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October 10, 2001

JUSTICE BYRNE delivered the opinion of the court:

Pursuant to a plea negotiation, defendant, Ronald L. Watkins,pleaded guilty to one count of retail theft (720 ILCS 5/16A--10(a)(West 1998)) in case No. 98--CF--1246 ('98 offense) and to onecount of retail theft in case No. 99--CF--749 ('99 offense). Defendant was sentenced to two consecutive three-year terms ofimprisonment. Thereafter, defendant filed motions to vacate thepleas and to reconsider the sentences, which were subsequentlydenied. Defendant contends on appeal that the sentences (1) are improperly enhanced; (2) violate Apprendi v. New Jersey, 530 U.S.466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); and (3) areexcessive. We affirm.

The relevant facts may be briefly stated. In 1998, defendantwas charged by indictment with retail theft for allegedly stealingmerchandise valued at $22.98 from a Sears store. In 1999, whileout on bond for the '98 offense, defendant was indicted with, interalia, retail theft for stealing merchandise totaling less than $150from a Dominicks store.

Defendant pleaded guilty to both offenses at one hearing. During the factual basis hearing for both the '98 and '99 offenses,the State introduced, without objection, a prior '93 conviction asthe basis for enhancing each respective retail theft charge to aClass 4 felony. The court informed defendant that both cases wereClass 4 felonies, punishable by terms of imprisonment of one tothree years and a one-year period of mandatory supervised release. Defendant indicated that he understood the charges and possiblepenalties. The State noted that, because the '99 offense wascommitted while defendant was out on bond for the '98 offense, itwas mandatory that the sentences be served consecutively. Afterthe court explained the differences between sentences andadmonished that consecutive sentences were required, defendantindicated that he was still willing to plead guilty to bothoffenses. Thereafter, the court noted that defendant had signed ajury waiver in open court, that the pleas were being entered intofreely and voluntarily, and that there was a factual basis foraccepting the pleas. The court then entered findings of guilt andjudgments of conviction on both offenses.

Evidence presented at the sentencing hearing indicated thatthe 45-year-old defendant had an extensive criminal history,consisting mostly of retail thefts and thefts. In addition,defendant had a hearing impairment and had usedcocaine or heroin "on an almost daily basis" since the age of 17. The court noted that it considered defendant's statement, the non-violent nature of the crimes, defendant's acknowledgment of guilt,and his recent efforts to address his drug problem. The court alsoconsidered defendant's "history and character," as well as "hiscurrent status." The court found that it was indisputable thatdefendant was a drug addict and that there was a relationshipbetween defendant's addiction and the crimes he committed. However, after considering the testimony of defendant and theTreatment Alternatives for Safe Communities (TASC) report, thecourt believed that there was no likelihood that defendant could berehabilitated. The court concluded that a period of incarcerationwas necessary to protect the public and that probation would beinconsistent with the ends of justice and would deprecate theseriousness of defendant's conduct. The court sentenced defendantto two three-year terms of imprisonment "to run consecutively."

On January 13, 2000, defendant filed pro se motions towithdraw his pleas. On April 19, 2000, new defense counsel fileda superceding motion to withdraw the plea under the '99 offense andalso filed Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d))certificates and motions to reconsider the sentences under bothcases.

The trial court denied the motion to withdraw the plea,finding that defendant was properly admonished, that his plea wasmade freely and voluntarily, and that he understood theconsequences of his plea. The trial court also denied the motionsto reconsider the sentences following a hearing on the motions.

We note that defendant was sentenced for both offenses onDecember 17, 1999. On January 13, 2000, defendant filed timely prose motions to withdraw his pleas. Although the motions to vacatewere filed within 30 days of sentencing, the motions to reduce thesentences were not filed until April 19, 2000, beyond the 30-daytime limit set forth under Supreme Court Rule 604(d). However,neither the trial court nor the State complained of theuntimeliness of the motions to reduce the sentences, and a fullhearing was conducted on the motions. We agree with defendant thatthe revestment doctrine allows the parties to revest a court withjurisdiction when the parties "actively participate in proceedingswhich are inconsistent with the merits of the prior judgment." People v. Hubbard, 170 Ill. App. 3d 572, 576 (1988). The Statedoes not challenge the trial court's jurisdiction. We thereforeconclude that the trial court had jurisdiction to considerdefendant's motions. Because defendant filed his notices of appealwithin 30 days from the date of the denial of the motions, hisappeals are timely. We consolidated the '98 and '99 cases onappeal.

On appeal, defendant challenges only his sentences. He firstcontends that the trial court's imposition of consecutive sentenceswas the result of improper double enhancement. The State respondsthat defendant has waived this issue by failing to raise it duringthe sentencing hearing or in the motion to reconsider thesentences. Defendant does not dispute that he failed to raise thisissue below. Therefore the issue ordinarily would be deemedwaived. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, defendant argues that we should address the issue as plainerror pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a))because the error is so fundamental that it could result in anillegal sentence. We agree with defendant and will thereforereview the issue under the plain error rule.

On the merits, defendant argues that the trial courtimproperly used the '93 conviction twice to enhance both the '98and the '99 retail theft offenses to felonies and then improperlyused the '93 conviction to impose consecutive sentences. Defendantreasons that his "status as a felon" was used twice to "upgrade"his crimes from misdemeanors to felonies, and then used again to"enhance" his sentences to consecutive sentences. In other words,defendant reasons that, because he committed the '99 offense, nowclassified as a felony, while he was on pretrial release from the'98 felony, consecutive sentences were mandated. According todefendant, this constituted an impermissible "double enhancement"and the reversal of his sentences is required. We disagree.

This case revolves around the application of the retail theftand consecutive sentencing statutes. Because it involves only apure question of law, our review is de novo. See People v. Wright,183 Ill. 2d 16, 21 (1998); People v. Becker, 315 Ill. App. 3d 980,994 (2000).

The offenses of which defendant was convicted, felony retailthefts, are Class 4 felonies. Section 16A--10 of the Criminal Codeof 1961, provides:

"(1) Retail theft of property, the full retail value ofwhich does not exceed $150, is a Class A misdemeanor.

(2) A person who has been convicted of retail theft ofproperty, the full retail value of which does not exceed $150,and who has been previously convicted of any type of theft,robbery, armed robbery, burglary, residential burglary,possession of burglary tools or home invasion is guilty of aClass 4 felony." 720 ILCS 5/16A--10 (West 1998).

During the factual basis hearing, the State introduced thesame prior '93 conviction as the basis for upgrading both the '98and '99 retail theft charges from misdemeanors to Class 4 felonies. The requirements for enhancing Class A misdemeanor retail thefts toClass 4 felonies were present in both the '98 and '99 offenses.

Moreover, it is undisputed that defendant committed the '99offense while out on bond for the '98 felony. Mandatoryconsecutive sentences are required when a person charged with afelony commits a separate felony while on pretrial release. 730ILCS 5/5--8--4(h) (West 1998). All of the requirements for theenhancement of the offenses and the imposition of consecutivesentences were therefore fulfilled in each case. Nevertheless,defendant challenges the application of the '93 conviction on theground that it constitutes improper double enhancement.

Improper double enhancement occurs when the court uses asingle factor both as an element of a defendant's crime and as anaggravating factor to justify the imposition of a harsher sentencethan might otherwise have been imposed. People v. Gonzalez, 151Ill. 2d 79, 83-84 (1992). The legislature prescribes thesentencing range for an offense by putting the offense into aspecific class, such as a Class A misdemeanor or a Class 4 felony,and then designating the sentences that may be imposed for eachclass of offenses. Accordingly, if one of those same factors thatmake up the offense is used as the basis for imposing a harsherpenalty than might otherwise be imposed, it constitutes a doubleuse of a single factor. Gonzalez, 151 Il. 2d at 84.

For example, in People v. Hobbs, 86 Ill. 2d 242, 245-46(1981), a case upon which defendant relies, an improper doubleenhancement occurred when the same prior conviction was applied toenhance the offense from a misdemeanor to a felony and then thesame prior conviction was used again to impose an extended-termsentence on the same charge. However, in People v. Hicks, 164 Ill.2d 218, 235 (1995), the court found no double enhancement occurredbecause one prior conviction was used to enhance the classificationof the offense and another separate prior conviction was used toincrease the length of the defendant's prison term.

Defendant argues that the trial court could not use the '93conviction twice, once to enhance the '98 offense and then a secondtime to enhance the '99 offense. Defendant appears to base thisassertion on the unsound assumption that the '98 and '99 offensesare but one case. This argument lacks merit. There is nothing insection 16A--10(2) (720 ILCS 5/16A--10(2) (West 1998)) to suggestthat the legislature intended to preclude using the same priorconviction to enhance two subsequent, separate, and factuallydistinct misdemeanors to felonies. In cases where there areseparate trials resulting in separate convictions arising out ofdistinct factual situations, the trial court can properly imposeextended sentences based upon the same prior felony conviction. See, e.g., People v. Berry, 175 Ill. App. 3d 420, 430 (1988). Similarly, we see no reason to prevent the court from using thesame prior conviction to enhance two subsequent offenses that arosefrom distinct factual situations. To read such a limitation intothe statute would undermine the purpose of punishing recidivistsmore severely. See People v. Hall, 145 Ill. App. 3d 873, 879(1986).

Furthermore, clearly no single factor was used both toestablish the elements of defendant's crimes and to lengthen thesentences. First, defendant's sentences were not lengthened. Inthis case, defendant was sentenced to consecutive sentences. Weagree with the State that a qualitative difference exists betweenextended-term sentences and consecutive sentences. By definition,extended-term sentences require the consideration of statutorilydetermined factors in aggravation to increase the length of adefendant's sentence in excess of the maximum authorized. 730 ILCS5/5--8--2 (West 1998). In Hobbs, the issue of double enhancementconcerned the application of a former conviction with respect toextended-term sentences. It was the enhancement of both the classof the offense and of the length of the sentence by a single factorthat resulted in improper double enhancement. By definition,consecutive sentences do not lengthen a sentence; rather, theyinvolve the manner in which a defendant's sentences shall beserved. 730 ILCS 5/5--8--4(a) (West 1998); see also People v.Wendt, 163 Ill. 2d 346, 355 (1994) (imposition of consecutivesentences does not constitute increase in penalty). Moreover, itis a well-settled rule in this state that sentences that runconsecutively to each other are not transmuted thereby into asingle sentence. Thomas v. Greer, 143 Ill. 2d 271, 278-79 (1991). Our supreme court in People v. Wagener, 196 Ill. 2d 269 (2001),recently distinguished extended-term sentences from consecutivesentences. The court reasoned that Apprendi concerns are notraised unless the maximum penalty for a crime is increased, as inextended-term sentences, and since consecutive sentences remaindistinct and separate sentences, none of the penalties for anyindividual crime has been increased. Wagener, 196 Ill. 2d at 284. Because the imposition of consecutive sentences does not constitutean increase in penalty, a single factor used to establish theelements of an offense cannot be used to double the enhancementwhere the trial court imposes consecutive sentences.

Additionally, once the trial court determined that it wasproper to enhance the '98 and '99 offenses on the basis of the '93conviction, it no longer needed to consider the prior convictionfor the purpose of imposing consecutive sentences. It isundisputed that defendant committed a separate felony while onpretrial release for the '98 offense. Because defendant committeda separate felony in 1999 while out on bond for another felony, thetrial court was required to impose consecutive sentences pursuantto section 5--8--4(h) of the Unified Code of Corrections (730 ILCS5/5--8--4(h) (West 1998)). Thus, regardless of whether consecutivesentences constituted an "extended term" of imprisonment for"double enhancement" purposes, it is clear that no single factorwas used to enhance the offense and then used again to impose anenhanced sentence. Accordingly, no double use of a single factoroccurred, and thus, no impermissible double enhancement resulted.

Defendant next contends that the consecutive sentences must bevacated because section 5--8--4(h) is unconstitutional underApprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct.2348 (2000). Our supreme court recently rejected a similarargument in Wagener.

In Wagener, the defendant was convicted of first-degree murderand concealment of a homicidal death and was sentenced toconsecutive terms of 50 years' imprisonment for murder and 5 years'imprisonment for concealment of a homicidal death. The consecutivesentences were imposed pursuant to section 5--8--4(b) (730 ILCS5/5--8--4(h) (West 1998)). The court held that, becauseconsecutive sentences remain discrete, a determination thatsentences are to be served consecutively cannot run afoul ofApprendi, which addresses only sentences for individual crimes. Wagener, 196 Ill. 2d at 286. Since Apprendi concerns are notimplicated by consecutive sentencing, the Wagener court held thatsection 5--8--4(b) passes constitutional muster. Wagener, 196 Ill.2d at 286.

Although the parties disagree over whether defendant wassentenced under section 5--8--4(b) or section 5--8--4(h), in eithercase, the same reasoning addressed by the court in Wagener applieshere; the imposition of consecutive sentences does not violateApprendi. See also People v. Carney, 196 Ill. 2d 518, 526 (2001)(consecutive sentences imposed under section 5--8--4(a) do notviolate Apprendi). We therefore reject defendant's argument.

Defendant last argues that the trial court abused itsdiscretion in imposing an excessive aggregate sentence of sixyears' imprisonment. In particular, defendant claims that thetrial court failed to (1) consider his rehabilitative potential;(2) note on the record, as a factor in mitigation, the impact ofincarceration on his already deteriorated health; (3) consider theprobation officer's recommendations; or (4) consider his medicalstatus.

The trial court need not recite and assign a value to eachfactor in aggravation and mitigation that was considered. Peoplev. Grisset, 288 Ill. App. 3d 620, 635 (1997). Absent some showingto the contrary, when factors in mitigation are presented andargued to the sentencing judge, they are presumed to have beenconsidered.

The trial court was not required to articulate itsconsideration of mitigating factors or to make an express findingthat defendant lacked rehabilitative potential. See People v.Boclair, 225 Ill. App. 3d 331, 335-36 (1992). Moreover, the trialcourt was not required to accord any greater weight to defendant'spotential for rehabilitation as opposed to the solemnity of hiscrimes. See Boclair, 225 Ill. App. 3d at 335-36.

It is well established that a trial court's sentencingdecision is entitled to great deference. People v. Coleman, 166Ill. 2d 247, 258 (1995). We will not substitute our judgment forthat of the sentencing judge simply because we might have balancedthe sentencing factors differently. See People v. Didier, 306 Ill.App. 3d 803, 808 (1999). Here, the record demonstrates that thetrial court reviewed the presentence report, considered all of theproper aggravating and mitigating factors, and contemplateddefendant's personal statement, which detailed his health problems. Considering defendant's long criminal history, failed attempts atdrug rehabilitation, including the fact that defendant was not agood candidate for rehabilitation, and that defendant committedanother felony while free on bond for a previous felony charge, wefind no abuse of discretion in imposing the aggregate sentence ofsix years' imprisonment.

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

Affirmed.

GEIGER and BOWMAN, JJ., concur.