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FIRST DIVISION
June 16, 2003

JUSTICE SMITH delivered the opinion of the court:

Following a bench trial, defendant, Thomas Askew, was found guilty of possession of acontrolled substance. At the sentencing hearing on July 16, 2001, the trial court sentenceddefendant to an extended-term sentence of four years in prison, based on defendant's priorconvictions.

On appeal, defendant does not challenge the sufficiency of the evidence that led to hisconviction. Instead, he argues that the trial court improperly imposed an extended term sentencebased on his prior convictions, because: (1) the trial court did not find the existence of his priorconvictions beyond a reasonable doubt, as required by the version of 5/5-8-2 of the Unified Codeof Corrections (the Code) (730 ILCS 5/5-8-2(a) (West 2000)) under which he was sentenced, and(2) the extended-term sentencing provision found in section 5-5-3.2(b)(1) (730 ILCS 5/5-5-3.2(b)(1) (West 2001)) is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435,120 S. Ct. 2348 (2000), because it does not require that his prior convictions be pledin the charging instrument or proven at trial. Defendant alleges that these errors entitle him to anew sentencing hearing.

In Apprendi, the Supreme Court held unconstitutional a New Jersey hate crime statutethat increased the normal 5 - 10 year range of imprisonment for possession of a firearm for anunlawful purpose to a 10 - 20 year term if the trial judge found by a preponderance of theevidence that the defendant, when committing the offense for which he was being sentenced, hadacted with a racially biased purpose. Apprendi, 530 U.S. at 468-69, 147 L. Ed. 2d 435,120 S. Ct.at 2531. The Court held that, "[o]ther than the fact of a prior conviction, any fact that increasesthe penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S.Ct. at 2362-63.

In recognizing that prior convictions are an exception to the general rule that facts whichincrease a sentence beyond the statutory maximum must be proven beyond a reasonable doubt,the Apprendi Court relied on its holding in Almendarez-Torres v. United States, 523 U.S. 224,140 L. Ed. 2d 350, 118 S.Ct. 1219 (1998). The Court explained that the procedural safeguardsattached to any "fact" of a prior conviction mitigate the due process concerns otherwiseimplicated in allowing a judge to determine a "fact" which increases punishment beyond thestatutory maximum penalty. Apprendi, 530 U.S. at 488-90, 147 L. Ed. 2d at 454, 120 S. Ct.2362. Further, the Court reasoned that recidivism is not an essential element of the underlyingcriminal offense and recidivism does not relate to the commission of the underlying offense.

This court has held that these same reasons support applying the recidivism exceptionrecognized in Apprendi to Illinois cases. People v. Lathon, 317 Ill. App. 3d 573 (2000)(defendant's sentencing as a recidivist was not subject to Apprendi rule generally requiring a jurydetermination of fact issues relating to sentencing); People v. Childress, 321 Ill. App. 3d 13(2001) (same).

Against this backdrop, the legislature amended the Code of Criminal Procedure of 1963(Procedure Code) by Public Act 91-953 (Pub. Act 91-953, eff. Feb. 23, 2001). The centralamended provision was section 111-3(c-5) (725 ILCS 5/111-3(c-5) (West 2000)), which nowprovides in pertinent part:

"Notwithstanding any other provision of law, in all cases in which the imposition of the death penalty is not a possibility, if analleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase therange of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the allegedfact must be included in the charging instrument or otherwise provided to the defendant through a written notification beforetrial, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt." (Emphasis supplied).

Sections 5-5-3(d) and 5-5-4 of the Code were amended with the language:

"If a sentence is vacated on appeal or on collateral attack due to the failure of the trier of fact at trial to determine beyond areasonable doubt the existence of a fact (other than a prior conviction) necessary to increase the punishment for the offensebeyond the statutory maximum otherwise applicable, either the defendant may be re-sentenced to a term within the rangeotherwise provided or, if the State files notice of its intention to again seek the extended sentence, the defendant shall be afforded a new trial." (Emphasis added.)

(730 ILCS 5/5-5-3(d) and 730 ILCS 5/5-5-4 (West 2000).

These amendments reflect the legislature's intention to bring the Code into conformitywith the Apprendi decision both in terms of the burden of proof and other due processprotections where extended sentences are sought, and in terms of the exemption from that burdenand process for extended-term sentences predicated upon prior convictions.

The problem, according to defendant, is that the amendment to section 5-8-2(a) does notcontain the exception for prior convictions. Instead, that section provided (in relevant part, andat the time defendant was sentenced):

"A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section5-8-1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forthin paragraph (b) of Section 5-5-3.2 were found to be present. Where a trier of fact finds beyond a reasonable doubt that suchfactors were present, the judge may sentence an offender to the following [.]" (Emphasis added.)

(730 ILCS 5/5-8-2 (West 2000)).

Defendant contends that, according to the unambiguous provisions of section 5-8-2, he wasentitled to have proven, beyond a reasonable doubt, the fact of his prior convictions.

The State maintains that the legislature's failure to include the exception for extendedterm sentences found elsewhere in the Unified Code of Corrections in the version of section 5-8-2 under which defendant was sentenced was an oversight, and that this court can and shouldsupply the missing language in order to give effect to clear legislative intent.

"The cardinal rule of statutory construction, to which all other rules are subordinate, is toascertain and give effect to the true intent of the legislature. In determining the legislative intent,a court should first consider the statutory language. This is the best means of expounding thelegislative intent. Where the statutory language is clear, it will be given effect without resort toother aids for construction. However, where the language is ambiguous, it is appropriate toexamine the legislative history." People v. Hickman, 163 Ill. 2d 250, 261 (1994). Defendantargues that it is improper for us to examine legislative intent in this case, inasmuch as thelanguage of section 5-8-2 is unambiguous. We disagree.

An ambiguity exists when a statute is capable of being understood in two or moredifferent senses by reasonably well-informed persons. People v. Jameson, 162 Ill. 2d 282, 288(1994). As a sentencing provision, section 5-8-2 necessarily operates in relation to and alongwith other provisions of the sentencing scheme. Construction of the language of that section istherefore impossible without reference to the other sections of the Code and the Procedure Codewhich inform it, including sections 5-5-3(d) and 5-5-4 and 111-3, respectively, all of whichexempt prior convictions from the category of aggravating factors the existence of which must beproven beyond a reasonable doubt. We find that a reasonable person reading section 5-8-2 andrelated sentencing provisions could conclude either that prior convictions must be proven beyonda reasonable doubt or that prior convictions are exempt from this requirement. There isaccordingly an ambiguity.

We recognize that criminal statutes are to be construed in favor of the accused, but suchconstruction should not be so rigid as to defeat the intent of the legislature. People v. Smith, 307Ill. App. 3d 414, 418 (1999). In determining legislative intent, courts attempt to ascertain theobjective the legislature aimed to achieve, the reason and necessity for the law, and the evils itsought to remedy. People v. Jeffries, 164 Ill. 2d 104, 110 (1995). In this case, it is clear that thelegislature sought to amend the Code to bring its provisions into conformity with the decisionhanded down in Apprendi. As discussed earlier, Apprendi set forth certain criteria for theimposition of extended sentences, including proof of aggravating factors beyond a reasonabledoubt, submission to a jury, as well as inclusion in the charging instrument (or other sufficientnotice to the accused) of the factors that the State will seek to demonstrate. Apprendi also madeit quite clear that extended sentences based upon prior convictions were exempt from theforegoing requirements, and the Court articulated the reasons for allowing this narrowexemption.

We believe that when the legislature drafted Public Act 91-953, it intended to includelanguage exempting prior convictions from the proof beyond a reasonable doubt requirement insection 5-8-2(a), just as it had done in sections 111-3(c-5), 5-5-3(d) and 5-5-4. Thisdetermination is buttressed by a subsequent amendment to section 5-8-2 via Public Act 92-951(Pub. Act 92-951,