People v. Yancy
Case Date: 12/02/2005
Court: 1st District Appellate
Docket No: 1-04-2605 NRel
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FOURTH DIVISION December 29, 2005 No. 1-04-2605
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 03CR8685 ) DANNY YANCY, ) The Honorable ) Dennis J. Porter, Defendant-Appellant. ) Judge Presiding. JUSTICE GREIMAN delivered the opinion of the court: Following a bench trial, defendant Danny Yancy was convicted of aggravated robbery. He was sentenced to eight years in prison for his aggravated robbery conviction and five years inprison for violating his probation. The court ordered defendant’s sentences to run concurrently. On appeal, defendant contends: (1) that the trial court committed reversible error in admittinghearsay evidence that the quality assurance department agreed with the testifying forensicscientist’s conclusion that fingerprints found at the scene of the crime matched defendant’s; (2)that the trial court erred in sentencing him as a Class X offender pursuant to section 5-5-3(c)(8) ofthe Unified Code of Corrections (the Code) (730 ILCS 5/5-5-3(c)(8) (West 2002)), when hispresentencing investigation report (PSI) did not show that he committed his first qualifying felonysubsequent to the date required by the statute; and (3) that section 5-5-3(c)(8) of the Codedeprived him of his constitutional right to a jury and due process rights. At trial, Henryka Waskowski testified that she owns a bar on West Irving Park Road inChicago. At 11 o’clock in the morning on March 5, 2002, Waskowski was in the bar, with thefront door locked, cleaning up when a man she identified at trial as defendant knocked on thedoor. Waskowski let defendant in and he sat down at the bar. Waskowski observed thatdefendant had a crooked nose and short hair and that he was wearing a black jacket and a plaidshirt. Waskowski sat down on a stool behind the bar and talked with defendant for about 40minutes while he drank two beers. No other patrons were in the bar. Waskowski and defendantdiscussed defendant’s middle finger, which was deformed and would not bend. After drinking hissecond beer, defendant asked Waskowski for a beer “on the house.” Waskowski denieddefendant’s request and indicated that it was time for him to leave. Defendant went to thebathroom. When he came out of the bathroom, defendant went behind the bar, told Waskowskithat he had a gun and instructed her to open the register or he would kill her. Waskowskitestified that she did not see a gun but that defendant’s hand was in his pocket. Waskowskipressed a hidden panic button and told defendant that the police were coming. Defendantcontinued to demand money. Waskowski opened the register and defendant took outapproximately $150. Defendant ordered Waskowski to go into the bathroom in the back of thebar. Instead, Waskowski ran out of the front door of the bar. On the sidewalk, she told aChicago city worker what had happened. She later recounted the events of the morning to thepolice. When she went back into the bar, Waskowski observed that defendant had left hiseyeglasses, a pack of cigarettes, a lighter and his beer bottle on the bar. Evidence technician Officer Presnell testified that on March 5, 2002, he searched,photographed, collected evidence and dusted for fingerprints at Waskowski’s bar. Presnell liftedseven latent fingerprints, two from the pack of cigarettes, one from the cigarette lighter and fourfrom the beer bottle. Presnell also took Waskowski’s fingerprints for elimination purposes. Detective Lunsford was assigned to investigate the case. He learned that fingerprints hadbeen recovered from the scene and on April 15, 2002, requested that the prints be submitted tothe Automated Fingerprint Identification System (AFIS), a database housing fingerprint cards ofpeople arrested in Illinois, for comparison and identification. Anastasia Petruncio, a forensic scientist specializing in latent fingerprints, received theseven latent prints and identified four, one from the pack of cigarettes and three from the beerbottle, as suitable for comparison by AFIS. AFIS compiled a list of 10 candidates whose printswere similar to the latent prints. Petruncio compared defendant’s print card, taken in 2000, to thelatent prints. Between the card and the latent prints, Petruncio made more than five points ofidentification that indicated that the prints belonged to the same person. She determined to areasonable degree of certainty that the four latent prints were defendant’s. Petruncio furthertestified that the quality assurance department randomly reidentified the prints and agreed with herconclusion. On October 25, 2002, Lunsford received a report from the Illinois crime lab that the latentprints had been matched to defendant’s AFIS card. Defendant was arrested by fugitiveapprehension unit Officer Dell on April 4, 2003. Thereafter, Waskowski was asked to view alineup at the police station. She identified defendant out of the lineup as the man who had robbedher bar. After she identified defendant, Waskowski asked to see his left hand. Waskowskiidentified pictures of the lineup, defendant and defendant’s finger at trial. Fingerprint technician Stanley Mocaldo testified that on April 30, 2004, he tookdefendant’s fingerprints. Petruncio compared defendant’s 2000 print card to his print card taken in 2004. Shedetermined that the prints on the two cards belonged to the same person. Petruncio did notcompare the 2004 card to the latent prints. Defendant called responding Officer Ayalo, who testified that he interviewed Waskowskiand indicated on his report that she had been drinking when the incident occurred. However, oncross-examination, Ayalo testified that he had made a mistake on his report and that Waskowskihad not been drinking. The court observed that, ordinarily, an identification by a single witness of the perpetratorof a crime that occurred over a year earlier would not be strong enough for a conviction. However, in this case, the single witness’s testimony was corroborated by the fingerprintevidence. The court further noted that the evidence of defendant’s guilt was overwhelming. Defendant filed a motion for a new trial, which was denied. After hearing arguments inmitigation and aggravation, the court sentenced defendant to concurrent prison terms of eightyears for aggravated robbery and five years for violation of probation. On appeal, defendant first contends that the trial court committed reversible error inadmitting Petruncio’s testimony that the quality assurance department agreed with heridentification of the latent prints. Defendant contends that the testimony was inadmissible hearsayused to bolster Petruncio’s weak testimony. The State first responds that, because he failed toraise it in his posttrial motion, defendant has waived this contention (see People v. Enoch, 122 Ill.2d 176, 190 (1988)), and observes that defendant has not alleged that the admission of theevidence was plain error (see People v. Herron, 215 Ill. 2d 167, 187 (2005) (when issue iswaived, defendant bears the burden of demonstrating that plain error occurred)). We agree that defendant has waived this contention. See People v. Howell, 358 Ill. App.3d 512 (2005). Waiver aside, we find that, though Petruncio’s testimony that the qualityassurance department agreed that the latent prints were defendant’s was inadmissible hearsay, anyerror committed in admitting the testimony was harmless beyond a reasonable doubt and reversalis not warranted. “Hearsay evidence is an out-of-court statement offered to prove the truth of the matterasserted, and is generally inadmissible unless it falls within an exception.” People v. Lawler, 142Ill. 2d 548, 557 (1991). Hearsay evidence is generally inadmissible because of the lack of anopportunity to cross-examine the declarant. People v. Jura, 352 Ill. App. 3d 1080, 1085 (2004). “[T]estimony by a third party as to statements made by another nontestifying party identifying anaccused as the perpetrator of a crime constitutes hearsay testimony and is inadmissible.” Peoplev. Lopez, 152 Ill. App. 3d 667, 672 (1987). The State argues that the challenged testimony was not offered for the truth of the matterasserted and was instead offered “to show that Ms. Petruncio’s identification was not affected byhuman error.” Specifically, the State points to the fact that, during cross-examination, Petruncioconceded that there is a risk of human error in identifying fingerprints. Thereafter, during redirect,Petruncio testified that in order to protect against human error, every identification is reviewed bya more experienced forensic scientist. She further testified that the quality assurance departmentrandomly reidentifies prints, that it reidentified the prints in this case, and that “[t]he qualityassurance department agreed with [her] finding.” While Petruncio’s redirect testimony that eachidentification was reviewed by a more experienced scientist and by the Quality AssuranceDepartment was offered to show a minimized risk of human error and also alerted the trier of factto the process by which fingerprints are identified and verified, contrary to the State’s assertion,her testimony that the quality assurance department agreed with her identification was offered toprove the truth of the matter that it asserted: that the quality assurance department also found thatthe latent prints were defendant’s. Accordingly, we find that the testimony was clearly improperhearsay. See People v. Smith, 256 Ill. App. 3d 610, 615 (1994) (examiner’s testimony thatanother examiner “verified her fingerprint identification was clearly hearsay”). Nonetheless, the admission of hearsay identification testimony “is harmless error when it ismerely cumulative or is supported by a positive identification and other corroborativecircumstances.” Smith, 256 Ill. App. 3d at 615, citing People v. Mitchell, 200 Ill. App. 3d 969,975 (1990). Moreover, admission of hearsay evidence is harmless and does not warrant reversalif there is no reasonable probability that the verdict would have been different had the hearsaybeen excluded. People v. Pineda, 349 Ill. App. 3d 815, 822 (2004), citing People v. Soto, 342 Ill.App. 3d 1005, 1014 (2003). Put another way, the admission of hearsay evidence does not requirereversal if it is harmless beyond a reasonable doubt. People v. Thompson, 349 Ill. App. 3d 587,594 (2004). Notably, this case was tried before the bench. “Unlike a jury, a trial judge in a benchtrial is presumed to know the law and to follow it and ‘this presumption may only be rebuttedwhen the record affirmatively shows otherwise.’ ” People v. Thorne, 352 Ill. App. 3d 1062, 1078(2004), quoting People v. Mandic, 325 Ill. App. 3d 544, 546 (2001). Defendant analogizes this case to Smith. In Smith, during the defendant’s trial for armedrobbery, a fingerprint examiner testified that she had identified a latent fingerprint found at thescene of the crime as defendant’s. The examiner testified that her identification was checked foraccuracy by another fingerprint examiner who agreed with her conclusion. On appeal, thedefendant contended that the trial court had erred in permitting the State to present inadmissiblehearsay evidence. The State argued that reversal was not warranted because the hearsaytestimony was merely cumulative and the evidence of the defendant’s guilt was overwhelming.The court disagreed with the State’s assessment of the evidence. First, the court noted that theevidence of the defendant’s guilt was not overwhelming. Two witnesses to the robbery identifiedthe defendant as the perpetrator at trial. However, one of them had previously misidentified thedefendant during a photographic lineup. Furthermore, the description given by both witnesses topolice officers immediately following the robbery greatly differed from the defendant’s physicalappearance at trial. Moreover, two alibi witnesses testified on defendant’s behalf at trial. Second,the court observed that the hearsay testimony regarding the second examiner’s identification ofthe defendant was not merely cumulative of the first examiner’s testimony. The jury’s notes andquestions to the court during deliberation showed that it was “acutely interested in the fingerprintevidence in general and in [the second examiner’s] ‘testimony’ in particular.” Smith, 256 Ill. App.3d at 616. Finally, the court found that the prosecutor had “compounded the effect of improperhearsay testimony by emphasizing it during closing argument” in which the prosecutor “castblame on the defendant for not rebutting the [first examiner’s testimony] by calling [the secondexaminer].” Smith, 256 Ill. App. 3d at 616. The court held that the errors denied the defendant afair trial and created a reasonable possibility that the verdict would have been different if they hadnot occurred. Accordingly, it reversed and remanded the case for a new trial. Clearly, the case at bar is distinguishable from Smith. Perhaps most importantly, whileSmith was tried before a jury, the case at bar was a bench trial. Here, defendant has simply failedto point to evidence on the record to overcome our presumption that the trial judge followed thelaw and disregarded the hearsay testimony. While the court found the latent prints’ identificationas defendant’s evidence supporting a finding of guilt, it did not mention or indicate in any waythat its finding was influenced by the quality assurance department’s identification. Moreover, thesubstantive facts of the case at bar are distinguishable from Smith. In this case, unlike in Smith,the evidence of defendant’s guilt was overwhelming. Waskowski sat across a bar from defendantand talked to him for 40 minutes immediately prior to the robbery. Waskowski’s description ofdefendant to the police on the day of the robbery was consistent with the lineup pictures ofdefendant that were admitted into evidence. Furthermore, Waskowski identified defendant out ofa lineup not only by his face but also by his crooked finger, which she had discussed withdefendant on the day of the robbery. Waskowski also identified defendant at trial. This case isalso unlike Smith because here the challenged testimony was cumulative. Petruncio testified,subject to cross-examination, that she identified the latent prints found at the scene of the crime asdefendant’s. Additionally, the prosecutor in this case made no mention of the hearsay testimonyduring closing. Accordingly, we refuse to reverse defendant’s conviction on this basis. Defendant next contends that the trial court erred in sentencing him as a Class X offenderpursuant to section 5-5-3(c)(8) of the Code. Section 5-5-3(c)(8) provides: “When a defendant, over the age of 21 years, is convicted of a Class 1 or aClass 2 felony, after having twice been convicted in any state or federal court of anoffense that contains the same elements as an offense now classified in Illinois as aClass 2 or greater Class felony and such charges are separately brought and triedand arise out of different series of acts, such defendant shall be sentenced as aClass X offender. This paragraph shall not apply unless (1) the first felony wascommitted after the effective date of this amendatory Act of 1977; and (2) thesecond felony was committed after conviction of the first; and (3) the third felonywas committed after conviction of the second.” 730 ILCS 5/5-5-3(c)(8) (West2002). We will first address defendant’s contention that, pursuant to Apprendi v. New Jersey,530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and the United State’s SupremeCourt’s recent decision in Shepard v. United States, 544 U.S. __, 161 L. Ed. 2d 205, 125 S. Ct.1254 (2005), his jury trial and due process rights were violated when the facts required forimposition of his enhanced sentence by section 5-5-3(c)(8), that he was over the age of 21, thathis first prior felony was committed prior to the effective date of the Act of 1977, that his secondfelony was committed after conviction of his first and that his third felony was committed afterconviction of his second, were not submitted to a jury or proven beyond a reasonable doubt. Wedisagree with the State’s response that defendant’s failure to raise this contention in the trial courtresults in its waiver because “a party may challenge the constitutionality of a statute at any time.” People v. Wagener, 196 Ill. 2d 269, 279 (2001). However, because defendant waived his right toa jury prior to trial and was found guilty by the bench, we find that any assertion that Apprendiand Shepard afford defendant the right to have his age and sequence of his convictions proven toa jury has been waived. See People v. Smith, 337 Ill. App. 3d 175, 177 (2003). Accordingly, wewill vacate defendant’s Class X sentence only if his age and the timing of his convictions shouldhave been proven beyond a reasonable doubt. In Apprendi, the Supreme Court considered the issue of “whether the [d]ue [p]rocess[c]lause of the [f]ourteenth [a]mendment requires that a factual determination authorizing anincrease in the maximum prison sentence for an offense *** be made by a jury on the basis ofproof beyond a reasonable doubt.” Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at 442, 120 S. Ct.at 2351. The Court found 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, andproved 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 articulated several reasons for excepting recidivism statutesfrom its holding, “including the fact that procedural safeguards enhance the validity of any priorconviction, recidivism is not an essential element of the underlying criminal offense and recidivismdoes not relate to the commission of the underlying offense.” People v. Lathon, 317 Ill. App. 3d573, 585 (2000), citing Apprendi, 530 U.S. at 494-95, 147 L. Ed. 2d at 457-58, 120 S. Ct. at2365-66. The Apprendi Court discussed Almendarez-Torres v. United States, 523 U.S. 224, 140 L.Ed. 2d 350, 118 S. Ct. 1219 (1998), in which the Court found that a federal statute authorizing atrial judge to enhance defendant’s sentence based on a prior conviction did not violate thedefendant’s constitutional rights. Though the Apprendi Court noted that it was arguable thatAlmendarez-Torres was incorrectly decided: “Apprendi’s discussion of Almendarez-Torres concludes with the Apprendi Court,based on a reexamination of case law and history, affirmatively confirming itsopinion, previously expressed in [Jones v. United States, 526 U.S. 227, 143 L. Ed.2d 311, 119 S. Ct. 1215 (1999)], that prior convictions are an exception to theholding that any fact which increases the penalty for a crime beyond the prescribedstatutory maximum must be submitted to a jury and proved beyond a reasonabledoubt.” People v. Smith, 338 Ill. App. 3d 555, 559 (2003), citing Apprendi, 530U.S. at 489-90, 147 L. Ed. 2d at 454-66, 120 S. Ct. at 2362-63. Since Apprendi was decided, this court has entertained repeated allegations, likedefendant’s, that section 5-5-3(c)(8) of the Code is unconstitutional because it requiresenhancement of a defendant’s sentence based on the defendant’s age and the timing, degree,number and sequence of the defendant’s prior convictions, which are not submitted to a jury orproven beyond a reasonable doubt. We have repeatedly found section 5-5-3(c)(8) to beconstitutional under the recidivism exception in Apprendi. See, e.g., People v. Lundy, 334 Ill.App. 3d 819 (2002); People v. Young, 334 Ill. App. 3d 785 (2002); People v. Wallace, 331 Ill.App. 3d 822 (2002); People v. Echols, 325 Ill. App. 3d 515 (2001); People v. Givens, 319 Ill.App. 3d 910 (2001); People v. Dixon, 319 Ill. App. 3d 881 (2001); People v. Roberts, 318 Ill.App. 3d 719 (2000); People v. Ramos, 318 Ill. App. 3d 181 (2000); People v. Lathon, 317 Ill.App. 3d 573 (2000). We have identified four reasons for the recidivism exception. “First, historically, recidivism has been ‘a traditional, if not the most traditional,basis for a sentencing court’s increasing an offender’s sentence.’ [Citations.]Second, the prior convictions must themselves have been established throughprocedures that complied with due process. Thus, the rights of fair notice, proofbeyond a reasonable doubt, and a jury trial inherent in due process have alreadybeen met with regard to these convictions. [Citations.] Third, prior convictions are‘highly verifiable matters of record which need not be subject to jury inquiry.’[Citations.] Fourth, making prior convictions an element of the offense wouldforce the State to put such evidence before the jury, which would severelyprejudice the defendant.” People v. Watson, 322 Ill. App. 3d 164, 167 (2001). We have additionally upheld the “the minimum age and other ancillary elements of section 5-5-3(c)(8), finding that they are sufficiently intertwined with recidivism and distinct from theelements of the underlying offense to fall under the recidivism exception recognized in Apprendi.” Smith, 338 Ill. App. 3d at 561; People v. Jones, 322 Ill. App. 3d 236, 243 (2001); People v.Dunn, 326 Ill. App. 3d 281, 289 (2001); People v. Givens, 319 Ill. App. 3d at 914; Dixon, 319 Ill.App. 3d at 885. The Supreme Court recently revisited issues raised by Apprendi in Shepard. In Shepard,the defendant pled guilty to unlawful possession of a firearm by a felon. At sentencing, theGovernment argued that the defendant’s sentence should be extended under the Armed CareerCriminal Act (ACCA) (18 U.S.C. § 924(e) (2000)), which provided an extended sentence fordefendants convicted of possession of a firearm after having been convicted of three prior seriousdrug offenses or violent felonies. Under the ACCA, burglary committed in an enclosed space orbuilding, or “generic burglary,” qualified as a violent felony but burglary committed in a boat ormotor vehicle did not. The defendant had previously pled guilty to burglary four times underMassachusetts burglary statutes that did not differentiate between generic burglary and burglarycommitted in a boat or motor vehicle. The issue before the United States Supreme Court was“whether a sentencing court can look to police reports or complaint applications to determinewhether an earlier guilty plea necessarily admitted, and supported a conviction for, genericburglary.” Shepard, 544 U.S. at __, 161 L. Ed. 2d at 211, 125 S. Ct. at 1257. The Court notedthat the lower courts were correct in finding that guilty pleas may establish the ACCA predicateoffenses and that Taylor v. United States, 495 U.S. 575, 109 L. Ed. 2d 607, 110 S. Ct. 2143(1990), controls the identification of generic burglary convictions following convictions onverdicts as well as pleas. In Taylor, the Supreme Court had held that in sentencing a defendantunder the ACCA, a court could look to the statutory elements, charging documents and juryinstructions of the prior convictions to determine whether those convictions were for genericburglary. In Shepard, because the defendant had entered guilty pleas to his earlier convictions,jury instructions were not available to assist the district court in determining whether the guiltypleas were to generic burglary. The Court determined: “In cases tried without a jury, the closest analogs to jury instructions would be abench-trial judge’s formal rulings of law and findings of fact, and in pleaded casesthey would be the statement of factual basis for the charge, [citation], shown bytranscript of plea colloquy or by written plea agreement presented to the court, orby a record of comparable findings of fact adopted by the defendant upon enteringthe plea.” Shepard, 544 U.S. at __, 161 L. Ed. 2d at 214, 125 S. Ct. at 1259-60. The Court rejected the government’s argument that documents submitted to the lowercourt even prior to charges, such as police reports and complaint applications, should also beconsidered, finding that to so hold would be to ease away from the Taylor holding and that thereis insufficient justification for upsetting Taylor’s precedent. Accordingly, the Court held: “[E]nquiry under the ACCA to determine whether a plea of guilty to burglarydefined by a nongeneric statute necessarily admitted elements of the genericoffense is limited to the terms of the charging document, the terms of a pleaagreement or transcript of colloquy between judge and defendant in which thefactual basis for the plea was confirmed by the defendant, or to some comparablejudicial record of this information.” Shepard, 544 U.S. at __, 161 L. Ed. 2d at218, 125 S. Ct. at 1263. Writing for a plurality of the Court, Justice Souter articulated a second justification for theCourt’s holding that a sentencing court could look only to a limited category of evidence inassessing prior convictions obtained by guilty pleas: constitutional concerns about the defendant’sright to a jury trial. Justice Souter noted that the Taylor Court had limited the evidence to whicha sentencing court could look to determine whether a prior conviction was generic because toallow the sentencing court to review the entire record of the prior convictions could abridge adefendant’s right to a jury trial. Taylor, therefore, anticipated the rule later articulated in Jonesand Apprendi that any fact, other than a prior conviction, sufficient to extend a defendant’ssentence must be found by a jury “in the absence of any waiver of rights by the defendant.” Shepard, 544 U.S. at __, 161 L. Ed. 2d at 217, 125 S. Ct. at 1262. Justice Souter observed thatin a nongeneric State, such as Massachusetts, because “the fact necessary to show a generic crimeis not established by the record of conviction as it would be in a generic State,” in order to protectthe defendant’s right to a jury trial, it is necessary to limit the scope of judicial factfinding on thedisputed generic character of a prior plea, as the Shepard and Taylor Courts had done. Shepard,544 U.S. at __, 161 L. Ed. 2d at 217, 125 S. Ct. at 1262. Justice Souter further observed that in the case before the Court, the record was silent onwhether the defendant’s prior convictions were generic burglaries because there were no pleaagreements or recorded colloquies in which the defendant admitted the generic fact. JusticeSouter wrote: “[T]he Sixth and Fourteenth Amendments guarantee a jury standing between adefendant and the power of the state, and they guarantee a jury’s finding of anydisputed fact essential to increase the ceiling of a potential sentence. While thedisputed fact here can be described as a fact about prior convictions, it is too farremoved from the conclusive significance of a prior judicial record, and too muchlike the findings subject to Jones and Apprendi, to say that Almendarez-Torresclearly authorizes a judge to resolve the dispute.” Shepard, 544 U.S. at __, 161 L.Ed. 2d at 217, 125 S. Ct. at 1262. The Fourth Circuit Court of Appeals recently succinctly articulated the holding and effectof the Shepard plurality, noting: “[The Shepard Court] prohibited judges from resolving a ‘disputed fact ... about aprior conviction,’ [citation] if doing so required data – like that found in policereports – that was not inherent in that prior conviction. At the same time,however, Shepard explicitly affirmed that the prior conviction exception remainedgood law. [Citation.] To this end, the Court authorized judges to rely on a varietyof conclusive court documents when determining the nature of a prior conviction. *** *** In short, the ‘fact of a prior conviction’ remains a valid enhancement evenwhen not found by the jury.” United States v. Thompson, 421 F. 3d 278, 281-82(4th Cir. 2005). The Thompson court further concluded, and we agree, that the fact of a prior conviction may notbe severed from its essential components and that Shepard, in describing the documents thatcould be used by a sentencing court to determine the nature of a prior conviction, “reinforced thenotion that some facts are so inherent in a conviction that they need not be found by a jury.” Thompson, 421 F.3d at 282. Specifically, the court held that the statute which was violated andthe fact that prior convictions were committed on different occasions, as is required for theimposition of an enhanced sentence under the ACCA, were inherent in the convictions themselvesand were therefore “not among the kind of facts extraneous to a conviction that *** Shepardrequires a jury to find.” Thompson, 421 F. 3d at 286; see also United States v. Wilson, 406 F.3d1074 (8th Cir. 2005) (rejecting the claim that the question of whether prior convictions occurredon separate occasions should be determined by a jury). Thompson distinguished facts inherent ina conviction from facts extraneous to a conviction that required submission to a jury, such asthose examined in United States v. Washington, 404 F.3d 834 (4th Cir. 2005), in whichsentencing guidelines required a finding that the prior conviction had “ ‘involve[d] conduct thatpresent[ed] a serious potential risk of physical injury to another’ ” in order to enhance thedefendant’s sentence. Washington, 404 F.3d at 836, quoting United States Sentencing GuidelinesManual § 4B1.2(a)(2) (2003). This court addressed the constitutionality of section 5-5-3(c)(8) in People v. Rivera, No.1-04-2326 (December 16, 2005). In Rivera, we found that Shepard’s “holding was narrowlydrawn to apply to scenarios that required findings of fact related to the elements of an underlyingcrime that would make such crimes predicate offenses for the purposes of enhancing a sentence.” Rivera, slip op. at 9. Accordingly, we held that, because the facts required for an enhancedsentence under section 5-5-3(c)(8) were distinct from the underlying offense and were intertwinedwith recidivism, the Apprendi exception applied. Notably, Shepard does specifically discuss the requirement of Apprendi that, other thanthe fact of a prior conviction, facts which enhance a sentence should be proven beyond areasonable doubt. However, we believe that implicit in the Shepard discussion is the fact that ajury would be required to find enhancing facts beyond a reasonable doubt. We agree withThompson’s and Rivera’s conclusion that after Shepard, there remains a recidivism exception tothe rule articulated in Apprendi. Our reasons for excepting recidivism from the Apprendi rule stillring true. Recidivism is a traditional basis for imposing an enhanced sentence. Moreover, therecidivism exception remains sound because a defendant’s previous convictions were themselvesestablished through procedures that complied with due process. Additionally, a defendant’sconvictions and facts intrinsic thereof are highly verifiable. Finally, to abolish the recidivismexception would prejudice a defendant because, during his trial, the jury would be presented withevidence of his prior convictions. We further find that, under Shepard, the “fact of a prior conviction,” which, pursuant toApprendi and Shepard, may be found by a sentencing court and need not be proven beyond areasonable doubt, includes facts intrinsic to the conviction. Accordingly, Shepard does notcompel us to disturb our previous holding that section 5-5-3(c)(8) of the Code is constitutionalbecause the facts of the defendant’s age and the dates of commission and sequence of hisconvictions are inherent in the convictions themselves and need not be proven beyond areasonable doubt. Jones, 322 Ill. App. 3d at 243; Smith, 338 Ill. App. 3d at 561; Dunn, 326 Ill.App. 3d at 289; Givens, 319 Ill. App. 3d at 914; Dixon, 319 Ill. App. 3d at 885. Moreover, as inThompson, we hold that, in finding that an enhanced sentence was warranted, the sentencingcourt was entitled to rely on evidence of the above facts in defendant’s PSI because it “bear[s] theearmarks of derivation from Shepard-approved sources such as the indictments and ***judgments from [defendant’s] prior convictions.” Thompson, 421 F.3d at 285; see also Rivera,slip op. at 11 (“a presentence report, like the one in the instant case, is generally a reliable sourcefor the purpose of inquiring into a defendant’s criminal history”). Therefore, we refuse to vacatedefendant’s sentence on the basis that the requirements of section 5-5-3(c)(8) of the Code werenot proven beyond a reasonable doubt. Finally, defendant contends that the trial court erred in sentencing him as a Class Xoffender because there was no evidence submitted to the sentencing court that he committed hisfirst burglary after the effective date of the Act of 1977, as required by section 5-5-3(c)(8) of theCode. The parties agree that the effective date of the amendatory Act of 1977 is February 1,1978. See Pub. Act 80-1099, eff. February 1, 1978. Defendant further concedes that if theburglary of which he was convicted on April 24, 1978, were committed subsequent to February 1,1978, the trial court would be correct to sentence him in the present case as a Class X offender. The State notes that, contrary to defendant’s assertion, both defendant’s Illinois State PoliceCriminal History Report and Federal Criminal History Report, which were attached to his PSI, listthe date of the commission of the offense at issue as April 23, 1978, and indicate that defendantentered a guilty plea the following day. We acknowledge that is certainly unusual that defendant’s conviction was obtained onlyone day after the offense was committed as the criminal history reports represent. Nonetheless, asdiscussed above, even after Apprendi and Shepard, the State was not constitutionally required toprove that defendant was eligible for Class X sentencing beyond a reasonable doubt. See alsoPeople v. Williams, 149 Ill. 2d 467 (1992) (holding that the Code does not require the State toprove defendant’s eligibility for Class X sentencing beyond a reasonable doubt). Moreover,because defendant did not object to the imposition of a Class X sentence during sentencing or in apostsentencing motion, and, in fact, acquiesced to his Class X status, he has waived thiscontention. Williams, 149 Ill. 2d at 493; People v. Villanueva, 231 Ill. App. 3d 754, 763-64(1992). For the foregoing reasons, we affirm the judgment of the trial court. Affirmed. CAMPBELL and MURPHY, J.J., concur. |