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March 6, 2001

NO. 4-99-0973

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

PRESIDING JUSTICE STEIGMANN delivered the opinion of the court:

In August 1999, a jury convicted defendant, Stacy R. Dillard, of aggravated battery in a place of public accommodation(720 ILCS 5/12-4(b)(8) (West 1998)). In November 1999, the trial court sentenced him to an extended term of nine yearsin prison, based on his prior convictions (730 ILCS 5/5-5-3.2(b)(1) (West 1998)).

Defendant appeals, arguing that (1) the State failed to prove beyond a reasonable doubt that he did not act in self-defense;and (2) the extended-term sentencing provision set forth in section 5-5-3.2(b)(1) of the Unified Code of Corrections(Unified Code) (730 ILCS 5/5-5-3.2(b)(1) (West 1998)) is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S.___, ___, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000). We affirm.

I. BACKGROUND

At defendant's trial, Thomas Blondell testified that around 10 p.m. on January 30, 1999, he went to the Big Foot gas stationand convenience store in Urbana (hereinafter the store) to purchase gas. When Blondell went inside the store to pay, henoticed defendant engaged in a "heated exchange" with Tim McDaniel, who was standing in the food section with his nine-year-old son. McDaniel and his son, who appeared frightened, began walking toward Blondell. When Blondell hearddefendant screaming at McDaniel, Blondell told defendant to calm down and leave the store if he could not behaveproperly. Defendant left the store, and Blondell told the store manager to call the police and lock the doors. After the storemanager responded that he was speaking with the police, defendant came back in the store and hit Blondell, knocking hisglasses off. Blondell grabbed defendant's shirt or arms and pushed him out of the store and onto the hood of a car parked infront of the store. Blondell held defendant down on the hood of the car for a short time and then told defendant that he wasgoing to let him get up and "just go get out of here." After Blondell let go of defendant and turned to walk back inside thestore, defendant hit him on the side of his face, causing profuse bleeding. Blondell then went back inside the store, wherehe and McDaniel tried to stop the bleeding.

Blondell denied grabbing defendant around the neck when he pushed him out of the store. He also denied hitting defendantduring the incident.

McDaniel testified that on the evening of January 30, 1999, he and his son were standing inside the store when defendant,whom McDaniel did not know, approached them and "made small talk." After a few minutes, defendant asked McDanielfor a ride. McDaniel refused, and defendant became verbally abusive to both McDaniel and his son. McDaniel complainedto one of the store's employees, and defendant yelled, "[W]hat's wrong with you, man, I didn't do anything to you." Defendant then approached McDaniel and his son and continued yelling at them. At that point, Blondell entered the storeand told defendant to "back off." Defendant turned his attention toward Blondell, and defendant and Blondell began yellingat each other. After about 30 seconds of yelling, defendant knocked Blondell's glasses off his face.

At that point, Blondell grabbed defendant and pushed him out of the store and onto a nearby car. According to McDaniel,it "looked like [Blondell] was trying to talk [defendant] down" as he held him on the hood of the car. McDaniel alsotestified as follows regarding the incident: "Blondell got up and started heading back into the store, and--and then[defendant] came at him and I think just hit him from behind, like towards the face." Blondell then came back into thestore, and McDaniel noticed that he was bleeding. After McDaniel helped Blondell into the bathroom, defendant cameback into the store and said to McDaniel, "[Y]ou want some of this, you want some of this." McDaniel also stated that hedid not see Blondell hit defendant during the incident.

Sean Douglas Campbell testified that, on the evening of the incident, he entered the store to purchase milk. As he stood inthe checkout line, he heard defendant yelling at customers and asking them if they wanted to fight. At one point during theincident, Blondell, who Campbell estimated was 6 feet tall and weighed 200 pounds, told defendant to leave the store. After defendant left the store and came back in, defendant "smacked [Blondell] in the face and knocked his glasses off." Blondell then grabbed defendant by his shirt and pushed him out of the store and onto the hood of Campbell's car. Campbell went outside and told them to get off his car. Blondell and defendant got off of the car, and Blondell turned to goback inside the store. Defendant, who had fallen to the ground, got up and "sucker punched" Blondell at least once and"tried to hit him at least two other times." Campbell also stated that he did not see Blondell hit defendant during theincident.

Urbana police officer Kary Keleher testified that, when he arrived on the scene, he saw defendant walking through thestore's parking lot. Keleher stopped defendant and asked him if he had been inside the store. Defendant responded, "Ididn't do shit, that guy just punched me in the eye." After speaking with a witness, Keleher directed two other officers toarrest defendant. Keleher also identified a photograph as depicting Blondell's bandaged face and bloody shirt on the nightof the incident.

Defendant testified that, on the night of the incident, he went into the store to buy cigarettes. Defendant stated that he wastalking to McDaniel when Blondell, who was taller than defendant, came in, stood over him, and pointed a finger in hisface. Defendant tried to knock Blondell's hand away, and Blondell grabbed him around the neck, pushed him out of thestore, "body slammed" him on top of a car, and hit his head against the hood of the car several times. Defendant initiallydenied making any physical contact with Blondell prior to being pushed out of the store. However, he later acknowledgedthat he might have accidentally knocked Blondell's glasses off of his face. Defendant also stated that (1) Blondell punchedhim "numerous times," (2) he was afraid of Blondell, and (3) he was trying to protect himself when he hit Blondell. Thetrial court permitted the State to impeach defendant with his prior convictions of possession of a controlled substance withintent to deliver and robbery.

On this evidence, the jury found defendant guilty of aggravated battery in a place of public accommodation. The trial courtlater sentenced defendant as stated. This appeal followed.

II. ANALYSIS

A. Sufficiency of the Evidence

Defendant first argues that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. Specifically, he contends that "looking at the evidence in the light most favorable to the prosecution, the only reasonableconclusion is that [Blondell] became the aggressor in this situation and [defendant's] actions were in self-defense." Insupport of his contention, defendant claims that (1) the size difference between defendant and Blondell, coupled withBlondell's "aggressive vigilante-like behavior," made defendant's "belief that he was in danger reasonable"; and (2) "the factthat Blondell turned around did not mean that the danger to [defendant] was over." We disagree.

Self-defense is an affirmative defense, and once a defendant raises it, the State has the burden of proving beyond areasonable doubt that the defendant did not act in self-defense, in addition to proving the elements of the charged offense. The elements of self-defense are that (1) unlawful force was threatened against a person, (2) the person threatened was notthe aggressor, (3) the danger of harm was imminent, and (4) the use of force was necessary. People v. White, 293 Ill. App.3d 335, 338, 687 N.E.2d 1179, 1181 (1997). If the State negates any one of these elements, the defendant's claim of self-defense must fail. People v. Shields, 298 Ill. App. 3d 943, 947, 700 N.E.2d 168, 172 (1998).

The right of self-defense does not justify a person in committing an act of retaliation or revenge (People v. Woods, 81 Ill.2d 537, 543, 410 N.E.2d 866, 869 (1980)), nor does the right permit a person to pursue and inflict injury upon an initialaggressor after the aggressor abandons the altercation (see People v. Belpedio, 212 Ill. App. 3d 155, 161, 569 N.E.2d 1372,1376 (1991)).

The jury, as the trier of fact, determines witnesses' credibility, draws reasonable inferences from testimony, and resolvesconflicts in evidence. A jury may consider the probability or improbability of the defendant's account, the circumstancessurrounding the crime, and the relevant testimony of other witnesses. People v. De Oca, 238 Ill. App. 3d 362, 367, 606N.E.2d 332, 337 (1992). A jury therefore need not accept a defendant's claim of self-defense. People v. Boyd, 307 Ill.App. 3d 991, 995, 719 N.E.2d 306, 309 (1999). "The standard of review for this issue is whether, taking all of the evidencein the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that defendantdid not act in self-defense." People v. Lee, 311 Ill. App. 3d 363, 367, 724 N.E.2d 557, 561 (2000).

In this case, the only evidence suggesting that defendant acted in self-defense was (1) defendant's testimony that (a) he wasafraid of Blondell and (b) he was protecting himself when he hit Blondell; and (2) Keleher's testimony that, on the night ofthe incident, defendant told Keleher that he had not done anything wrong. However, Blondell, McDaniel, and Douglas alltestified that (1) defendant instigated the incident, (2) Blondell grabbed defendant and pushed him out of the store afterdefendant knocked Blondell's glasses off, and (3) defendant hit Blondell after Blondell had let go of defendant and turnedto walk back into the store.

Viewing the evidence in the light most favorable to the State, we conclude that a rational trier of fact could have foundbeyond a reasonable doubt that (1) defendant instigated the incident when he knocked Blondell's glasses off; (2) whenBlondell grabbed defendant and physically escorted him out of the store, he was attempting to diffuse the situation andsubdue defendant; and (3) after Blondell released his grip on defendant and turned to walk back into the store, defendantdid not reasonably believe he was in imminent danger and hit Blondell in retaliation. Even accepting defendant'scontention that Blondell was the initial aggressor, we conclude that a rational trier of fact could have found beyond areasonable doubt that defendant did not act in self-defense, but instead acted in retaliation after Blondell had abandoned thealtercation.

B. Constitutionality of Section 5-5-3.2(b)(1) Under Apprendi

Last, defendant argues that the enhanced sentencing provision of section 5-5-3.2(b)(1) of the Unified Code is unconstitutional under Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Specifically, defendant contends thatsection 5-5-3.2(b)(1) violates his right to due process and trial by jury because the statute does not require the State to (1)give notice of its intent to sentence him to an extended term based on his prior convictions and (2) prove to a jury his priorconvictions beyond a reasonable doubt. Defendant thus claims that his extended-term sentence should be vacated and thecause remanded for resentencing. We disagree.

Section 5-5-3.2(b)(1) of the Unified Code provides as follows:

"(b) The following factors may be considered by the court as reasons to impose an extended[-]term sentence under [s]ection5-8-2 upon any offender:

(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois or any other jurisdictionof the same or similar class of felony or greater class felony, when such conviction has occurred within 10 years after theprevious conviction, excluding time spent in custody, and such charges are separately brought and tried and arise out ofdifferent series of acts." 730 ILCS 5/5-5-3.2(b)(1) (West 1998).

Thus, pursuant to section 5-5-3.2(b)(1), a trial court may impose a greater sentence on a defendant who has priorconvictions that satisfy the statutory criteria. 730 ILCS 5/5-5-3.2(b)(1) (West 1998); People v. Pollard, 225 Ill. App. 3d970, 979, 589 N.E.2d 175, 181 (1992).

Section 5-5-3.2(b) of the Unified Code, the extended-term statute, does not require the State to give a defendant notice if itintends to request that the trial court sentence the defendant to an extended term. People v. Adams, 91 Ill. App. 3d 1059,1065, 415 N.E.2d 610, 615 (1980). The statute also does not require that a jury find that a defendant's prior convictionshave been proved beyond a reasonable doubt before the court may impose an extended sentence. See People v. Grier, 90Ill. App. 3d 840, 855, 413 N.E.2d 1316, 1327-28 (1980) (to impose an extended sentence, it is not necessary that a priorconviction within the same class or greater class felony be alleged in the charging instrument or proved as an element of theoffense charged).

In Apprendi, the United States Supreme Court quoted its analysis in Jones v. United States, 526 U.S. 227, 243, n.6, 143 L.Ed. 2d 311, 326, n.6, 119 S. Ct. 1215, 1224, n.6 (1999), that "'under the [d]ue [p]rocess [c]lause of the [f]ifth [a]mendmentand the notice and jury trial guarantees of the [s]ixth [a]mendment, any fact (other than prior conviction) that increases themaximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonabledoubt.'" (Emphasis added.) Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355. The Apprendi Court citedits reasoning from Jones, which quoted another Supreme Court decision, Almendarez-Torres v. United States, 523 U.S.224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998):

"[A]s Jones made crystal clear, 526 U.S. at 248-249, [143 L. Ed. 2d at 329-30, 119 S. Ct. at 1226-27,] our conclusion inAlmendarez-Torres turned heavily upon the fact that the additional sentence to which the defendant was subject was 'theprior commission of a serious crime.' [Almendarez-Torres,] 523 U.S. at 230[, 140 L. Ed. 2d at 359, 118 S. Ct. at 1224]; seealso id., at 243[, 140 L. Ed. 2d at 368, 118 S. Ct. at 1230-31] (explaining that 'recidivism ... is a traditional, if not the mosttraditional, basis for a sentencing court's increasing an offender's sentence'); id., at 244[, 140 L. Ed. 2d at 369, 118 S. Ct. at1231] (emphasizing 'the fact that recidivism "does not relate to the commission of the offense ..."'); Jones, 526 U.S. at 249-250, n.10[, 143 L. Ed. 2d at 330, 119 S. Ct. at 1227] ('The majority and the dissenters in Almendarez-Torres disagreedover the legitimacy of the Court's decision to restrict its holding to recidivism, but both sides agreed that the Court haddone just that')." Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 454, 120 S. Ct. at 2361-62.

Defendant concedes that the Apprendi Court explicitly recognized that prior convictions constitute an exception to thegeneral rule that facts which increase a sentence beyond the statutory maximum must be submitted to a jury and provedbeyond a reasonable doubt. Nonetheless, he contends that, because the Apprendi Court called into question whetherAlmendarez-Torres was correctly decided, we should (1) conclude that Apprendi requires prior convictions to be charged,submitted to a jury, and proved beyond a reasonable doubt; and (2) hold that section 5-5-3.2(b)(1) of the Unified Codeviolates a defendant's right to trial by jury and due process. We disagree.

Although the Apprendi Court stated that "it is arguable that Almendarez-Torres was incorrectly decided," the Court wasclear that it was not overruling its prior decision. Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 454, 120 S. Ct. at 2362. Weagree with the court in Roberts v. People, No. 1-98-3642, slip op. at 19-20 (December 29, 2000), ___ Ill. App. 3d ___, ___,___ N.E.2d ___, ___, which found the following language from a case in the District Court for the Eastern District ofPennsylvania to be on point:

"'[D]espite the [Apprendi] Court's reservations about its continuing validity, the [Apprendi] Court chose not to overruleAlmendarez-Torres. "Needless to say, only [the Supreme Court] may overrule one of its precedents. Until that occurs[Almendarez-Torres] is the law." Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 103 S. Ct. 1343, 75 L.Ed. 2d 260 (1983) (per curiam); see also Hutto v. Davis, 454 U.S. 370, 102 S. Ct. 703, 70 L. Ed. 2d 556 (1982) (percuriam) ("But unless we wish anarchy to prevail within the federal judicial system, a precedent of this court must befollowed by the lower federal courts no matter how misguided the judges of those courts may think it to be."). SinceAlmendarez-Torres was plainly addressed, but not overruled by the Supreme Court in Apprendi, the court is obligated toapply it in this case.' United States v. Powell, 109 F. Supp. 2d 381, 383 (E.D. Pa. 2000)."

Because Almendarez-Torres is still good law, we reject defendant's assertion that Apprendi renders unconstitutional section5-5-3.2(b)(1) of the Unified Code, which provides for sentencing enhancement based on prior convictions.

III. CONCLUSION

For the reasons stated, we affirm the trial court's judgment.

Affirmed.

MYERSCOUGH and KNECHT, JJ., concur.