No. 3--99--0919

_________________________________________________________________

							IN THE

							APPELLATE COURT OF ILLINOIS

							THIRD DISTRICT

							A.D., 2001

THE PEOPLE OF THE STATE 			)	Appeal from the Circuit Court

OF ILLINOIS,					)	of the 12th Judicial Circuit,

							)	Will County, Illinois

	Plaintiff-Appellee,			)	

							)

	v.						)	No. 99--CF--650

							)	

TRENNIS D. JONES,				)	Honorable

                                )	Amy Bertani-Tomczak

	Defendant-Appellant.		)	Judge, Presiding

_________________________________________________________________

	PRESIDING JUSTICE HOMER delivered the opinion of the court:

	Modified on Denial of Rehearing

_________________________________________________________________

	The defendant, Trennis D. Jones, was convicted of unlawful

possession of a look-alike substance with intent to distribute on

public housing property (720 ILCS 570/404(b), 407(b)(3) (West

1998)).  The substance was found in his pocket during a search

incident to an arrest for trespassing on state-supported land

(720 ILCS 5/21--5(a) (West 1998)).  In this appeal, he claims

that: (1) his trial counsel was ineffective for not challenging

his arrest on probable cause grounds, (2) his conviction should

be reduced to simple possession, and (3) the statute under which

he was sentenced is unconstitutional.  We affirm.

	BACKGROUND

	At the defendant’s bench trial, police officer Robert Badertscher testified that he was working in Joliet on May 12,

1999.  At approximately 11:30 p.m., he heard four or five

gunshots fired from a housing project known as the McKay Street

Housing Authority.  He was 1 to 11⁄2 blocks away and immediately

proceeded to the area.  The entrance to the project was marked

with "no trespassing" signs indicating that persons without a

pass were subject to arrest.  Badertscher entered and saw a group

of 10 males, including the defendant, standing in a street.  He

said, "stop, police," but the subjects scattered.  The defendant

initially walked away but then stopped on a sidewalk.

	Badertscher asked the defendant if he lived on the premises,

and the defendant said "no."  During his testimony, Badertscher

mentioned later asking the defendant if he had a pass.  However,

Badertscher’s police report showed that he asked the defendant

about his residence and about a pass at the same time.  Defense

counsel read that portion of the report on cross-examination, and

Badertscher acknowledged that the questions "came together."  The

defendant’s response to the compound inquiry was "no."

	Badertscher described his subsequent actions toward the

defendant as follows:

	"At that time we had several other subjects

running [and] I made a decision in my mind that he was

under arrest for trespassing on state-supported land. 

[In a] search incident to arrest I started to pat him

down and searched his pockets, and in his right front

pants pocket I retrieved three large clear plastic bags.  In each bag there was several smaller clear

plastic bags with a white rocklike substance inside of

them."

	Badertscher later inventoried the evidence with David

Stoddard, a police evidence technician.  The small bags were

individually wrapped packages containing a white rocklike

substance.  Two of the large bags contained 17 small bags each,

and the remaining large bag contained 24 small bags.

	Officer Stoddard testified and confirmed these numbers.  He

also said he tested the contents of approximately six small bags

from each large bag and did not detect a controlled substance. 

The aggregate weight of the bags was 16.5 grams.

	Raymond Micou, a manager for the Joliet Housing Authority,

testified that the defendant was arrested on property belonging

to the authority.

	Police officer David Jackson testified that he was an

undercover investigator on the Metropolitan Area Narcotics Squad. 

He had participated in 100 to 200 seizures of controlled

substances and personally made approximately 50 "controlled buys"

of such substances.  His job duties included daily interaction

with confidential drug informants, and 90% to 95% of his work

involved dealing with cocaine.

	Jackson was familiar with the housing project on McKay

Street and testified that it was known for high drug and gang

activity.  He said the substance seized from the defendant was

consistent with the appearance of cocaine.  He also said the packaging of the substance was indicative of intent to distribute

and that the defendant did not likely possess it for personal

use.

	Leslie Stegel, the defendant’s mother, testified that she

lived in the housing project on McKay Street.  She said the

defendant lived with her, although his name was not on her lease.

	The judge found the defendant guilty of possessing a look-

alike substance with intent to distribute on public housing

property.  The offense was a Class 2 felony.  See 720 ILCS

570/404(b), 407(b)(3) (West 1998).  However, the defendant met

the criteria of section 5--5--3(c)(8) of the Unified Code of

Corrections (the Code) (730 ILCS 5/1--1--1 et seq. (West 1998)), which provides for mandatory Class X sentencing.  The judge thus

sentenced him to 11 years in prison as a Class X felon.  The

defendant filed a motion to reduce his sentence which was denied. 

He then filed this appeal.

	ANALYSIS

	I. Ineffective Assistance of Counsel

	The defendant first claims that his trial counsel was

ineffective for not challenging his arrest on probable cause

grounds.  To prevail on this claim, he must show that (1) his

counsel’s representation fell below an objective standard of

reasonableness, and (2) he was prejudiced by the deficient

representation.  Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068 (1984); People v. Albanese, 104 Ill. 2d 504, 526, 473 N.E.2d 1246, 1255 (1984).  The prejudice component of this standard requires proof of a

reasonable likelihood that a motion to quash the defendant’s

arrest would have been granted if his counsel had filed one. 

People v. Robinson, 167 Ill. 2d 397, 405, 657 N.E.2d 1020, 1025 (1995).

	An arrest is supported by probable cause if facts exist that

would lead a reasonable person, standing in the arresting

officer’s shoes, to conclude that a crime has been committed and

the defendant was the person who committed it.  Robinson, 167 Ill. 2d at 405, 657 N.E.2d at 1025.  In the instant case, the

defendant was arrested for trespassing on state-supported land. 

This crime occurs when someone (1) enters upon state-supported

land, (2) after receiving notice that such entry is forbidden,

and (3) thereby interferes with another person’s lawful use and

enjoyment of the land.  720 ILCS 5/21--5(a) (West 1998).  The

notice requirement is satisfied if the entrance to the land is

posted with signs prohibiting unauthorized entry.  720 ILCS 5/21-

-5(b) (West 1998).

	In light of these principles, we conclude that the defendant

has not established the prejudice required to sustain his

ineffectiveness claim.  Officer Badertscher testified that he

encountered the defendant on public housing property at

approximately 11:30 p.m. while investigating several gunshots. 

He initially saw the defendant standing with a group of persons

who scattered when he identified himself and told them to stop. 

The entrance to the property was marked with "no trespassing" signs indicating that persons without a pass were subject to

arrest.  The gunshots obviously interfered with the residents’

use and enjoyment of the property.  Badertscher asked the

defendant if he lived on the premises and had a pass, and the

defendant said "no."

	These circumstances support a finding of probable cause to

believe the defendant was trespassing on state- supported land. 

Accordingly, there is no reasonable likelihood that a motion to

quash his arrest for a lack of probable cause would have been

granted.  His counsel’s decision against filing such a motion did

not constitute ineffective assistance.

	II. Reduction of Conviction

	The defendant next claims that his conviction should be

reduced from possession with intent to deliver to simple

possession.  He supports this claim by asserting that he only

possessed a small quantity of the look-alike substance, and that

there was no indicia of drug selling.

	Although a reviewing court may "reduce the degree of the

offense of which the appellant was convicted" (134 Ill. 2d R.

615(b)(3)), a court should only exercise this power when it finds

an evidentiary weakness that causes grave concern about the

reliability of the guilty verdict.  See People v. Jones, 286 Ill. App. 3d 777, 783, 676 N.E.2d 1335, 1339-40 (1997).  Intent to

deliver drugs is necessarily proven by circumstantial evidence

(People v. Morgan, 301 Ill. App. 3d 1026, 1030, 704 N.E.2d 928, 931 (1998)), and the inference of such intent may be enhanced by the combination of drugs and the manner in which they are

packaged (Robinson, 167 Ill. 2d at 408, 657 N.E.2d at 1027).  In appropriate circumstances, the packaging alone may be sufficient

evidence of intent to deliver.  Morgan, 301 Ill. App. 3d at 1030, 704 N.E.2d at 931.

	The defendant was arrested in an area known for high drug

activity.  The evidence seized from him consisted of 58 small

bags containing a white rocklike substance.  These bags were

packaged within three larger bags.  Two of the large bags each

contained 17 of the small bags.  The remaining large bag

contained 24 small bags.  David Jackson, an undercover narcotics

officer, testified that this manner of packaging was indicative

of intent to distribute.  Based on his experience, he believed

the defendant did not likely possess the substance for personal

use.

	In light of this evidence, we are not convinced that a

reduction of the defendant’s conviction to simple possession is

warranted.

	III. Constitutionality of Sentencing Statute

	Finally, the defendant claims that the statute under which

he was sentenced as a Class X felon is unconstitutional.  The

statute, section 5--5--3(c)(8) of the Code, reads:

	"When 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."  730 ILCS 5/5--5--3(c)(8) (West 1998).

	The defendant bases his constitutional challenge on the

holding in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  In Apprendi, the Supreme Court reviewed a New Jersey statute that provided for an extended

prison term when the trial judge found, by a preponderance of the

evidence, that the defendant acted with a purpose to intimidate

because of, inter alia, racial bias.  Apprendi argued that due process required the prosecution to allege the statutory

enhancement factor in its indictment and prove the factor beyond

a reasonable doubt.  The Court agreed, holding that "[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." 

Apprendi, 530 U.S. at 490___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.  The Court’s holding left an exception for recidivist

legislation, which had previously been found constitutional in

Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998).

	In discussing the Almendarez-Torres exception, the Court explained that prior convictions are acceptable sentencing

enhancement factors because they "[were] entered pursuant to

proceedings with substantial procedural safeguards of their own." 

Apprendi, 530 U.S. at 488___, 147 L. Ed. 2d at 453, 120 S. Ct. at 2361.  The Court also noted that Almendarez-Torres admitted the

prior convictions upon which his sentence was enhanced.  In light

of these facts, the Court stated:

"Both the certainty that procedural safeguards attached

to any ʻfactʼ of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of

that ʻfactʼ in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in

allowing a judge to determine a ʻfactʼ increasing punishment beyond the maximum of the statutory range." 

Apprendi, 530 U.S. at 488___, 147 L. Ed. 2d at 454, 120 S. Ct. at 2362.

The Court further distinguished Almendarez-Torres by stating: "Whereas recidivism ʻdoes not relate to the commission of the offenseʼ itself, [citation], New Jersey’s biased purpose inquiry goes precisely to what happened in the ʻcommission of the offense.ʼ "  Apprendi, 530 U.S. at 4956___, 147 L. Ed. 2d at 458, 120 S. Ct. at 2366.

	According to the defendant, section 5--5--3(c)(8)	violates the holding in Apprendi because it provides for a sentencing enhancement without requiring its triggering factors to be alleged in an indictment and proven beyond a reasonable doubt. 

Although section 5--5--3(c)(8) is a recidivist statute, the

defendant asserts that his claim has merit because Almendarez- Torres was only "lukewarmly discussed" in Apprendi.  We are unpersuaded by this argument.  See United States v. Powell, 109 F. Supp. 2d 381 (E.D. Pa. 2000) (noting that Almendarez-Torres is the law until the Supreme Court overrules it).

	We conclude that section 5--5--3(c)(8) does not violate the

holding in Apprendi.  The defendant’s prior convictions are reliable sentencing enhancement factors because they were entered

in proceedings where he received due process protections. 

Additionally, the record shows that he admitted his prior

convictions, and that the convictions did not relate to the

instant offense.  Each of the circumstances the Supreme Court

recognized in Apprendi as justifying a recidivism exception exists in this case.  Such circumstances "mitigate constitutional

concerns regarding [the] defendant’s due process rights and jury

trial guarantees."  People v. Lathon, 317 Ill. App. 3d 573, 587, 740 N.E.2d 377, 386 (2000), appeal denied,, No. 90628 (January 29, 2001).  Accordingly, his sentence under section 5--5--3(c)(8) did

not abrogate those rights.  People v. Dixon, No. 3--00--0038 (April 26, 2001); People v. Givens, No. 4--99--0852 (April 5, 2001); Lathon, 317 Ill. App. 3d 573, 740 N.E.2d 377.

	Alternatively, the defendant contends that two of the

triggering factors in section 5--5--3(c)(8) (the sequence of the

prior offenses and the subject’s age) are non-recidivist in nature.  In Dixon, this court rejected a similar attempt to bring the statute under the holding in Apprendi.  The Appellate Court, Fourth District, did likewise in Givens.  The operative subject matter of section 5--5--3(c)(8) is recidivism.  In our view, the

ancillary components of the statute are sufficiently intertwined

with recidivism, and sufficiently distinct from the elements of

the instant offense, to fall under the exception recognized in Apprendi.  We note that the statute upheld in Almendarez-Torres contained a sequence element (entering the United States where

deportation has occurred after conviction for an aggravated

felony).  8 U.S.C. §§ 1326(a), (b)(2) (1988).  That element is

ancillary to the mere fact of a prior conviction, yet it did not

trouble the Supreme Court in Almendarez-Torres or Apprendi.

	The defendant further claims that we should invalidate

section 5--5--3(c)(8) under the Illinois Constitution.  Aside

from his Apprendi-based arguments, he offers no reason why we should construe our constitution more strictly than the federal

constitution on this matter.  We see no reason to do so.

	Finally, the defendant claims that aside from Apprendi, due process requires a sentencing judge to find the triggering

factors of section 5--5--3(c)(8) by a heightened standard.  He

seems to propose the "clear-and-convincing" standard.

	Similar claims were rejected in Givens and Lathon.  Both courts found support for their holdings in People v. Williams, 149 Ill. 2d 467, 599 N.E.2d 913 (1992), where our supreme court

held that eligibility for Class X sentencing does not have to be proven beyond a reasonable doubt.  The defendant errantly asserts

that "the Williams Court limited its analysis to an interpretation of the language of section 5--5--3(c)(8)."  The

court also based its holding on due process cases like McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986).  We agree with the holdings in Givens, Lathon, and Williams that due process does not require a heightened standard of proof for section 5--5--3(c)(8).

	CONCLUSION

	For the foregoing reasons, the judgment of the Will County

circuit court is affirmed.							

	Affirmed.

HOLDRIDGE nad and LYTTON, J.J., CONCconcurreding.