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NO. 4-00-0568

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

MODIFIED UPON DENIAL OF REHEARING

JUSTICE APPLETON delivered the opinion of the court:

A jury found defendant, Dexter Abdullah, guilty ofarmed robbery, a Class X felony (720 ILCS 5/18-2(a)(2), (b) (West2000)). The trial court adjudged him a "habitual criminal" underthe Habitual Criminal Act (720 ILCS 5/33B-1 through 33B-3 (West2000)) and sentenced him to life imprisonment (720 ILCS 5/33B-1(e) (West 2000)). Defendant appeals, arguing the trial courterred in (1) denying his motion for a mistrial, (2) denying hismotion for a directed verdict, (3) denying his motion for anacquittal or, in the alternative, for a new trial, and (4)adjudging him a "habitual criminal." We affirm the trial court'sjudgment.

Witnesses testified that on March 6, 1999, at approximately 10 p.m., a person in a ski mask and hooded coat entered aTaco Bell restaurant in Urbana, Illinois, produced a sawed-offshotgun, and demanded the money in the cash registers. The Statecalled six eyewitnesses to the robbery. Most of them could tellthat the robber was male, either from his build or his voice orboth. Estimates of his height ranged from 5 feet 9 inches to 6feet 4 inches. Because the eyeholes of the mask revealed theskin around the eyes, several of the witnesses saw he was black.

Witnesses testified the robber's coat was either blackor dark blue. It came down below his waist but not below hisknees. The hood was pulled up over his head. One witnessnoticed the hood had a zipper. Three witnesses saw masking tapeacross the back of the coat.

Several witnesses described the shotgun as well. Itwas a black, single-barreled, sawed-off shotgun, with a pump-action and a pistol grip instead of a rear stock.

The robber wore white Fila athletic shoes. Accordingto one witness, Lawrence Johnson, these were an older style ofFila shoe that one did not commonly see any more. (He got a goodlook at the shoes when, at the robber's command, he lay down onthe floor.)

After employees handed him the money from the cashregisters, the robber left the restaurant and fled on a bicycle. Two customers, Priscilla Pruitt and Thad Rather, testified it wasa mountain bike. Pruitt testified it was light blue with whitelettering. Rather testified it was either a 10-speed or 12-speedbike.

Cary Hansing was an assistant manager of the restaurant. During cross-examination, defendant's attorney asked him:

"Q. Do you see the man who committedthe robbery in court today?

A. Um, as far as his face, no. But Ido see his eyes.

Q. Well, I'm asking you not about individual body parts. I'm asking you, do yousee the man who committed the robbery incourt today?

A. Yes."

Neither the defense counsel nor the prosecutor knew, beforehand,that Hansing would recognize defendant as the robber. Duringredirect examination, Hansing identified defendant as the man towhom he was referring. His eyes, he testified, were large and"not *** clear white. They're kind of, just pale yellow."

Several of the eyewitnesses identified People's exhibitNo. 1 as the robber's shotgun, People's exhibit No. 2 as hiscoat, and People's exhibit Nos. 3(a) and (b) as his shoes, orthey testified that those exhibits looked like the robber'sshotgun, coat, and shoes. Pruitt identified People's exhibit No.4 as the mountain bike.

Leander Lee, 12 years old, testified that in March 1999he was living in trailer No. 22 of Abe's Estates in Rantoul,Illinois. In February of that year, he acquired a mountain bike,People's exhibit No. 4. A month later, in March, the police tookit from him. To his knowledge, no one else ever took the bike. He had kept it leaning against his front porch at night, neverlocking it up. He had ridden the bike every day and never lentit to anyone, except, on rare occasions, to his cousins. Heneither knew nor recognized defendant.

Steven Calhoun testified he first met defendant inapproximately July or August 1998, when defendant brought an ElCamino automobile to a body shop in Champaign, where Calhounworked. Eventually defendant and Calhoun became well-enoughacquainted with one another to share heroin, to which Calhoun wasaddicted. In the last part of February or the first part ofMarch 1999, defendant called Calhoun to come and talk with himabout an article in a newspaper. That same day, Calhoun rodewith defendant in the El Camino to Danville, Illinois. Defendantwas driving. On the way, defendant stopped the car, pulled out ashotgun from behind the front seat, opened the hood, and hid itunder the hood. After getting back into the car and driving offagain, he handed Calhoun a "stocking mask" and asked him to tearit to pieces and get rid of it. Calhoun tore up the mask andthrew the pieces out the car window. Defendant acceded toCalhoun's suggestion that they take the shotgun to Calhoun'sstepmother's house in Rantoul. Calhoun hid it in the hall closetof her house.

Calhoun testified that because he had taken possessionof the sawed-off shotgun, the State had charged him with possessing an unlawful weapon. He also faced a charge of domesticbattery. However, he denied having any expectation of leniencyin his pending criminal cases as a result of his testimony. Pamela Monroe testified she is defendant's wife. InMarch 1999 she and defendant resided at trailer No. 25 in Abe'sEstates in Rantoul. On March 19, 1999, the police searched hertrailer and, with her consent, her inoperable Toyota car, parkedoutside the trailer. In the Toyota, the police found a blue coatshe had bought for defendant from Goodwill Industries in Novemberor December 1998. She and defendant had two vehicles at thattime: the inoperable Toyota and the El Camino. The El Camino'sheadlights would not work, and sometimes the car did not run. InMonroe's opinion, the El Camino could have made the trip fromRantoul to Champaign during daylight hours on March 6, 1999, butit could not have done so at night because of the inoperableheadlights. Monroe further testified that on March 6, 1999,defendant was home in bed the whole night. His back hurt, and he"had a real bad cold, problems breathing."

Patrick Funkhauser, a Champaign police officer, testified he arrested defendant on March 19, 1999, and took defendant's shoes as evidence (People's exhibit Nos. 3(a) and (b)). He admitted that Fila shoes were popular, and he was unaware ofanything unique to differentiate defendant's shoes from any otherFila shoes of the same style and size.

Dale Rawdin, a detective of the Champaign policedepartment, identified People's exhibit No. 2 as the coat thepolice took out of the Toyota. He had watched the officersremove the coat from the trunk, and it was in the same conditionas when they seized it.

Another Champaign detective, John Schweighart, testified he interviewed defendant on March 19, 1999, after thearrest. Defendant admitted, during the interview, "that he doesor that he was using heroin at the time." The prosecutor thenasked Schweighart:

"Q. Did he tell you whether he hadpurchased some [heroin] that night?

A. No. When I asked about how muchheroin he used or how much he paid for theheroin that was in his possession on thenight of the arrest--

MS. LENIK [(defense counsel)]: Objection. Motion for a mistrial."

The trial court denied the motion for a mistrial,sustained the objection to testimony of other crimes, and instructed the jury to disregard Schweighart's answer to the lastquestion.

Schweighart further testified that he interviewedSteven Calhoun, promising him nothing. Later, on March 22, 1999,he and Detective David Griffet went to the house of EdithCalhoun, Steven Calhoun's grandmother, in Rantoul. They requested permission to search her house, whereupon she "left thekitchen *** and came back holding a sawed[-]off shotgun, with apistol grip [(People's exhibit No. 1)], and asked if this waswhat [they] were looking for." She had found the shotgun in acloset in the hallway.

Griffet testified he saw the bicycle (People's exhibitNo. 4) near the front porch of a neighboring residence as thepolice searched defendant's residence on March 19, 1999. Theneighboring residence was across the street and two trailers downfrom defendant's residence.

Troy Phillips, an Urbana police officer, testified thatwhen the police arrested defendant on March 19, 1999, defendantadmitted using heroin. He estimated defendant's height to be 6feet 2 inches.

The State rested, and defendant moved for a directedverdict, arguing that "the identification testimony has beennil." The trial court denied the motion because it believed"there [was] sufficient evidence on each element, including [the]identity of the [d]efendant."

Counsel stipulated that a forensic scientist had found"no latent prints" from three shotgun shells and the sawed-offshotgun. The trial court informed the jury of the stipulation.

Jeff Atteberry was defendant's first witness. Hetestified he was the area supervisor for Wackenhut Corporation. People's exhibit No. 2 looked like the parkas Wackenhut issued toits security officers. Atteberry could see, beneath the maskingtape, part of the lettering spelling "Wackenhut." In the vicinity of Rantoul, Wackenhut had 24 security officers, each of whomwould have had a similar coat.

Edith Calhoun testified that the police came to herhouse and told her they knew Steven Calhoun had left a gun thereand they wanted to search for it. She found the shotgun in acloset and gave it to them.

Defendant's mother-in-law, sister-in-law, and aunt, aswell as his wife's first cousin, testified that defendant wassick in bed all day and night on March 6, 1999. They eitherstopped by defendant's house that evening and saw him in bed withflu-like symptoms and a bad back, or they stayed in his house,watched his children, and prepared soup for him.

Robert Miller testified he worked at Leon and Tommy'sBody Shop in Champaign. "[P]robably around about February of'99"--he actually could not "remember *** which month"--heattempted, unsuccessfully, to repair an electrical defect indefendant's El Camino, which defendant had brought to the shopfrom Rantoul. The headlights would not work. Steven Calhounsometimes spent the night sleeping in the shop, and the keys tothe vehicles would have been accessible to him.

Timothy Smith testified he was a mechanic and also thelandlord at Abe's Estates, a mobile-home park in Rantoul. Heworked on the electrical system of defendant's El Camino and puta new transmission in it. To make those repairs, he had possession of the El Camino periodically in February and March 1999,sometimes two or three days at a time. He was uncertain, however, whether those two or three days fell in February or inMarch. Smith had agreed to rebuild the motor in defendant's vanin return for defendant's transferring ownership of the El Caminoto him. Defendant transferred the title to Smith right beforethe police arrested defendant. Smith did not think the El Caminowas in good enough condition on March 6, 1999, to travel fromRantoul to Champaign. The car tended to overheat and die.

Defendant rested, and on February 10, 2000, the juryfound him guilty of armed robbery.

On March 2, 2000, the trial court granted defendant'smotion for substitution of counsel. The trial court vacated theappointment of defendant's trial counsel, Diana Lenik, andappointed David Rumley of the public defender's office to represent defendant in posttrial proceedings.

On May 2, 2000, Rumley filed a motion for an acquittalor, in the alternative, for a new trial. The motion alleged,inter alia, that Lenik's assistance was ineffective in that shehad "failed to subpoena key defense witnesses," including SteveCampbell and McClenda Pollard. On May 5, 2000, in the hearing onthe motion, defendant testified that Pollard would have corroborated that he had a lawn-care business, because she was one ofhis customers. Defendant saw, in a police report, that a personnamed Steve Campbell was a customer in the restaurant during therobbery. Defendant testified he had a cousin by that name andhad ascertained from his aunt that this cousin was indeed in therestaurant during the robbery. According to defendant, Campbellmight have testified that the robber's voice did not sound likedefendant's voice. Defendant did not know if Lenik had interviewed Campbell and Pollard. During the hearing on the posttrialmotion, Rumley called Lenik to testify but did not ask her if shehad interviewed Campbell and Pollard. Nor did he present anyaffidavits by those two witnesses. The trial court denied theposttrial motion.

On May 30, 2000, the trial court adjudged defendant a"habitual criminal" because of the following criminal history. Defendant pleaded guilty to armed robbery in case No. 74-X-104 inChampaign county circuit court. On May 6, 1974, the courtentered judgment on his guilty plea and sentenced him to imprisonment for 6 to 12 years. On October 14, 1977, defendant wasreleased on parole. He was discharged from parole on February27, 1980. On October 7, 1987, in case No. 87-CF-526, the Champaign County circuit court sentenced him to imprisonment forarmed robbery. He was imprisoned on October 21, 1987, and wasreleased on April 4, 1997.

Defendant contends the trial court should have grantedhis motions for a directed verdict and for acquittal notwithstanding the verdict because no rational jury would have believedthat Hansing could identify him as the robber by his memory of afleeting glimpse at the robber's eyes.

As the State says, we look at all of the evidence (notjust Hansing's in-court identification) in a light most favorableto the State (see People v. Turner, 127 Ill. App. 3d 784, 790,469 N.E.2d 368, 372 (1984)), asking "'whether a reasonable mindcould fairly conclude the guilt of the accused'" (People v.Hendricks, 137 Ill. 2d 31, 63, 560 N.E.2d 611, 625 (1990),quoting People v. Withers, 87 Ill. 2d 224, 230, 429 N.E.2d 853,856 (1981)). Because a motion for an acquittal notwithstandingthe verdict seeks essentially the same relief as a motion for adirected verdict (People v. Rey, 136 Ill. App. 3d 645, 650, 483N.E.2d 982, 986 (1985)), the same standard of review applies toboth motions (People v. Carter, 306 Ill. App. 3d 867, 872, 715N.E.2d 1196, 1199 (1999), rev'd on other grounds, 194 Ill. 2d 88,741 N.E.2d 255 (2000)).

Defendant's conviction does not rest entirely uponHansing's in-court identification. The narrow segment of facevisible through the eyeholes of the mask was only part of theevidence, only one piece of the puzzle. It revealed, at aminimum, that the robber was black. The voice was male. Thatwas another piece. Hansing's testimony about the eyes and hisin-court identification could have weighed little or nothing inthe jury's deliberations.

There was other evidence, including the coat. Ahooded, dark blue coat, without more, would be a "frequently usedmode of masculine dress," like the white T-shirt, khaki pants,and white athletic shoes in People v. Moore, 6 Ill. App. 3d 932,936 n.2, 287 N.E.2d 130, 134 n.2 (1972); but this coat wasdistinctive in that there was masking tape across the back of it. "Courts will take judicial notice of the variety, conventionality[,] and utility in modes of dress." Moore, 6 Ill. App. 3d at936 n.2, 287 N.E.2d at 134 n.2. We take judicial notice that fewpeople cover the upper back of their coat with masking tape.

Defendant argues that Steven Calhoun--or whoever "thereal robber" was--could have "planted" the coat in Monroe'sToyota. Monroe testified, however, that she had bought the coatfor defendant. Significantly, she did not testify that the coathad masking tape on it when she bought it. It is unclear howsomeone could have "planted" the coat in the trunk.

The robber's white athletic shoes would be comparableto those in Moore, 6 Ill. App. 3d at 936 n.2, 287 N.E.2d at 134n.2, if Johnson had not testified that "[t]hey're rare, becausethey [are] old."

Another piece of the puzzle was the shotgun. Witnessesdescribed it with particularity, and evidently People's exhibitNo. 1 conformed to that description. In addition to its beingsawed off, People's exhibit No. 1 was distinctive in that it hada pistol grip instead of a shoulder-stock.

Finally, defendant had access to a blue mountain bikewith white lettering, which Leander Lee had left unlocked on hisfront porch, across the street and two doors down from defendant's residence.

Defendant alleges several discrepancies in the State'sevidence. For example, an assistant manager of the restaurant,Helen Mullins, testified the robber's coat had buttons, but shecorrected herself when she saw People's exhibit No. 2, which hada zipper and snaps. Estimates of the robber's height varied byas much as seven inches. "[D]iscrepancies and omissions ofdetail affect only the witness'[s] credibility and the weight tobe given his testimony by the trier of fact." People v. Winston,160 Ill. App. 3d 623, 628, 513 N.E.2d 1121, 1124 (1987). "Courtstypically have not considered discrepancies as to height ***alone as [a] decisive factor[] on review because few persons arecapable of making accurate estimations of such [a] characteristic." People v. Slim, 127 Ill. 2d 302, 312, 537 N.E.2d 317, 321(1989).

After attacking discrepancies in the details of theeyewitnesses' testimony, defendant argues he had an unrebuttedalibi. Several witnesses testified he was sick in bed on March6, 1999. "[T]he jury had no obligation to believe defendant'salibi evidence ***." People v. Tennant, 65 Ill. 2d 401, 412, 358N.E.2d 1116, 1121 (1976). These alibi witnesses were defendant'swife, his relatives, or relatives of his wife. The jury couldhave found they were biased in defendant's favor.

Defendant attempted to convince the jury he could notpossibly have committed the robbery because he had no transportation from Rantoul to Urbana. As Miller testified, the ElCamino's mechanical problems did not prevent defendant fromdriving it from his home in Rantoul to the shop in Champaign. Steven Calhoun testified that he and defendant journeyed toDanville in the El Camino during the last part of February or thefirst part of March 1999. The jury could have found that thecar, though unreliable, had the capacity to travel from Rantoulto Urbana.

Considering all of the evidence in a light most favorable to the State, we hold that a rational trier of fact couldhave found, beyond a reasonable doubt, that defendant was therobber. See Hendricks, 137 Ill. 2d at 63, 560 N.E.2d at 625.

We will apply the following standard of review to thetrial court's denial of defendant's motion for a new trial:

"'The decision of a trial court to grant anew trial is an exercise of discretion whichshould not be disturbed unless a clear abuseof that discretion is shown. [Citations.] In determining whether that discretion wasabused, the reviewing court will considerwhether the jury's verdict was supported bythe evidence and whether the losing party wasdenied a fair trial.'" People v. Dixon, 256Ill. App. 3d 771, 778, 628 N.E.2d 399, 404-05(1993), quoting Reidelberger v. Highland BodyShop, Inc., 83 Ill. 2d 545, 548-49, 416N.E.2d 268, 270 (1981).

We have found the evidence was sufficient to convictdefendant. Defendant contends he was denied a fair trial because(1) the jury "improperly considered" Hansing's "volunteered in-court identification," and (2) Schweighart improperly testifiedthat defendant possessed heroin when the police arrested him. Hansing did not "volunteer" the in-court identificationof defendant. Defense counsel asked Hansing if he saw the robberin the courtroom, and Hansing said yes--an answer responsive tothe question. "A defendant who procures *** [or] invites *** theadmission of evidence, even though it be improper, cannot beheard to complain about it on appeal." People v. Jones, 119 Ill.App. 3d 615, 628, 456 N.E.2d 926, 936-37 (1983).

"[T]he error of admitting evidence of other crimes forwhich defendant is not on trial can be cured when the impropertestimony is promptly stricken and the trial court instructs thejury to disregard it." People v. Biggs, 294 Ill. App. 3d 1046,1051, 691 N.E.2d 48, 52 (1998). The trial court sustaineddefendant's objection to Schweighart's testimony that defendantpossessed heroin. Then the trial court promptly instructed thejury: "I have ordered stricken from the record the last answergiven by the witness before you left the courtroom. You areinstructed to disregard that answer." Moreover, other witnesses,besides Schweighart, testified to defendant's use of heroin, anddefendant did not object to their testimony. "A defendant waivesany issue as to the impropriety of evidence if he *** acquiescesin the admission of evidence." People v. Pollard, 225 Ill. App.3d 970, 975, 589 N.E.2d 175, 178 (1992). Defendant suffered noprejudice from Schweighart's testimony because defendant acquiesced in the admission of additional evidence that he was a user(and, therefore, a possessor) of heroin. We find no abuse ofdiscretion in the trial court's denial of defendant's motion fora mistrial.

The posttrial motion was a critical part of the criminal proceeding, and defendant had a right, under the sixthamendment, to the assistance of counsel in preparing and arguingthe motion. People v. Finley, 63 Ill. App. 3d 95, 103, 379N.E.2d 645, 650 (1978), citing Mempa v. Rhay, 389 U.S. 128, 19 L.Ed. 2d 336, 88 S. Ct. 254 (1967). The constitutional right tothe assistance of counsel implies the right to the effectiveassistance of counsel. Strickland v. Washington, 466 U.S. 668,686, 80 L. Ed. 2d 674, 692, 104 S. Ct. 2052, 2063 (1984).

In his reply brief, defendant says that "[t]he issue isa narrow one": whether posttrial counsel was so ineffective thatwe should presume prejudice under United States v. Cronic, 466U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047(1984). "The record," defendant says, "is not adequate tosupport a related [s]ixth[-][a]mendment claim *** that[postconviction] counsel (or trial counsel) was ineffective underthe Strickland test." See Strickland, 466 U.S. at 687, 80 L. Ed.2d at 693, 104 S. Ct. at 2064. Therefore, we will limit ourconsideration to whether we should presume prejudice underCronic.

The Supreme Court held in Cronic, 466 U.S. at 659, 80L. Ed. 2d at 668, 104 S. Ct. at 2047: "[I]f counsel entirelyfails to subject the prosecution's case to meaningful adversarialtesting, then there has been a denial of [s]ixth[-][a]mendmentrights that makes the adversary process itself presumptivelyunreliable." (Emphasis added.) We will not presume prejudiceunless the attorney completely failed, "throughout" the proceeding "as a whole," to oppose the prosecution's case. See Bell v.Cone, 535 U.S. ___, ___, 152 L. Ed. 2d 914, 928, 122 S. Ct. 1843,1851 (2002). It is not enough that the attorney "failed to do soat specific points." Bell, 535 U.S. at ___, 152 L. Ed. 2d at928, 122 S. Ct. at 1851.

Defendant contends that by neglecting to (1) presentaffidavits by Campbell and Pollard to show what their testimonywould have been and (2) ask Lenik whether she had interviewedeither or both of those witnesses, Rumley totally failed tosubject the prosecution's case to any meaningful adversarialtesting whatsoever. This is an exaggeration.

Rumley called three witnesses at the hearing on theposttrial motion: Griffet, Lenik, and defendant himself. Heasked Lenik such questions as why she did not file a motion tosuppress evidence, how many times she met with defendant ortalked with him on the telephone, whether she had discussed anegotiated plea with defendant, and whether she had interviewedcertain police officers. In his questioning of defendant, Rumleyelicited testimony that Lenik ignored defendant's suggestionswhen preparing for trial and did not spend much time with him. At the conclusion of the testimony, Rumley made a closing argument. Clearly, he subjected the prosecution's case to somemeaningful adversarial testing, even if, as defendant argues, hecould and should have done additional things. A defense counsel's failure to interview certain witnesses or call them totestify generally requires an analysis under Strickland. See,e.g., People v. Guest, 166 Ill. 2d 381, 400, 655 N.E.2d 873, 882(1995); People v. Flores, 128 Ill. 2d 66, 85-86, 538 N.E.2d 481,488 (1989).

Section 33B-1(a) of the Habitual Criminal Act (720 ILCS5/33B-1(a) (West 2000)) provides:

"Every person who has been twice convicted *** of an offense that contains thesame elements as an offense now classified inIllinois as a Class X felony ***, and isthereafter convicted of a Class X felony ***committed after the 2 prior convictions,shall be adjudged an habitual criminal."

"Except when the death penalty is imposed, anyone adjudged anhabitual criminal shall be sentenced to life imprisonment." 720ILCS 5/33B-1(e) (West 2000).

Section 33B-1(d) provides:

"This [a]rticle shall not apply unlesseach of the following requirements are [sic]satisfied:

(1) the third offense was committedafter the effective date of this Act;

(2) the third offense was committedwithin 20 years of the date that judgment wasentered on the first conviction, provided,however, that time spent in custody shall notbe counted;

(3) the third offense was committedafter conviction on the second offense;

(4) the second offense was committedafter conviction on the first offense." (Emphasis added.) 720 ILCS 5/33B-1(d) (West2000).

The parties agree that armed robbery had the sameelements in 1974 and 1987 as it had in 1999. The parties alsoagree that sections 33B-1(d)(1), (d)(3), and (d)(4) of theHabitual Criminal Act are fulfilled.

Defendant disagrees that subsection (d)(2) is fulfilled. He committed the third offense on March 6, 1999--precisely 24 years and 10 months after May 6, 1974, when the Champaign County circuit court entered judgment for the first offense. Defendant argues that the trial court misapplied theHabitual Criminal Act by reducing that 24 years and 10 months by(1) the time defendant was in custody for the second offense and(2) the time he was on parole. According to defendant, only thetime he actually spent in prison for the first offense should bededucted from the 24 years and 10 months. Because he was imprisoned only 3 years and 5 months for the first offense, the span oftime between the entry of judgment for the first offense and hiscommission of the third offense is, he argues, more than 20years.

The State argues that "time spent in custody" means anytime in custody, including imprisonment for the second as well asthe first offense. The State further argues that parole countsas time in custody. Clearly, under the State's interpretation ofsubsection (d)(2), the exclusions of time would be substantialenough that the date of the third offense would be less than 20years after the date of judgment for the first offense, makingdefendant a "habitual criminal."

Defendant reasons that because subsection (d)(2) refersonly to the first and third convictions, its proviso, "time spentin custody shall not be counted," refers only to time spent incustody for the first conviction. If the legislature intended to"tack" the time in custody for the second offense onto the timein custody for the first, "it could have said so without difficulty," defendant argues. "All it would have needed to say in[section 33B-1](d)(2) was, e.g., '[t]ime spent in custody on thefirst offense or any subsequent offense ***.'" The legislaturesaid the same thing, however, in a more concise way: "time spentin custody shall not be counted." If the legislature intendedsubsection (d)(2) to be interpreted the way defendant interpretsit, the legislature could have easily said: "Time in custody forthe first offense shall not be counted." Defendant reads intothe statute a limitation that is not in the text of the statute. "When the language of a statute is plain and unambiguous, courtsmay not read in exceptions, limitations, or other conditions." In re D.D., 196 Ill. 2d 405, 419, 752 N.E.2d 1112, 1120 (2001).

According to defendant, in People v. Dunigan, 165 Ill.2d 235, 650 N.E.2d 1026 (1995), the supreme court "stronglyimplies, if it does not hold, that the prescribed period under[section] 33B-1(d)(2) is a calendar [20]-year period and not anartificial period created by 'tacking' custody time for thesecond conviction." We disagree. In Dunigan, 165 Ill. 2d at240, 650 N.E.2d at 1028, the defendant committed the thirdoffense within 20 years after his conviction for the firstoffense. Therefore, any time he spent in custody was irrelevant.

Defendant argues that by sentencing him to life imprisonment under the Habitual Criminal Act, the trial court ignoredthe extended-term sentencing provision in section 5-8-2(a) of theUnified Code of Corrections (Unified Code) (730 ILCS 5/5-8-2(a)(West 2000)), which incorporates section 5-5-3.2 of the UnifiedCode (730 ILCS 5/5-5-3.2 (West 2000)). Because defendant wasconvicted of the third armed robbery within 10 years after he wasconvicted of the second armed robbery, he argues that he waseligible for (the less severe) extended-term sentencing ratherthan life imprisonment under the Habitual Criminal Act. See 730ILCS 5/5-5-3.2(b)(1) (West 2000). We disagree.

Imposition of an extended term is permissive. 730 ILCS5/5-8-2(a) (West 2000) ("the judge may sentence an offender tothe following" (emphasis added)); 730 ILCS 5/5-5-3.2(b) (West2000) ("The following factors may be considered by the court ***"(emphasis added)); People v. Nolan, 291 Ill. App. 3d 879, 887,684 N.E.2d 832, 837 (1997). Section 33B-1(a) of the HabitualCriminal Act provides: "Every person [whose felony convictionsmeet the requirements of the statute] shall be adjudged anhabitual criminal." (Emphasis added.) 720 ILCS 5/33B-1(a) (West2000). Section 33B-1(e) provides: "Except when the deathpenalty is imposed, anyone adjudged an habitual criminal shall besentenced to life imprisonment." (Emphasis added.) 720 ILCS5/33B-1(e) (West 2000). Thus, statutory law did not require thetrial court to impose an extended term, but it did require thetrial court to adjudge defendant a habitual criminal and sentencehim to life imprisonment if he met the requirements of theHabitual Criminal Act.

Defendant cites People v. Robinson, 89 Ill. 2d 469, 433N.E.2d 674 (1982), as authority for his argument that periods ofparole are not "time spent in custody." In that case, thesupreme court considered whether time spent in federal custodyshould be excluded from the 10-year period in section 5-5-3.2(b)(2) of the Unified Code (Ill. Rev. Stat. 1979, ch. 38, par.1005-5-3.2(b)(1)).

Whether parole was "time spent in custody" was not anissue in Robinson. Comments by a reviewing court on a point notin controversy "lack[] the authoritative force of a precedent." Sexton v. Brach, 124 Ill. App. 3d 202, 206, 464 N.E.2d 284, 287(1984). Besides, the supreme court did not comment, in Robinson,that "time spent in custody" excludes periods of parole. Defendant argues that the supreme court so implied. He reasons asfollows. If periods of parole were time in custody, the supremecourt did not have to decide whether time in federal custodycounted in the computation of the 10 years. Before his federalconviction, the defendant in Robinson was on parole for a conviction in state court. Robinson, 89 Ill. 2d at 471, 433 N.E.2d at675. Subtracting that period of parole would have reduced thetime between his 1967 conviction and 1979 conviction to less than10 years, making the intervening time in federal custody superfluous. Therefore, the implication is that periods of parole arenot "time spent in custody."

The implication is unreliable. Counting the parolemight well have been an alternative way to affirm the appellatecourt's judgment in Robinson. Nevertheless, the issue before thesupreme court was whether time in federal custody should havebeen excluded when counting the 10 years. Robinson, 89 Ill. 2dat 473, 433 N.E.2d at 676. The supreme court could have chosento address that issue head-on rather than sidestep it and resolvethe case on an issue the parties apparently never briefed.

Citing decisions of the United States Supreme Court,defendant argues that "custody means actual custody in the law ofAmerican criminal procedure." We find a more specificallyrelevant authority in Illinois statutory law. Section 3-14-2(a)of the Unified Code (730 ILCS 5/3-14-2(a) (West 2000)) says: "The Department shall retain custody of all persons placed onparole ***." Thus, persons on parole are still within custody,and periods of parole are "time spent in custody" for purposes ofthe Habitual Criminal Act. Cf. People v. Smith, 199 Ill. App. 3d839, 857-58, 557 N.E.2d 596, 609-10 (1990) (which held that "timein custody," in the extended-term sentencing statute (Ill. Rev.Stat. 1985, ch. 38, par. 1005-5-3.2(b)(1) (now 730 ILCS 5/5-5-3.2(b)(1) (West 2000))), includes time on parole).

As the State points out, interpreting "time spent incustody" to exclude periods of parole would make a portion of theHabitual Criminal Act (720 ILCS 5/33B-2(b) (West 2000)) superfluous. Section 33B-2(b) provides:

"A duly authenticated copy of the recordof any alleged former conviction of an offense set forth in [s]ection 33B-1 shall beprima facie evidence of such former conviction; and a duly authenticated copy of therecord of the defendant's final release ordischarge from probation granted, or fromsentence and parole supervision (if any)imposed pursuant to such former conviction,shall be prima facie evidence of such releaseor discharge." (Emphasis added.) 720 ILCS5/33B-2(b) (West 2000).

If periods of parole did not count as "time spent in custody,"the date of the "final release or discharge from *** parolesupervision" (720 ILCS 5/33B-2(b) (West 2000)) would be irrelevant. Defendant argues: "[T]he purpose of proving the term ofparole is to establish the date of actual release from actualcustody (prison) ***." If imprisonment alone suspended therunning of the 20-year clock, one would have to prove not theterm of parole but only the beginning date of parole.

Citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.2d 435, 120 S. Ct. 2348 (2000), defendant contends that thesentence of life imprisonment under the Habitual Criminal Actviolated his constitutional rights to due process and a trial byjury. We adhere to our recent decision in People v. Allen, 335Ill. App. 3d 773, 785, 780 N.E.2d 1133, 1143 (2002), that"Apprendi does not render section 33B-1 *** unconstitutional."

For the foregoing reasons, we affirm the trial court'sjudgment.

Affirmed.

MYERSCOUGH, P.J., and TURNER, J., concur.