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                                                                                                               FIRST DIVISION
                                                                                                               August 7, 2000

No. 1-98-2531

Defendant, Romie Dunlap, was charged with two counts of armed violence and threecounts of aggravated battery. Following a jury trial, defendant was convicted of armed violence. After a hearing in aggravation and mitigation, defendant was sentenced to 25 years in the IllinoisDepartment of Corrections. He now appeals his conviction and sentence. For the reasons thatfollow, we affirm defendant's conviction and sentence.

The following facts were adduced at trial. On September 5, 1996, at approximately 10p.m., Serena Williams (the victim) was at home painting. She decided to leave her apartment,which was in a Chicago Housing Authority building, to go to the store before it closed. Outsideher apartment was a common hallway with a stairwell at each end and an elevator in the middle. As she headed toward the elevator, the victim saw defendant banging on the window of theapartment two doors down where her neighbor, Tonya Battie, who was also defendant'sgirlfriend, lived with her six children. As defendant banged on the door and window of Ms.Battie's apartment, he threatened to come in and kill her and her six children if she did not lethim in. Because Tonya and her sister, Doritha Hampton, who were inside the apartment, werescared by defendant and his threats, the two women retrieved weapons - a baseball bat and a 4 x4 stick - from Tonya's pantry. The door upon which defendant was pounding was the only exitout of the apartment and there was no telephone in the apartment on which to call the police.

As the victim was walking to the elevator, she asked defendant why he was doing what hewas doing and told defendant that she was going to call the police if he did not stop. In response,defendant told the victim in an angry tone of voice to "shut the fuck up," to "mind her damnedbusiness," and that she "ain't [sic] got shit to do with it." The victim then headed toward theelevator to call the police. At that point, defendant came up behind the victim and slapped her inthe face with the palm of his hand. The force of defendant's slap was so very strong that she fellto the ground and Doritha, still inside the apartment, heard the slap.

As the victim was getting up, Tonya and Doritha came out of the apartment. Defendantapologized to Tonya for what he had done to the victim. After the victim got up, she startedwalking toward her apartment. As she tried to go into her apartment, she could not becausedefendant was coming toward her. Tonya and Doritha started chasing defendant, who wasrunning in the victim's direction, down the hallway, toward the direction that the victim wasgoing into her apartment. Because defendant was getting too close to the victim, Tonya threwthe baseball bat at defendant. The baseball bat landed on the ground and rolled towarddefendant's foot. At that point, Tonya and Doritha were 8 to10 feet away from defendant; Tonyawas now unarmed, and Doritha had the stick. The two women then stood there and watched asdefendant picked up the bat and resumed running toward the victim.

When the victim saw that defendant had a bat in his hand coming toward her, she startedrunning down to the other end of the hallway toward the stairs. She slipped and fell at the end ofthe hall, landing in the corner in front of the stairwell. As she fell to the floor, she balled up, puther left leg up and her hands over her head. At that point, while the victim was coweringunarmed on the ground, and the other two women were standing approximately 10 feet away,defendant began striking the victim with the baseball bat.

The victim was blocking her face, trying to prevent the defendant from hitting her in theface. Defendant continued to repeatedly hit the victim with the bat with a very strong force,hitting her arm and her leg. As he repeatedly struck her with the bat, she was balled up,screaming for help and crying. During this attack, defendant struck the victim's bodyapproximately 15 to 20 times. Defendant had both hands together holding the bat over his headand was striking the victim with an up and down motion from his head downward. At that point,Tonya and Doritha were trying to get help and the victim heard them screaming for someone toplease call the police because defendant was beating her with a bat. During this whole time, thevictim had nothing in her hand.

Defendant stopped beating the victim for a brief moment. At that point, Tonya andDoritha started walking toward the defendant. Defendant, with the bat still in his hand, ran awayfrom them toward the stairwell.

Then, defendant reappeared in the hallway, with the bat still in his hand. At that point,there was nothing blocking defendant's way of going down the stairwell and the victim had notmoved since defendant had stopped beating her. Nonetheless, defendant began beating thevictim a second time. During this second round of beating, defendant struck the victim with thebat approximately 5 to 10 more times, during which time the victim was balled up in the cornerwith both her hands protecting her head. Defendant stopped when the victim's cousin came outof her apartment and walked toward them. Defendant then ran down the stairwell taking the batwith him.

After defendant left the scene, Tonya and Doritha helped the victim to her apartment, laidher on a couch and called the police. When the victim awoke, the police had arrived. The victimhad redness and bruises on her arm, several bruises on her leg and her bone was sticking out ofher arm. The ambulance arrived and took the victim to Mercy Hospital. At the hospital, thevictim was X-rayed and ultimately had surgery on her left arm, which had been broken in severalplaces. She stayed in the hospital for approximately three days, and she had a cast on her arm forapproximately six months. During the trial, the witness displayed to the jury the scar thatremains on her arm as a result of the beating.

After the victim was taken to the hospital, Tonya and her children spent the night atDoritha's home. The next morning, defendant came to the front door of Doritha's apartment. Shecalled the police and defendant was arrested.

Defendant now raises four issues in this appeal, two are related to his conviction and twoare related to his sentence. Defendant, first pleonastically, but unpersuasively, contends that hesuffered from prejudicial error and was denied a fair trial as a result of the trial court's rulingwhich allowed the State to introduce evidence of Tonya's pregnancy. All of defendant'sarguments on the issue are based upon his erroneous presupposition that the evidence of Tonya'spregnancy was irrelevant. As we shall explain, and as the trial court correctly determined, theevidence was relevant to defendant's claim of self-defense.

Under Illinois law, evidence is admissible if it is relevant to an issue in dispute and itsprobative value is not substantially outweighed by its prejudicial effect. People v. Gonzalez, 142Ill. 2d 481, 568 N.E.2d 864 (1991). Relevant evidence is that which has any tendency to makethe existence of any fact that is of consequence to the determination of the action more probablethan it would be without the evidence. People v. Eyler, 133 Ill. 2d 173, 549 N.E.2d 268 (1989). Trial courts are given broad discretion in ruling on issues of relevancy and materiality, and,absent an abuse of discretion, the trial court's decision will not be overturned. People v.Williams, 196 Ill. App. 3d 851, 554 N.E.2d 1040 (1990).

The trial court here did not abuse its discretion in determining that the evidence ofpregnancy was relevant and material to rebut defendant's claim of self-defense. Defendantcontends, however, that since his "self-defense instruction was refused *** no theory -- let aloneevidence -- was ever presented to the jury." As we shall discuss later, the reason that juryinstructions on self-defense were not given was because there was no evidence of self-defense. Nonetheless, contrary to defendant's assertions, the theory of self-defense was presented to thejury.

In defendant's opening statement, defendant's trial attorney stated as follows:

"Three women charge after [defendant] with a baseball bat, and a stick or pipe,and the third one is still running after him. [Defendant] hears clanging on theconcrete, the baseball bat is thrown at him and it clangs *** as it hits the concrete.[Defendant] turns around, picks up the bat and goes like this, get away from me,I'm out of here, leave me alone. And they're still coming at him, they're charginghim and he's swinging this bat like this, get away from me."

Thus, defendant placed the claim of self-defense before the jury and opened the door for theState's rebuttal evidence of the physical condition and the very late pregnant state of one of these"charging" women. Therefore, it is irrelevant to this issue that there was subsequently noevidence presented nor jury instructions given on self-defense.

In a case analogous to the instant one, the Illinois Supreme Court, discussing characterevidence, explained that the rule that the prosecution may put on reputation evidence to prove thevictim's peaceful character only if defendant has first attacked the victim's character forpeacefulness must apply to statements made in defendant's opening statement. People v. Whiters,146 Ill. 2d 437, 442-43, 588 N.E.2d 1172, 1174-75 (1992). As the court observed:

" To hold otherwise would enable the defendant to get away with using heropening statement to vilify the victim's character and thus poison the waterwithout offering any supporting evidence. An evidentiary response from the Stateis appropriate under the circumstances. To hold otherwise would invite repetitionof an improper practice and would defeat the truth-seeking function of a trial."Whiters, 146 Ill. 2d at 443, 588 N.E.2d at 1174-75.

The same principle holds true here and disposes of defendant's claim that the trial courtcommitted prejudicial error in admitting the fact of Tonya's pregnancy into evidence. Theevidence of Tonya's physical condition was properly admitted to refute defendant's claim of self-defense.

Defendant states categorically that "the primary purpose and effect" of the State's"targeted disclosure" of Tonya's pregnancy was to "spark sympathy" for Tonya and Doritha and"outrage against the defendant for jeopardizing the health and safety of a pregnant woman and anunborn baby." He asserts that the evidence resulted in emotional considerations that diverted thejurors' focus from the issue of whether the State proved that the victim suffered great physicalharm. Defendant's indefatigable claims to the contrary, there is no indication whatsoever in therecord that the State improperly used the evidence of Tonya's pregnancy. It was clear from theevidence that it was the victim, not Tonya, who was harmed. Moreover, the evidence of bodilyharm to the victim was overwhelming. In addition, the State did not elicit any testimony withregard to Tonya or her unborn baby being in jeopardy. Thus, any concerns regarding possiblethings that could have happened to Tonya and her unborn baby were absent and it cannot be saidthat such concerns diverted the jurors from their consideration of the issue in this case. Moreover, "[a] party cannot have competent evidence excluded merely because it might arousefeelings of horror and indignation in the jury." People v. Jenko, 410 Ill. 478, 482, 102 N.E.2d783, 785 (1951). Thus, even if the testimony regarding Tonya's pregnancy might have sparkedindignation or horror in the jury, the trial judge properly allowed the pregnancy testimony torefute defendant's claim of self-defense.

Defendant, citing a portion of the State's rebuttal closing argument, incorrectly asserts that"[p]regnancy was argued by the prosecutor to the jury but not in the context of self-defense." Wefirst point out that defense counsel failed to timely object to the passing reference to Tonya'spregnant condition in the State's rebuttal argument, but more importantly, defendant is incorrect.

In closing argument, defense counsel argued that defendant was not threatening anyone,and further argued that the actions of Tonya were responsible for the incident, for the case andwere the reason the jury was in court that day, and further argued that defendant tried to walkaway and leave the scene, but the three women were "out there to use a little bit of self-help. 3 on1." In response to defense counsel's argument, the State argued in rebuttal:

"This guy is threatened by 7 month pregnant Tonya? This guy isthreatened from unarmed Serina? This guy is threatened from Doritha who nevergets closer than 10, 15 feet from defendant? This guy was never threatened. Thisguy is a thug, plain and simple."

Under these circumstances, the remark about Tonya's pregnancy was fair comment evoked bydefense counsel's closing argument and was, therefore, proper. See, e.g., People v. Leonard, 171Ill. App. 3d 380, 388, 526 N.E.2d 397, 402 (1988)(Where there was no evidence to supportdefense counsel's argument that defendant did not drive around a while as the victim testified, theprosecutor's comments during rebuttal that the victim was the only one to testify as to theduration of the drive was fair comment evoked by defense counsel's closing argument and was,therefore, proper).

In any event, the State's reference to the pregnancy in rebuttal closing argument washarmless. Not every mention of a victim's personal traits, such as the fact a victim was pregnant,will automatically vest in a defendant the right to a new trial. People v. Lewis, 165 Ill. 2d 305,330, 651 N.E.2d 72, 84 (1995). Here, it certainly did not deny defendant a fair trial. The casescited by defendant are wholly inapposite in that they involve factual situations and issues that aredifferent from the facts and issues present here. They involved irrelevant evidence of either thepregnancy of a murdered victim or the pregnancy of the wife of a murdered victim. Contrary tothe cases cited by defendant, it was not the victim's pregnancy that was commented upon but,rather, it was the pregnancy of a third party - a third party that defendant argued was anaggressor.

Defendant next contends that the trial court's refusal to instruct the jury on the defense ofjustifiable use of force was reversible error. Before we address defendant's argument, we notethat the parties here dispute the standard of review.

Generally speaking, the instruction of the jury is a matter resting within the sounddiscretion of the trial court. People v. Castillo, 188 Ill. 2d 536, 540, 723 N.E.2d 274, 276 (1999). Nevertheless, whether or not defendant has introduced sufficient evidence to meet the evidentiaryminimum required to support an instruction is a question of law. People v. Everette, 141 Ill. 2d147, 157, 565 N.E.2d 1295, 1299 (1990); People v. Luckett, 309 Ill. App. 3d 14, 19, 722 N.E.2d634, 637 (1999); People v. Miller, 259 Ill. App. 3d 257, 264, 630 N.E.2d 1125, 1130 (1994);People v. Rutkowski, 141 Ill. App. 3d 713, 716, 490 N.E.2d 1034, 1036 (1986).

It is undisputed that a defendant in a criminal case is entitled to have the jury instructedon any legally recognized defense theory which is supported by some evidence, including slightevidence. See, e.g., People v. Miller, 259 Ill. App. 3d 257, 264, 630 N.E.2d 1125, 1130 (1994); People v. Jackson, 304 Ill. App. 3d 883, 889, 711 N.E.2d 360, 365 (1999). The trial court,however, may properly refuse a defendant's proffered instruction on a theory of self-defense,when there is no evidence to support the theory. People v. Bratcher, 63 Ill. 2d 534, 540-41, 349N.E.2d 31 (1976). In the present case, the trial judge specifically stated that his refusal to givethe requested instruction was based upon his conclusion that there was no evidence to supportdefendant's theory of self-defense. Therefore, we need only consider the threshold question ofwhether the record contains sufficient evidence to raise the issue of self-defense which wouldhave justified giving the requested instruction. If we conclude that the evidence was notadequate, as a matter of law, as did the trial judge, a fortiori we would conclude that there was noabuse of discretion. On the other hand, should we determine that the evidence was sufficient toraise the issue of self-defense, we would necessarily conclude that the trial judge abused hisdiscretion.

A defendant, in order to raise a claim of self-defense, must present evidence supportingeach of the following elements: (1) force was threatened against the defendant; (2) thedefendant was not the aggressor; (3) the danger of harm was imminent; (4) the force threatenedwas unlawful; (5) the defendant actually believed that a danger existed and that the kind andamount of force he used was actually necessary to avert the danger; and (6) defendant's beliefswere reasonable. People v. Morgan, 187 Ill. 2d 500, 533, 719 N.E.2d 681, 700 (1999); People v.Babbington, 286 Ill. App. 3d 724, 730-31, 676 N.E.2d 1326, 1331 (1997). With respect to thenecessary elements of this affirmative defense, defendant incorrectly asserts, without supportingauthority, that they are guidelines and not fixed prerequisites and that evidence of some of theelements is enough to entitle him to an instruction on self-defense and place the issue before thejury. The law is clear, however, that self-defense is an affirmative defense, and unless the State'sevidence raises the issue, the defendant must present some evidence as to each of the elements ofthe defense sufficient to raise the issue. People v. Morgan, 187 Ill. 2d at 533, 719 N.E.2d at 700;People v. Everette, 141 Ill. 2d 147, 157, 565 N.E.2d 1295, 1299 (1990); People v. Shields, 298Ill. App. 3d 943, 700 N.E.2d 168 (1998); People v. Falconer, 282 Ill. App. 3d 785, 791, 668N.E.2d 1095, 1099 (1996); People v. Goosens, 262 Ill. App. 3d 722, 727, 640 N.E.2d 284, 288(1994).

Although our plenary review confirms that the record contains no evidence as to any, letalone each, of the necessary elements of a claim of self-defense, we note in particular that therewas no evidence of the required element that the defendant was not the aggressor. Rather, theevidence unequivocally established that defendant was the aggressor here.

Defendant initiated his aggressor role when he began beating on the window andthreatening Tonya. Even the mere utterance of words may be enough to qualify one as an initialaggressor. People v. De Oca, 238 Ill. App. 3d 362, 367, 606 N.E.2d 332, 336 (1992); People v.Barnard, 208 Ill. App. 3d 342, 350, 567 N.E.2d 60, 66 (1991). When the victim told defendantto stop and that she was going to call the police, however, defendant escalated his aggressor roleby slapping her. Defendant was clearly the initial aggressor.

Nonetheless, defendant contends that "the aggressor role is not dispositive" here becausehe was alternatively seeking the "'initial aggressor's use of force' I.P.I. instruction." Defendantspecifically requested the second paragraph of the Illinois Pattern Jury Instructions, Criminal, No.24-25.09 (2d ed. 1981)(IPI Criminal 2d No. 24-25.09), which provides as follows:

"A person who initially provokes the use of force against himself is justified in theuse of force only if

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he in good faith withdraws from physical contact with the other person and indicatesclearly to the other person that he desires to withdraw and terminate the use of force, butthe other person continues or resumes the use of force."

This instruction is consistent with that section of the Criminal Code of 1961 (720 ILCS 5/7--4(c)(2) (West 1992)) which provides an exception, under the circumstances described by thisinstruction, to the general rule that the justifiable use of force, or self-defense, is not available toan individual who initially provokes the use of force against himself. The trial court refused togive this instruction, citing the lack of evidence of withdrawal. We agree.

There is no evidence here that defendant's actions "indicate[d] clearly to the other personthat he desire[d] to withdraw and terminate the use of force" (IPI Criminal 2d No. 24-25.09). There is no evidence that defendant was retreating in any way when he started chasing theunarmed victim. The record also contains absolutely no evidence that the victim here was anaggressor. To the contrary, defendant never ceased the escalation of his role as the initialaggressor when he started chasing the victim and then proceeded to strike the victim repeatedlyafter she had fallen and was sprawled, cowering on the floor, attempting to protect herself fromdefendant.

In order for a defendant to be entitled to an instruction on an affirmative defense, "[t]heremust be enough evidence so that, if believed, it would be 'sufficient for a reasonable jury to findin his favor.' [Citation.]." People v. Jordan, 247 Ill. App. 3d 75, 92, 616 N.E.2d 1265, 1278(1993). The supreme court has explained that although the amount of credible evidence requiredto justify the giving of a self-defense instruction need only be slight, the court has furthercautioned that the evidence must be more than that which would permit a defendant to demandinstructions based upon the merest factual reference or witness's comments. People v. Everette,141 Ill. 2d 147, 157, 565 N.E.2d 1295, 1299 (1990), citing People v. Bratcher, 63 Ill. 2d 534,540-41, 349 N.E.2d 31 (1976). Defendant here attempts to do just that by focusing on evidencethat came in the form of a stipulation that the police detective who interviewed Doritha wouldtestify that "she indicated that she had swung a stick while [Tonya] Battie threw the bat at[defendant] in defense of [the victim]." Doritha, however, unequivocally denied swinging thestick or telling the officer that she swung the stick. Defendant now demands self-defenseinstructions based upon this mere factual reference to swinging a stick and recreates a version ofthe crime, unsupported by any evidence, in which the two women whom he was terrorizing,Doritha and seven months pregnant Tonya, are recast as the aggressors who were "charging" afterdefendant and from whom defendant was trying to escape, although the unrebutted testimonywas that he was instead chasing the victim. As the testimony stands unrebutted, there is noevidence in the record to support defendant's theory of self-defense.

Defendant argues that, had the requested instructions been given, a jury could have foundthat defendant was frantically using force against the victim who was blocking his escape tosafety from Tonya and Doritha. To support his argument that he had a right to use force against the victim here, an innocent third party, defendant attempts to recharacterize the undisputedevidence on this point. He claims that the evidence presented of imminent danger from Dorithaand Tonya wielding a baseball bat and a "4 by 4" stick was sufficient to support his defense ofjustifiable use of force against the victim. Defendant's argument is specious.

The sisters here were nonaggressors who were merely trying to protect themselves, andthen were trying to protect the victim, all of which they had a right to do. There was not a shredof evidence that the victim's fallen body was impeding defendant's attempt to leave the scene. Moreover, after defendant repeatedly beat the victim the first time, he started to leave and thenreappeared in the hallway, with the bat still in his hand. At that point, as the undisputed evidenceclearly established, the victim had not moved since defendant had stopped beating her and therewas nothing blocking defendant's way of going down the stairwell. Nonetheless, defendantresumed beating the victim a second time. There was also unrebutted testimony that the reasonthat Tonya threw the bat at defendant was an attempt to stop him, albeit ineffectually, from goingafter the victim. It is undisputed that defendant retrieved the bat and continued to go after thevictim, who had fallen in front of the stairwell and was trying to protect herself. The evidencewas uncontroverted that when defendant hit the victim she had no weapon and was lying on thefloor trying to protect herself. Moreover, although defendant now had a bat, Tonya now had noweapon. Although Doritha still had the stick, the two women were just standing, watchingdefendant beat the victim, and trying to get help.

It is from these undisputed facts that defendant has attempted here, vainly we might add,to concoct an incredible scenario in which he was attempting to retreat and was frantically usingforce against the victim because she was blocking his escape to safety from unarmed, pregnantTonya and Doritha, who had a stick, whom he asserts were "charging" after him. He boldlyasserts that a reasonable jury could have found plausible that his actions constituted a justifiableuse of force. To the contrary, based on the undisputed facts, no reasonable jury could have foundthat defendant acted in self-defense. Defendant was not entitled to the instruction regarding aninitial aggressor's use of force because the record is totally devoid of any evidence of retreat onthe part of defendant. Thus, the trial court did not abuse its discretion in refusing to give the jurythe defendant's requested self-defense instruction. Defendant's conviction is affirmed.

We shall next address issues related to defendant's sentence. Defendant contends that thetrial court's reliance on the "Class X Offender" sentencing scheme, resulting in a 25-yearsentence, was impermissible double enhancement, where the latest offense was not the requisiteclass of felony.

Sentencing issues must be raised by objection in the trial court and in a postsentencingmotion in order to preserve those issues for appellate review. People v. Reed, 177 Ill. 2d 389,393-94, 686 N.E.2d 584 (1997). We agree with the State that defendant has waived this issue. Nonetheless, waiver is a limitation on the parties, not on the court, and the goal of maintaining asound body of precedent may override considerations of waiver. People v. Williams, 188 Ill. 2d293, 301, 721 N.E.2d 524, 528 (1999). In view of theses principles, we shall address the meritsof defendant's argument.

The Class X sentencing statute provides, in pertinent part:

"When a defendant, over the age of 21 years, is convicted of a Class 1 orClass 2 felony, after having twice been convicted of any Class 2 or greater Classfelonies in Illinois, and such charges are separately brought and tried and arise outof 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 theeffective date of this amendatory Act of 1977; and (2) the second felony wascommitted after conviction on the first; and (3) the third felony was committedafter conviction on the second. 730 ILCS 5/5-5-3(c)(8) (West 1996).

At the sentencing hearing, the State requested a Class X sentence and cited defendant's priorconvictions, one of which was a Class 1 conviction, the other a Class 2. Defendant is notchallenging the general validity of this sentencing statute, but argues that it should not have beenapplied in the present case.

Defendant is not challenging the fact that he was 21 at the time of the instant Class 2felony conviction for armed violence. He is also not challenging the fact that he was previouslyconvicted of the two "Class 2 felonies or greater Class felonies" that are required to satisfy theClass X Sentencing statute. Instead, defendant is challenging the present Class 2 felonyconviction for armed violence. Defendant contends that the conviction here for armed violencewas enhanced to a Class 2 conviction only because of the Category III weapon and that, absentenhancement, the latest offense was the underlying aggravated battery, a Class 3 crime. Heasserts that this Class 3 crime was "enhanced" to armed violence only because of the Category IIIweapon or bludgeon that was neither separately brought and tried nor arising from a differentseries of acts. See 730 ILCS 5/5-5-3(c)(8)(West 1996). Therefore, contends defendant, citingPeople v. Hobbs, 86 Ill. 2d 242, 427 N.E.2d 558 (1981), the Class X offender status here for aClass 2 felony that had already been increased from Class 3 to Class 2 is impermissible doubleenhancement.

We first note that defendant misconstrues the meaning and context of the phrase"separately brought and tried and arise out of different series of acts" as it appears in the Class Xsentencing statute. 730 ILCS 5/5-5-3(c)(8)(West 1996). Defendant was convicted of burglary in1985 (Class 2 felony), and defendant was convicted of aggravated possession of a stolen motorvehicle in 1993 (Class 1 felony). These two felonies satisfy the portion of the statute thatrequires defendant to have "twice been convicted." It is from these two convictions that thepresent charges were required to be "separately brought and tried and arise out of a differentseries of acts." That requirement was clearly met here. Thus, defendant's attempt to apply thelanguage to the counts involved in the instant case is misplaced.

Regarding defendant's reliance on Hobbs, we note that Hobbs is a "double enhancement"case in which the defendant committed a retail theft in 1979 that was prosecuted as a felony byreason of defendant's 1978 felony theft conviction. Hobbs, 86 Ill. 2d at 243-46, 427 N.E.2d at558-60. The trial judge imposed an extended-term sentence. Hobbs, 86 Ill. 2d at 243, 427N.E.2d at 558-60. The appellate court vacated the defendant's sentence because the trial judgehad improperly used the same prior conviction (the 1978 felony theft) not only to enhance theclassification of the instant offense from a misdemeanor to a felony, but also to increase thedefendant's sentence to an extended term. Hobbs, 86 Ill. 2d at 245-46, 427 N.E.2d at 559-60.

Hobbs is inapposite to the present case. Aside from the fact that the Hobbs case dealtwith the extended-term provisions of the Unified Code of Corrections (730 ILCS 5/5-5-3.2(b)(West 1998)), Hobbs stands for the proposition that the conduct for which defendant is beingsentenced must constitute a felony in and of itself, without any enhancement, in order to beeligible for an extended term. See People v. Godwin, 212 Ill. App. 3d 435, 440, 570 N.E.2d1276, 1279 (1991). Here, in contrast to the situation in Hobbs, defendant's two prior convictionswere used solely to sentence defendant under the Class X sentencing statute, and neitherconviction was used to "enhance" the classification of the instant offense. Defendant'sconviction here was a Class 2 felony, in and of itself, without enhancement.

Defendant was charged with three counts of aggravated battery and two counts of armedviolence. Here, because defendant committed aggravated battery while armed with a dangerousweapon, the jury found defendant guilty of one count of armed violence. The trial judge enteredjudgment and sentenced defendant for one count of armed violence. Thus, defendant was onlyconvicted of one count of armed violence. The type of "enhancement" that defendant arguesoccurred here is not the type of enhancement denounced by Hobbs but, rather, is comparable tothe situation in Godwin, where the offense became a felony in and of itself without anyconsideration given to prior convictions.

In Godwin, the court found that a theft offense became a felony from a misdemeanor byvirtue of the value of the property obtained through the deceptive practice. Godwin, 212 Ill. App.3d at 440, 570 N.E.2d at 1279. Thus, the Godwin court held that the theft offense "constitutes afelony in and of itself simply by virtue of the dollar value involved and presents a differentsituation than that involved in Hobbs." Godwin, 212 Ill. App. 3d at 440-41, 570 N.E.2d at 1279-80. Likewise, in the present case, the Class 3 offense became a Class 2 offense by virtue of thefact that a dangerous weapon was used. Thus, the offense constitutes a felony in and of itself.

The felony class for armed violence ranges from Class X down to Class 2 felony. 720ILCS 5/33A-3 (West 1992). Based upon the type of weapon with which defendant was armed,he was convicted of a Class 2 felony. Class 2 is the lowest class available for armed violence. Because defendant was armed with a weapon which was, at the time of his sentencing, a Class IIIweapon,⁽¹⁾ he was convicted of a Class 2 felony.

Defendant, in his reply brief, has also raised a constitutional challenge to the trial court'ssentence based upon the Illinois Supreme Court's opinion in People v. Cervantes, 189 Ill. 2d 80,723 N.E.2d 265 (1999), which was published during the pendency of this appeal. If a sentencefails to conform to a statutory requirement, not only is it void, but it may be attacked at any time.People v. Arna, 168 Ill. 2d 107, 113, 658 N.E. 445, 448 (1995).

The Illinois Supreme Court held in People v. Cervantes, 189 Ill. 2d 80, 723 N.E.2d 265(1999), that the General Assembly violated the single subject clause of the Illinois Constitution(Ill. Const. 1970, art. IV,