People v. Brown

Docket No. 104375.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

ROBERT D. BROWN, Appellant.

Opinion filed June 19, 2008.

JUSTICE BURKE delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,

Garman, and Karmeier concurred in the judgment and opinion.

OPINION

Defendant, Robert D. Brown, was sentenced to natural life

imprisonment after he was adjudged an habitual criminal pursuant to

section 33B–1 of the Criminal Code of 1961 (the Habitual Criminal

Act or the Act) (720 ILCS 5/33B–1 (West 2002)). On appeal,

defendant contended that the State failed to prove him eligible for

sentencing as an habitual criminal because the State presented no

evidence at his sentencing hearing to establish that he committed his

second prior offense after the date of conviction for his first prior

offense, as required by section 33B–1(d)(4) of the Act (720 ILCS

5/33B–1(d)(4) (West 2002)). Defendant argued that this failure of

proof rendered his sentence void and, as a result, his challenge to the

natural life sentence imposed was not subject to forfeiture. He asked

the appellate court to remand for a new sentencing hearing. The

appellate court disagreed and upheld defendant’s sentence. 371 Ill.

App. 3d 450.

For the reasons that follow, we affirm the appellate court

judgment upholding defendant’s sentence.

BACKGROUND

On April 14, 2004, defendant was found guilty of home invasion

(720 ILCS 5/12–11(a)(1) (West 2002)), a Class X felony, in relation

to events which occurred on June 22, 2003. Prior to sentencing, the

State filed a motion asking the court to sentence defendant to natural

life imprisonment as an habitual criminal pursuant to the Act. 720

ILCS 5/33B–1 et seq. (West 2002).1 In its motion, the State averred

that, in two separate and unrelated prior prosecutions, defendant was

convicted for committing offenses which qualified him as an habitual

criminal, namely, that defendant was convicted of criminal sexual

assault on March 20, 1992, in case number 91 CR 0989501, and that

defendant was convicted of home invasion on October 19, 1993, in

case number 93 CR 1954401. Certified statements of conviction were

attached to the motion.2

1

The Act provides in section 33B–1:

“(a) Every person who has been twice convicted in any state or

federal court of an offense that contains the same elements as an

offense now classified in Illinois as a Class X felony, criminal

sexual assault, aggravated kidnapping or first degree murder, and

is thereafter convicted of a Class X felony, criminal sexual assault

or first degree murder, committed after the 2 prior convictions,

shall be adjudged an habitual criminal.

***

(e) Except when the death penalty is imposed, anyone

adjudged an habitual criminal shall be sentenced to life

imprisonment.”

2

Section 33B–2(b) of the Act provides in pertinent part:

“(b) A duly authenticated copy of the record of any alleged

former conviction of an offense set forth in Section 33B–1shall be

prima facie evidence of such former conviction ***.” 720 ILCS

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Later, at defendant’s sentencing hearing, the State entered into

evidence the certified statements of defendant’s two prior

convictions, as well as a presentence investigation report that

established the dates on which defendant was arrested for committing

the offenses which led to his two prior convictions. In addition, the

State presented argument in support of its motion, stating:

“Judge, it’s interesting to note that this defendant was on

parole for criminal sexual assault. He commits home

invasion. He is on parole for home invasion. He commits

another home invasion. It’s our belief this defendant is a

sociopath, and a natural life sentence is entirely appropriate in

this case.”

Defendant made no objection to the State’s evidence at his

sentencing hearing. In fact, when asked by the court whether there

were any deficiencies in the certification or anything he wanted to

bring to the court’s attention, defense counsel replied, “No, I believe

he’s complied with the certification, I believe he’s complied with

what the law is.” Further, in response to the State’s motion, one

argument posited by defense counsel was that defendant’s prior

counsel, knowing that defendant would be subject to the habitual

criminal statute, should have made a greater effort to negotiate a deal

with the State with respect to his current offense. Defendant declined

to exercise his right to allocution, stating only that he had “nothing to

say.”

After hearing the arguments of counsel and in light of the certified

statements of conviction and the presentence investigation report, the

trial court found defendant to be an habitual criminal and sentenced

him to natural life imprisonment.

Defendant filed a “Motion to Reconsider Sentence,” in which he

challenged the constitutionality of the habitual criminal statute, but

raised no claim with respect to the sufficiency of the State’s evidence

concerning his prior convictions. It was not until his appeal that

defendant questioned whether the evidence presented at his

sentencing hearing supported the circuit court’s imposition of a

natural life sentence under the Act. On appeal, defendant argued for

5/33B–2(b) (West 2002).

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the first time that at sentencing the State presented no direct evidence

to establish the date on which he committed his second prior offense

and, consequently, failed to show that the commission of this second

offense came after his conviction for his first prior offense–a

requirement for habitual criminal sentencing pursuant to section

33B–1(d)(4) of the Act (720 ILCS 5/33B–1(d)(4) (West 2002)).3

The appellate court affirmed defendant’s sentence, with one

justice dissenting. 371 Ill. App. 3d 450. The appellate court majority

ruled that the issue raised on appeal was forfeited for two reasons: (1)

section 33B–2(c) of the Act (720 ILCS 5/33B–2(c) (West 2002))4

required defendant to raise any objection to the State’s evidence at his

sentencing hearing, which he did not do; and (2) defendant failed to

challenge the sufficiency of the evidence in his motion to reconsider

sentence. 371 Ill. App. 3d 450.

The dissenting justice disagreed, stating that the section 33B–2(c)

forfeiture provision did not apply because this case fit within the

forfeiture provision’s stated exception, i.e., “[t]he State’s proof itself

3

Section 33B–1(d) provides:

“This Article shall not apply unless each of the following

requirements are satisfied:

(1) the third offense was committed after the effective date of

this Act;

(2) the third offense was committed within 20 years of the date

that judgment was entered on the first conviction, provided,

however, that time spent in custody shall not be counted;

(3) the third offense was committed after conviction on the

second offense;

(4) the second offense was committed after conviction on the

first offense.”

4

Section 33B–2(c) provides:

“Any claim that a previous conviction offered by the

prosecution is not a former conviction of an offense set forth in

Section 33B–1 because of the existence of any exceptions

described in this Act, is waived unless duly raised at the hearing

on such conviction, or unless the prosecution’s proof shows the

existence of such exceptions described in this Act.”

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establishes the existence of the exception contained in section

33B–1(d)(4).” 371 Ill. App. 3d at 454 (McLaren, J., dissenting).

Further, the dissenting justice held that the State failed to meet its

burden of production on one of the requirements necessary to

sentence defendant as an habitual criminal and, because of this failure

of proof, the sentence imposed by the circuit court was not statutorily

authorized. 371 Ill. App. 3d at 455 (McLaren, J., dissenting).

Accordingly, the dissenting justice opined that defendant’s challenge

to his sentence was not subject to forfeiture and should be reviewed

under the plain error doctrine. 371 Ill. App. 3d at 455-56 (McLaren,

J., dissenting).

We granted defendant’s petition for leave to appeal. 210 Ill. 2d R.

315.

ANALYSIS

We note at the outset that defendant does not contend in his brief

before this court that he is not an habitual criminal because the timing

and sequence of his prior convictions do not actually satisfy the

chronological requirements of the habitual criminal statute. Rather,

he maintains, as he did in the appellate court below, that the State has

the burden of proving a person eligible for habitual criminal

sentencing by a preponderance of the evidence and, to do so, the State

must present sufficient evidence to establish not only that the person

committed the requisite three qualifying offenses, but that those

convictions satisfy the chronological requirements set forth in section

33B–1(d) of the Act. Further, defendant maintains that, in this case,

the State failed to present any evidence to establish that he committed

his second offense after his conviction for his first offense. See 720

ILCS 5/33B–1(d)(4) (West 2002). He argues that because such proof

was not entered into evidence, his eligibility to be sentenced under the

habitual criminal statute was not established and the sentencing court

had no authority to sentence him as an habitual criminal. Defendant

concedes that he never raised any objection to the State’s evidence at

sentencing or in his postsentencing motion. He maintains, however,

that because the State failed to prove his eligibility to be sentenced as

an habitual criminal, the circuit court did not have the authority to

impose a natural life sentence. Defendant concludes that his sentence

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is void and that a void sentence is not subject to forfeiture. Thus, he

asks that we remand for a new sentencing hearing.

The State disagrees. Interpreting the provisions of the habitual

Criminal Act, the State contends that to prove a defendant eligible for

habitual criminal sentencing it has the burden of proving that the

defendant has the requisite three convictions for qualifying offenses.

Thus, after a defendant has been convicted of his third offense, the

State must submit evidence of the defendant’s prior convictions at his

sentencing hearing. Certified records of conviction constitute prima

facie evidence of such convictions and, if produced by the State, will

satisfy the State’s burden of production. Thus, once the State has

produced prima facie evidence of the defendant’s prior convictions,

a presumption is created that defendant is eligible for habitual

criminal sentencing. The onus is then shifted to the defendant to rebut

the presumption of eligibility by demonstrating at his sentencing

hearing that his prior convictions come within one of the exceptions

set forth in section 33B–1(d). According to the State, if the defendant

fails to raise any defect or inaccuracy concerning his prior convictions

at his hearing, he forfeits the argument pursuant to section 33B–2(c)

of the Act.

Interpreting the Act in this manner, the State maintains that, in the

case at bar, defendant’s eligibility for sentencing as an habitual

criminal was established. The State contends that it met its burden of

production at defendant’s sentencing hearing by introducing certified

copies of defendant’s prior convictions. Further, the State maintains

that, because defendant did not object to the State’s evidence at his

sentencing hearing, he forfeited his right to challenge his habitual

criminal sentence on appeal pursuant to section 33B–2(c) of the Act.

The State further claims that, even without the section 33B–2(c)

forfeiture provision, defendant would be precluded from challenging

his sentence on appeal by application of general principles of

forfeiture because defendant did not challenge the State’s evidence at

his sentencing hearing or in his postsentencing motion. Consequently,

the State asks that we affirm defendant’s natural life sentence and

uphold the appellate court majority’s ruling that defendant forfeited

the right to challenge his sentence on appeal.

Finally, the State argues that defendant is an habitual criminal

because the timing and sequence of his prior offenses and convictions

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actually satisfy the chronological requirements of the habitual

criminal statute and, as a result, any failure of proof on this matter is

harmless error. Accordingly, the State argues that no new sentencing

hearing is necessary.

Our resolution of the issues raised in this appeal requires us to

interpret and apply the statutory provisions concerning habitual

criminals under the circumstances present here. Our review, therefore,

is de novo. See In re Jaime P., 223 Ill. 2d 526 (2007) (matters of

statutory interpretation present questions of law and are subject to de

novo review). When interpreting a statute, our primary objective is to

ascertain and give effect to the intent of the legislature. People v.

Palmer, 218 Ill. 2d 148 (2006). Legislative intent is determined by

considering the language of the statute, given its plain and ordinary

meaning, as well as the purpose and necessity for the law, the evils

sought to be remedied, and goals to be achieved. In re Detention of

Lieberman, 201 Ill. 2d 300, 308 (2002). Each word, clause and

sentence of the statute must be given reasonable meaning and not

rendered superfluous, unless to do so would result in absurdity,

inconvenience, or injustice. People v. Palmer, 218 Ill. 2d at 156.

Turning to the Act, we see that it mandates a life sentence be

imposed on anyone “who has been twice convicted in any state or

federal court of an offense that contains the same elements as an

offense now classified in Illinois as a Class X felony, criminal sexual

assault, aggravated kidnapping or first degree murder, and is

thereafter convicted of [one of the above], committed after the 2 prior

convictions.” 720 ILCS 5/33B–1(a) (West 2002). Although section

33B–1(a) simply requires that a defendant have three convictions for

qualifying offenses to be adjudged an habitual criminal, paragraph (d)

provides that “[t]his Article shall not apply unless each of the

following requirements are satisfied: (1) the third offense was

committed after the effective date of this Act; (2) the third offense

was committed within 20 years of the date that judgment was entered

on the first conviction, provided, however, that time in custody shall

not be counted; (3) the third offense was committed after conviction

on the second offense; (4) the second offense was committed after

conviction on the first offense.” (Emphases added.) 720 ILCS

5/33B–1(d) (West 2002). According to the plain language of the

statute, then, a defendant may not be sentenced as an habitual

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criminal unless he has three convictions for qualifying offense and

those convictions meet the additional requirements set forth in section

33B-1(d).

Section 33B–2 of the Act sets forth the manner in which a

defendant’s status as an habitual criminal is to be proved. Section

33B–2(a) provides that the State “shall not” allege a prior conviction

in the indictment, nor present evidence of such at trial, but rather

“[a]fter a plea or verdict or finding of guilty and before sentence is

imposed, the prosecutor may file with the court a verified written

statement signed by the State’s Attorney concerning any former

conviction of an offense set forth in Section 33B–1” and “unless the

defendant admits such conviction, the court shall hear and determine

such issue and shall make a written finding thereon.” 720 ILCS

5/33B–2 (West 2002).

Pursuant to this provision, a defendant’s eligibility for sentencing

as an habitual criminal is determined at the time of sentencing rather

than at trial. Accordingly, a defendant’s status as an habitual criminal

is a sentencing factor and not an element of the underlying offense for

which he is being sentenced. See Apprendi v. New Jersey, 530 U.S.

466, 485-86, 147 L. Ed. 2d 435, 452, 120 S. Ct. 2348, 2360 (2000)

(the term “sentencing factor” finds its origin in McMillan v.

Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986),

and refers to a fact that is not found by a jury but could affect the

sentence imposed by the judge).

In People v. Robinson, 167 Ill. 2d 53, 72-73 (1995), we held that,

because a defendant’s eligibility for sentencing as an habitual

criminal is determined at the time of sentencing when he is no longer

clothed with the presumption of innocence, he need not be “ ‘afforded

the full panoply of due process rights which are necessarily afforded

a criminal defendant at the evidentiary phase of trial. Those standards

which, at trial, govern the admissibility of evidence and precisely

define the manner in which the court and parties are to proceed are

absent.’ ” Robinson, 167 Ill. 2d at 72-73, quoting People v. Levin, 157

Ill. 2d 138, 153 (1993). We held, therefore, that a defendant’s

eligibility for habitual criminal sentencing need not be proved beyond

a reasonable doubt. People v. Robinson, 167 Ill. 2d at 73.

We recognized, however, that the Act “provides certain

evidentiary and procedural safeguards” and, therefore, the habitual

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criminal sentencing process is “more formalistic than sentencing

under our general sentencing provision.” Levin, 157 Ill. 2d at 154.

Thus, we held in Robinson that the State bears the burden of proving

a defendant’s eligibility for sentencing under the Act by a

preponderance of the evidence. Robinson, 167 Ill. 2d at 71. “A

preponderance of the evidence is evidence that renders a fact more

likely than not.” People v. Urdiales, 225 Ill. 2d 354, 430 (2007). In

the case at bar, both the defendant and the State agree that a

preponderance of the evidence standard is the standard of proof

required to prove eligibility for sentencing as an habitual criminal.5

Although the parties agree on the standard of proof , they disagree

on what evidence the State must produce to satisfy its burden. As

noted earlier, defendant argues that, in addition to establishing that

defendant has the requisite two prior convictions, the Act requires the

State to introduce direct evidence to demonstrate compliance with the

requirements of section 33B–1(d). The State, however, interprets the

Act differently. According to the State, the introduction of prima

facie evidence of the defendant’s two prior convictions at the

defendant’s sentencing hearing creates a rebuttable presumption that

defendant is eligible for habitual criminal sentencing. If defendant

then fails to rebut this presumption by producing some evidence to

indicate that the prior convictions do not meet the requirements of the

Act, the State will have carried its burden of persuasion and the

circuit court is permitted to find the defendant eligible for habitual

5

We note, as an aside, that defendant does not argue that either Apprendi

v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348,

2362-63 (2000) (“Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt”), or

Shepard v. United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254

(2005) (discussing the type of evidence that may be used to establish that

a prior conviction, which stemmed from a guilty plea, qualified as a violent

felony under the Armed Career Criminal Act for purposes of enhancing the

defendant’s sentence), have any application to the situation here. Thus, we

shall assume for the purposes of this appeal that the timing and sequence

of defendant’s prior convictions are facts inherent in the convictions

themselves and, as such, fall within the recidivism exception to the

Apprendi rule. See People v. Ligon, 365 Ill. App. 3d 109, 127-28 (2006).

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criminal sentencing. Moreover, if defendant fails to rebut the

presumption of his eligibility at his sentencing hearing, he forfeits the

right to challenge the finding of eligibility on appeal.

We find the State’s interpretation of the Act to be the correct one.

Paragraph (b) of section 33B–2 provides that “a duly authenticated

copy of the record of any alleged former conviction of an offense set

forth in Section 33B–1 shall be prima facie evidence of such former

conviction.” In People v. Robinson, 167 Ill. 2d at 75, we interpreted

this provision as creating a permissive rebuttable presumption. We

said:

“In the criminal context, prima facie evidence is in the

nature of a presumption, more accurately described as an

instructed inference. (See M. Graham, Cleary & Graham’s

Handbook of Illinois Evidence §304.1, at 114-16 (5th ed.

1990).) Prima facie evidence may be defined as a quantum of

evidence sufficient to satisfy the burden of production

concerning a basic fact that allows an inference of a presumed

fact. (See M. Graham, Cleary & Graham’s Handbook of

Illinois Evidence §302.8, at 102 (5th ed. 1990).) Where the

burden of production is satisfied, the trier of fact is permitted

but not required to find the presumed fact. See M. Graham,

Cleary & Graham’s Handbook of Illinois Evidence §304.1, at

115-16 (5th ed. 1990).

Even where the State satisfies the burden of production

concerning a basic fact, a defendant bears no actual burden to

produce evidence to prevent operation of the inference.

However, where the State satisfies the burden of production

concerning a basic fact, a defendant does face the risk of

nonpersuasion concerning the presumed fact. As a practical

matter, the risk of nonpersuasion is greatly increased where a

defendant submits no evidence to prevent operation of the

inference.

*** Once the burden of production is satisfied, the judge

is permitted but not required to find the burden of persuasion

satisfied depending on the judge’s consideration of all the

evidence. The defendant’s introduction of contradictory

evidence does not diminish the prima facie evidence, but such

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evidence is considered by the trial judge in determining

whether the State has satisfied the burden of persuasion.”

We continue to adhere to our holding in Robinson that section

33B–2(b) creates a permissive rebuttable presumption. See also

People v. Woodrum, 223 Ill. 2d 286, 309-10 (2006) (distinguishing

the permissive presumption found in Robinson from a mandatory

presumption found to be per se unconstitutional because it relieved

the State of its burden of proving every element of an offense beyond

a reasonable doubt).

We conclude, also, that because the presumption is contained in

a sentencing statute which deals, not with guilt or innocence, but with

a defendant’s eligibility to be sentenced as an habitual criminal, the

legislature is free to impose on defendant the burden of producing

some evidence to contradict the presumption created by the State’s

introduction of prima facie evidence. See People v. Beltran, 327 Ill.

App. 3d 685 (2002) (section 5–805(2) of the Juvenile Court Act,

which creates a rebuttable presumption that transfer of juvenile to

criminal court is warranted, does not violate due process because a

transfer hearing does not determine guilt or innocence; placing burden

on juvenile to rebut the presumption that transfer is warranted does

not alter the State’s burden of proving each element of the offense

beyond a reasonable doubt).

In light of the above and reading section 33B–2(b) in conjunction

with section 33B–1, we hold that the Act requires the State to prove

a defendant eligible for habitual criminal sentencing by

demonstrating, by a preponderance of the evidence, that the defendant

has three convictions for qualifying offenses and that these

convictions meet the time and sequence requirements found in section

33B–1(d). The State may meet its burden through the introduction of

any type of evidence, but the State will satisfy its burden of

production regarding a defendant’s eligibility for habitual criminal

sentencing if it introduces certified records of the defendant’s prior

convictions. These certified records, as prima facie evidence, will

create an inference or rebuttable presumption that the defendant is

eligible for sentencing as an habitual criminal, i.e., that the

convictions are for the specified qualifying offenses and that the

convictions satisfy all of the requirements set forth in section 33B–1

of the Act. See People v. Robinson, 167 Ill. 2d 53, 75-76 (1995) (“a

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certified copy of a record of conviction satisfies the State’s burden of

production regarding the fact of that conviction”). Defendant has no

actual burden to produce any evidence at his sentencing hearing.

However, once the State has produced prima facie evidence, the

sentencing court is permitted, though not required, to find that the

State has met its burden of persuasion and rule defendant eligible for

habitual criminal sentencing. The defendant, by failing to come

forward with some evidence to show that his prior convictions do not

meet the requirements of the Act, runs the risk that the inference of

eligibility will stand.

If the State meets its burden of production and defendant does not

present some evidence of a defect or discrepancy in the State’s

evidence, the sentencing court may look to all of the evidence

presented by the State to determine whether it has met its burden of

persuasion. As long as the State’s evidence does not affirmatively

demonstrate that the prior convictions do not satisfy all of the

requirements of section 33B–1 (see People v. Eaglin, 292 Ill. App. 3d

677 (1997)), the State will have carried not only its burden of

production, but its burden of persuasion, i.e., the State will have

shown, by a preponderance of the evidence, that defendant is eligible

to be sentenced as an habitual criminal. See People v. Robinson, 167

Ill. 2d at 75.

This interpretation of the Act is reinforced by the forfeiture

provision found in section 33B–2(c), which provides:

“Any claim that a previous conviction offered by the

prosecution is not a former conviction of an offense set forth

in Section 33B–1 because of the existence of any exceptions

described in this Act, is waived unless duly raised at the

hearing on such conviction, or unless the prosecution’s proof

shows the existence of such exceptions described in this Act.”

720 ILCS 5/33B–2(c) (West 2002).

This section makes clear that “a previous conviction offered by

the prosecution” will be presumed “a former conviction of an offense

set forth in Section 33B–1,” that is, a conviction which meets all of

the requirements of the Act, unless defendant produces some

evidence to contradict the inference. Further, if defendant fails to

rebut the presumption of his eligibility at his sentencing hearing, he

will have forfeited the right to do so on direct appeal.

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The forfeiture provision allows for one exception. A defendant

will not forfeit the right to challenge the presumption of eligibility for

habitual criminal sentencing on appeal if the State’s own evidence

affirmatively “shows the existence of such exceptions described in

this Act.” 720 ILCS 5/33B–2(c) (West 2002). In other words, if the

State’s evidence concerning the defendant’s prior convictions does

not support the inference of eligibility because the evidence, on its

face, demonstrates that defendant’s prior convictions do not meet all

of the requirements of section 33B-1, defendant will not be prohibited

from challenging his sentence on appeal.

An example of this exception is found in People v. Eaglin, 292

Ill. App. 3d 677 (1997). In Eaglin, the sentencing court declined to

sentence defendant as an habitual criminal and the State challenged

that ruling. The appellate court upheld the circuit court’s judgment.

The record showed that the State had submitted certified statements

of conviction at defendant’s sentencing hearing indicating that

defendant had one armed robbery conviction in 1973 and two armed

robbery convictions in 1978. However, the certified statements for the

1973 conviction (the State had submitted two) were “questionable”

(one was undated and the other had incorrect information). Moreover,

the certified statements were inconsistent with other evidence

submitted by the State. The presentence report stated that the 1973

conviction was for robbery and the State amended the report by

inserting the handwritten word “armed.” The rap sheet stated that the

conviction was for robbery, not armed robbery, and the sentence

imposed for the 1973 conviction did not conform with the statutory

dictates for armed robbery.

The certified statements regarding the 1978 convictions showed

that defendant did have two prior convictions for armed robbery.

However, the additional evidence submitted by the State showed that

these convictions did not satisfy the additional requirements of

section 33B–1(d)–the evidence produced by the State indicated that

defendant was convicted for both prior offenses on the same date and,

thus, these convictions could not have satisfied the time and sequence

requirements of section 33B–1(d)(4). Thus, the State’s proof did not

establish defendant’s eligibility for sentencing as an habitual criminal

by a preponderance of the evidence and the sentencing court correctly

declined to sentence the defendant as an habitual criminal.

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Applying our interpretation of the Habitual Criminal Act to the

case at bar, we find that defendant has forfeited the right to challenge

his habitual criminal sentence on appeal. The record shows that, at

defendant’s sentencing hearing following his conviction for the

felony offense of home invasion, the State submitted certified records

showing that defendant had been convicted, on two separate

occasions, for felony offenses that qualified him for habitual criminal

sentencing–criminal sexual assault on March 20, 1992, in case

number 91 CR 0989501, and home invasion on October 19, 1993, in

case number 93 CR 1954401. In addition, the State produced a

presentence investigation report that established the dates on which

defendant was arrested for committing the offenses which led to his

two prior convictions and the prosecutor verbally informed the court

that defendant had been on parole for criminal sexual assault when he

committed the offense of home invasion and had again been on parole

for home invasion when he committed the current offense–another

home invasion.

The certified records created the inference or rebuttable

presumption that defendant was eligible for habitual criminal

sentencing. Defendant offered no evidence to rebut this presumption

and, in fact, admitted eligibility for habitual criminal sentencing.

Thus, we must conclude that, pursuant to section 33B–2(c), he has

forfeited the right to challenge his sentence on appeal.

The exception to forfeiture does not apply here because the

State’s evidence does not affirmatively show that the requirements of

the Act were not met. Defendant’s first prior conviction occurred on

March 20, 1992, and his second prior conviction occurred more than

18 months later, on October 19, 1993. In addition, the prosecutor

informed the court that defendant had been on parole for his first

conviction when he committed his second offense. The State’s

evidence, on its face, does not “show[ ] the existence of such

exceptions described in this Act.” Thus, in the absence of any

contradictory evidence offered by defendant, the sentencing court was

authorized to find that the State had met its burden of persuasion and

the habitual criminal sentence imposed by the court is not void. For

the foregoing reasons, we affirm the appellate court majority’s

determination that, pursuant to section 33B–2(c) of the Act, defendant

forfeited his ability to challenge his sentence on appeal.

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Because we find that under the circumstances presented here the

sentencing court was authorized to find defendant eligible for habitual

criminal sentencing, we need not consider the State’s harmless-error

argument, nor do we find it necessary to address the State’s

contention that defendant also would be prevented from challenging

his natural life sentence under general principles of forfeiture.

Finally, we point out that defendant does not allege that his prior

convictions do not, in fact, satisfy the requirements of the Act. If,

however, defendant could make such a claim, our resolution of his

appeal here today would not leave him without a remedy. In that

situation, the appropriate avenue would be for defendant to file a

petition under the Post-Conviction Hearing Act (725 ILCS 5/122–1

et seq. (West 2002)) alleging ineffective assistance of counsel.

Certainly, if he could establish that his prior convictions do not satisfy

all of the requirements of the Act and that his attorney failed to bring

this to the sentencing court’s attention, defendant would have no

difficulty showing that he was prejudiced by his attorney’s deficient

conduct. In that case, defendant would have been given a sentence of

natural life when he was not eligible for the enhanced sentence.

CONCLUSION

For the reasons stated, we affirm the appellate court’s judgment

upholding defendant’s life sentence.

Appellate court judgment affirmed.

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