NO. 4-99-0736

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

	Plaintiff-Appellee,

	v.

GAYLA DAVIS,

	Defendant-Appellant.

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)	Appeal from

Circuit Court of

Adams County

No. 98CF518

Honorable

Mark A. Schuering,

Judge Presiding.

_________________________________________________________________

	JUSTICE McCULLOUGH delivered the opinion of the court:

	Following a jury trial in the circuit court of Adams

County in which defendant, Gayla Davis, was found guilty of two

counts of the aggravated battery of Shaunnalei Byrd (720 ILCS 5/12-

4(a), 12-4(b)(1) (West Supp. 1997) (as amended by Pub. Act 90-735,

§5, eff. August 11, 1998 (1998 Ill. Laws 3843, 3844-46))),

defendant was sentenced to nine years' imprisonment on count II,

relating to the use of a deadly weapon.  In this appeal, defendant

argues (1) the trial court improperly failed to subject evidence of

her prior convictions to a balancing test and erred in using the

"mere-fact" method of impeachment, (2) she was not proved guilty

beyond a reasonable doubt, (3) the issues instructions did not

adequately specify the nature of the acts alleged, (4) the

extended-term and consecutive sentencing statutes under which she

was sentenced were unconstitutional, (5) the nine-year term of

imprisonment was excessive, and (6) the trial court lacked

authority to order 50% of her Department of Corrections (DOC)

monthly wages to be withheld and remitted to the Adams County circuit clerk to pay costs and restitution.  We vacate the order of

withholding and affirm in all other respects.

	We first consider the propriety of using the mere-fact

method and whether the trial court properly applied the Montgomery balancing test (People v. Montgomery, 47 Ill. 2d 510, 512-19, 268 N.E.2d 695, 696-700 (1971)) to determine the admissibility of

evidence of defendant's prior convictions.  On the morning that

jury selection was to begin, defendant's counsel made an oral

motion in limine to preclude the State from using evidence of a March 1998 aggravated battery conviction and an October 1995

obstruction of justice conviction, both felonies, to impeach

defendant in the event that she testified.  The prosecutor

indicated no intention of using a February 1998 conviction for

misdemeanor battery.

	The record shows defendant did not want the jury to hear

the nature of the prior convictions, was informed that the trial

court would use the mere-fact method, and had no questions

concerning its use.

	In response to the State's contention on appeal that

defendant has waived the issue by failing to object and file a

posttrial motion (People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988)), defendant asserts plain error (134 Ill. 2d R.

615(a)).  The record being clear that defendant induced the trial

court into using the mere-fact method of impeachment, defendant

cannot now complain that the trial court did so.  See People v. Lowe, 153 Ill. 2d 195, 199, 606 N.E.2d 1167, 1169 (1992) ("an accused may not ask the trial court to proceed in a certain manner

and then contend in a court of review that the order which he

obtained was in error").  The mere-fact method of impeachment

allows the jury to be informed of the existence of a prior

conviction and not the specific crime of which defendant was

convicted.  People v. Holloman, 304 Ill. App. 3d 177, 182, 709 N.E.2d 969, 972 (1999).  There was no error in using the mere-fact

method of impeachment.

	The mere-fact method does not supplant the Montgomery analysis.  People v. Dixon, 308 Ill. App. 3d 1008, 1017, 721 N.E.2d 1172, 1179 (1999).  The Supreme Court of Illinois has declined to

find error where the transcript makes it clear that the trial court

was applying the Montgomery standard even though the trial judge did not expressly articulate it.  See People v. Williams, 173 Ill. 2d 48, 83, 670 N.E.2d 638, 655 (1996); People v. Redd, 135 Ill. 2d 252, 325-26, 553 N.E.2d 316, 349-50 (1990).  In this case, the

record demonstrates that the trial judge weighed the danger of

unfair prejudice to defendant against the probative value of the

prior convictions.  Indeed, the arguments of counsel focused on

that very point.  No error occurred.

	We next consider whether defendant was proved guilty of

aggravated battery of Byrd beyond a reasonable doubt.  Evidence was

presented from which the jury could find that, after a number of

lesser incidents between the two women throughout the day and

evening of November 29, 1998, defendant and her sister used an

automobile to stop another automobile in which Byrd was a passenger and, after the occupants exited the vehicles, defendant pushed Byrd

to the ground, got on top of her with her knees on Byrd's chest,

and cut Byrd's face with a razor blade.

	When a challenge to the sufficiency of the evidence is

raised in a criminal appeal, this court considers the evidence in

the light most favorable to the State in determining whether any

rational trier of fact could have found the essential elements of

the offense beyond a reasonable doubt.  People v. Oaks, 169 Ill. 2d 409, 457-58, 662 N.E.2d 1328, 1349-50 (1996).

	As relevant to the allegation in count II of the

information in this case, a person commits aggravated battery when

she knowingly and without legal justification causes bodily harm to

the victim and in doing so she uses a deadly weapon other than by

a discharge of a firearm.  720 ILCS 5/12-4(b)(1) (West Supp. 1997)

(as amended by Pub. Act 90-735, §5 (1998 Ill. Laws at 3844-46) 

(incorporating the statutory definition of battery (720 ILCS 5/12-

3(a)(1) (West 1998)))).

	On appeal, defendant does not argue that the razor blade

was not a deadly weapon.  Instead, defendant's argument focuses on

the evidence that she presented contradicting the testimony of

witnesses supporting Byrd's version of the incident.  Defendant

denied having a razor blade and testified that Byrd had something

in her hand.  Defendant argues that on this evidence the jury could

find that someone else in the melee may have had the razor blade.

	It is the function of the jury to assess witness

credibility, weigh the evidence, and draw inferences from the evidence.  People v. Adams, 308 Ill. App. 3d 995, 1007, 721 N.E.2d 1182, 1191 (1999).  It is not the function of this court to

reassess witness credibility or reweigh the evidence.  The evidence

of defendant's guilt was not so improbable or unsatisfactory as to

create a reasonable doubt of defendant's guilt.  People v. Smith, 141 Ill. 2d 40, 55, 565 N.E.2d 904, 906 (1990).  The evidence in

this case was sufficient to establish defendant's guilt of

aggravated battery beyond a reasonable doubt. 

	The third issue is whether the issues instructions to the

jury improperly failed to use the term "great bodily harm" and only

referred to "bodily harm," in violation of defendant's right to due

process under the fourteenth amendment of the United States

Constitution (U.S. Const., amend. XIV).  In this case, the jury

found defendant guilty of both counts of aggravated battery. 

Defendant does not challenge the charging instrument, the defini

tional instructions, or the verdict forms. 

	Not only is the issue waived by the failure to raise the issue at trial and in the posttrial motion, but it is not such a

grave error that fundamental fairness requires a new trial with a

proper instruction.  See People v. Reddick, 123 Ill. 2d 184, 198, 526 N.E.2d 141, 147 (1988).  In this appeal, defendant argues that

the issue instruction as to count I was inaccurate.  Defendant was

found guilty of both counts of aggravated battery, but a judgment

of conviction was entered only on the finding of guilt as to count

II.  Defendant does not explain how an error on the issue instruc

tion relating to count I could have resulted in an improper judgment of conviction to count II.  We find no reversible error.

	We next consider whether the extended-term sentence

imposed in this case violated due process under the standards

applied in Apprendi v. New Jersey, 530 U.S. ___, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  Defendant argues in her supplemental brief

that all factors for extending a sentence provided in section 5-5-

3.2(b) of the Unified Code of Corrections (Unified Code) (730 ILCS

5/5-5-3.2(b)(1) (West Supp. 1997)) as well as the discretionary

consecutive sentencing provisions in section 5-8-4(b) of the

Unified Code (730 ILCS 5/5-8-4(b) (West 1998)) are unconstitu

tional. 

	The presentence investigation report reveals that defendant had a prior conviction for aggravated battery occurring

on February 10, 1998 (Adams County case No. 98-CF-74), for which

she had been sentenced to 30 months' probation on October 13, 1998. 

The present conviction for the same class offense arising out of a

different series of acts was within the 10-year period and

supported the imposition of an extended term.  See 730 ILCS 5/5-5-

3.2(b)(1) (West Supp. 1997).  The decision in Apprendi expressly excepts from its holding an enhancement or increase of a sentence

based on a prior conviction.  Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.  The extended sentence under

section 5-5-3.2(b)(1) of the Unified Code was properly imposed in

this case.

	On February 17, 1999, defendant's probation in Adams

County case Nos. 98-CF-74 and 98-CF-125 were revoked, and defendant was sentenced to four years' imprisonment in No. 98-CF-74 and 364

days in jail in No. 98-CF-125 (wherein defendant had pleaded guilty

to a reduced charge of misdemeanor battery).  The nine-year

extended sentence imposed in the case at bar was ordered to be

served consecutively to the sentences in Nos. 98-CF-74 and 98-CF-

125.

	Section 5-8-4(b) of the Unified Code (730 ILCS 5/5-8-4(b)

(West 1998)) provides that the trial court may impose a consecutive

sentence if, "having regard to the nature and circumstances of the

offense and the history and character of the defendant, it is of

the opinion that such a term is required to protect the public from

further criminal conduct by the defendant."

	Recently, People v. Sutherland, 317 Ill. App. 3d 1117, 1129, ___ N.E.2d ___, ___ (2000), adopted the State's reasoning as

it applied to consecutive sentences under section 5-8-4(a) of the

Unified Code (730 ILCS 5/5-8-4(a) (West 1998)); Sutherland also distinguished Apprendi and rejected the reasoning in People v. Clifton, Nos. 1-98-2126, 1-98-2384 cons. (September 29, 2000), ___ Ill. App. 3d ___, ___ N.E.2d ___, and People v. Carney, ___317 Ill. App. 3d ___806, ___740 N.E.2d ___435 (2)))000).  See also People v. Primm, No. 1-97-3685, slip op. at 27 (December 29, 2000), ___ Ill. App. 3d

___, ___, ___ N.E.2d ___, ___ (following Sutherland and rejecting Clifton); but see People v. Harden, No. 1-99-3006, slip op. at 5 (December 21, 2000), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___

(following Clifton and rejecting Sutherland).  We agree with the rationale adopted in Sutherland.

	In this case, the need to protect the public is not a

fact that should be argued to the jury in the guilt-finding stage

of a criminal proceeding.  This is the type of fact that is

traditionally left to the sentencing court.  In this case, the

trial court found that consecutive sentences were necessary because

the nature and circumstances of the offense and the history and

character of defendant required that the public be protected.  See

730 ILCS 5/5-8-4(b) (West 1998).  Defendant does not argue that

this finding was unsupported by the evidence.  The use of consecu

tive sentences did not impose a sentence beyond the statutory

maximum limit, but clarified the time when the sentence was to

begin being served in relation to two other sentences imposed in

unrelated cases.  The Apprendi rationale does not apply.

	Defendant next argues that the nine-year sentence was

excessive.  We disagree.  The imposition of a sentence is a matter

of discretion with the trial court, and, absent an abuse of

discretion, a sentence within the statutory range will not be

overturned on appeal.  People v. Jones, 168 Ill. 2d 367, 373-74, 659 N.E.2d 1306, 1308 (1995).  

	In this case, the trial court noted the presence of

mitigating factors, including the impact that a sentence of

imprisonment would have on defendant's family.  The trial court

also held out hope of rehabilitation and noted that defendant was

a bright person.  Indeed, the sentencing court did not impose the

maximum extended sentence.  Nevertheless, noting that defendant was

only 21 years old, the sentencing court was very concerned about the defendant's prior criminal history and the nature of those

crimes.

	The record shows the escalation of defendant's violent

behavior warranted the nine-year sentence imposed in this case.  No

abuse of sentencing discretion has been demonstrated.  

	The final issue concerns the trial court's order

withholding 50% of defendant's DOC wages and directing that they be

applied to costs, fees, and restitution.  Defendant failed to

object to the order at the sentencing hearing and did not include

it in the postsentencing motion as required under section 5-8-1(c)

of the Unified Code (730 ILCS 5/5-8-1(c) (West Supp. 1997)). 

Although the State argues waiver, the defendant contends that the

trial court did not have the authority to enter the withholding

order and it is void.  Because a void order may be attacked at any

time (People v. Lawrence, 206 Ill. App. 3d 622, 624, 565 N.E.2d 322, 324 (1990)), we address the issue.

	Defendant argues that the order of withholding in this

case is void because section 5-9-4 of the Unified Code (730 ILCS

5/5-9-4 (West 1998)) requires an order of withholding to collect a

fine to be in accordance with Part 8 of article XII of the Code of

Civil Procedure (Code) (735 ILCS 5/12-801 through 12-819 (West

1996)).  However, defendant has failed to demonstrate what, if any,

"fines" are being paid through withholding of her DOC wages.  On

the other hand, section 5-5-6(h) of the Unified Code (730 ILCS 5/5-

5-6(h) (West 1998)) provides that the trial court may enter an

order of withholding wages to collect restitution.  It is undis puted that no wage deduction proceeding under the Code was

conducted here. 

	The legislature has clearly and unambiguously stated its

preferred method of determining if wage deduction is appropriate. 

Additionally, we note that, here, the amount of the withholding

(50% of wages) may exceed the amount authorized under the civil

wage deduction remedy.  See 735 ILCS 5/12-803 (West 1998) (setting

the maximum wage subject to collection).

	As a result, because the procedure employed in this case

does not comport with the civil procedure for wage deduction, the

wage deduction order is void, and it is vacated.  In all other

respects, the judgment of the circuit court of Adams County is

affirmed.  We remand for the limited purpose of amending the

judgment by deleting the wage deduction provision therein.

	Affirmed in part and vacated in part; cause remanded with

directions.

	STEIGMANN, P.J., concurs.

	MYERSCOUGH, J., specially concurs.

	JUSTICE MYERSCOUGH, specially concurring:

	I specially concur.  The Supreme Court of Illinois has found use of the mere-fact method of impeachment to be plain error. 

People v. Atkinson, 186 Ill. 2d 450, 463-64, 713 N.E.2d 532, 538 (1999).  However, in this case, defendant's counsel made an oral

motion in limine to preclude the State from impeaching defendant with two previous felony convictions, specifically a March 1998

aggravated battery conviction and an October 1995 obstruction of

justice conviction.  Defendant's motion in limine only sought to preclude the State from producing the nature of the felonies.  In essence, defendant's motion in limine was a request for the trial court to utilize the mere-fact method.  Because defendant chose the

mere-fact approach, she forfeited any error arising from the use of

such method.  Moreover, this error was harmless given the over

whelming weight of the evidence.