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                                                                                                                                                    SIXTH DIVISION
                                                                                                                                                    September 30, 2005

OPINION ON REHEARING

JUSTICE O'MALLEY delivered the opinion of the court:

Following a bench trial, defendant was found guilty of aggravated battery against RandallBlackburn and the burglary of David Demulemeester's home. He was sentenced to an extended-term of six years' imprisonment for the Class 3 felony offense of aggravated battery and aconcurrent term of six years imprisonment for the Class X felony offense of burglary. On appeal,defendant asks: (1) whether his burglary conviction should be reversed because the amendmentto the residential burglary statute which included burglary as a lesser-included offense ofresidential burglary was not effective until after his conviction; (2) whether he was proved guiltybeyond a reasonable doubt of committing aggravated battery with a "deadly weapon" to wit, aclub, which was approximately 30 inches long and 2 inches thick and the injuries sustained byBlackburn were not consistent with "great bodily harm"; and (3) whether he must be resentencedbecause the mandatory Class X sentencing statute and the extended-term sentencing statuteviolate his right to due process and trial by jury by increasing the maximum sentence withoutnotice or a jury finding upon proof beyond a reasonable doubt of the facts qualifying him forsentences beyond the prescribed sentencing range, pursuant to Apprendi v. New Jersey, 530 U.S.466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

On March 15, 2004, we issued an opinion on this case where we affirmed defendant'sconvictions and sentence. On April 5, 2004, defendant filed a petition for rehearing. On April 8,2004, defendant file a motion to cite, as additional authority, a decision by another division ofthis court, People v. Atkins, 348 Ill. App. 3d 126, 130, 809 N.E.2d 152 (2004), which addressedthe same residential burglary statute at issue in the instant case.⁽¹⁾ On April 14, 2004, we grantedthat motion. Upon rehearing, this court heard oral argument from the parties on this case on May25, 2005. On September 22, 2005, we withdrew our opinion of March 15, 2004. On that samedate, we granted defendant's petition for rehearing. Upon rehearing and for the reasons set forthbelow, we now affirm the circuit court's ruling in part and reverse in part.

BACKGROUND

Defendant was charged with residential burglary (720 ILCS 5/19-3 (West 2000)) ofDavid Demulemeester's home on the afternoon of September 7, 2000. Defendant was alsocharged with aggravated battery against Harold DeLeo and Randall Blackburn while using adeadly weapon, "a club." See 720 ILCS 5/12-4(b)(1) (West 2000). Two additional countscharged that the aggravated batteries occurred while on or about a public way. See 720 ILCS5/12-4(b)(8) (West 2000).

Homeowner David Demulemeester testified at trial that on September 7, 2000, althoughhe was having his house "remodeled," he was still living and occupying the house. Workers hadbeen remodeling the home for approximately five months prior to the September 7 unauthorizedentry. Demulemeester further testified that none of his property was missing from his home afterdefendant's unauthorized entry.

Harold DeLeo testified at defendant's bench trial that on September 7, 2000, he wascompleting remodeling work on the home of David Demulemeester. The doors of the homewere not locked because his workers were bringing materials and tools in and out. Atapproximately 2:30 p.m., DeLeo saw defendant in the front room picking up tools off the floor. DeLeo testified that defendant is not a construction worker with his company. DeLeo ran towarddefendant and told him to stop. They began fighting and defendant dropped the tools and tried toget out of the house. The struggle moved to the outdoor front porch and DeLeo noticed hiscompany phone in defendant's pocket. Eventually, DeLeo took the phone from defendant. Defendant ran away. Shortly thereafter, defendant returned to Demulemeester's home; DeLeosaw defendant holding a "stick" that was "[t]wo inches by two inches by approximately forty-twoinches." DeLeo testified that defendant was swinging the stick "pretty wildly." Eventually,DeLeo took the stick from defendant.

Randall Blackburn testified that he observed defendant picking up tools inside the house. Blackburn and DeLeo told defendant to leave. Blackburn, DeLeo and defendant went outside. Blackburn and defendant fought outside. Then defendant ran down the street. Blackburntestified that about two minutes later, defendant returned, running toward him "with a stick." Blackburn described the "stick" as a "[t]wo by two Wolmanized water-treated spindle for arailing." Defendant hit Blackburn in the forehead. The blow rolled Blackburn back, but he didnot fall. Blackburn stated that he still had a "knot" on his head from the blow. He also testifiedthat he suffered a scratch on his right forearm. Pictures of his head and forearm were identifiedat trial and are in the record. Blackburn stated that the picture did not accurately reflect the injuryto his head because his hair concealed the swelling.

Officer Jessie Avila, one of the arresting officers, testified that Blackburn only reportedthe first incident, which started inside the house, and being hit with a stick. Blackburn did notreport that after the initial altercation, defendant returned to the scene some time later and hitBlackburn with a stick. The property inventory report completed by Officer Avila described theweapon used as a "2 x 2 stick approx. 30 inches in length."

The State rested its case and defendant moved for directed finding on counts IV and V(aggravated battery in a public way). Defendant was found not guilty of counts IV and V. Following argument, defendant was also found not guilty of count II (aggravated battery with adeadly weapon against DeLeo). Counts I and III, residential burglary and aggravated batteryagainst Blackburn, remained.

In defendant's case in chief, the parties stipulated that on September 8, 2000, defendantwas hospitalized and treated for a collapsed lung. The defense then rested its case in chief.

The court stated that it was "not convinced beyond a reasonable doubt that a residentialburglary occurred." In finding defendant guilty of burglary and aggravated battery, the courtreasoned: "I'm finding him guilty of the lesser-included of burglary because of the situation ofthe house and the way it was under construction and the fact that there were workmen there." The court further noted that defendant was discovered taking the property of the constructioncompany, not the homeowner. The court also held that the "stick" was a deadly weapon forpurposes of the aggravated battery conviction.

Defendant moved for a new trial, arguing that at the time of the offense, burglary wasspecifically not a lesser-included offense of residential burglary and that the amendment to theresidential burglary statute, which became effective on June 1, 2001, some eight monthssubsequent to the offense, was not retroactive. He further contended that the State failed to provethat the "stick" used was a deadly weapon pursuant to section 12-4 of the Criminal Code of 1961(720 ILCS 5/12-4(b)(1) (West 2000)). The State responded that the legislative intent of thestatute at the time of defendant's offense was to include burglary as a lesser offense of residentialburglary. The State also argued that, based on the court's interpretation of the evidence, thehome was not being used as a dwelling place at the time of the offense but rather as a work siteand defendant could be found guilty of burglary. The trial court reasoned that because theamendment was a procedural change and not a substantive one, it could be applied retroactivelyand it was, therefore, proper to find defendant guilty of burglary. Defendant's motion for a newtrial was denied.

At sentencing, the court found that defendant was eligible for mandatory Class Xsentencing on the burglary conviction⁽²⁾ and found him eligible for an extended-term sentence forthe aggravated battery conviction.⁽³⁾ Based on his criminal history, defendant was sentenced to anextended-term of six years' imprisonment for aggravated battery and a concurrent term of sixyears' imprisonment for burglary. Defendant now appeals his convictions for burglary andaggravated battery conviction; he further challenges the constitutionality of the Class X andextended-term sentences.

ANALYSIS

I. Defendant's Conviction for Residential Burglary.

Defendant in the case sub judice was found guilty of burglary, instead of the chargedoffense of residential burglary, "because of the situation of the house and the way it was underconstruction." Defendant contends that his conviction must be reversed because he could not befound guilty of burglary where the unauthorized entry was to a dwelling place and burglary andresidential burglary were mutually exclusive offenses at the time of the offense. Moreover, hemaintains that, contrary to the trial court's ruling, the amendment to the residential burglarystatute (which now includes the offense of burglary) was a substantive change that could not beapplied retroactively. The State contends that the trial court was correct in holding that theamendment to the statute did not make a substantive change in the law, in that the elements ofneither residential burglary nor the elements of burglary changed as a result of the amendment. Upon reconsideration of defendant's arguments and the arguments he put forth in his petition forrehearing, we reverse defendant's burglary conviction.

In finding defendant guilty of burglary, the trial court found it significant that the homewas undergoing remodeling or construction at the time of defendant's entry and he wasdiscovered taking the property of the construction company present. For purposes of section 19-3, " 'dwelling' means a house, apartment, *** or other living quarters in which at the time of thealleged offense the owners or occupants actually reside or in their absence intend within areasonable period of time to reside." 720 ILCS 5/2-6(b) (West 2000). At trial, the homeownertestified that despite the remodeling, he was still living in the house on September 7, 2000. Therefore, there can be no question that the building where the crime took place was a dwellingplace for purposes of the residential burglary statute. Relative to the fact that defendant wasdiscovered taking the property of the construction company, and not the homeowner, the criticalquestion in determining whether a defendant committed burglary or residential burglary is thenature of the place entered without authority and with the requisite intent, not the nature of thegoods taken. People v. Maskell, 304 Ill. App. 3d 77, 84, 710 N.E.2d 449 (1999). The evidence,therefore, is uncontroverted that defendant entered the dwelling place of another in violation ofthe residential burglary statute.

Consequently, defendant could not have committed the offense of burglary because theoffenses of residential burglary and burglary were mutually exclusive at the time of thecommission of the crime. As a matter of law, therefore, defendant could not have been foundguilty of burglary beyond a reasonable doubt. People v. Borgen, 282 Ill. App. 3d 116, 119-20,668 N.E.2d 234 (1996). As defendant pointed out during proceedings pursuant to the rehearingpetition, several months after this court issued the first opinion in the instant case, anotherdivision of this court reversed the conviction of a defendant tried under the same residentialburglary statute at issue in the instant case. See People v. Atkins, 348 Ill. App. 3d 126, 130, 809N.E.2d 152 (2004) (reversing defendant's conviction for residential burglary; the trial court notedthat a defendant could not be "convicted *** of burglary as a lesser-included offense ofresidential burglary" because the Illinois Supreme Court clearly held that "burglary andresidential burglary were mutually exclusive offenses"). Upon our review of the instant case onrehearing in light of this court's holding in Atkins, we now find that Atkins properly stated thelaw; accordingly, we reverse defendant's conviction for burglary.

As the Atkins court noted, the Illinois Supreme Court explicitly held that the two offensesof residential burglary and burglary are "mutually exclusive." See Atkins, 348 Ill. App. 3d at128, quoting People v. Childress, 158 Ill. 2d 275, 302, 633 N.E.2d 635 (1994). In Childress, thecourt noted that "[r]esidential burglary can be committed only in dwelling places, while simpleburglary cannot occur in a dwelling place." Childress, 158 Ill. 2d at 302. The court thendetermined that the defendant in that case could not have been guilty of burglary because thevictim was attacked and killed in her own home, which was a dwelling place. Childress, 158 Ill.2d at 302.

It is notable that prior to Childress, by convention, our courts recognized burglary as alesser-included offense of residential burglary. See People v. Edgeston, 243 Ill. App. 3d 1, 10,611 N.E.2d 49 (1993); People v. Wiley, 169 Ill. App. 3d 140, 523 N.E.2d 1344 (1988); People v.Johnson, 129 Ill. App. 3d 399, 401, 472 N.E.2d 854 (1984); People v. Dawson, 116 Ill. App. 3d672, 452 N.E.2d 385 (1983). The June 2001 amendment allows the trial courts to return to sucha principle.

On the date of defendant's unauthorized entry, however, the burglary statute defined theoffense of burglary as follows:

"(a) A person commits burglary when without authority, he knowingly enters orwithout authority remains within a building *** with the intent to commit therein a felonyor theft. This offense shall not include *** the offense of residential burglary as definedin Section 19-3 hereof." 720 ILCS 5/19-1(a) (West 2000).

The residential burglary statute provided:

"(a) A person commits residential burglary who knowingly and without authorityenters the dwelling place of another with the intent to commit therein a felony or theft." 720 ILCS 5/19-3(a) (West 2000).

We note that the unamended burglary statute excludes residential burglary as a related offense. See 720 ILCS 5/19-1(a) (West 2000). Moreover, the unamended residential burglary statute doesnot make mention of the offense of burglary at all. See 720 ILCS 5/19-3(a) (West 2000).

The amended residential burglary statute now provides, in pertinent part, "This offenseincludes the offense of burglary as defined in Section 19-1," which means that burglary is alesser-included offense of residential burglary. See 720 ILCS 5/19-3(a) (West 2002). "A lesser-included offense" is defined as an offense that " '[i]s established by proof of the same or lessthan all of the facts or a less culpable mental state (or both), than that which is required toestablish the commission of the offense charged.' " People v. Jones, 149 Ill. 2d 288, 292-93, 595N.E.2d 1071 (1992), quoting Ill. Rev. Stat. 1987, ch. 38, par. 2-9(a). As the Atkins court pointedout, while the amendment does not create a "new" crime, it does potentially expose a defendantto a conviction on an additional crime which could not have been the case prior to theamendment when the offenses of burglary and residential burglary were mutually exclusive. Atkins, 348 Ill. App. 3d at 130. The residential burglary statute was amended by Public Act 91-928, which became effective on June 1, 2001, some eight months after the commission of thecrime charged here. As such, Blanks did not have proper notice and an opportunity to craft adefense against the offense of "burglary," rather than "residential burglary"; this exposed him toan "additional" crime as described by the Atkins court.

Further, we decline to follow the State's recommendation that we apply the June 2001amendment to the residential burglary statute retroactively. In matters of statutory interpretation,the appropriate standard of review is de novo. People v. Swift, 202 Ill. 2d 378, 385, 781 N.E.2d292 (2002). Generally, an amendment to a statute will be construed to apply prospectively, notretroactively. Rivard v. Chicago Fire Fighters Union Local No. 2, 122 Ill. 2d 303, 309, 522N.E.2d 1195 (1988). This presumption may be rebutted by express statutory language or bynecessary implication. People v. Digirolamo, 179 Ill. 2d 24, 50, 688 N.E.2d 116 (1997). The actitself must clearly indicate that the legislature intended a retroactive application. Harraz v.Snyder, 283 Ill. App. 3d 254, 259, 669 N.E.2d 911 (1996), citing Rivard, 122 Ill. 2d at 309. Thelong-standing rule is that the prospective application of statutes is to be preferred to retroactiveapplication because of the fundamental principle of jurisprudence that the retroactive applicationof new laws is usually unfair and the general consensus that notice or warning of the rule shouldbe given in advance of the action whose effects are to be judged. Harraz, 283 Ill. App. 3d at 259.

In determining whether an amendment is to be applied prospectively or retroactively, weobserve that there is no bright-line test for reaching this conclusion. Notably, though, the IllinoisSupreme Court has adopted the reasoning in Landgraf v. USI Film Products, 511 U.S. 244, 128L. Ed. 2d 229, 114 S. Ct. 1483 (1994), for determining when new legislation should be applied toexisting controversies. Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 39,749 N.E.2d 964 (2001). Quoting Landgraf, the Commonwealth Edison court remarked:

"[W]hen the legislature has not indicated what the reach of a statute should be,then the court must determine whether applying the statute would have aretroactive impact, i.e., 'whether it would impair rights a party possessed when heacted, increase a party's liability for past conduct, or impose new duties withrespect to transactions already completed.' [Citation.] If there would be noretroactive impact, as that term is defined by the court, then the amended law maybe applied." Commonwealth Edison, 196 Ill. 2d at 38, quoting Landgraf, 511U.S. at 280, 128 L. Ed. 2d at 261-62, 114 S. Ct. at 1505.

Moreover:

" '[T]he court must ask whether the new provision attaches new legalconsequences to events completed before its enactment. The conclusion that aparticular rule operates "retroactively" comes at the end of a process of judgmentconcerning the nature and extent of the change in the law and the degree ofconnection between the operation of the new rule and a relevant past event.' " Commonwealth Edison, 196 Ill. 2d at 39, quoting Landgraf, 511 U.S. at 269-70,128 L. Ed. 2d at 254-55, 114 S. Ct. at 1499.

Where the legislature intends a retroactive application of the amendment and the statutoryamendment relates to changes in procedure or remedies, it applies retroactively to pending cases. Digirolamo, 179 Ill. 2d at 50. In general, a procedural law is " '[t]hat which prescribes themethod of enforcing rights or obtaining redress for their invasion; machinery for carrying on asuit.' " People v. Ruiz, 107 Ill. 2d 19, 22-23, 479 N.E.2d 922 (1985), quoting Black's LawDictionary 1367 (4th ed. 1951). Procedural laws are the rules "which prescribe[] method[s] ofenforcing rights or obtaining redress for their invasion." Black's Law Dictionary 1203 (6th ed.1990). If an amendment is procedural, legislative intent may be divined through any of theordinary devices of statutory interpretation: (1) the evil to be remedied and the object to beobtained, (2) the reason and necessity for the statute, and (3) the history of legislation, includingstatements made by the sponsors of the legislation during the legislative debates. Rivard, 122 Ill.2d at 310.

In contrast, a substantive law establishes the rights whose invasion may be redressedthrough a particular procedure. Rivard, 122 Ill. 2d at 310-11. A substantive law is the part of thelaw that creates, defines, and regulates the rights, duties, and powers of parties. Black's LawDictionary 1429 (6th ed. 1990). See Digirolamo, 179 Ill. 2d at 50 (where amendment representsa substantive change in the law by altering the elements to be proved by the State in a criminalcase). Amendments to statutes involving substantive rights cannot be applied retroactively. Digirolamo, 179 Ill. 2d at 50.

Whether the amendment to the burglary statute is to be applied retroactively orprospectively is determined in two ways. First, when the amendment clearly indicates that thelegislature intended a retroactive application, it will be so applied. People v. Kellick, 102 Ill. 2d162, 180, 464 N.E.2d 1037 (1984). Here, there is no express language in the amendmentindicating a legislative intent for retroactive application. Secondly, the courts may not only lookto the language of the amendment, but also must consider the purpose and objective of theamendment and the legislative history. People v. Fiorini, 143 Ill. 2d 318, 333, 574 N.E.2d 612(1991). As such, we must turn to the text of the amendment to determine whether theamendment applies only to changes in procedure or remedies, rather than substantive rights. SeeFiorini, 143 Ill. 2d at 335.

The Atkins court also considered the question of retroactivity in light of the amendment'slanguage. Atkins, 348 Ill. App. 3d at 128-30. In that case, the Atkins court noted that theamendment changed the language of the statute such that burglary is now a lesser-includedoffense of residential burglary which may be considered against a single defendant arising from asingle charging instrument and at the same proceeding, whereas, prior to the amendment theywere mutually exclusive offenses and could not be considered against a single defendant. Atkins,348 Ill. App. 3d at 128-29. The Atkins court went on to state the change in the act wassubstantive, as it permitted an accused person to be exposed to a conviction for an "additionalcrime which was not the case prior to the amendment." Atkins, 348 Ill. App. 3d at 130. Thecourt reasoned that "[w]here a statute permits a conviction for an uncharged offense," it therefore"applies to the 'right or duties' " of the accused individual and is therefore substantive, ratherthan procedural, in nature Atkins, 348 Ill. App. 3d at 129. We agree and therefore find thestatute affected substantive, rather than procedural, interests. Thus, in our view, the amendmentto section 19-3 (Public Act 91-928,