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November 8, 2001

PRESIDING JUSTICE STEIGMANN delivered the opinion ofthe court:

In June 1999, the State charged defendant, George A.Ligons, with the offense of theft of property having a value lessthan $300 with a prior retail theft conviction (720 ILCS 5/16-1(a)(1)(A), (b)(2) (West 1998)). Following an August 1999 trial,a jury convicted him of theft. At defendant's September 1999sentencing hearing, the trial court took judicial notice ofdefendant's prior retail theft conviction (Macon County case No.99-CF-155), which enhanced defendant's theft conviction from aClass A misdemeanor to a Class 4 felony, pursuant to section 16-1(b)(2) of the Criminal Code of 1961 (Criminal Code) (720 ILCS5/16-1(b)(2) (West 1998)). The court then sentenced him to anextended term of six years in prison, based on his prior felonyconvictions (730 ILCS 5/5-5-3.2(b)(1) (West 1998)), and gave himcredit for 106 days served in county jail.

Defendant appeals, arguing that (1) the enhancementprovision set forth in section 16-1(b)(2) of the Criminal Code(720 ILCS 5/16-1(b)(2) (West 1998)) is unconstitutional pursuantto Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435,455, 120 S. Ct. 2348, 2362-63 (2000); (2) the extended-termsentencing provision set forth in section 5-5-3.2(b)(1) of theUnified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3.2(b)(1) (West 1998)) is unconstitutional pursuant to Apprendi,530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63; and(3) he is entitled to one additional day of credit for timeserved. We affirm and remand with directions.

In June 1999, the State charged defendant with theftwith a prior retail theft conviction, in that he "knowing exertedunauthorized control over property of Thomas C. Butts, Jr., beinga mountain bike, having a total value less than $300.00, intending to deprive [Butts] permanently of the use of the property,"having been previously convicted of retail theft in Macon Countycase No. 99-CF-155.

At defendant's August 1999 jury trial, Butts, a Decaturpolice officer, testified that in mid-May 1999, he purchased aDiamond Back mountain bike for $235. During the early morninghours of May 29, 1999, someone stole the bike from the frontporch of Butts' home in Decatur. At around 2:30 p.m. the nextday, Butts was on patrol when he saw a man (later identified asWilliam Broadnax) riding a bike that looked very similar to hismissing bike. Butts stopped Broadnax and determined that it wasthe stolen bike.

Broadnax testified that on the morning of May 30, 1999,his friend, Ronald Bond, told him that defendant had a bike forsale. Around 10 a.m. that day, Broadnax met with defendant at ahouse on King Street in Decatur and paid him $80 for the bike. After being stopped by Butts, Broadnax explained that he hadbought the bike and then took Butts to the house on King Street.

Decatur police detective Joe Patton testified that onMay 31, 1999, he interviewed defendant regarding the stolen bike. Defendant admitted that he sold a mountain bike for $80 to thefriend of a person named Jimmy Jones. Defendant also told Pattonthat he bought the bike for $20 from a white male "crack head"whom he did not know and could not identify. He bought it eitheron a Friday or Saturday night in the area of College and GreenStreets in Decatur. Patton then told defendant that based uponthe circumstances of the purchase, in particular, the fact thatdefendant paid $20 for a new bike and bought it from a "crackhead" in a drug area, he should have known that the bike wasstolen. Defendant responded that he did not think about that andjust wanted to buy the bike and resell it.

On this evidence, the jury convicted defendant, and thetrial court sentenced him as stated. This appeal followed.

Defendant first argues that the enhancement provisionof section 16-1(b)(2) of the Criminal Code (720 ILCS 5/16-1(b)(2)(West 1998)), under which he was sentenced as a Class 4 felon, isunconstitutional under Apprendi, 530 U.S. at 490, 147 L. Ed. 2dat 455, 120 S. Ct. at 2362-63. We disagree.

Section 16-1(b)(2) provides, in pertinent part, asfollows:

"A person who has been convicted oftheft of property not exceeding $300 invalue, other than a firearm and not from theperson, who has been previously convicted ofany type of theft, *** is guilty of a Class 4felony. When a person has any such priorconviction, the information or indictmentcharging that person shall state such priorconviction so as to give notice of theState's intention to treat the charge as afelony. The fact of such prior conviction isnot an element of the offense and may not bedisclosed to the jury during trial unlessotherwise permitted by issues properly raisedduring such trial." 720 ILCS 5/16-1(b)(2)(West 1998).

Thus, section 16-1(b)(2) of the Criminal Code requiresthe State to give a defendant notice if it intends to requestthat the trial court sentence the defendant as a Class 4 felon. However, the statute does not require a jury to find that adefendant's prior conviction has been proved beyond a reasonabledoubt before the court may sentence the defendant as a Class 4felon. Instead, the legislature explicitly provided that "[t]hefact of such prior conviction is not an element of the offenseand may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial." 720ILCS 5/16-1(b)(2) (West 1998).

In Apprendi, the United States Supreme Court reviewed aNew Jersey statute that authorized an extended term of 10 to 20years' in prison for a second degree offense if the trial courtfound by a preponderance of the evidence that "'[t]he defendantin committing the crime acted with a purpose to intimidate anindividual or group of individuals because of race, color,gender, handicap, religion, sexual orientation[,] or ethnicity.'" Apprendi, 530 U.S. at 468-69, 147 L. Ed. 2d at 442, 120 S. Ct. at2351, quoting N.J. Stat. Ann.