NO. 4-00-0568

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from 

		Plaintiff-Appellee,			)	Circuit Court of

		v.						)	Champaign County

DEXTER ABDULLAH, a/k/a DEXTER MONROE,	)	No. 99CF474

		Defendant-Appellant.		)	

								)	Honorable

								)	John G. Townsend,

								)	Judge Presiding.

MODIFIED UPON DENIAL OF REHEARING

		JUSTICE APPLETON delivered the opinion of the court:

		A jury found defendant, Dexter Abdullah, guilty of

armed robbery, a Class X felony (720 ILCS 5/18-2(a)(2), (b) (West

2000)).  The trial court adjudged him a "habitual criminal" under

the Habitual Criminal Act (720 ILCS 5/33B-1 through 33B-3 (West

2000)) and sentenced him to life imprisonment (720 ILCS 5/33B-

1(e) (West 2000)).  Defendant appeals, arguing the trial court

erred in (1) denying his motion for a mistrial, (2) denying his

motion for a directed verdict, (3) denying his motion for an

acquittal or, in the alternative, for a new trial, and (4)

adjudging him a "habitual criminal."  We affirm the trial court's

judgment.      

	I. BACKGROUND

		Witnesses testified that on March 6, 1999, at approxi

mately 10 p.m., a person in a ski mask and hooded coat entered a

Taco Bell restaurant in Urbana, Illinois, produced a sawed-off

shotgun, and demanded the money in the cash registers.  The State called six eyewitnesses to the robbery.  Most of them could tell

that the robber was male, either from his build or his voice or

both.  Estimates of his height ranged from 5 feet 9 inches to 6

feet 4 inches.  Because the eyeholes of the mask revealed the

skin around the eyes, several of the witnesses saw he was black.

		Witnesses testified the robber's coat was either black

or dark blue.  It came down below his waist but not below his

knees.  The hood was pulled up over his head.  One witness

noticed the hood had a zipper.  Three witnesses saw masking tape

across the back of the coat.

		Several witnesses described the shotgun as well.  It

was a black, single-barreled, sawed-off shotgun, with a pump-

action and a pistol grip instead of a rear stock.    

		The robber wore white Fila athletic shoes.  According

to one witness, Lawrence Johnson, these were an older style of

Fila shoe that one did not commonly see any more.  (He got a good

look at the shoes when, at the robber's command, he lay down on

the floor.)       

		After employees handed him the money from the cash

registers, the robber left the restaurant and fled on a bicycle. 

Two customers, Priscilla Pruitt and Thad Rather, testified it was

a mountain bike.  Pruitt testified it was light blue with white

lettering.  Rather testified it was either a 10-speed or 12-speed

bike.         

		Cary Hansing was an assistant manager of the restau

rant.  During cross-examination, defendant's attorney asked him:

			"Q.  Do you see the man who committed

the robbery in court today?

			A.  Um, as far as his face, no.  But I

do see his eyes.

			Q.  Well, I'm asking you not about indi

vidual body parts.  I'm asking you, do you

see the man who committed the robbery in

court today?

			A.  Yes."

Neither the defense counsel nor the prosecutor knew, beforehand,

that Hansing would recognize defendant as the robber.  During

redirect examination, Hansing identified defendant as the man to

whom he was referring.  His eyes, he testified, were large and

"not *** clear white.  They're kind of, just pale yellow."

		Several of the eyewitnesses identified People's exhibit

No. 1 as the robber's shotgun, People's exhibit No. 2 as his

coat, and People's exhibit Nos. 3(a) and (b) as his shoes, or

they testified that those exhibits looked like the robber's

shotgun, coat, and shoes.  Pruitt identified People's exhibit No.

4 as the mountain bike.      

		Leander Lee, 12 years old, testified that in March 1999

he was living in trailer No. 22 of Abe's Estates in Rantoul,

Illinois.  In February of that year, he acquired a mountain bike,

People's exhibit No. 4.  A month later, in March, the police took

it from him.  To his knowledge, no one else ever took the bike. 

He had kept it leaning against his front porch at night, never locking it up.  He had ridden the bike every day and never lent

it to anyone, except, on rare occasions, to his cousins.  He

neither knew nor recognized defendant. 

		Steven Calhoun testified he first met defendant in

approximately July or August 1998, when defendant brought an El

Camino automobile to a body shop in Champaign, where Calhoun

worked.  Eventually defendant and Calhoun became well-enough

acquainted with one another to share heroin, to which Calhoun was

addicted.  In the last part of February or the first part of

March 1999, defendant called Calhoun to come and talk with him

about an article in a newspaper.  That same day, Calhoun rode

with defendant in the El Camino to Danville, Illinois.  Defendant

was driving.  On the way, defendant stopped the car, pulled out a

shotgun from behind the front seat, opened the hood, and hid it

under the hood.  After getting back into the car and driving off

again, he handed Calhoun a "stocking mask" and asked him to tear

it to pieces and get rid of it.  Calhoun tore up the mask and

threw the pieces out the car window.  Defendant acceded to

Calhoun's suggestion that they take the shotgun to Calhoun's

stepmother's house in Rantoul.  Calhoun hid it in the hall closet

of her house.    

		Calhoun testified that because he had taken possession

of the sawed-off shotgun, the State had charged him with possess

ing an unlawful weapon.  He also faced a charge of domestic

battery.  However, he denied having any expectation of leniency

in his pending criminal cases as a result of his testimony.        		Pamela Monroe testified she is defendant's wife.  In

March 1999 she and defendant resided at trailer No. 25 in Abe's

Estates in Rantoul.  On March 19, 1999, the police searched her

trailer and, with her consent, her inoperable Toyota car, parked

outside the trailer.  In the Toyota, the police found a blue coat

she had bought for defendant from Goodwill Industries in November

or December 1998.  She and defendant had two vehicles at that

time:  the inoperable Toyota and the El Camino.  The El Camino's

headlights would not work, and sometimes the car did not run.  In

Monroe's opinion, the El Camino could have made the trip from

Rantoul to Champaign during daylight hours on March 6, 1999, but

it could not have done so at night because of the inoperable

headlights.  Monroe further testified that on March 6, 1999,

defendant was home in bed the whole night.  His back hurt, and he

"had a real bad cold, problems breathing."

   		Patrick Funkhauser, a Champaign police officer, testi fied he arrested defendant on March 19, 1999, and took defen

dant's shoes as evidence (People's exhibit Nos. 3(a) and (b)). 

He admitted that Fila shoes were popular, and he was unaware of

anything unique to differentiate defendant's shoes from any other

Fila shoes of the same style and size.    

		Dale Rawdin, a detective of the Champaign police

department, identified People's exhibit No. 2 as the coat the

police took out of the Toyota.  He had watched the officers

remove the coat from the trunk, and it was in the same condition

as when they seized it.  

		Another Champaign detective, John Schweighart, testi

fied he interviewed defendant on March 19, 1999, after the

arrest.  Defendant admitted, during the interview, "that he does

or that he was using heroin at the time."  The prosecutor then

asked Schweighart:

			"Q.  Did he tell you whether he had

purchased some [heroin] that night?

			A.  No.  When I asked about how much

heroin he used or how much he paid for the

heroin that was in his possession on the

night of the arrest--

			MS. LENIK [(defense counsel)]:  Objec

tion.  Motion for a mistrial."

		The trial court denied the motion for a mistrial, sustained the objection to testimony of other crimes, and in

structed the jury to disregard Schweighart's answer to the last

question.  

		Schweighart further testified that he interviewed

Steven Calhoun, promising him nothing.  Later, on March 22, 1999,

he and Detective David Griffet went to the house of Edith

Calhoun, Steven Calhoun's grandmother, in Rantoul.  They re

quested permission to search her house, whereupon she "left the

kitchen *** and came back holding a sawed[-]off shotgun, with a

pistol grip [(People's exhibit No. 1)], and asked if this was

what [they] were looking for."  She had found the shotgun in a

closet in the hallway.  

		Griffet testified he saw the bicycle (People's exhibit

No. 4) near the front porch of a neighboring residence as the

police searched defendant's residence on March 19, 1999.  The

neighboring residence was across the street and two trailers down

from defendant's residence.   

		Troy Phillips, an Urbana police officer, testified that

when the police arrested defendant on March 19, 1999, defendant

admitted using heroin.  He estimated defendant's height to be 6

feet 2 inches.    

		The State rested, and defendant moved for a directed

verdict, arguing that "the identification testimony has been

nil."  The trial court denied the motion because it believed

"there [was] sufficient evidence on each element, including [the]

identity of the [d]efendant."

		Counsel stipulated that a forensic scientist had found

"no latent prints" from three shotgun shells and the sawed-off

shotgun.  The trial court informed the jury of the stipulation.

		Jeff Atteberry was defendant's first witness.  He

testified he was the area supervisor for Wackenhut Corporation. 

People's exhibit No. 2 looked like the parkas Wackenhut issued to

its security officers.  Atteberry could see, beneath the masking

tape, part of the lettering spelling "Wackenhut."  In the vicin

ity of Rantoul, Wackenhut had 24 security officers, each of whom

would have had a similar coat.    

		Edith Calhoun testified that the police came to her

house and told her they knew Steven Calhoun had left a gun there and they wanted to search for it.  She found the shotgun in a

closet and gave it to them.  

		Defendant's mother-in-law, sister-in-law, and aunt, as

well as his wife's first cousin, testified that defendant was

sick in bed all day and night on March 6, 1999.  They either

stopped by defendant's house that evening and saw him in bed with

flu-like symptoms and a bad back, or they stayed in his house,

watched his children, and prepared soup for him.       

		Robert Miller testified he worked at Leon and Tommy's

Body Shop in Champaign.  "[P]robably around about February of

'99"--he actually could not "remember *** which month"--he

attempted, unsuccessfully, to repair an electrical defect in

defendant's El Camino, which defendant had brought to the shop

from Rantoul.  The headlights would not work.  Steven Calhoun

sometimes spent the night sleeping in the shop, and the keys to

the vehicles would have been accessible to him.  

		Timothy Smith testified he was a mechanic and also the

landlord at Abe's Estates, a mobile-home park in Rantoul.  He

worked on the electrical system of defendant's El Camino and put

a new transmission in it.  To make those repairs, he had posses

sion of the El Camino periodically in February and March 1999,

sometimes two or three days at a time.  He was uncertain, how

ever, whether those two or three days fell in February or in

March.  Smith had agreed to rebuild the motor in defendant's van

in return for defendant's transferring ownership of the El Camino

to him.  Defendant transferred the title to Smith right before the police arrested defendant.  Smith did not think the El Camino

was in good enough condition on March 6, 1999, to travel from

Rantoul to Champaign.  The car tended to overheat and die.

		Defendant rested, and on February 10, 2000, the jury

found him guilty of armed robbery.  

		On March 2, 2000, the trial court granted defendant's

motion for substitution of counsel.  The trial court vacated the

appointment of defendant's trial counsel, Diana Lenik, and

appointed David Rumley of the public defender's office to repre

sent defendant in posttrial proceedings.  

		On May 2, 2000, Rumley filed a motion for an acquittal

or, in the alternative, for a new trial.  The motion alleged,

inter alia, that Lenik's assistance was ineffective in that she had "failed to subpoena key defense witnesses," including Steve

Campbell and McClenda Pollard.  On May 5, 2000, in the hearing on

the motion, defendant testified that Pollard would have corrobo

rated that he had a lawn-care business, because she was one of

his customers.  Defendant saw, in a police report, that a person

named Steve Campbell was a customer in the restaurant during the

robbery.  Defendant testified he had a cousin by that name and

had ascertained from his aunt that this cousin was indeed in the

restaurant during the robbery.  According to defendant, Campbell

might have testified that the robber's voice did not sound like

defendant's voice.  Defendant did not know if Lenik had inter

viewed Campbell and Pollard.  During the hearing on the posttrial

motion, Rumley called Lenik to testify but did not ask her if she had interviewed Campbell and Pollard.  Nor did he present any

affidavits by those two witnesses.  The trial court denied the

posttrial motion.    

		On May 30, 2000, the trial court adjudged defendant a

"habitual criminal" because of the following criminal history. 

Defendant pleaded guilty to armed robbery in case No. 74-X-104 in

Champaign county circuit court.  On May 6, 1974, the court

entered judgment on his guilty plea and sentenced him to impris

onment for 6 to 12 years.  On October 14, 1977, defendant was

released on parole.  He was discharged from parole on February

27, 1980.  On October 7, 1987, in case No. 87-CF-526, the Cham

paign County circuit court sentenced him to imprisonment for

armed robbery.  He was imprisoned on October 21, 1987, and was

released on April 4, 1997.

		II. ANALYSIS

	A. Motions for a Directed Verdict and for Acquittal

		Defendant contends the trial court should have granted

his motions for a directed verdict and for acquittal notwith

standing the verdict because no rational jury would have believed

that Hansing could identify him as the robber by his memory of a

fleeting glimpse at the robber's eyes.    

		As the State says, we look at all of the evidence (not just Hansing's in-court identification) in a light most favorable

to the State (see People v. Turner, 127 Ill. App. 3d 784, 790, 469 N.E.2d 368, 372 (1984)), asking "'whether a reasonable mind

could fairly conclude the guilt of the accused'" (People v. Hendricks, 137 Ill. 2d 31, 63, 560 N.E.2d 611, 625 (1990), quoting People v. Withers, 87 Ill. 2d 224, 230, 429 N.E.2d 853, 856 (1981)).  Because a motion for an acquittal notwithstanding

the verdict seeks essentially the same relief as a motion for a

directed verdict (People v. Rey, 136 Ill. App. 3d 645, 650, 483 N.E.2d 982, 986 (1985)), the same standard of review applies to

both motions (People v. Carter, 306 Ill. App. 3d 867, 872, 715 N.E.2d 1196, 1199 (1999), rev'd on other grounds, 194 Ill. 2d 88, 741 N.E.2d 255 (2000)).    

		Defendant's conviction does not rest entirely upon

Hansing's in-court identification.  The narrow segment of face visible through the eyeholes of the mask was only part of the

evidence, only one piece of the puzzle.  It revealed, at a

minimum, that the robber was black.  The voice was male.  That

was another piece.  Hansing's testimony about the eyes and his

in-court identification could have weighed little or nothing in

the jury's deliberations.    

		There was other evidence, including the coat.  A

hooded, dark blue coat, without more, would be a "frequently used

mode of masculine dress," like the white T-shirt, khaki pants,

and white athletic shoes in People v. Moore, 6 Ill. App. 3d 932, 936 n.2, 287 N.E.2d 130, 134 n.2 (1972); but this coat was

distinctive in that there was masking tape across the back of it. 

"Courts will take judicial notice of the variety, conventional

ity[,] and utility in modes of dress."  Moore, 6 Ill. App. 3d at 936 n.2, 287 N.E.2d at 134 n.2.  We take judicial notice that few people cover the upper back of their coat with masking tape.    

		Defendant argues that Steven Calhoun--or whoever "the

real robber" was--could have "planted" the coat in Monroe's

Toyota.  Monroe testified, however, that she had bought the coat

for defendant.  Significantly, she did not testify that the coat

had masking tape on it when she bought it.  It is unclear how

someone could have "planted" the coat in the trunk.    

		The robber's white athletic shoes would be comparable

to those in Moore, 6 Ill. App. 3d at 936 n.2, 287 N.E.2d at 134 n.2, if Johnson had not testified that "[t]hey're rare, because

they [are] old."   

		Another piece of the puzzle was the shotgun.  Witnesses described it with particularity, and evidently People's exhibit

No. 1 conformed to that description.  In addition to its being

sawed off, People's exhibit No. 1 was distinctive in that it had

a pistol grip instead of a shoulder-stock.  

		Finally, defendant had access to a blue mountain bike

with white lettering, which Leander Lee had left unlocked on his

front porch, across the street and two doors down from defen

dant's residence.  

		Defendant alleges several discrepancies in the State's

evidence.  For example, an assistant manager of the restaurant, Helen Mullins, testified the robber's coat had buttons, but she

corrected herself when she saw People's exhibit No. 2, which had

a zipper and snaps.  Estimates of the robber's height varied by

as much as seven inches.  "[D]iscrepancies and omissions of detail affect only the witness'[s] credibility and the weight to

be given his testimony by the trier of fact."  People v. Winston, 160 Ill. App. 3d 623, 628, 513 N.E.2d 1121, 1124 (1987).  "Courts

typically have not considered discrepancies as to height ***

alone as [a] decisive factor[] on review because few persons are

capable of making accurate estimations of such [a] characteris

tic."  People v. Slim, 127 Ill. 2d 302, 312, 537 N.E.2d 317, 321 (1989).  

		After attacking discrepancies in the details of the

eyewitnesses' testimony, defendant argues he had an unrebutted

alibi.  Several witnesses testified he was sick in bed on March

6, 1999.  "[T]he jury had no obligation to believe defendant's

alibi evidence ***."  People v. Tennant, 65 Ill. 2d 401, 412, 358 N.E.2d 1116, 1121 (1976).  These alibi witnesses were defendant's

wife, his relatives, or relatives of his wife.  The jury could

have found they were biased in defendant's favor.   

		Defendant attempted to convince the jury he could not

possibly have committed the robbery because he had no transporta

tion from Rantoul to Urbana.  As Miller testified, the El

Camino's mechanical problems did not prevent defendant from

driving it from his home in Rantoul to the shop in Champaign. 

Steven Calhoun testified that he and defendant journeyed to

Danville in the El Camino during the last part of February or the

first part of March 1999.  The jury could have found that the

car, though unreliable, had the capacity to travel from Rantoul

to Urbana.  		

		Considering all of the evidence in a light most favor able to the State, we hold that a rational trier of fact could

have found, beyond a reasonable doubt, that defendant was the

robber.  See Hendricks, 137 Ill. 2d at 63, 560 N.E.2d at 625.

	B. Motion for a New Trial

	1. Hansing's In-Court Identification of Defendant

		We will apply the following standard of review to the

trial court's denial of defendant's motion for a new trial:

		"'The decision of a trial court to grant a

new trial is an exercise of discretion which

should not be disturbed unless a clear abuse

of that discretion is shown.  [Citations.] 

In determining whether that discretion was

abused, the reviewing court will consider

whether the jury's verdict was supported by

the evidence and whether the losing party was

denied a fair trial.'"  People v. Dixon, 256 Ill. App. 3d 771, 778, 628 N.E.2d 399, 404-05

(1993), quoting Reidelberger v. Highland Body Shop, Inc., 83 Ill. 2d 545, 548-49, 416 N.E.2d 268, 270 (1981). 

		We have found the evidence was sufficient to convict

defendant.  Defendant contends he was denied a fair trial because

(1) the jury "improperly considered" Hansing's "volunteered in-

court identification," and (2) Schweighart improperly testified

that defendant possessed heroin when the police arrested him. 		Hansing did not "volunteer" the in-court identification

of defendant.  Defense counsel asked Hansing if he saw the robber

in the courtroom, and Hansing said yes--an answer responsive to

the question.  "A defendant who procures *** [or] invites *** the

admission of evidence, even though it be improper, cannot be

heard to complain about it on appeal."  People v. Jones, 119 Ill. App. 3d 615, 628, 456 N.E.2d 926, 936-37 (1983).

	2. Other Crimes     

		"[T]he error of admitting evidence of other crimes for which defendant is not on trial can be cured when the improper

testimony is promptly stricken and the trial court instructs the

jury to disregard it."  People v. Biggs, 294 Ill. App. 3d 1046, 1051, 691 N.E.2d 48, 52 (1998).  The trial court sustained

defendant's objection to Schweighart's testimony that defendant

possessed heroin.  Then the trial court promptly instructed the

jury:  "I have ordered stricken from the record the last answer

given by the witness before you left the courtroom.  You are

instructed to disregard that answer."  Moreover, other witnesses, besides Schweighart, testified to defendant's use of heroin, and

defendant did not object to their testimony.  "A defendant waives

any issue as to the impropriety of evidence if he *** acquiesces

in the admission of evidence."  People v. Pollard, 225 Ill. App. 3d 970, 975, 589 N.E.2d 175, 178 (1992).  Defendant suffered no

prejudice from Schweighart's testimony because defendant acqui

esced in the admission of additional evidence that he was a user

(and, therefore, a possessor) of heroin.  We find no abuse of discretion in the trial court's denial of defendant's motion for

a mistrial.

	C. Alleged Ineffective Assistance of Posttrial Counsel

		The posttrial motion was a critical part of the crimi

nal proceeding, and defendant had a right, under the sixth

amendment, to the assistance of counsel in preparing and arguing

the motion.  People v. Finley, 63 Ill. App. 3d 95, 103, 379 N.E.2d 645, 650 (1978), citing Mempa v. Rhay, 389 U.S. 128, 19 L. Ed. 2d 336, 88 S. Ct. 254 (1967).  The constitutional right to

the assistance of counsel implies the right to the effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692, 104 S. Ct. 2052, 2063 (1984).

		In his reply brief, defendant says that "[t]he issue is

a narrow one":  whether posttrial counsel was so ineffective that

we should presume prejudice under United States v. Cronic, 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047

(1984).  "The record," defendant says, "is not adequate to

support a related [s]ixth[-][a]mendment claim *** that [postconviction] counsel (or trial counsel) was ineffective under

the Strickland test."  See Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.  Therefore, we will limit our

consideration to whether we should presume prejudice under

Cronic.

		The Supreme Court held in Cronic, 466 U.S. at 659, 80 L. Ed. 2d at 668, 104 S. Ct. at 2047:  "[I]f counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of [s]ixth[-][a]mendment

rights that makes the adversary process itself presumptively

unreliable."  (Emphasis added.)  We will not presume prejudice unless the attorney completely failed, "throughout" the proceed

ing "as a whole," to oppose the prosecution's case.  See Bell v. Cone, 535 U.S. ___, ___, 152 L. Ed. 2d 914, 928, 122 S. Ct. 1843, 1851 (2002).  It is not enough that the attorney "failed to do so at specific points."  Bell, 535 U.S. at ___, 152 L. Ed. 2d at 928, 122 S. Ct. at 1851.     

		Defendant contends that by neglecting to (1) present affidavits by Campbell and Pollard to show what their testimony

would have been and (2) ask Lenik whether she had interviewed

either or both of those witnesses, Rumley totally failed to

subject the prosecution's case to any meaningful adversarial

testing whatsoever.  This is an exaggeration.  

		Rumley called three witnesses at the hearing on the

posttrial motion:  Griffet, Lenik, and defendant himself.  He

asked Lenik such questions as why she did not file a motion to

suppress evidence, how many times she met with defendant or talked with him on the telephone, whether she had discussed a

negotiated plea with defendant, and whether she had interviewed

certain police officers.  In his questioning of defendant, Rumley

elicited testimony that Lenik ignored defendant's suggestions

when preparing for trial and did not spend much time with him. 

At the conclusion of the testimony, Rumley made a closing argu

ment.  Clearly, he subjected the prosecution's case to some meaningful adversarial testing, even if, as defendant argues, he

could and should have done additional things.  A defense coun

sel's failure to interview certain witnesses or call them to

testify generally requires an analysis under Strickland.  See, e.g., People v. Guest, 166 Ill. 2d 381, 400, 655 N.E.2d 873, 882 (1995); People v. Flores, 128 Ill. 2d 66, 85-86, 538 N.E.2d 481, 488 (1989).     

	D. Habitual Criminal Act

	1. "Time in Custody"

		Section 33B-1(a) of the Habitual Criminal Act (720 ILCS

5/33B-1(a) (West 2000)) provides:

			"Every person who has been twice con

victed *** of an offense that contains the

same elements as an offense now classified in

Illinois as a Class X felony ***, and is

thereafter convicted of a Class X felony ***

committed after the 2 prior convictions,

shall be adjudged an habitual criminal."

"Except when the death penalty is imposed, anyone adjudged an

habitual criminal shall be sentenced to life imprisonment."  720

ILCS 5/33B-1(e) (West 2000).  

		Section 33B-1(d) provides:

			"This [a]rticle shall not apply unless

each of the following requirements are [sic] satisfied:

			(1) the third offense was committed after the effective date of this Act;

			(2) the third offense was committed

within 20 years of the date that judgment was

entered on the first conviction, provided, however, that time spent in custody shall not

be counted;

			(3) the third offense was committed

after conviction on the second offense;

			(4) the second offense was committed

after conviction on the first offense." 

(Emphasis added.)  720 ILCS 5/33B-1(d) (West

2000).

		The parties agree that armed robbery had the same

elements in 1974 and 1987 as it had in 1999.  The parties also

agree that sections 33B-1(d)(1), (d)(3), and (d)(4) of the

Habitual Criminal Act are fulfilled.  

		Defendant disagrees that subsection (d)(2) is ful

filled.  He committed the third offense on March 6, 1999--pre

cisely 24 years and 10 months after May 6, 1974, when the Cham

paign County circuit court entered judgment for the first of

fense.  Defendant argues that the trial court misapplied the

Habitual Criminal Act by reducing that 24 years and 10 months by

(1) the time defendant was in custody for the second offense and

(2) the time he was on parole.  According to defendant, only the

time he actually spent in prison for the first offense should be

deducted from the 24 years and 10 months.  Because he was impris oned only 3 years and 5 months for the first offense, the span of

time between the entry of judgment for the first offense and his

commission of the third offense is, he argues, more than 20

years.  	

		The State argues that "time spent in custody" means any

time in custody, including imprisonment for the second as well as

the first offense.  The State further argues that parole counts

as time in custody.  Clearly, under the State's interpretation of

subsection (d)(2), the exclusions of time would be substantial

enough that the date of the third offense would be less than 20

years after the date of judgment for the first offense, making

defendant a "habitual criminal."

		Defendant reasons that because subsection (d)(2) refers

only to the first and third convictions, its proviso, "time spent

in custody shall not be counted," refers only to time spent in

custody for the first conviction.  If the legislature intended to

"tack" the time in custody for the second offense onto the time

in custody for the first, "it could have said so without diffi

culty," defendant argues.  "All it would have needed to say in

[section 33B-1](d)(2) was, e.g., '[t]ime spent in custody on the first offense or any subsequent offense ***.'"  The legislature

said the same thing, however, in a more concise way:  "time spent

in custody shall not be counted."  If the legislature intended

subsection (d)(2) to be interpreted the way defendant interprets

it, the legislature could have easily said:  "Time in custody for the first offense shall not be counted."  Defendant reads into the statute a limitation that is not in the text of the statute. 

"When the language of a statute is plain and unambiguous, courts

may not read in exceptions, limitations, or other conditions." 

In re D.D., 196 Ill. 2d 405, 419, 752 N.E.2d 1112, 1120 (2001).

		According to defendant, in People v. Dunigan, 165 Ill. 2d 235, 650 N.E.2d 1026 (1995), the supreme court "strongly

implies, if it does not hold, that the prescribed period under

[section] 33B-1(d)(2) is a calendar [20]-year period and not an

artificial period created by 'tacking' custody time for the

second conviction."  We disagree.  In Dunigan, 165 Ill. 2d at 240, 650 N.E.2d at 1028, the defendant committed the third

offense within 20 years after his conviction for the first

offense.  Therefore, any time he spent in custody was irrelevant.

	2. Relationship to Extended-Term Sentencing Statutes    

		Defendant argues that by sentencing him to life impris

onment under the Habitual Criminal Act, the trial court ignored

the extended-term sentencing provision in section 5-8-2(a) of the

Unified Code of Corrections (Unified Code) (730 ILCS 5/5-8-2(a)

(West 2000)), which incorporates section 5-5-3.2 of the Unified

Code (730 ILCS 5/5-5-3.2 (West 2000)).  Because defendant was

convicted of the third armed robbery within 10 years after he was

convicted of the second armed robbery, he argues that he was

eligible for (the less severe) extended-term sentencing rather

than life imprisonment under the Habitual Criminal Act.  See 730

ILCS 5/5-5-3.2(b)(1) (West 2000).  We disagree.    

		Imposition of an extended term is permissive.  730 ILCS 5/5-8-2(a) (West 2000) ("the judge may sentence an offender to the following" (emphasis added)); 730 ILCS 5/5-5-3.2(b) (West

2000) ("The following factors may be considered by the court ***" (emphasis added)); People v. Nolan, 291 Ill. App. 3d 879, 887, 684 N.E.2d 832, 837 (1997).  Section 33B-1(a) of the Habitual

Criminal Act provides:  "Every person [whose felony convictions

meet the requirements of the statute] shall be adjudged an habitual criminal."  (Emphasis added.)  720 ILCS 5/33B-1(a) (West

2000).  Section 33B-1(e) provides:  "Except when the death

penalty is imposed, anyone adjudged an habitual criminal shall be sentenced to life imprisonment."  (Emphasis added.)  720 ILCS

5/33B-1(e) (West 2000).  Thus, statutory law did not require the

trial court to impose an extended term, but it did require the

trial court to adjudge defendant a habitual criminal and sentence

him to life imprisonment if he met the requirements of the

Habitual Criminal Act.  

	3. Parole

		Defendant cites People v. Robinson, 89 Ill. 2d 469, 433 N.E.2d 674 (1982), as authority for his argument that periods of

parole are not "time spent in custody."  In that case, the

supreme court considered whether time spent in federal custody

should be excluded from the 10-year period in section 5-5-

3.2(b)(2) of the Unified Code (Ill. Rev. Stat. 1979, ch. 38, par.

1005-5-3.2(b)(1)).  

		Whether parole was "time spent in custody" was not an issue in Robinson.  Comments by a reviewing court on a point not in controversy "lack[] the authoritative force of a precedent." 

Sexton v. Brach, 124 Ill. App. 3d 202, 206, 464 N.E.2d 284, 287 (1984).  Besides, the supreme court did not comment, in Robinson, that "time spent in custody" excludes periods of parole.  Defen

dant argues that the supreme court so implied.  He reasons as

follows.  If periods of parole were time in custody, the supreme

court did not have to decide whether time in federal custody

counted in the computation of the 10 years.  Before his federal

conviction, the defendant in Robinson was on parole for a convic tion in state court.  Robinson, 89 Ill. 2d at 471, 433 N.E.2d at 675.  Subtracting that period of parole would have reduced the

time between his 1967 conviction and 1979 conviction to less than

10 years, making the intervening time in federal custody super

fluous.  Therefore, the implication is that periods of parole are

not "time spent in custody."    

		The implication is unreliable.  Counting the parole

might well have been an alternative way to affirm the appellate

court's judgment in Robinson.  Nevertheless, the issue before the supreme court was whether time in federal custody should have

been excluded when counting the 10 years.  Robinson, 89 Ill. 2d at 473, 433 N.E.2d at 676.  The supreme court could have chosen

to address that issue head-on rather than sidestep it and resolve

the case on an issue the parties apparently never briefed.

		Citing decisions of the United States Supreme Court, defendant argues that "custody means actual custody in the law of

American criminal procedure."  We find a more specifically relevant authority in Illinois statutory law.  Section 3-14-2(a)

of the Unified Code (730 ILCS 5/3-14-2(a) (West 2000)) says: 

"The Department shall retain custody of all persons placed on

parole ***."  Thus, persons on parole are still within custody,

and periods of parole are "time spent in custody" for purposes of

the Habitual Criminal Act.  Cf. People v. Smith, 199 Ill. App. 3d 839, 857-58, 557 N.E.2d 596, 609-10 (1990) (which held that "time

in custody," in the extended-term sentencing statute (Ill. Rev.

Stat. 1985, ch. 38, par. 1005-5-3.2(b)(1), (now codified as 730 ILCS 5/5-5-

3.2(b)(1) (West 2000))), includes time on parole).

		As the State points out, interpreting "time spent in

custody" to exclude periods of parole would make a portion of the

Habitual Criminal Act (720 ILCS 5/33B-2(b) (West 2000)) superflu

ous.  Section 33B-2(b) provides:

			"A duly authenticated copy of the record

of any alleged former conviction of an of

fense set forth in [s]ection 33B-1 shall be

prima facie evidence of such former convic

tion; and a duly authenticated copy of the record of the defendant's final release or

discharge from probation granted, or from

sentence and parole supervision (if any)

imposed pursuant to such former conviction,

shall be prima facie evidence of such release

or discharge."  (Emphasis added.)  720 ILCS 5/33B-2(b) (West 2000).

If periods of parole did not count as "time spent in custody,"

the date of the "final release or discharge from *** parole

supervision" (720 ILCS 5/33B-2(b) (West 2000)) would be irrele

vant.  Defendant argues:  "[T]he purpose of proving the term of

parole is to establish the date of actual release from actual

custody (prison) ***."  If imprisonment alone suspended the

running of the 20-year clock, one would have to prove not the

term of parole but only the beginning date of parole.      

	4. Apprendi

		Citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), defendant contends that the

sentence of life imprisonment under the Habitual Criminal Act

violated his constitutional rights to due process and a trial by

jury.  We adhere to our recent decision in People v. Allen, 335 Il.l. App. 3d 773, 785, 780 N.E>. 2d 1133, 1143No. 4-00-0786, slip op. at 20 (December 10, 2002), ___ Ill. App. 3d ___, ___

N.E.2d ___ (Fourth District), that

"Apprendi does not render section 33B-1 *** unconstitutional."

   	III. CONCLUSION

		For the foregoing reasons, we affirm the trial court's

judgment.

		Affirmed.

		MYERSCOUGH, P.J., and TURNER, J., concur.