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In October 1999, the defendant, John M. Thompson, was chargedby indictment with aggravated driving under the influence ofalcohol. The indictment alleged, in pertinent part, that thedefendant committed driving under the influence of alcohol (DUI),"having previously committed two or more violations of Drivingunder The Influence in violation of 625 ILCS 5/11--501," astatutory provision that, among other things, sets out variousoffenses of driving under the influence of alcohol or drugs (625ILCS 5/11--501 (West 1998)). The indictment further alleged thatthe defendant had violated sections 11--501(a)(2) and 11--501(d)(2)of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11--501(a)(2), (d)(2) (West 1998)).

Section 11--501(a)(2) is the statutory provision pertaining tothe misdemeanor offense of DUI. Section 11--501(d)(2) is thestatutory penalty provision that makes aggravated DUI a Class 4felony and provides for a prison sentence of one to three years'imprisonment based on a defendant's commission of a third orsubsequent DUI. By referring to the previous commissions of DUI,the defendant's indictment charged a violation of section 11--501(d)(1)(A), which provides that a person convicted of DUI isguilty of aggravated DUI if "(A) the person committed a violationof this Section *** for the third or subsequent time [.]" (Emphasis added.) 625 ILCS 5/11--501(d)(1)(A) (West 1998).

Following a bench trial, the defendant was found guilty of theoffense charged. The trial court denied the defendant's motion fora new trial. At the sentencing hearing, the trial court consideredthe defendant's prior disposition of supervision for the commissionof one prior DUI in 1983 and a sentence of probation for anotherDUI conviction in 1985 (collectively, commissions or priors). These priors were stated in the presentence report, and thedefendant did not challenge their validity or the accuracy of thereport. The court also considered factors in mitigation andsentenced the defendant to a term of 24 months' probation withcertain conditions attached. A judgment of conviction and sentencewas entered on the Class 4 felony. The defendant timely appeals.

On appeal, the defendant argues that, since no evidence of thetwo prior commissions of DUI was offered at trial but was only considered at sentencing and the trial court nevertheless found thedefendant guilty of aggravated DUI, the defendant was not provedguilty of the offense beyond a reasonable doubt as required byApprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.Ct. 2348 (2000). He seeks a reversal of the felony conviction anda remand for resentencing on the lesser-included misdemeanoroffense of DUI. We affirm.

In Apprendi, the defendant pleaded guilty to certain firearmsviolations, and the prosecutor sought an enhanced or extendedsentence based on New Jersey's hate-crime statute. Under thatstatute, the judge was called upon to extend the sentence if thejudge found by a preponderance of the evidence that, in committingthe crime, the defendant acted with a purpose to intimidate thevictim based on a racial motive or some similar factor enumeratedin the hate-crime statute. This fact was then used to enhance thesentence well beyond the normal maximum term.

The Supreme Court characterized the defendant's mental stateas an element of the substantive offense rather than as asentencing factor. The Court ruled: "Other than the fact of aprior conviction, any fact that increases the penalty for a crimebeyond the prescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt." (Emphasis added.) Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at2362-63. The Court concluded that the New Jersey procedure was anunacceptable departure from the jury tradition and that it defeateda defendant's right to have a jury determine that he is guilty ofevery element of the offense beyond a reasonable doubt. The Courtstated that its decision was foreshadowed by Jones v. UnitedStates, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999)(under fifth amendment due process clause and notice and jury trialguarantees of sixth amendment, any fact other than prior convictionthat increases maximum penalty for crime must be charged in anindictment, submitted to a jury, and proved beyond a reasonabledoubt).

The Apprendi Court specifically excluded the consideration ofprior convictions (i.e., recidivism) from the rule of law itannounced, and this recidivism exception has been applied in recent Illinois cases to extend a defendant's prison sentencebeyond the normal maximum term without violating the Apprendi rule. See, e.g., People v. Pulgar, 323 Ill. App. 3d 1001 (2001); Peoplev. Landrum, 323 Ill. App. 3d 664 (2001); People v. Dillard, 319Ill. App. 3d 102 (2001).

In People v. Lathon, 317 Ill. App. 3d 573 (2000), thedefendant received a mandatory Class X felony sentencingenhancement based on his prior felony convictions. In affirmingthe judgment, the Lathon court examined the policy considerationsunderlying the Apprendi rule and noted that the Apprendi Court hadreviewed its decision in Almendarez-Torres v. United States, 523U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998).

In Almendarez-Torres, the indictment charged the defendantwith the federal offense of having been found in the United Statesafter being deported because of an aggravated felony. Thedefendant admitted during his plea hearing that he had beendeported because of three aggravated felony convictions. A federalstatute permitted the trial judge to enhance the defendant'spunishment from the normal maximum prison sentence of 2 years to anenhanced maximum sentence of 20 years. The defendant received an85-month prison sentence. The Almendarez-Torres Court rejected thedefendant's argument that the greater sentence created a separatecrime and that his prior convictions should have been charged inthe indictment and proved beyond a reasonable doubt. The Courtupheld the principle that the use of recidivism to increase anoffender's sentence goes only to the punishment and may be decidedafter the conviction. See Lathon, 317 Ill. App. 3d at 553(explaining Apprendi and Almendarez-Torres).

As Lathon further explained, the Apprendi Court noted that itsdecision in Almendarez-Torres "turned heavily upon the fact thatthe additional sentence to which the defendant was subject was 'theprior commission of a serious crime.' " Apprendi, 530 U.S. at ___,147 L. Ed. 2d at 454, 120 S. Ct. at 2361, quoting Almendarez-Torres, 523 U.S. at 230, 140 L. Ed. 2d at 359, 118 S. Ct. at 1224.See Lathon, 317 Ill. App. 3d at 583. Because Almendarez-Torreshad admitted the three earlier convictions--all of which wereentered pursuant to proceedings with substantial proceduralsafeguards of their own--no question concerning the right to a jurytrial or the standard of proof that would apply to a contestedissue of fact was before the Court. Apprendi, 530 U.S. at ___, 147L. Ed. 2d at 453, 120 S. Ct. at 2361; Lathon, 317 Ill. App. 3d at585.

Based on its detailed review of Apprendi and the cases citedtherein, the Lathon court held that when a defendant's punishmentis increased because of prior convictions, they need not be allegedin the charging instrument, submitted to a jury, or proved beyonda reasonable doubt, because the prior convictions were obtained asthe result of proceedings that provided procedural due processsafeguards; the prior convictions were not an essential element ofthe offense in question; and they were unrelated to the commissionof the current offense. Lathon, 317 Ill. App. 3d at 588.

In People v. Watson, 322 Ill. App. 3d 164 (2001), we held thatthe facts concerning prior convictions related to nothing more thanthe timing and sequence of the convictions and need not be provedunder the Apprendi standards. We found that the presentence reportin that case was sufficiently reliable to prove the defendant'sprior convictions, and the defendant did not challenge the report. We concluded that Apprendi does not apply to sentencing under arepeat offender statute. See 730 ILCS 5/5--5--3(c)(8) (West 1998).

The defendant here argues that, if the aggravated DUI statuteas set forth in section 11--501(d)(1)(A) is construed so that thetwo prior commissions need not be considered by the trier of fact

as elements of the offense and proved beyond a reasonable doubt,then the statute is unconstitutional under Apprendi. In otherwords, the defendant argues that this section should not becategorized as a statute that imposes an enhanced penalty basedupon prior convictions. We believe that the defendant's argumentplaces form over substance and that both of his priors must beconsidered the functional equivalents of prior convictions underthe recidivist exception of Apprendi.

Under the Illinois statutory scheme, an aggravated DUI basedon two or more commissions of DUI is charged in the indictment,giving notice to the defendant that he is charged with a felony andthat the State is seeking the enhanced penalty. Section 11--501(d)(1) of the Vehicle Code increases the classification of theoffense, enhances the sentence, and requires compliance withsection 111--3(c) of the Code of Criminal Procedure of 1963 (Code)(725 ILCS 5/111--3(c) (West 1998)). People v. Bowman, 221 Ill.App. 3d 663, 666 (1991). Under section 111--3(c) of the Code, whenthe State seeks the enhanced sentence because of a priorconviction, the charge must state such prior conviction to givenotice to the defendant. However, the prior convictions are notelements of the offense and may not be disclosed to the jury duringtrial unless otherwise permitted by issues properly raised duringsuch trial. 725 ILCS 5/111--3(c) (West 1998); People v. Laskowski,287 Ill. App. 3d 539, 541 (1997) (under section 111--3(c) of theCode, evidence of prior commission of two or more DUIs need not beproved by the State as an element of the offense of aggravatedDUI); People v. Lambert, 249 Ill. App. 3d 726, 728 (1993) (elementsof Class 4 felony DUI and Class A misdemeanor DUI are the same;prior DUI offenses are not elements of the felony offense but aremerely used for sentencing purposes).

In People v. Sheehan, 168 Ill. 2d 298 (1995), our supremecourt determined that the enhancement of a DUI to aggravated DUIcould be based on the defendant's having "committed" prior DUIseven though no formal judgments of conviction had been obtained--such as where a defendant had successfully completed a term ofsupervision. The supreme court explained that, even though section111--3(c) speaks in terms of "prior conviction," the court assumedthat similar pleading requirements for felony DUI would apply evenif the predicates for a felony charge were not limited to formaljudgments of conviction. Sheehan, 168 Ill. 2d at 304; seegenerally Lambert, 249 Ill. App. 3d 726.

The term conviction is defined as "a judgment of conviction orsentence entered upon a plea of guilty or upon a verdict or findingof guilty." 730 ILCS 5/5--1--5 (West 2000); see Sheehan, 168 Ill.2d at 305. In the present context, the term "commit" is broader inscope and includes perpetrating a crime or performing an act. SeeSheehan, 168 Ill. 2d at 306. Thus, while there are importanttechnical differences between a "commission" of an offense and a"conviction" of an offense, under Sheehan, either can be used toenhance the classification of and the penalty for a DUI offense. In People v. Coleman, 111 Ill. 2d 87 (1986), our supreme courtexplained that a person who has previously received courtsupervision for DUI--with the dismissal of the charges at the endof the term of supervision--does not have a conviction on hisrecord for that offense. However, to be eligible for a term ofsupervision, the defendant necessarily had to plead guilty to orstipulate to the facts supporting the underlying charge, or had to have been found guilty of the offense. Coleman, 111 Ill. 2d at95-96; see also People v. Bushnell, 101 Ill. 2d 261, 266 (1984)(court distinguished between a sentence of probation based on aconviction and a disposition of supervision, which results in noconviction being entered). The Coleman court concluded that aprior disposition of supervision for DUI, even though not resultingin a formal conviction, could be considered by a court forsentencing purposes--such as to determine whether to grant or denya second term of supervision within five years of a prior grant ofsupervision, or to impose another sanction.

Based on our review of the above-cited cases, we are convincedthat, under the facts presented, sections 11--501(d)(1)(A) and 11--501(d)(2), as applied to the defendant, merely provide an enhancedpenalty based on the commission of prior crimes. As such, thehigher classification and penalty for the offense fall within therecidivist exception of Apprendi. For this purpose, both of thedefendant's prior commissions of DUI, under the particular facts ofthis case, are the functional equivalent of the "convictions"discussed in Apprendi. They are not elements of the crime thatneeded to be proved to the trier of fact beyond a reasonable doubt. Rather, they are factors in aggravation that had to be proved atsentencing.

In support of our conclusion, we observe that the defendant had one prior supervision for DUI. In order to receive adisposition of supervision, he had to have pleaded guilty to DUI orto have stipulated to the underlying facts. The defendant does notcomplain that he was not afforded due process safeguards duringthat proceeding. The defendant's second prior DUI resulted in asentence of probation, which had to be based on a conviction (seeBushnell, 101 Ill. 2d at 266). Again, he does not complain that hewas not afforded due process safeguards during the proceeding thatresulted in a conviction of DUI and a sentence of probation. Aprior conviction clearly falls within the recidivist exception ofApprendi.

Furthermore, the defendant was notified that he was chargedwith felony DUI and would be subject to enhanced sentencing. Hedoes not challenge the accuracy of the presentence report that wasused at sentencing as proof of his prior commissions of DUI. Wehave also determined that the defendant's priors are not essentialelements of the offense; they are unrelated to the commission ofthe current offense. See Lathon, 317 Ill. App. 3d at 588. Therefore, we conclude that the defendant has not suffered anyviolation of the Apprendi rule or of due process.

Based on the facts presented and on our interpretation of theparticular statutory sections in question, we must affirm thedefendant's conviction of aggravated DUI and the resultingsentence.

The judgment of the circuit court of Du Page County isaffirmed.

Affirmed.

HUTCHINSON, P.J., and CALLUM, J., concur.