FOURTH DIVISION

									Filed: 12/1113./01

1-00-2224

THE PEOPLE OF THE STATE OF ILLINOIS			)  Appeal from the

									)  Circuit Court of

	Plaintiff-Appellee,						)  Cook County

									)

		v.							)			 									)

MICHAEL PITTMAN,						)  Honorable

									)  John J. Wasilewski,

	Defendant-Appellant,						)  Judge Presiding.

	PRESIDING JUSTICE HOFFMAN delivered the modified opinion of the court on denial of

rehearing:

	Following a jury trial, the defendant, Michael Pittman, was convicted of two counts of armed

robbery.  The trial court imposed concurrent extended term sentences of 50 years.   This court

affirmed the defendant's convictions and sentences on direct appeal.  People v. Pittman, 126 Ill. App. 3d 586, 467 N.E.2d 918 (1984).  On May 1, 2000, the defendant filed a pro se petition1 seeking post- conviction or habeas corpus relief in which he raised several allegations not at issue in the instant appeal.  On June 9, 2000, the trial court summarily dismissed the defendant's petition, finding that the post-conviction petition was frivolous and patently without merit and that the habeas corpus petition also lacked merit.  The defendant appeals from that dismissal order.

	On appeal, the defendant has abandoned the substantive claims raised in his pro se petition of May 1, 2000.  Instead he argues that he is entitled to post-conviction and habeas corpus relief because sections 1005--5--3.2(b)(1) and 1005--8--2 of the Unified Code of Corrections (Code) (Ill.

Rev. Stat. 1981, ch. 38, par. 1005--5-3.2(b)(1), par. 1005--8--2), pursuant to which his extended

term sentences were imposed, violate the United States and Illinois constitutions in that they, when

applied in conjunction, permit the imposition of a sentence beyond the statutorily prescribed

maximum upon the finding of facts not submitted to the jury for proof beyond a reasonable doubt. 

In support of his argument, the defendant relies on Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000), where the United States Supreme Court held

that, under the due process clause and the jury trial guarantee of the United States Constitution,

"[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

statutory maximum must be submitted to a jury and proved beyond a reasonable doubt."  We need

not resolve the parties' dispute as to whether the rule announced in Apprendi applies in collateral proceedings because the sentencing provisions at issue do not violate either the United States or

Illinois constitutions.

	Sections 1005--5--3.2(b)(1) and 1005--8--2, applied in conjunction, authorized the imposition

of an extended term sentence where a defendant was convicted of a felony after having been

convicted of the same or greater class felony in Illinois within the previous 10 years upon charges

separately brought and tried.  Ill. Rev. Stat. 1981, ch. 38, par. 1005--5--3.2(b)(1), par. 1005--8--2.  As stated above, the Apprendi court clearly exempted prior convictions from the category of sentence enhancing facts which must be submitted to a jury for proof beyond a reasonable doubt.  Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.  For this reason, this court has already

rejected, on a number of occasions, the argument that sections 5--5--3.2(b)(1) and 5--8--22 (730 ILCS 5/5--5--3.2(b)(1), 5--8--2 (West 1998)), the current codifications of section 1005--5--3.2(b)(1)

and 1005--8--2, applied in conjunction, violate the United States Constitution. See People v. Landrum, 323 Ill. App. 3d 664, 666-67, 755 N.E.2d 18  (2001); People v. Garry, 323 Ill. App. 3d 292, 300-01, 752 N.E.2d 1244 (2001); People v. Childress, 321 Ill. App. 3d 13, 26-27, 746 N.E.2d 783 (2001).   We find no need to analyze the issue further and again reject the argument.

	The defendant also argues, however, that the imposition of an extended term sentence

pursuant to sections 1005--5--3.2(b)(1) and 1005--8--2 violated his right to a jury trial under the

Illinois constitution.  We disagree.

	Illinois courts generally, though not in all circumstances, apply United States Supreme Court

decisions interpreting Federal constitutional provisions when interpreting similar provisions contained in the Illinois constitution.  People v. Levin, 157 Ill. 2d 138, 159, 623 N.E.2d 317 (1993). In People ex rel. Daley v. Joyce, 126 Ill. 2d 209, 214, 533 N.E.2d 873 (1988), though, our supreme court held that "as to the jury trial issue, there is a difference in the language of our State constitution from that of the Federal Constitution, and the difference is one of substance and not merely one of form."

	The right to a trial by jury is discussed in two places in the Illinois constitution.  Article I,

section 8 provides that "[i]n criminal prosecutions, the accused shall have the right *** to have a

speedy public trial by an impartial jury of the county in which the offense is alleged to have been

committed."  Illinois Constitution 1970, art. I, §8.  The defendant in the instant case, however, relies

not upon that provision but upon article I, section 13, which provides that "[t]he right of trial by jury

as heretofore enjoyed shall remain inviolate."  Ill. Const. 1970, art. I, §13.  The Illinois Constitution

of 1870 contains this same language.  Ill. Const. 1870, art. I, §5.  The Illinois Constitutions of 1818

and 1848 both provide that the right of trial by jury shall remain inviolate but do not contain the "as

heretofore enjoyed language."  Ill. Const. 1818, art. 8, §6; Ill. Const.1848, art. 13, §6.  As our

supreme court explained in Sinopoli v. Chicago Rys. Co., 316 Ill. 609, 616, 147 N.E. 487 (1925), decided before the adoption of the 1970 Constitution:

	"The 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."

Accordingly, the right afforded by article I, section 13 of the Illinois Constitution of 1970 is "the

common law right to jury trial as enjoyed at the time of the adoption of the 1970 constitution".  Joyce, 126 Ill. 2d at 215.  Speaking of this common law right to a jury trial which is embodied in our constitution, our supreme court has held that:

	"[t]he essential thing in the right of trial by jury is the right to have the facts in

controversy determined under the direction and superintendence of a judge by twelve impartial jurors having the qualifications and selected in the manner required by law,

whose verdict must be unanimous and shall be conclusive, subject to the right of the

judge to set it aside, if in his opinion it is against the law or the evidence and to grant

a new trial."  Sinopoli, 316 Ill. at 619-20.

	The defendant argues that the existence of a prior conviction, when it is to be used to enhance

a sentence,  is a fact in controversy which must be decided by a jury.  In support of his contention,

the defendant cites People v. Boykin, 298 Ill. 11, 131 N.E. 133 (1921) and People v. Long, 4 Ill. 2d 598, 123 N.E.2d 718 (1955).  In both Boykin and Long, our supreme court held that, where the State sought the imposition of an increased penalty on the basis of a prior conviction, the prior conviction

had to be pled in the information and proved at trial.  Boykin, 298 Ill. 2d at 21; Long, 4 Ill. 2d at 603- 04.

	Boykin is factually distinguishable from the instant case.  In Boykin, the statute defining the offense with which the defendant was charged provided that a first offense was a misdemeanor while

a second offense was a felony.  Boykin, 298 Ill. at 17-21.  Such a statute, which elevates the class of an offense from a misdemeanor to a felony, is distinguishable from the statutory provisions at issue

here, which merely enhance the sentence on a felony offense.  See People v. Palmer, 104 Ill. 2d 340, 348, 472 N.E.2d 795 (1984).

	In  Long, the court rejected the defendant's argument that he was denied a fair trial because the State, which sought to enhance his sentence based upon a prior conviction, alleged the prior

conviction in the indictment and introduced evidence of the conviction at trial.  Citing Boykin, the court held the State was required to do so in order to seek the enhanced sentence.  Long, 4 Ill. 2d at 603-04.  However, neither the Boykin court nor the Long court cited the Illinois constitution in general or the jury trial guarantee of article I, section 13 specifically as the source of this rule. 

Furthermore, the Long court stated that "[u]nless controlled by statute," it is the general rule that a prior conviction used to enhance the defendant's sentence must be alleged in the indictment.  Long, 4 Ill. 2d at 603.  Such language suggests the rule could be altered by statute and it is not constitutionally

based.

	Despite 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's reasoning in carving out an exception whereby prior convictions used to enhance

a sentence need not be proven beyond a reasonable doubt before a jury.  The Apprendi court noted that a defendant's 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 457-58, 120 S. Ct. at 2366.  We find that these safeguards "mitigate constitutional concerns regarding defendant's due process rights and jury trial

guarantees."  People v. Lathon, 317 Ill. App. 3d 573, 587, 740 N.E.2d 377 (2000).  Notably, this court, citing such safeguards, has already rejected the argument that section 5--5--3(c)(8) of the

Code, which mandates the imposition of a Class X sentence for a Class 1 or 2 felony based upon prior

convictions under certain circumstances, violates a defendant's due process rights under the Illinois

constitution.  People v. Dixon, 319 Ill. App. 3d 881, 886, 747 N.E.2d 1 (2001); see also People v. Jones, 322 Ill. App. 3d 236, 243, 749 N.E.2d 466 (2001).   For these reasons, we conclude that the imposition of concurrent extended term sentences did not violate the defendant's right to a jury trial

pursuant to the Illinois constitution.

	As the defendant's claims with regard to his extended term sentences lack merit, and because

he has raised no other arguments addressing the propriety of the dismissal of his petition for post-

conviction or habeas corpus relief, we affirm the judgment of the circuit court.

	Affirmed. 

	HARTMAN and THEIS, JJ., concur.	HARTMAN and THEIS, JJ., concur.