SECOND DIVISION 

 Date Filed: March 31, 2006 

No. 1-05-0948 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the 

 ) Circuit Court of 

 Plaintiff-Appellee, ) 

 ) 

 v. ) No. 03 CR 15878 

 ) 

TIMOTHY MOORE, ) Honorable 

 ) Victoria A. Stewart, 

 Defendant-Appellant. ) Judge Presiding. 

 JUSTICE HALL delivered the opinion of the court: 

 

 The defendant, Timothy Moore, and the codefendant, Joseph 

Caldwell, were indicted and charged with the offenses of 

possession of a controlled substance with intent to deliver (720 

ILCS 570/401(c)(2) (West 2002)) and possession of a controlled 

substance with intent to deliver within 1,000 feet of a park (720 

ILCS 570/401(c)(2), 407(b)(1) (West 2002)). Following a joint 

bench trial, both the defendant and Mr. Caldwell were acquitted 

of possession of a controlled substance with intent to deliver 

within 1,000 feet of a park but found guilty of possession of a 

controlled substance with intent to deliver. The defendant was 

sentenced to six years' imprisonment in the Department of 

Corrections. 

 The defendant appeals, raising the following issues: (1) 

whether the evidence was sufficient to prove him guilty beyond a 

reasonable doubt; (2) whether trial counsel's stipulation 

violated the defendant's constitutional right to confrontation; 

and (3) whether the defendant's Class X sentence was 

unconstitutional. 
No. 1-05-0948 

2 

 The sole witness at the defendant's bench trial was Chicago 

police officer Killeen. Officer Killeen had been a police 

officer for 3 1/2 years and had made over 100 narcotics arrests. 

 On June 25, 2003, at approximately 5:15 p.m., Officer 

Killeen was conducting a narcotics surveillance operation in the 

vicinity of 6229 South Carpenter Street in Chicago. While 

conducting the surveillance, he observed two individuals whom he 

identified as the defendant and Mr. Caldwell. From his position 

approximately 20 to 30 feet aboveground, Officer Killeen observed 

Mr. Caldwell walking in the vicinity of the Carpenter Street 

address and heard him yelling "Rocks," which is slang for crack 

cocaine. 

 At three different times, black male pedestrians walked up 

to Mr. Caldwell and engaged him in conversation. Mr. Caldwell 

motioned the pedestrian toward the defendant by nodding his head 

in the defendant's direction. The pedestrian would approach the 

defendant, who was standing on the west side of the street, and 

hand him an unknown amount of money. Almost simultaneously, Mr. 

Caldwell would go to a leaf pile at the Carpenter Street address 

and retrieve a "small item," which he covered with his hand. Mr. 

Caldwell gave the item to the pedestrian after the money was 

given to the defendant. 

 At the time Officer Killeen observed the defendant and Mr. 

Caldwell, it was daylight, and he was approximately 50 feet from 

them. The defendant and Mr. Caldwell were no more than 15 to 20 
No. 1-05-0948 

3 

feet apart. The defendant was about 30 feet from the leaf pile. 

 

 After the third transaction, Officer Killeen radioed Officer 

Fitzpatrick, his partner, and gave him a physical description of 

the defendant and Mr. Caldwell. After Officer Fitzpatrick picked 

him up, both officers and officers from the "beat" car approached 

the defendant and Mr. Caldwell and conducted a field interview. 

Officer Killeen went to the leaf pile that Mr. Caldwell had been 

retrieving items from and recovered one clear bag containing 

eight smaller bags, each with a white rock-like substance. The 

defendant and Mr. Caldwell were arrested. A custodial search of 

the defendant revealed $95. According to Officer Killeen, 

Carpenter Park is nearby, at the intersection of Carpenter Street 

and 62nd Street. 

 Officer Killeen acknowledged that the only contact between 

the defendant and Mr. Caldwell was the "head motion," 

demonstrated by the officer as "nodding the head in a forward 

motion." The defendant never went to the leaf pile and never 

exchanged anything with Mr. Caldwell. The defendant did not have 

any drugs on his person. The defendant did not attempt to flee 

when Officer Killeen approached him. 

 Thereafter, the parties stipulated to the chain of custody 

of the recovered substance and that chemical testing established 

that the recovered substances contained cocaine. The parties 

further stipulated that an investigator from the State's 
No. 1-05-0948 

4 

Attorney's office measured the distance between Carpenter Park 

and the Carpenter Street address as being 345 feet. 

 Following arguments, the defendant was found not guilty of 

possession of a controlled substance with intent to deliver 

within 1,000 feet of a park but guilty of possession of a 

controlled substance with intent to deliver. A presentencing 

investigation report (PSI) was ordered, and the case was 

continued to March 19, 2004, for sentencing. On March 19, 2004, 

the public defender requested leave to file a posttrial motion on 

behalf of the defendant. The court was also advised that Carl 

Washington, a private attorney, would be representing the 

defendant. On March 23, 2004, Mr. Washington appeared and 

requested time to refile the posttrial motion. 

 On October 13, 2004, after numerous continuances at the 

request of Mr. Washington, the parties appeared for argument on 

the defendant's motion for a new trial filed by the public 

defender. The trial court overruled the State's objection to the 

motion, finding that it was timely filed. Mr. Washington elected 

not to present any argument on the motion for a new trial. The 

trial court denied the motion and commenced the defendant's 

sentencing hearing. 

 During the sentencing hearing, the following colloquy 

occurred: 

 "MS. ALIOTO (the prosecutor): Judge, we would just 

point out the defendant is class X by background. He was 
No. 1-05-0948 

5 

found guilty on a class one, count 2. In his background he 

has a 1999 PCS with I. He received probation, which was 

violated, and another two '99 cases that were concurrent; 

both narcotics related. 

 THE COURT: Counsel, do you wish to add anything? 

 MR. WASHINGTON: I don't know if he is eligible or is 

it mandatory? I am hoping that he is not. 

 THE COURT: He is class X by background based on the 

criminal convictions he has, counsel. 

 MR. WASHINGTON: He has two of them. 

 THE COURT: If one of them was class X by background, 

then that would automatically make this class X. 

 MS. ALIOTO: Judge, he has two convictions that are 

class 2 or above." 

 The trial court then advised the defendant that because of 

his previous convictions for two Class 2 or higher felonies, the 

court was required to sentence him as a Class X offender. 

Thereupon, the trial court imposed the mandatory minimum sentence 

of six years' imprisonment, with credit for time served. 

 ANALYSIS 

 I. Reasonable Doubt 

 A. Standard of Review

 When faced with a challenge to the sufficiency of the 

evidence, the relevant inquiry is whether, after viewing all the 

evidence in the light most favorable to the prosecution, any 
No. 1-05-0948 

6 

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt. People v. Campbell, 146 

Ill. 2d 363, 374, 586 N.E.2d 1261 (1992). In this case, the 

defendant maintains that since he does not dispute Officer 

Killeen's testimony, the de novo standard of review applies. 

People v. Smith, 191 Ill. 2d 408, 411, 732 N.E.2d 513 (2000) 

(where the facts are not in dispute, a defendant's guilt is a 

question of law, which the court reviews de novo). 

 "'An inference is a factual conclusion that can rationally 

be drawn by considering other facts.' (Emphasis added.)" People 

v. Rizzo, 362 Ill. App. 3d 444, 449, 842 N.E.2d 727 (2005) 

quoting People v. Funches, 212 Ill. 2d 334, 340, 818 N.E.2d 342 

(2004). If divergent inferences could be drawn from undisputed 

facts, a question of fact remains. Rizzo, 362 Ill. App. 3d at 

449, citing In re Marriage of Kneitz, 341 Ill. App. 3d 299, 303, 

793 N.E.2d 988 (2003). "Where the evidence presented is capable 

of producing conflicting inferences, it is best left to the trier 

of fact for proper resolution." Rizzo, 362 Ill. App. 3d at 449. 

 The elements of knowledge and possession which the State was 

required to prove in this case are questions of fact that are 

rarely susceptible to direct proof. People v. Cooper, 337 Ill. 

App. 3d 106, 110, 785 N.E.2d 86 (2003). The State may establish 

these elements through circumstantial evidence. People v. 

Jones, 295 Ill. App. 3d 444, 453, 692 N.E.2d 762 (1998) (Larry 

Jones). Since conflicting inferences could be drawn from the 
No. 1-05-0948 

7 

undisputed but circumstantial evidence in this case, questions of 

fact rather than law are presented. Therefore, we apply the 

sufficiency of the evidence test set forth above. 

 B. Discussion

 To convict the defendant of the crime of unlawful possession 

of a controlled substance with the intent to deliver, the State 

was required to prove the following: that the defendant had 

knowledge of the presence of the narcotics, that the controlled 

substance was in the immediate possession or control of the 

defendant, and that the defendant intended to deliver the 

controlled substance. People v. Burks, 343 Ill. App. 3d 765, 

768, 799 N.E.2d 745 (2003); see 720 ILCS 570/401 (West 2002). 

As noted above, these elements may be proved by circumstantial 

evidence. 

 The defendant maintains that the evidence failed to 

establish that he had possession of the controlled substance 

recovered in this case or that he had knowledge of its presence 

in the leaf pile. The defendant acknowledges that the possession 

may be actual or constructive. "'A defendant has constructive 

possession of drugs where there is no actual control of the drugs 

but where defendant intends to and has a capacity to maintain 

control over them.'" Burks, 343 Ill. App. 3d at 769, quoting 

Larry Jones, 295 Ill. App. 3d at 453. 

 In Larry Jones, the police observed the defendant having a 

brief conversation with Kenneth Marras, who handed the defendant 
No. 1-05-0948 

8 

an unknown quantity of money. The defendant then looked in the 

direction of his two companions, Messrs. Baker and Mackey, and 

motioned with his right hand. Mr. Baker went over to a rock, 

while Mr. Mackey functioned as a lookout. Mr. Baker retrieved a 

plastic bag from under the rock and removed an object from the 

bag. He then crossed the street and handed the object to Mr. 

Marras, who placed it in his pants pocket. The same transaction 

was repeated with an Hispanic female. The police stopped Mr. 

Marras, who was found to have crack cocaine in his pants pocket. 

 After hearing police sirens, the defendant and Messrs. Baker and 

Mackey left the area. The police recovered a plastic bag 

containing 77 packets of cocaine from under the rock. The 

defendant was stopped, and a search revealed $78 in United States 

currency. Following a jury trial, the defendant was found guilty 

of possession of a controlled substance with intent to deliver. 

 On review, the court rejected the defendant's contention 

that he did not have possession of cocaine, finding that he was 

accountable for the actions of Messrs. Baker and Mackey. The 

court found that the defendant's actions in engaging in a verbal 

discussion with potential cocaine buyers, accepting their money 

and then signaling his companions through nonverbal conduct to 

retrieve the cocaine to deliver to the buyer demonstrated that 

the defendant aided Messrs. Baker and Mackey in their commission 

of the offense. Larry Jones, 295 Ill. App. 3d at 452-53. 

 Under an accountability theory, the State was required to 
No. 1-05-0948 

9 

prove that the defendant, either before or during the commission 

of the offense and with the intent to promote or facilitate such 

commission, solicited, aided, abetted, or attempted to aid 

another person in the planning or commission of the offense. 

Larry Jones, 295 Ill. App. 3d at 452; 720 ILCS 5/5-2(c) (West 

2002). "A defendant's accountability for a criminal offense can 

be established 'from evidence of conduct showing a design on 

defendant's part to aid in the offense.'" Larry Jones, 295 Ill. 

App. 3d at 452, quoting People v. Saunders, 206 Ill. App. 3d 

1008, 1014, 565 N.E.2d 183 (1990). 

 In this case, the evidence establishes that the defendant 

intended to aid Mr. Caldwell in the sale and delivery of the 

cocaine. Mr. Caldwell would engage in conversation with the 

potential buyer and would then, nonverbally, direct the buyer to 

the defendant across the street. As the buyer was giving the 

defendant the money, Mr. Caldwell would be retrieving an item 

from the leaf pile. After the buyer gave the money to the 

defendant, Mr. Caldwell would hand the buyer the item. 

 In addition, the evidence established that the defendant had 

constructive possession of the cocaine. "'[N]ot only does a 

defendant not need to control the premises, he does not even need 

to have actual, personal, present dominion over the drugs 

themselves.'" Larry Jones, 259 Ill. App. 3d at 453, quoting 

People v. Adams, 161 Ill. 2d 333, 345, 641 N.E.2d 514 (1994). 

"The State need only show that the defendant has not abandoned 
No. 1-05-0948 

10 

the drugs and no other person has obtained possession of the 

drugs." Larry Jones, 295 Ill. App. 3d at 453. Proof that the 

defendant knew the drugs were present and exercised control over 

them establishes that constructive possession. Larry Jones, 295 

Ill. App. 3d at 453. 

 The cases relied on by the defendant are distinguishable. 

At issue in People v. Hagberg, 192 Ill. 2d 29, 733 N.E.2d 1271 

(2000), was whether a field test conducted in that case was 

sufficient to prove the substance was a narcotic. In People v. 

Blue, 343 Ill. App. 3d 927, 799 N.E.2d 804 (2003), the evidence 

that the defendant broke into an apartment where cocaine and 

heroin were found and fled when police arrived was insufficient 

to show that the defendant had constructive possession of the 

drugs. The court distinguished Adams on the basis that there was 

no evidence that the defendant carried the drugs into the 

apartment or that the drugs otherwise belonged to him. Blue, 343 

Ill. App. 3d at 940. 

 In People v. Macias, 299 Ill. App. 3d 480, 701 N.E.2d 212 

(1998), the defendant's conviction was reversed where the only 

evidence connecting him to the drugs was the fact he had a key to 

the apartment, given to him by the apartment tenant who was 

hospitalized. In People v. Jones, 105 Ill. App. 3d 1143, 435 

N.E.2d 832 (1982) (Benjamin Jones), the evidence was insufficient 

to prove constructive possession where the evidence showed that 

the apartment where the drugs were located was accessible to 
No. 1-05-0948 

11 

others and the evidence was conflicting as to whether the 

defendant resided in the apartment where the drugs were 

discovered. Moreover, in People v. Eghan, 344 Ill. App. 3d 301, 

308, 799 N.E.2d 1026 (2003), the court questioned the continued 

validity of the analysis in Benjamin Jones, in light of the 

supreme court's holding in Adams that a defendant need not 

control the premises in order to have constructive possession of 

the drugs. Eghan, 344 Ill. App. 3d at 308. Finally, in People 

v. Wolski, 27 Ill. App. 3d 526, 327 N.E.2d 308 (1975), the 

defendant's conviction for possession of marijuana was reversed 

where others had access to the apartment, and there was no other 

corroborating evidence associating the defendant with the 

contraband. 

 None of the above cases relied on by the defendant involved 

a scenario such as the present case where the actions of the 

defendant in concert with another individual permitted the 

inference that the defendant had constructive possession of the 

drugs. In this case, the defendant's acceptance of the money 

from the potential drug buyers signaled Mr. Caldwell to retrieve 

an item from the leaf pile and hand it to the buyer, thus 

completing the transaction. There was no evidence that the 

buyers or anyone else had access to the leaf pile. The fact that 

the defendant did not attempt to flee the police supports the 

inference that he did not know that the leaf pile contained the 

drugs. However, it is equally permissible to infer from the fact 
No. 1-05-0948 

12 

that the drugs were concealed in the leaf pile, that the 

defendant knew of their presence and sought to physically 

distance himself from them. See People v. McLaurin, 331 Ill. 

App. 3d 498, 503, 772 N.E.2d 296 (2002). 

 Finally, the defendant's reliance on People v. Jackson, 318 

Ill. App. 3d 321, 741 N.E.2d 1026 (2000), is misplaced. In 

Jackson, a division of this court reversed the defendant's 

conviction for possession of a controlled substance with intent 

to deliver on the basis that there was no proof that the item 

sold was a controlled substance, although the bag the police 

recovered contained drugs, distinguishing Larry Jones. The court 

further distinguished Larry Jones on the basis that it involved 

more than one sale, unlike the single sale in the case before it. 

 Jackson, 318 Ill. App. 3d at 326; see Cooper, 337 Ill. App. 3d 

at 113; but see People v. Little, 322 Ill. App. 3d 607, 617, 750 

N.E.2d 745 (2001) (the court disagreed "with any suggestion made 

by the Jackson court that the nature of an unknown object 

exchanged during suspected drug activity can never be reasonably 

inferred from the circumstances but, rather, must be established 

by direct proof"). 

 Recently, in People v. Bush, 214 Ill. 2d 318, 827 N.E.2d 455 

(2005), our supreme court addressed whether a conviction for 

possession of a controlled substance with intent to deliver 

required proof that any unidentified sold items were controlled 

substances. Ms. Bush sold unidentified items out of a brown 
No. 1-05-0948 

13 

paper bag. When the police searched the bag, a substance, later 

proved to be crack cocaine, was recovered. Ms. Bush argued that 

her conviction for possession of a controlled substance with 

intent to deliver could not be based on the assumption that the 

unidentified items were identical to the items recovered from the 

bag, relying on Cooper and People v. Jones, 174 Ill. 2d 427, 675 

N.E.2d 99 (1996) (Tony Jones). In Tony Jones, the supreme court 

held that a defendant could be convicted only for the amount of 

substance tested and found to contain cocaine and that no 

inference could be draw from the untested packets as to their 

composition. Tony Jones, 174 Ill. 2d at 429-30. 

 The supreme court rejected Ms. Bush's argument. First, the 

court rejected Cooper, holding that allowing for all reasonable 

inferences from the record in favor of the prosecution, "the 

facts easily support an inference that defendant intended to 

deliver the remaining contents of the brown paper bag." Bush, 

214 Ill. 2d at 327. As to Ms. Bush's reliance on Tony Jones, the 

court stated as follows: 

"[Tony] Jones stands for the proposition that, under certain 

circumstances, the nature of an untested substance cannot be 

inferred from the nature of a tested substance. In this 

case, the nature of an untested substance is not at issue. 

We know that the substance found in the brown paper bag 

tested positive for cocaine, and whether the first two 

transactions likewise involved cocaine is not dispositive of 
No. 1-05-0948 

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defendant's intent to deliver the substance found in the 

bag. To illustrate, assume that we knew with scientific 

certainty that the first two transactions did involve 

cocaine. We still could not infer, from this fact alone, 

that defendant intended to sell the cocaine found in the 

bag. As defendant suggests, the remaining cocaine could 

have been for the defendant's personal use. Conversely, 

knowing that the first two transactions involved Bazooka 

bubble gum would not, by itself, preclude the inference that 

defendant intended to also sell the cocaine." (Emphasis in 

original.) Bush, 214 Ill. 2d at 328-29. 

 The court then noted that the facts established Ms. Bush's 

intent to sell the remaining cocaine: twice after selling small 

items out of the brown paper bag, Ms. Bush returned to her post 

beyond the fence, indicating that she intended to engage in 

further transactions. "And given that the brown paper bag 

contained only cocaine, there is only one thing that defendant 

could have intended to sell. Significantly, this inference has 

everything to do with defendant's behavior, and nothing at all to 

do with the nature of the two items defendant actually sold. 

[Tony] Jones is therefore irrelevant." Bush, 214 Ill. 2d at 329. 

 Likewise, in the present case, regardless of whether the 

first three transactions involved controlled substances, only 

cocaine was found in the leaf pile. Moreover, after the third 

transaction, there is no evidence that the defendant changed his 
No. 1-05-0948 

15 

location, implying that he was anticipating further transactions 

involving the contents of the leaf pile. Therefore, the State 

was not required to establish that the unidentified items sold 

prior to the search of the leaf pile contained controlled 

substances in order to convict the defendant. Moreover, unlike 

Jackson, Officer Killeen testified that he witnessed three 

transactions. See Jackson, 318 Ill. App. 3d at 325 (the 

defendant's connection with Mr. Stidham's ultimate narcotics 

transfer would have been more sufficiently established if the 

police had testified to a pattern of activity wherein more than a 

single customer approached the defendant, gave him money and 

received an object from Mr. Stidham after a nod by the defendant 

in his direction). 

 We conclude that the evidence, when viewed most favorably to 

the State, was sufficient to establish that the defendant knew 

the drugs were present and exercised control over them. See 

Larry Jones, 295 Ill. App. 3d at 453-54 (the conduct of the 

defendant and his accomplices supported the conclusion that the 

defendant knew where the drugs were located, always intended to 

maintain control of the drugs and never abandoned them). 

Therefore, the defendant was properly found guilty of possession 

of a controlled substance with intent to deliver beyond a 

reasonable doubt. 

 II. Constitutional Right of Confrontation 

 The defendant contends that his sixth amendment right of 
No. 1-05-0948 

16 

confrontation was violated by his trial counsel's stipulation to 

the chain of custody and to the chemical composition of the 

recovered substance. It is undisputed that there is no 

affirmative showing in the record that the defendant knowingly 

and intelligently waived his constitutional right of 

confrontation. 

 A. Standard of Review

 When the issue raised is purely one of law, the court 

reviews the record de novo. People v. Daniels, 187 Ill. 2d 301, 

307, 718 N.E.2d 149 (1999). 

 B. Discussion

 The defendant relied on the Third District Appellate Court's 

decision in People v. Phillips, 352 Ill. App. 3d 867, 817 N.E.2d 

566 (2004). In that case, the appellate court held that "in 

order to waive the defendant's sixth amendment right of 

confrontation by stipulating to the admission of evidence, there 

must be some affirmative showing or indication by the defendant 

in the record that he or she did not object to or dissent from 

the attorney's decision to stipulate." Phillips, 352 Ill. App. 

3d at 871. 

 However, recently, the supreme court reversed the appellate 

decision in Phillips. People v. Phillips, 217 Ill. 2d 270, 840 

N.E.2d 1194 (2005). The supreme court determined that the 

appellate court had expanded the holding in People v. Campbell, 

208 Ill. 2d 203, 802 N.E.2d 1205 (2003) to "require in every 
No. 1-05-0948 

17 

conceivable situation, that a defendant be advised of the 

implications and consequences of stipulation and that he approve 

on the record." Phillips, 217 Ill. 2d at 284. The court 

reiterated its holding in Campbell, that "'defense counsel may 

waive a defendant's right of confrontation as long as the 

defendant does not object and the decision to stipulate is a 

matter of trial tactics and strategy.' [Citation.] However, *** 

a defendant must personally waive the right of confrontation 

'when the State's entire case is to be presented by stipulation 

and the defendant does not present or preserve a defense ***, or 

where the stipulation includes a statement that the evidence is 

sufficient to convict the defendant.'" (Emphasis in original.) 

Phillips, 217 Ill. 2d at 283, quoting Campbell, 208 Ill. 2d at 

217-18. 

 The supreme court explained that in Campbell: 

"[W]e attached no other restrictions to defense counsel's 

authority to stipulate to the admission of evidence, and, 

except in those specified instances where the stipulation is 

tantamount to a guilty plea, we imposed no obligations on 

the trial court or counsel to admonish the defendant and 

ensure that the advisement is made a part of the record. 

Insofar as the appellate court held otherwise, the court 

erred." Phillips, 217 Ill. 2d at 283. 

 Neither of the exceptions set forth in Campbell is 

applicable in this case. Although the defendant did not present 
No. 1-05-0948 

18 

a defense, in addition to the stipulation as to the chain of 

custody and the chemical composition of the recovered substance, 

the State presented the testimony of the police officer who 

observed the alleged drug transactions and participated in the 

arrest of the defendant. The stipulation was not tantamount to a 

guilty plea since the defendant's position at trial was that he 

never possessed the contraband and did not know that the leaf 

pile contained the contraband. The defendant was present in the 

courtroom at the time his attorney stipulated to the evidence but 

failed to raise an objection to the stipulation. 

 We conclude that trial counsel's stipulation to the chain of 

custody and to the composition of the recovered substance did not 

violate the defendant's sixth amendment right to confront the 

witnesses against him. 

 III. Class X Eligibility 

 The defendant contends that his Class X sentence is 

unconstitutional in that it violates Apprendi v. New Jersey, 530 

U.S. 466, 147 L. Ed 2d 435, 120 S. Ct. 2348 (2000), because the 

State was not required to prove that fact of his prior 

convictions beyond a reasonable doubt. The defendant further 

argues that even if his sentence is constitutional, there is no 

evidence in the record that he had the two prior felony 

convictions required for him to be sentenced as a Class X 

offender. 

 A. Standard of Review
No. 1-05-0948 

19 

 The court reviews the constitutionality of a statute de

novo. People v. Huddleston, 212 Ill. 2d 107, 129, 816 N.E.2d 322 

(2004). 

 B. Discussion

 The defendant acknowledges that his argument has been 

rejected by prior decisions of this court. See People v. Bell, 

343 Ill. App. 3d 110, 796 N.E.2d 1114 (2003). He maintains that 

the United States Supreme Court's recent decision in Shepard v. 

United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254 

(2005), indicates that cases such as Bell have extended the prior 

conviction exception too far. 

 In Shepard, the Government sought to enhance the defendant's 

sentence based on his prior convictions. For enhancement 

purposes, the sentencing statute required that a defendant have 

three prior convictions for violent felonies or drug offenses. 

The defendant's three prior convictions were for burglary and 

were entered on pleas of guilty. Since only a "generic" burglary 

was considered a violent felony for purposes of the sentencing 

statute (see Taylor v. United States, 495 U.S. 575, 599, 109 L. 

Ed. 2d 607, 627, 110 S. Ct. 2143, 2158 (1990)), and the 

complaints charged the offenses in broader terms than generic 

burglary, the district court imposed a nonenhanced sentence. The 

court of appeals disagreed and vacated the sentence, remanding 

for the imposition of an enhanced sentence. 

 The Supreme Court reversed the court of appeals' decision. 
No. 1-05-0948 

20 

The Court first determined that Taylor applied to pleas as well 

as trials. The Court then held that the basis for determining if 

a defendant's plea of guilty to burglary as defined by a 

nongeneric statute admits the elements of the generic offense "is 

limited to the terms of the charging document, the terms of a 

plea agreement or transcript of colloquy between judge and 

defendant in which the factual basis for the plea was confirmed 

by the defendant, or to some comparable judicial record of this 

information." Shepard, 544 U.S. at 25, 161 L. Ed. 2d at 218, 125 

S. Ct. at 1263. 

 The defendant maintains that the import of Shepard is that 

the Court recognized that the proof of prior convictions raised 

the concerns expressed in Apprendi and Jones v. United States, 

526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999). The 

Shepard Court noted as follows: 

"While the disputed fact here can be described as a fact 

about a prior conviction, it is too far removed from the 

conclusive significance of a prior judicial record, and too 

much like the findings subject to Jones and Apprendi, to say 

that [Almendarez-Torres v. United States, 523 U.S. 224, 140 

L. Ed. 2d 350, 118 S. Ct. 1219 (1998),] clearly authorizes a 

judge to resolve the dispute." Shepard, 544 U.S. at 24, 161 

L. Ed. 2d at 217, 125 S. Ct. at 1262.1

 1

Without so holding, the Court did not deny possibility that 

Apprendi could in the future reach the prior conviction 
No. 1-05-0948 

21 

 

exception. Shepard, 544 U.S. at 25 n.5, 161 L. Ed. 2d at 217 

n.5, 125 S. Ct. at 1263 n.5. 
No. 1-05-0948 

22 

 In this case, the defendant was convicted of a Class 2 

felony and sentenced as a Class X offender in accordance with the 

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

Corrections (the Code) (730 ILCS 5/5-5-3(c)(8) (West 2002)). 

Section 5-5-3(c)(8) provides in pertinent part as follows: 

 "When a defendant, over the age of 21 years, is 

convicted of a Class 1 or Class 2 felony, after having twice 

been convicted in any state or federal court of an offense 

that contains the same elements as an offense now classified 

in Illinois as a Class 2 or greater Class felony 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 2002). 

 Since Shepard was decided, three decisions by this court 

have addressed the continuing validity of the prior conviction 

exception to Apprendi in light of Shepard and upheld it. See 

People v. Yancy, No. 1-04-2605 (December 29, 2005); People v. 

Matthews, 362 Ill. App. 3d 953, 842 N.E.2d 150 (2005); People v. 

Rivera, 362 Ill. App. 3d 815, 841 N.E.2d 532 (2005), appeal

pending No. ______. In Rivera, the court addressed the argument 
No. 1-05-0948 

23 

the defendant raises here, that, like the sentencing statute at 

issue in Shepard, section 5-5-3(c)(8) requires the State to prove 

more than just the fact of a prior conviction but also the 

defendant's age, proof of the sequence of prior offenses, proof 

that they were separately brought and tried and proof that they 

arose out of different series of acts. The Rivera court rejected 

that argument, stating as follows: 

 "This court has held that the minimum age and other 

ancillary elements of section 5-5-3(c)(8) are intertwined 

with recidivism and distinct from the elements of the 

underlying offense such that they fall under the exception 

recognized in Apprendi." Rivera, 362 Ill. App. 3d at 820. 

 The defendant then argues that there is no basis in the 

record for the prosecutor's assertion that the defendant had 

previously been convicted of two Class 2 or greater felonies. 

The defendant's PSI reflects that, on February 11, 1999, the 

defendant was sentenced to 18 months' probation in case No. 99 CR 

271401, and on May 13, 1999, was sentenced to three years' 

imprisonment in case No. 99 CR 860901. The two convictions are 

described as "Other Amount Narcotic Scheduled" and the classes of 

the offenses are not set forth. The PSI lists the sources of 

information, one of which was the defendant's Chicago arrest 

history. 

 According to criminal history report from the Chicago police 

department, attached to the PSI, one of the defendant's February 
No. 1-05-0948 

24 

11, 1999, convictions was for a violation of section "720-

570/401(D)" (720 ILCS 570/401(d) (West 2002)). Subsection (d) 

provides that a violation of the provisions of that section is a 

Class 2 felony. 720 ILCS 570/401(d) (West 2002). According to 

the report, the defendant's May 13, 1999, convictions included 

another violation of "720-570/401(D)" and a violation of "720 

ILCS 570/407(B)(2)" (720 ILCS 570/407(b)(2) (West 2002)), a Class 

1 felony. While the report did not specify the class of each of 

the defendant's convictions, the class is set forth in the 

statutory sections referenced in the report. 

 "[E]ven after Apprendi and Shepard, the State was not 

constitutionally required to prove that defendant was eligible 

for Class X sentencing beyond a reasonable doubt." Yancy, slip 

op. at 19. In Yancy, the court relied on the Illinois State 

Police Criminal History Report and Federal Criminal History 

Report, which were attached to the defendant's presentencing 

report, to establish that the date of his first burglary was 

after the effective date of the Act of 1977 (see Pub. Act 80-

1099, eff. February 1, 1978). Yancy, slip op. at 19. In this 

case, the defendant does not dispute his convictions under those 

statutes set forth in the report. As the class of the charges of 

which the defendant was convicted of are set forth in those 

statutes, the record was sufficient to establish the defendant's 

eligibility for Class X sentencing. 

 Notwithstanding the above, the record reflects that the 
No. 1-05-0948 

25 

defendant failed to object to the prosecutor's statement that he 

had two Class 2 or greater felony convictions and did not object 

to the imposition of a Class X sentence at sentencing or in a 

postsentencing motion. Therefore, the defendant has waived his 

contention that his Class X sentence was improper. Yancy, slip 

op. at 19. 

 Finally, we agree with the defendant that the mittimus in 

this case should be corrected to reflect that the defendant was 

convicted of section 401(c)(2) (720 ILCS 570/401(c)(2) (West 

2002)), not section 407(b)(1) (720 ILCS 570/407(b)(1) (West 

2002)) as set forth in the mittimus. 

 We affirm defendant's conviction and sentence and order the 

 mittimus modified to reflect the offense of which the defendant 

was convicted. 

 Affirmed; mittimus modified. 

 GARCIA, P.J., and WOLFSON, J., concur.