L. Ed. 1285, 75 S. Ct. 895, that the word \u201cor\u201d connotes statutory alternatives which are to be considered separately. Clearly, section 5 \u2014 5\u20143.2(b) permits a finding that either a prior conviction of the same class felony or exceptionally heinous behavior is sufficient to support an extended sentence. The Fourth Appellate District has also followed this interpretation. (People v. Warfel (1979), 67 Ill. App. 3d 620, 625, 385 N.E.2d 175.) Therefore, the trial court\u2019s singular finding that appellant was convicted within 10 years of sentencing of the same class felony was sufficient for an extended-term sentence to be imposed. There was no error.\nAppellant finally contends that the 60-year sentence he received was excessive and a clear abuse of discretion and requests this court to reduce his sentence to 20 years. He argues that under the 60-year term he will have to serve a minimum of 30 years before becoming eligible for release, that he will be 91 years of age at that time, and that therefore his sentence was the equivalent of a life sentence. If the requested 20-year term were imposed, he would be eligible for release at age 71. We decline to modify and reduce the sentence.\nAppellant argues that he received life imprisonment, and maintains that the only statutory authority for sentencing him to life imprisonment for armed robbery is the habitual criminal statute (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33B \u2014 1). That statute, of course, imposes a mandatory life sentence on those who qualify under its provisions. That statute is clearly not the basis for appellant\u2019s sentence.\nThe suggestion that appellant was sentenced to life simply because of his age is also without merit. He received a sentence of 60 years imprisonment, not life. What appellant contends, in effect, is that his age is such a predominant mitigating factor that his sentence should be reduced. While the Illinois Supreme Court authorized the consideration of age as one mitigating factor in People v. Adkins (168), 41 Ill. 2d 297, 301, 242 N.E.2d 258, it is only one factor to be considered. All factors in mitigation are to be considered simultaneously, not each independent of or to the exclusion of the others. (See Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005\u2014 5 \u2014 3.1.) In appellant\u2019s case, age appears to be more of an aggravating factor than a mitigating one. As the State correctly notes, it would be difficult to amass a more exhaustive criminal record than appellant\u2019s without living a long time. Contrary to his position, appellant\u2019s constant pursuit of criminal activity shows that his age is no barrier to recidivist criminality. That being the case, we disagree that appellant\u2019s age is cause to reduce his sentence, and we refuse to do so.\nAppellant further surmises that if he had murdered the victim rather than subjected him to armed robbery, the maximum sentence he could have received for the murder would have been less than that received below. Yet, we note that this implied equal protection argument is raised for the first time on appeal and it has, therefore, been waived. People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.\nAppellant suggests that if we consider certain factors, we must conclude that the sentence was excessive. We have already disposed of his age theory. It is impressed upon us that appellant\u2019s penitent attitude and problem with alcohol, which were raised via the testimony of two witnesses on his behalf at the sentencing hearing, are factors to be reckoned with. We note first of all that the trial court expressly considered these factors in passing sentence:\n\u201cThe two witnesses who did appear were observed and their testimony is considered. 4 4 \"We have had some remarks tending to indicate that Mr. Buffer was, at last, getting the grasp of helping other people and getting the grasp of doing a job [ambulance driver] that seemed to be sort of upbuilding in his character and outlook upon life . . . But it so happens that this Armed Robbery was committed at the end of that process. 0 * * [I]t doesn\u2019t seem to follow that that sort of way of life or that pattern of thinking to all at once get ahold of yourself and be going along for a period of time, and everything\u2019s going fine, and you\u2019re recognizing your need in society and recognizing that you have a place in society and then all at once you commit armed robbery.\u201d\nAlso, we note that appellant\u2019s alcohol problem was never really propounded as the cause of this act, other than appellant\u2019s statement in a letter to the trial court stating: \u201cThat all of my present and past misery has been the result of three small, but deadly, words: Too much booze.\u201d This does not persuade us that the trial court erred in imposing the sentence it did.\nAppellant argues that the \u201cnon-violent nature of the offense\u201d and \u201chis goal of rehabilitating himself while in prison\u201d should not be disregarded. Yet, it is clear that appellant used a pistol during the armed robbery, and threatened imminent harm upon the victim. This was a proper factor in aggravation under section 5 \u2014 5\u20143.2(a) (1) to be considered by the court, and it does not mitigate favorably toward reducing appellant\u2019s sentence. Likewise, appellant does not seriously contend that his sentence should be reduced because of his ambition toward rehabilitation. In light of his previous criminal record, we can but repeat the accurate expressions of the trial court:\n\u201cNow this defendant is not new in the Court Room, apparently. He has been there multiple times and before multiple hearing officers or Judges, with respect to parole violations. He knows what a hearing is. * \u00b0 * There seems to be no other route that this Court can take under the law. His history of criminal activity is rather robust. It is not too complimentary. * * * I\u2019m sure he is aware of that.\n# \u00bb #\nI certainly do not like to be a person who takes away from any person the hope that we might have better things in the future. It\u2019s bad, I presume, to have to take away from a person the hope of immediate release from Prison. But, from what is before this Court, we have a man who apparently [sic] is endowed with much intelligence; who has great ability; but, he also is endowed with a bent in his personality and character that causes him not to be considerate of those who have. Perhaps it is the have and have not. It is compelling upon this Court that to prevent this man, if it\u2019s possible, from ever committing another armed robbery. And I can\u2019t argue with the parole authorities, who have released this man to society; but, apparently [sic], he was released at a time when he was not ready. Our society does not need to be hammered at by people who use deadly weapons e e e. It\u2019s the opinion of this Court, with the history that this defendant has and I\u2019m not unmindful that I\u2019m sending an individual to Prison, an individual who is maybe to a certain extent, going to waste away his talent. It\u2019s a waste. It\u2019s a waste, but it occurs every time anybody commits a crime, something is wasted. It is the opinion of this Court that this extended term should apply, if ever it should apply I think it should apply in this case. 600 [S]o I am going to sentence you, Mr. Butler, for sixty years to The Department of Corrections. * * * [A]s far as this Court\u2019s concerned I think you should be away from society and that\u2019s where you\u2019re going.\u201d\nBased on the circumstances of this case and a review of the entire record, we do not believe that the sentence imposed was an abuse of the trial court\u2019s discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) Nor do we believe that appellant has made the necessary affirmative showing that the sentence was erroneous in his particular situation. (People v. Choate, 71 Ill. App. 3d 267, 274.) On the contrary, we can only conclude that appellant\u2019s intense criminal temperament called for the strong and swift disposition imposed by the trial court.\nFor all the foregoing reasons, the judgment of the circuit court of Williamson County is affirmed.\nJudgment affirmed.\nJONES, P. J., and KASSERMAN, J., concur.", "type": "majority", "author": "Mr. JUSTICE HARRISON" } ], "attorneys": [ "John H. Reid and Daniel M. Kirwan, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Robert H. Howerton, State\u2019s Attorney, of Marion (Raymond F. Buckley, Jr., and Stephen J. Maassen, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS BUTLER, Defendant-Appellant.\nFifth District\nNo. 79-92\nOpinion filed November 16, 1979.\nJohn H. Reid and Daniel M. Kirwan, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nRobert H. Howerton, State\u2019s Attorney, of Marion (Raymond F. Buckley, Jr., and Stephen J. Maassen, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0809-01", "first_page_order": 831, "last_page_order": 842 }