Find Legal Information

JUSTICE HOFFMAN delivered the opinion of the court:

Following a bench trial, the defendant, Herberto Pulgar, wasconvicted of aggravated battery (720 ILCS 5/12-4 (West 1996)) and thecommission of a hate crime (720 ILCS 5/12-7.1 (West 1996)). He wassentenced to an extended term of nine years' imprisonment for aggravatedbattery and three years' imprisonment for the hate crime, with thesentences to run consecutively. The defendant filed the instant appeal,contending that: 1) his due process rights were violated when the Stateobtained an indictment against him for a hate crime after the trial court,at a preliminary hearing, found insufficient evidence to establish probablecause for the charge; 2) the State presented perjured testimony to thegrand jury; 3) his conviction of both aggravated battery and a hate crimeviolates the "one-act-one-crime" doctrine; 4) the State failed to prove himguilty of either offense beyond a reasonable doubt; 5) the sentence imposedby the trial court constituted an abuse of discretion; and 6) his attorneywas ineffective for failing to object to the admission of hearsaytestimony. For the reasons which follow, we affirm the defendant'sconviction and sentence for aggravated battery and vacate his convictionand sentence for the commission of a hate crime.

On the morning of February 2, 1997, Russell Johnson fled on foot fromthe defendant and a second, unidentified man who had directed racialremarks at him. The men pursued Johnson in a vehicle. The defendant wasdriving the vehicle when it struck Johnson, who suffered a broken leg. That evening, the defendant was arrested and charged with aggravatedbattery and the commission of a hate crime.

At the defendant's preliminary hearing, Johnson testified, interalia, that it was the vehicle's passenger that had yelled racial slurs athim. After the preliminary hearing, the trial court found probable causefor the aggravated battery charge placed against the defendant but foundinsufficient evidence to establish probable cause to charge him with a hatecrime. Subsequently, the grand jury returned a five-count indictmentagainst the defendant, charging him with one count of attempt murder, threecounts of aggravated battery, and one count of hate crime.

The defendant filed a motion to dismiss the indictment, in which heargued that the State procured the indictment through the use of perjuredtestimony. The trial court denied the motion. Thereafter, the defendantwaived his right to a jury trial, and a bench trial was conducted on thecharges set forth in the indictment. We will set forth only that evidenceintroduced at trial which is relevant to our disposition of the issuesraised in this appeal.

At approximately 5:30 a.m. on February 2, 1997, Johnson and LylaniRoldan were standing at a bus stop located on the corner of Belmont andCicero Avenues in Chicago when a Chevrolet Blazer passed them goingwestbound. According to Roldan, the driver of the vehicle, whom she lateridentified as the defendant, yelled at her and Johnson, but she could nothear his exact words. She testified that the vehicle returnedapproximately five minutes later and stopped directly in front of the busstop where she and Johnson were standing. Roldan stated that the passengerrolled down his window and said to Johnson, "nigger come here." When sheasked Johnson whether he knew this individual, the passenger said "shut upbitch." Roldan testified that she then asked the passenger if he knew her,whereupon he said "shut up you spic bitch" and asked "why are you with thatnigger?" The passenger then spit at Johnson. As the vehicle began to pullaway, Johnson spit back at the passenger and threw a cup at the vehicle. According to Roldan, the defendant stopped the vehicle, and both he and thepassenger got out. Roldan then told Johnson that the passenger had a gun,which caused him to begin running southbound on Cicero Avenue. As theyapproached, the defendant threw a garbage can at Roldan and the passengerthrew a bottle at her. They then returned to their vehicle and pursuedJohnson down Cicero Avenue, the defendant again driving.

According to Roldan, Johnson was running in the parking lane, threeor four feet from the curb. As Johnson began to cross the street, thedefendant accelerated. The defendant's vehicle eventually blocked Roldan'sview of Johnson. She testified, however, that she saw Johnson fly into theair and land near the curb. Roldan stated that she did not see the brakelights on the defendant's vehicle activate prior to the time that she sawJohnson fly into the air, nor did she see the vehicle decelerate. Roldanspoke to police officers both at the scene of the occurrence and later atthe police station. She identified the defendant both from a photographicarray and at a line-up.

On cross-examination, Roldan denied telling Steve DeJesus, aninvestigator engaged by the defendant, that the passenger in thedefendant's vehicle only gave her dirty looks or that the defendant swervedbefore he hit Johnson. She also denied telling the police that it was thepassenger that threw a garbage can at her.

Johnson's testimony corroborated that of Roldan in most respects. According to Johnson, however, when the vehicle which struck him passed thefirst time, the passenger yelled "nigger, I'll be back." He testifiedthat, as he was running southbound on Cicero Avenue, he heard the vehicleaccelerate and he froze. Johnson stated that the vehicle came "dead at"him and hit him "head on." He could not, however, identify the defendant. Johnson suffered a broken leg, abrasions, and bruises when he was hit. Hewas hospitalized for one week.

On cross-examination, Johnson denied telling the police that he couldnot hear what the passenger said when the vehicle first passed him andRoldan. He again admitted that it was the passenger in the vehicle, notthe driver, who yelled at him.

After the trial court denied the defendant's motion for a directedjudgment of acquittal, he presented his case-in-chief. The defendant'sfirst witness was his investigator, DeJesus, who testified that heinterviewed Roldan in September of 1998. According to DeJesus, Roldantold him that, when the defendant's vehicle first passed, the defendant andthe passenger only gave her and Johnson dirty looks and that the defendantattempted to swerve to avoid hitting Johnson with his vehicle.

The defendant also presented the testimony of Chicago policedetectives Louis Rabbit and Michael Mazupappa, two of the investigatingofficers. Rabbit testified that Roldan told him that, when she first sawthe defendant's vehicle, the vehicle made a U-turn and stopped in front ofher and Johnson. According to Rabbit, Roldan never told him that Johnsonthrew anything at the defendant's vehicle. Both Detectives Rabbit andMazupappa testified that Roldan stated that it was the passenger who threwa garbage can at her. Mazupappa also testified that Johnson told him thathe could not hear what the passenger said the first time that thedefendant's vehicle passed by him. After the officers testified, thedefense rested.

Before rendering its judgment, the trial court stated that it did notbelieve that Roldan told DeJesus that the defendant attempted to avoidhitting Johnson. The trial court then acquitted the defendant of attemptmurder but found him guilty of aggravated battery and a hate crime. Itdenied the defendant's subsequent motion for a new trial and imposedconsecutive sentences of nine years in prison for aggravated battery andthree years in prison for the hate crime.

Before addressing the substantive issues raised by this appeal, webelieve that certain procedural matters which arose after the filing of theappellant's brief are worthy of note. The State filed its initial brief inthis case on December 13, 2000. On January 11, 2001, the defendant filed amotion for an extension of time to file a reply brief. On January 18,2001, we granted that motion and extended the time for the filing of hisreply brief to March 1, 2001.

On January 19, 2001, the Illinois Supreme Court entered an ordersuspending the defendant's attorney, Gwendolyn Dale Anderson, from thepractice of law for a period of 18 months. In re: Gwendolyn Dale Anderson,M.R. 17157. On January 25, 2001, this court, unaware of Ms. Anderson'ssuspension, sua sponte entered an order directing the defendant to address,in his reply brief due on March 1, 2001, the applicability of the UnitedStates Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466,147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), to the consecutive sentencesimposed upon him. In that same order, we directed the State to file asupplemental brief addressing the same issue by March 1, 2001. Subsequentto the entry of that order, we scheduled this matter for oral argument onMarch 8, 2001.

The State filed its supplemental brief on February 22, 2001. Noreply brief was filed on behalf of the defendant prior to the oral argumentscheduled for March 8, 2001. When this case was called for argument onthat date, no one appeared in court to represent the defendant.

Immediately subsequent to the cancelled argument, this courtdiscovered for the first time that Ms. Anderson had been suspended from thepractice of law. As a consequence, we entered an order on March 8, 2001,appointing the State Appellate Defender as additional counsel for thedefendant and directing him to file, on or before April 11, 2001, a replybrief also addressing the Apprendi issue referenced in our order of January25, 2001.

On March 15, 2001, pursuant to an emergency motion filed by Ms.Anderson, the Illinois Supreme Court entered an order staying hersuspension pending, inter alia, the filing of the defendant's reply briefin this appeal. In re: Gwendolyn Dale Anderson, M.R. 17157. The Statenotified this court of the supreme court's stay order on March 21, 2001.

Finding that the defendant would be in need of representation pastthe filing of his reply brief, we entered an order, on March 23, 2001,reaffirming the appointment of the State Appellate Defender as additionalcounsel for the defendant. On April 5, 2001, the State Appellate Defenderfiled a reply brief on behalf of the defendant addressing both the issuesraised in the defendant's opening brief and the Apprendi issue referencedin our January 25, 2001, order. Ms. Anderson neither filed a reply briefon behalf of the defendant by the April 11, 2001, due date, nor sought anyextension of time to do so. This court subsequently scheduled the matterfor oral arguments on June 7, 2001. On May 7, 2001, the Illinois SupremeCourt entered an order lifting the stay of Anderson's suspension. On June7, 2001, the State Appellate Defender appeared in court and argued on thedefendant's behalf.

We turn now to the substantive issues raised by this appeal. Thedefendant first argues that his due process rights were violated when theState obtained an indictment against him for the commission of a hate crimeafter the trial court found that no probable cause existed to charge himwith that offense. As the State points out, the defendant's argument inthis regard is unsupported by any citation to authority, a violation ofSupreme Court Rule 341(e)(7) (177 Ill. 2d R. 341(e)(7)). Lack of authorityaside, we find the argument to be wholly without merit. When, as in thiscase, the State proceeds first by means of a complaint or information and afinding of no probable cause on the charge is entered at a preliminaryhearing, the State can subsequently seek and obtain a grand jury indictmentof the defendant for the same offense. See People v. Kent, 54 Ill. 2d 161,295 N.E.2d 710 (1972).

Next, the defendant argues that his due process rights were violatedin that the State presented perjured testimony to the grand jury to obtainthe five count indictment against him. He contends that the trial courterred in denying his motion to dismiss the indictment on that ground. Asthe State correctly points out, the defendant's motion to dismiss wasdirected to only the hate crime count of the indictment. On appeal,however, the defendant also challenges the aggravated battery counts of theindictment. He apparently asserts that the allegedly false testimony whichpertained to the hate crime charge tainted the grand jury proceedings andthat, accordingly, the entire indictment should have been dismissed. Having failed to challenge the aggravated battery counts of the indictmentin his pre-trial motion, the defendant waived the argument that thosecounts should have been dismissed. See People v. Thomas, 178 Ill. 2d 215,234, 687 N.E.2d 892 (1997) (argument raised for the first time on appeal isdeemed waived). Waiver aside, the defendant's argument pertaining to theaggravated battery counts of the indictment must fail as it hinges entirelyon the success of his argument that the hate crime count was obtainedthrough the use of perjured testimony, an argument which itself lacksmerit. The burden was on the defendant to show that the State preventedthe grand jury from returning a meaningful indictment (People v.DiVincenzo, 183 Ill. 2d 239, 258, 700 N.E.2d 981 (1998)) by knowinglypresenting perjured testimony (see People v. Creque, 72 Ill. 2d 515, 523-24, 382 N.E.2d 793 (1978)). The record in this case reflects that thedefendant failed to meet this burden.

Initially, we note that the record does not contain transcripts ofthe preliminary hearing or grand jury proceedings. The State correctlypoints out that it is the defendant's burden to provide us with a recordsufficient to allow a review of his claims and that, in the absence of acomplete record, we will presume the trial court's ruling was correct. People v. Balaj, 265 Ill. App. 3d 1070, 1079, 638 N.E.2d 377 (1994). Thedefendant, however, did attach to his motion to dismiss the indictmentbrief excerpts of testimony from each of the proceedings. An excerpt ofJohnson's testimony at the preliminary hearing reveals that he testifiedthat it was the passenger who yelled racial slurs at him. An excerpt ofOfficer Vanderpotte's testimony before the grand jury reveals that hetestified that he was "informed" that the defendant directed racial slursat Johnson. It is upon this stated testimony that the defendant bases hisperjury claim and, accordingly, we find the excerpts to be sufficient toallow our review of the issue.

In support of his perjury argument, the defendant contends that, atthe time of his testimony, Officer Vanderpotte was aware that neitherJohnson nor Roldan had identified him as the person who made the racialcomments. He further contends that both the officer and the State wereaware of Johnson's preliminary hearing testimony that it was the vehicle'spassenger who made the comments in question.

The trial court conducted an evidentiary hearing on the defendant'smotion to dismiss the hate crime count of the indictment. OfficerVanderpotte testified that, prior to appearing before the grand jury, hereviewed a case report of the incident prepared by another officer whichindicated that Roldan stated that the "offenders had stopped their vehicles[sic], across the street and started yelling profanities and making racialremarks." Vanderpotte indicated that, when he spoke to Roldan, she usedthe word offenders, "[a]s in both" the defendant and the passenger. Healso testified that he never interviewed Johnson, did not speak to any ofthe officers who interviewed Johnson, and was not present when Johnsontestified at the preliminary hearing.

Vanderpotte's partner, Chicago police officer Wilson, testified thathe spoke to Roldan, who confirmed that racial remarks were made. He couldnot, however, recall whether Roldan identified the defendant or thepassenger as the person who made the racial statements. Wilson testifiedthat he did not interview Johnson and was not present when Johnsontestified at the preliminary hearing.

At the conclusion of the hearing, the trial court denied thedefendant's pre-trial motion to dismiss the hate crime count of theindictment, finding that Vanderpotte did not knowingly provide falsetestimony to the grand jury. The defendant contends its ruling was inerror. We disagree.

A witness's testimony constitutes perjury only if the witnessknowingly makes a false statement. People v. Moore, 199 Ill. App. 3d 747,766, 557 N.E.2d 537 (1990). Officer Vanderpotte testified only that he hadbeen "informed" that the defendant directed racial slurs at Johnson. Vanderpotte's testimony at the hearing on the motion to dismiss establishedthat he had been informed that the "offenders" yelled racial slurs both bya police report and by Roldan herself. The fact that the informationcommunicated to the officer was hearsay which may ultimately have beenfalse does not render Vanderpotte's testimony perjurious. We note that theState was under no obligation to inform the grand jury that Vanderpotte'stestimony constituted hearsay (Creque, 72 Ill. 2d at 523-24), and thehearsay nature of the testimony did not effect the validity of theindictment returned against the defendant (People v. Fassler, 153 Ill. 2d49, 60, 605 N.E.2d 576 (1992)).

We also reject the defendant's argument that both Vanderpotte and theState intentionally misled the grand jury by proffering to it testimonythat the defendant yelled racial slurs at Johnson when Johnson himselftestified to the contrary at the preliminary hearing. First, the trialcourt determined that Vanderpotte was not present when Johnson testified atthe preliminary hearing, was unaware of that testimony at the time that heappeared before the grand jury, and obtained his information about theincident from the reports that he read and from sources other than Johnson. Because the trial judge was in the best position to judge the credibilityof the witnesses, we will not disturb his findings in this regard. SeePeople v. Ferro, 195 Ill. App. 3d 282, 291, 551 N.E.2d 1378 (1990). Further, even if Vanderpotte was aware of Johnson's testimony, that wouldnot render false his testimony that he had been informed, by a secondwitness to the crime, Roldan, that the defendant yelled racial slurs. Forthis reason, the State cannot be said to have knowingly presented falsetestimony simply because it was aware of the apparent discrepancy betweenJohnson's testimony and Vanderpotte's. It is well settled that the Stateis not obligated to present exculpatory information to a grand jury (Peoplev. Torres, 245 Ill. App. 3d 297, 300-01, 613 N.E.2d 338 (1993)), andaccordingly, was under no obligation to inform the grand jury of Johnson'stestimony at the earlier proceeding.

We will next address the defendant's argument that his convictionsfor aggravated battery and a hate crime are based on the same physical act, that of striking Johnson with his vehicle, in violation of the one-act-one-crime doctrine. For this reason, he contends, we cannot allow bothconvictions to stand. The State urges us to treat this issue as havingbeen waived due to the defendant's failure to raise it at trial or in hispost-trial motion. See People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d1124 (1988). However, when a defendant is improperly convicted andsentenced for multiple offenses carved from the same physical act, as thedefendant here claims to have been, a substantial right is implicated. Accordingly, we will review the merits of the defendant's claim. SeePeople v. Hicks, 181 Ill. 2d 541, 545, 693 N.E.2d 373 (1998); 134 Ill. 2dR. 615(b).

Succinctly put, the one-act-one-crime doctrine stands for theproposition that "[m]ultiple convictions are improper if they are based onprecisely the same physical act." People v. Rodriguez, 169 Ill. 2d 183,186, 661 N.E.2d 305 (1996). Multiple convictions and sentences arepermitted, though, when a defendant has committed several acts, despite theinterrelationship of those acts. People v. King, 66 Ill. 2d 551, 566, 363N.E.2d 838 (1977).

Prosecutorial intent, as it is reflected in the wording of thecharging instrument, is a significant factor in determining whether thedefendant's conduct constituted separate acts capable of supportingmultiple convictions. People v. Baity, 125 Ill. App. 3d 50, 54, 465 N.E.2d622 (1984). The aggravated battery counts of the indictment are allpremised on the allegation that the defendant struck Johnson with a pick-uptruck, thus reflecting the State's intention to charge the defendant withaggravated battery by reason of that act. We must compare this to theallegations of the hate crime count of the indictment.

A person commits a hate crime when he commits one of certainenumerated offenses, including battery, by reason of, among other things,the victim's race. 720 ILCS 5/12-7.1(a) (West 1996). The hate crime countof the indictment in the instant case alleges that the defendant:

"by reason of the race of Russell Johnson committed a batteryupon Russell Johnson, to-wit: he struck Russell Johnson with apick-up truck after the passenger of the pick-up truck thedefendant was driving called Russell Johnson a 'nigger' andspit on him, ***."

We believe that this language clearly reflects the State's intent to chargethe defendant with a hate crime based upon his physical act of strikingJohnson with his vehicle, the requisite predicate battery, committed whilemotivated by Johnson's race. The State argues that the hate crime count ofthe indictment also alleges the commission of a second battery, namely thepassenger's act of spitting at Johnson and calling him a "nigger", forwhich the defendant is accountable. It contends that this second batterycan serve as the predicate offense for the hate crime charge withoutviolating the one-act-one-crime doctrine. We reject this contention. Thereference in the indictment to the passenger's conduct is clearly a factualallegation in support of the assertion that the defendant struck Johnsonwith a vehicle by reason of Johnson's race. It supports the motivationelement of a hate crime, not the predicate offense element.

In this case, the defendant's act of striking Johnson with a vehicleformed the basis of both his conviction for aggravated battery and hisconviction for a hate crime. Because the same physical act formed thebasis for both charges, multiple convictions were improper. People v.Donaldson, 91 Ill. 2d 164, 170, 435 N.E.2d 477 (1982). Judgment shouldhave been entered and sentence imposed on only the more serious of the twooffenses. Donaldson, 91 Ill. 2d at 170. Aggravated battery is a Class 3felony (720 ILCS 5/12-4(e) (West 1996)), and a hate crime is a Class 4felony (720 ILCS 5/12-7.1(b) (West 1996)). Accordingly, we vacate thedefendant's conviction and sentence for a hate crime.

Because we have vacated the defendant's conviction and sentence for ahate crime, we need not address the following issues raised by thedefendant: 1) whether he was proven guilty of a hate crime beyond areasonable doubt; 2) whether his attorney was ineffective in failing toobject to hearsay testimony going to the motive element of the hate crimecharge; and 3) whether the trial court properly imposed consecutivesentences. We will next address the defendant's argument that he was notproven guilty of aggravated battery beyond a reasonable doubt.

A person commits an aggravated battery when, in committing a battery,he "intentionally or knowingly causes great bodily harm, or permanentdisability or disfigurement". 720 ILCS 5/12-4(a) (West 1996). Thedefendant contends that the evidence in this case was insufficient toestablish either that he intended to strike Johnson with his vehicle orthat Johnson suffered great bodily harm. Based upon the record before us,we find both contentions to be meritless.

We will not reverse a criminal conviction unless the evidence is soimprobable or unsatisfactory that it creates a reasonable doubt as to thedefendant's guilt. People v. Wilson, 155 Ill. 2d 374, 379, 614 N.E.2d 1227 (1993). When faced with a challenge to the sufficiency of the evidence, wereview the evidence in the light most favorable to the State and determinewhether any rational trier of fact could have found that the Stateestablished each element of the crime beyond a reasonable doubt. People v.Campbell, 146 Ill. 2d 363, 374, 586 N.E.2d 1261 (1992). The determinationsas to the weight to be given to the testimony of the witnesses, theircredibility, and the reasonable inferences to be drawn from the evidenceare matters within the province of the trier of fact. People v. Cooper,194 Ill. 2d 419, 431, 743 N.E.2d 32 (2000).

What constitutes great bodily harm is generally a question of factfor the trier of fact. People v. Matthews, 126 Ill. App. 3d 710, 715, 467N.E.2d 996 (1984). In this case, as a result of having been struck by thedefendant's vehicle, Johnson was hospitalized for one week and suffered,among other injuries, a broken leg. We believe that evidence of such aninjury is more than sufficient to support the conclusion that Johnsonsuffered "great bodily harm." See Matthews, 126 Ill. App. 3d at 715;People v. Olmos, 67 Ill. App. 3d 281, 384 N.E.2d 853 (1978).

The defendant also contends that the State failed to prove that heintended to hit Johnson with his vehicle. Intent can be established byproof of surrounding circumstances, including the character of the assaultand other matters from which an intent may be inferred. People v. Lopez,245 Ill. App. 3d 41, 47, 614 N.E.2d 329 (1993). In this case, Roldantestified that, after Johnson began running southbound on Cicero Avenue,the defendant drove his vehicle in the same direction. She stated that, asJohnson began to cross the street, the defendant's vehicle began toaccelerate. Roldan testified that she did not see the brake lights on thedefendant's vehicle activate prior to the time that she saw Johnson flyinto the air, nor did she see the vehicle decelerate. Johnson testifiedthat, as he was running, he heard the vehicle which struck him accelerate. He further stated that the vehicle came "dead at" him and hit him "headon." The testimony of Roldan and Johnson is sufficient to support aninference that the defendant intended to strike Johnson with his vehicle.

Next we will address the issues related to the sentence imposed bythe trial court for the defendant's aggravated battery conviction.

As stated earlier, the trial court sentenced the defendant to nineyears' imprisonment on his conviction for aggravated battery. On appeal,the defendant contends that a nine year sentence is not authorized bystatute and that the imposition of an extended term is unconstitutionalunder the holding in Apprendi. We disagree.

Aggravated battery is a Class 3 felony. 720 ILCS 5/12-4(e) (West1996). Section 5-8-1(a)(6) of the Unified Code of Corrections (Code)provides that the sentence of imprisonment for a Class 3 felony is not lessthan two years and not more than five years. 730 ILCS 5/5-8-1(a)(6) (West1996). Pursuant to section 5-8-2 of the Code, though, a trial court mayimpose an extended term sentence of not less than 5 years and not more than10 years upon a defendant convicted of a Class 3 felony when it finds thatone or more of the aggravating factors set forth in section 5-5-3.2(b) (730ILCS 5/5-5-3.2(b)(West 1996)) is present. 730 ILCS 5/5-8-2(a)(5) (West1996). Among the aggravating factors enumerated in section 5-5-3.2(b) isthat a defendant convicted of a felony has been convicted, within 10 yearsprior, of the same or greater class felony arising out of a differentseries of acts and upon charges separately brought and tried. 730 ILCS5/5-5-3.2(b)(1) (West 1996).

The record reflects that the defendant had, within 10 years of hisconviction in the instant case, been convicted of two Class 2 felonies,possession of a stolen motor vehicle (625 ILCS 5/4-103(b) (West 1996)) androbbery (720 ILCS 5/18-1(b) (West 1996)). It also appears that these priorconvictions arose out of a different series of acts than those which gaverise to his conviction in this case and were based on charges separatelybrought and tried. Consequently, the defendant was eligible for anextended term sentence of 5 to 10 years, and his contention that his nineyear sentence for aggravated battery is not authorized by statute lacksmerit. Remaining, however, is the question of the constitutionality of theimposition of an extended term sentence upon the defendant.

Citing to the rule announced by the United States Supreme Court inApprendi, the defendant argues that section 5-8-2 of the Code, pursuant towhich his extended-term sentence was imposed, is unconstitutional. Thedefendant notes that section 5-8-2 neither provides for notice to thedefendant of the State's intent to seek an extended term sentence norrequires that the facts upon which such a sentence is based be proved to ajury beyond a reasonable doubt. Based on this argument, he claims that hisextended-term sentence for aggravated battery should be vacated.

In Apprendi, the Supreme Court held that, under the due processclause and the notice and jury trial guarantees contained, respectively, inthe fifth and sixth amendments to the United States Constitution, any factthat increases the maximum penalty for a crime must be charged in theindictment, submitted to a jury, and proven beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. The Apprendi Court, though, explicitly held that prior convictionsconstitute an exception to its holding in this regard. Apprendi, 530 U.S.at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

As stated above, it was on the basis of a prior conviction that thedefendant's extended sentence for aggravated battery was imposed. 730 ILCS5/5-5-3.2(b)(1)(West 1996). Nevertheless, the defendant still contendsthat we should hold that the imposition of an extended-term sentence inthis case is unconstitutional. In support of this contention, he makes thesame arguments which were made and rejected by this court in People v.Dillard, 319 Ill. App. 3d 102, 745 N.E.2d 185 (2001). For the reasonsstated in Dillard, we reject the defendant's assertion that Apprendirenders an extended-term sentence based upon the aggravating factor setforth in section 5-5-3.2(b)(1) of the Code unconstitutional. See alsoPeople v. Davis, 319 Ill. App. 3d 572, 746 N.E.2d 758 (2001).

Based upon the foregoing analysis, we vacate the defendant'sconviction and sentence for a hate crime and affirm his conviction andsentence for aggravated battery.

Affirmed in part and vacated in part.

HARTMAN, P.J. and BARTH, J., concur.