NO. 4-99-0852

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

          Plaintiff-Appellee,

          v.

CARL GIVENS,

          Defendant-Appellant.

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)	  Appeal from

  Circuit Court of 

  Vermilion County

  No. 97CF35

  Honorable

  Claudia S. Anderson,

  Judge Presiding.

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		JUSTICE KNECHT delivered the opinion of the court:

		In February 1997, the State charged defendant, Carl

Givens, with one count of burglary, a Class 2 felony (720 ILCS

5/19-1 (West 1996)).  In July 1999, a jury found defendant guilty

as charged.  In September 1999, the trial court found defendant

eligible for Class X sentencing under section 5-5-3(c)(8) of the

Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-

3(c)(8) (West 1996) (effective until June 1, 1997)) and sentenced

defendant to 18 years' imprisonment.  On appeal, defendant argues

section 5-5-3(c)(8) of the Unified Code is unconstitutional.  We

affirm.

	I. BACKGROUND

		On January 24, 1997, Keith Wilson, the victim and owner of Wilson's Body Shop (Shop), arrived at the Shop and parked his

truck across the street, leaving it unlocked.  Later, Wilson no

ticed defendant standing by his truck.  Wilson noticed defendant

had something in his hands and thought defendant had the cellular

phone he kept in his truck.  Wilson began walking toward his truck, and as he approached, defendant began running.  Wilson

went to the truck and discovered some cigarettes and his cellular

phone were missing.  Wilson got in his truck and proceeded to

look for defendant.

		About one block away from the Shop, a neighbor informed

Wilson he had seen a man go behind a house near the city garage. 

Wilson then saw defendant near the city garage, got out of his

truck, approached defendant, and asked for his cellular phone. 

Defendant denied having Wilson's cellular phone and told Wilson

he had business at the city garage.  Wilson stated he would wait

for defendant to finish his business, but defendant did not go to

the city garage.  Instead, defendant started running, and Wilson

followed him.  As Wilson was pursuing defendant, he saw a police

officer and signaled the officer to apprehend defendant.

		Danville police officers Joseph Crippin and Richard

Dicken responded to the burglary call.  Employees of the Shop

informed Officer Dicken of Wilson's  pursuit of the suspected

burglar.  Officer Crippin drove to the area where Wilson was last

seen and saw Wilson chasing defendant.  Officer Crippin appre

hended defendant as Officer Dicken arrived at the scene.

		After talking with Wilson, the officers traced the path

of the chase and found a cellular phone, two packs of cigarettes,

and a cigarette lighter.  Wilson identified all those items as

having been taken from his truck.  John Bunting, a forensic

scientist with the Illinois State Police crime lab, found no

fingerprints suitable for comparison on the cellular phone.

		In February 1997, the State charged defendant with burglary, and in August 1997, a jury found defendant guilty as

charged.  In September 1997, the trial court sentenced defendant

to 10 years' imprisonment, and defendant appealed.  This court

reversed defendant's conviction and remanded the case to the

trial court.  People v. Givens, No. 4-97-1072 (March 10, 1999) (unpublished order under Supreme Court Rule 23).  In July 1999, a

jury found defendant guilty of burglary.  Because of his criminal

record, the trial court found defendant eligible for sentencing

as a Class X offender as provided in section 5-5-3(c)(8) of the

Unified Code and sentenced him to 18 years' imprisonment.  In

October 1999, the trial court denied defendant's posttrial

motion, and this appeal followed.   		

	II. ANALYSIS

		While this case was pending on appeal, the United

States Supreme Court issued its decision in Apprendi v. New Jersey, 530 U.S. __, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  Defendant argues Apprendi renders section 5-5-3(c)(8) of the Unified Code unconstitutional because it does not require notice

of the State seeking to sentence the defendant as a Class X

offender and does not provide for a jury determination beyond a

reasonable doubt as to whether the qualifying facts of section 5-

5-3(c)(8) exist.  The State argues defendant has waived, i.e., forfeited, this issue on appeal because he failed to raise it in

a posttrial motion.  See People v. Reed, 177 Ill. 2d 389, 393, 686 N.E.2d 584, 586 (1997).  		

		We first address the State's forfeiture argument. 

Because Apprendi was decided while defendant's case was pending on appeal, defendant could not have raised Apprendi in a posttrial motion.  Furthermore, a defendant can raise a constitu

tional challenge to a statute at any time.  People v. Bryant, 128 Ill. 2d 448, 454, 539 N.E.2d 1221, 1224 (1989).  Accordingly, we

address the constitutional challenge raised by defendant.  We

review the constitutionality of a statute de novo.  People v. Fisher, 184 Ill. 2d 441, 448, 705 N.E.2d 67, 71-72 (1998).

		Section 5-5-3(c)(8) of the Unified Code (730 ILCS 5/5-

5-3(c)(8) (West 1996) (effective until June 1, 1997)) provides,

in relevant part:

			"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 sen

tenced 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."

Thus, under section 5-5-3(c)(8) (730 ILCS 5/5-5-3(c)(8) (West

1996) (effective until June 1, 1997)), a trial court must sen

tence a defendant as a Class X offender when a defendant has prior felony convictions satisfying the statutory requirements. 

See People v. Thomas, 171 Ill. 2d 207, 222, 664 N.E.2d 76, 84 (1996) (Class X sentencing under section 5-5-3(c)(8) of the

Unified Code is mandatory).  Section 5-5-3(c)(8) of the Unified

Code does not elevate the class of the crime but merely sets

forth criteria under which a defendant will be sentenced accord

ing to the guidelines for a Class X felony.  People v. Thomas, 171 Ill. 2d 207, 224, 664 N.E.2d 76, 85 (1996).

		In Apprendi, 530 U.S. __, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63, the United States Supreme Court held "[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."

(Emphasis added.)  In support of the prior-crimes exception, the

Supreme Court quoted its earlier holding in Almendarez-Torres v. United States, 523 U.S. 224, 243-44, 140 L. Ed. 2d 350, 368, 118 S. Ct. 1219, 12-30-31 (1998), where the Court explained "'recidi

vism *** is a traditional, if not the most traditional, basis for

a sentencing court's increasing an offender's sentence,'" and

emphasized "'the fact that recidivism "does not relate to the

commission of the offense ...***."'" (Apprendi, 530 U.S. at __, 147 L. Ed. 2d at 454, 120 S. Ct. at 2361-62, quoting Almendarez- Torres, 523 U.S. at 244, 140 L. Ed. 2d at 368, 118 S. Ct. at 1231, quoting Graham v. West Virginia, 224 U.S. 616, 629, 56 L. Ed. 2d 917, 923, 32 S. Ct. 583, 588 (1912)).  Furthermore, prior

convictions have been entered pursuant to proceedings with

substantial procedural safeguards of their own.  Apprendi, 530 U.S. __, 147 L. Ed. 2d at 453, 120 S. Ct. at 2361.  

		Those same reasons for the recidivism exception recog

nized in Apprendi apply here.  The prior convictions providing the basis of defendant's enhanced sentence under section 5-5-

3(c)(8) were obtained through proceedings with substantial

procedural safeguards.  Additionally, the dates of the actions

underlying those convictions can be ascertained from those

proceedings.  Moreover, the factual findings required by section

5-5-3(c)(8) of the Unified Code do not relate to the commission

of the underlying offense.  Accordingly, we find Apprendi does not render section 5-5-3(c)(8) of the Unified Code unconstitu

tional.  

		Even if Apprendi applied, the error would have been harmless error.  Under section 5-5-3(c)(8) of the Unified Code, a

defendant's sentence is enhanced based entirely on objective, historical criteria, one's record of criminal convictions, and no

limitations or restrictions are placed on its application based

on mental state or any other subjective matter.  Thomas, 171 Ill. 2d at 222, 664 N.E.2d at 84.  At trial, defendant did not dispute

he was more than 21 years old and his convictions meet the

section 5-5-3(c)(8) requirements.  The evidence in the record was

overwhelming both as to defendant's age and the dates of the

commission of the prior felonies.  Thus, the failure to ask the

jury to determine defendant's age and the dates the prior felo

nies were committed was harmless beyond a reasonable doubt.   

		In the alternative, defendant argues should this court

find Apprendi does not apply, we should still find section 5-5- 3(c)(8) of the Unified Code unconstitutional because the statute

does not require the trial court to make findings beyond a

reasonable doubt.  Defendant contends Almendarez-Torres requires sentencing determinations that bear significantly on the severity

of the sentence should be subject to a heightened standard of

proof.  Contrary to defendant's assertion, the Supreme Court in

Almendarez-Torres, 523 U.S. at 248, 140 L. Ed. 2d at 371, 118 S. Ct. at 1233, stated:  "[W]e express no view on whether some

heightened standard of proof might apply to sentencing determina

tions that bear significantly on the severity of sentence."

		Furthermore, the Supreme Court of Illinois in People v. Williams, 149 Ill. 2d 467, 492, 599 N.E.2d 913, 924 (1992), held a higher standard of proof of beyond a reasonable doubt should

not be imposed for sentencing factors when a trial court finds a

defendant eligible for Class X sentencing under section 5-5-

3(c)(8).  We fail to see why that holding would not also apply to

factors imposing Class X sentencing under the same statute. 

			III. CONCLUSION

		Accordingly, we affirm the judgment of the circuit

court of Vermilion County.

		Affirmed.		

		KNECHT, J., with MYERSCOUGH and COOK, JJ., concurring.