People v. Curry

Opinion

NO. 4-06-0355

Filed 7/28/08 IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Macon County ISAAC CURRY, ) No. 05CF800 Defendant-Appellant. ) ) Honorable ) Scott B. Diamond, ) Judge Presiding. ________________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In March 2006, a jury found defendant, Isaac Curry,

guilty of armed robbery. In April 2006, the trial court adjudged

defendant an habitual criminal and sentenced him to life in

prison under the Habitual Criminal Act (Act) (720 ILCS 5/33B-1

through 33B-3 (West 2006)).

On appeal, defendant argues his natural-life sentence

under the Act violates his rights to due process and to a jury

trial. We affirm.

I. BACKGROUND

In June 2005, the State charged defendant by amended

information with the offense of armed robbery (720 ILCS 5/18-2(a)

(West 2004)), alleging that defendant, while armed with a danger-

ous weapon, a butcher knife, knowingly took United States cur-

rency from the presence of Cynthia Summers and Diana Huddlestun

by threatening the imminent use of force. The State provided

notice of its intention to seek a sentence of natural life in

prison under the Act based on defendant's two prior Class X felony convictions. See 720 ILCS 5/33B-1 (West 2004). Defendant

pleaded not guilty.

In March 2006, defendant's jury trial commenced. Cindi

Summers testified she was working as an assistant manager at

Walgreens in Decatur on May 29, 2005. Diana Huddlestun was

operating the cash register. At approximately 9 p.m., Summers

stated five or six customers were inside the store. An announce-

ment was made for the customers to bring their purchases to the

register as the store was about to close. Summers then locked

the entrance door while the exit door remained open.

Thereafter, an African-American male appeared at the

exit door and asked if he could buy a pack of cigarettes "real

quick." The male walked to the coolers to get something to drink

and then headed to the front register. At the checkout counter,

the man presented a bottle of orange juice and two cigarette

lighters. Summers stated the man "grabbed [her] arm and forced

[her] to the ground." The man also pulled out a butcher knife

and told her to get down on the ground or he would cut her.

While kneeling on the floor, Summers heard the cash register

open. The man told Huddlestun to get face down on the floor.

When she did, the male told them to count to 100. Once they

believed the man had left, Summers got up and locked the doors.

Huddlestun called 9-1-1. After the police arrived, Summers

determined $120 had been taken from the register. Summers was

unable to identify the individual because all she could remember

was the knife.

- 2 - Diana Huddlestun testified she worked as a cashier at

the Walgreens on May 29, 2005. When the male who asked to enter

the store walked inside, Huddlestun kept glancing at him because

it was "unusual" for someone to come in and ask to buy a pack of

cigarettes and then walk away since the cigarettes are behind the

register. Huddlestun testified she scanned the individual's

orange juice and two lighters. The male then grabbed Summers and

told her to get face down on the floor or he would cut her. He

then demanded Huddlestun open the register. She stated she was

looking at his face because she "wanted to remember exactly what

he looked like in case he hurt" them. After Summers went to the

floor, the man pointed the knife at Huddlestun and told her to

open the register or he would cut her. Huddlestun opened the

register and stepped back. The man then grabbed the money and

told Huddlestun to get on the floor. Huddlestun identified

defendant as the man with the knife.

Huddlestun testified Decatur police detective Patrick

Campbell came to her house on June 1, 2005, to show her a photo

array. She identified a photo of defendant as the person who

robbed the Walgreens. At a photo lineup, Huddlestun again

identified defendant as the one who robbed her at knifepoint.

After the conclusion of the State's evidence, defendant

exercised his constitutional right not to testify. See U.S.

Const., amend. V. Following closing arguments, the jury found

defendant guilty. In April 2006, defendant filed a motion for

judgment of acquittal or, in the alternative, for a new trial,

- 3 - which the trial court denied.

Defendant also filed a motion to bar application of

section 33B-1 of the Act (720 ILCS 5/33B-1 (West 2006)), arguing

sentencing him to life in prison as an habitual criminal would

violate the United States and Illinois Constitutions. The State

filed a notice upon conviction of its intention to pursue

natural-life sentencing based on defendant's prior criminal

convictions, those being the Class X felonies of armed robbery in

Macon County case No. 95-CF-1025 and armed robbery in Macon

County case No. 90-CF-68. The State attached certified copies of

those convictions to the notice. In case No. 95-CF-1025, the

State indicated defendant was sentenced to 20 years on the

offense of armed robbery alleged to have been committed on

October 14, 1995. In case No. 90-CF-68, defendant pleaded guilty

to two counts of armed robbery that allegedly occurred on January

27, 1990, and was sentenced to nine years in prison.

The trial court denied defendant's motion to bar the

application of section 33B-1. The court then adjudged defendant

an habitual criminal and sentenced him to life in prison without

the possibility of parole or mandatory supervised release.

Defendant filed a postsentencing motion, which the court denied.

This appeal followed.

II. ANALYSIS

Defendant argues his natural-life sentence violates his

constitutional rights to due process and to a jury trial because

he was sentenced under section 33B-1 of the Act without a finding

- 4 - by a jury beyond a reasonable doubt that his two prior armed-

robbery convictions did not result from, and were not connected

with, the same transaction. We disagree.

"In general, the Habitual Criminal Act mandates the

imposition of a natural-life sentence on a defendant convicted of

three temporally separate Class X offenses, or other eligible

serious felonies, within a 20-year period." People v. Palmer,

218 Ill. 2d 148, 154-55, 843 N.E.2d 292, 296 (2006). Specifi-

cally, section 33B-1 of the Act provides as follows:

"(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 convic-

tions, shall be adjudged an habitual crimi-

nal.

(b) The 2 prior convictions need not

have been for the same offense.

(c) Any convictions which result from or

are connected with the same transaction, or

result from offenses committed at the same

time, shall be counted for the purposes of

- 5 - this [s]ection as one conviction.

(d) This [a]rticle shall not apply un-

less 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

first offense.

(e) Except when the death penalty is

imposed, anyone adjudged an habitual criminal

shall be sentenced to life imprisonment."

720 ILCS 5/33B-1 (West 2006).

Section 33B-2(a) of the Act provides that "unless the

defendant admits [prior] conviction[s], the court shall hear and

determine such issue, and shall make a written finding thereon."

- 6 - 720 ILCS 5/33B-2(a) (West 2006). "A duly authenticated copy of

the record of any alleged former conviction of an offense set

forth in [s]ection 33B-1 shall be prima facie evidence of such

former conviction." 720 ILCS 5/33B-2(b) (West 2006). "The date

that an offense was committed may be established by circumstan-

tial evidence[,] such as a certified copy of the conviction and a

presentence investigation report." People v. Walton, 240 Ill.

App. 3d 49, 57, 608 N.E.2d 59, 65 (1992). The State has the

burden of establishing the defendant's eligibility for sentencing

as an habitual criminal by a preponderance of the evidence.

People v. Eaglin, 292 Ill. App. 3d 677, 682, 686 N.E.2d 695, 698

(1997), citing People v. Robinson, 167 Ill. 2d 53, 73, 656 N.E.2d

1090, 1099 (1995).

At the sentencing hearing, the State presented a

certified copy of Macon County case No. 90-CF-68, wherein defen-

dant pleaded guilty to two counts of armed robbery. Count I

pertained to victim William Handt, and count II pertained to

victim Debbie Weltmer. The offenses in both counts were commit-

ted on January 27, 1990, and involved defendant taking currency

from the victims while armed with a knife. In April 1990, the

trial court sentenced defendant to concurrent terms of nine years

in prison.

In Macon County case No. 95-CF-1025, defendant pleaded

guilty to one count of armed robbery. The offense was committed

on October 14, 1995, and involved defendant taking money and food

stamps from Rick Yutzy while armed with a wrench handle. In

- 7 - February 1996, the trial court sentenced defendant to 20 years in

prison.

Defendant argues his life sentence violates the rule

established in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.

2d 435, 120 S. Ct. 2348 (2000), and clarified in Shepard v.

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

(2005), because the trial court found by a preponderance of the

evidence, not a jury beyond a reasonable doubt, that his two

prior armed-robbery convictions did not result from, and were not

connected with, the same transaction. See 720 ILCS 5/33B-1(c)

(West 2006). Defendant concedes his prior convictions were not

committed at the same time and notes the State's documents

sufficiently established the number, timing, and sequence of his

prior convictions. However, he contends the certified copies of

his prior convictions did not furnish conclusive proof that those

convictions arose from unrelated or unconnected transactions.

Initially, a short history on the pertinent case law is

in order as to the enhancement of a sentence based on a defen-

dant's conduct during the commission of the crime and any prior

convictions. In Almendarez-Torres v. United States, 523 U.S.

224, 226, 140 L. Ed. 2d 350, 357, 118 S. Ct. 1219, 1222 (1998),

the United States Supreme Court was confronted with a federal

statute prescribing a maximum prison sentence of 2 years for an

illegal-immigration offense but authorizing a 20-year maximum

sentence if the defendant had a prior aggravated felony convic-

tion. The defendant pleaded guilty to the indictment of being in

- 8 - the United States after being deported, but the indictment did

not mention his prior felony convictions. Almendarez-Torres, 523

U.S. at 227, 140 L. Ed. 2d at 357, 118 S. Ct. at 1222-23. The

defendant argued he could not be sentenced in excess of the

minimum because his indictment had not mentioned those prior

convictions. Almendarez-Torres, 523 U.S. at 227, 140 L. Ed. 2d

at 357, 118 S. Ct. at 1222-23. The district court disagreed and

sentenced him to 85 months in prison. Almendarez-Torres, 523

U.S. at 227, 140 L. Ed. 2d at 357, 118 S. Ct. at 1223.

The Supreme Court noted recidivism "is a traditional,

if not the most traditional, basis for a sentencing court's

increasing an offender's sentence." Almendarez-Torres, 523 U.S.

at 243, 140 L. Ed. 2d at 368, 118 S. Ct. at 1230. As recidivism

does not relate to the commission of the offense, the Court

concluded that "to hold that the Constitution requires that

recidivism be deemed an 'element' of petitioner's offense would

mark an abrupt departure from a longstanding tradition of treat-

ing recidivism as 'go[ing] to the punishment only.'" Almendarez-

Torres, 523 U.S. at 244, 140 L. Ed. 2d at 368-69, 118 S. Ct. at

1231, quoting Graham v. West Virginia, 224 U.S. 616, 629, 56 L.

Ed. 917, 923, 32 S. Ct. 583, 587-88 (1912). As the statute in

question "simply authorizes a court to increase the sentence for

a recidivist," the Court found the Government was not required to

include the defendant's prior convictions in the indictment.

Almendarez-Torres, 523 U.S. at 226-27, 140 L. Ed. 2d at 357, 118

S. Ct. at 1222.

- 9 - During its following term, the Supreme Court construed

the federal carjacking statute providing for an enhanced sentence

if serious bodily injury occurred during the commission of the

offense in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d

311, 119 S. Ct. 1215 (1999). There, the defendant was charged

with and found guilty of carjacking. Jones, 526 U.S. at 230, 143

L. Ed. 2d at 318, 119 S. Ct. at 1218. The issue of serious

bodily harm was not alleged in the indictment or tried to the

jury. Jones, 526 U.S. at 230-31, 143 L. Ed. 2d at 318, 119 S.

Ct. at 1218. At the sentencing hearing, the district court found

by a preponderance of the evidence that a victim had suffered

serious bodily injury and sentenced defendant to 25 years in

prison, which included a 10-year enhancement. Jones, 526 U.S. at

231, 143 L. Ed. 2d at 318, 119 S. Ct. at 1218.

The Supreme Court found "serious bodily harm" consti-

tuted an element of the offense that must be submitted to a jury

for verdict. Jones, 526 U.S. at 239, 143 L. Ed. 2d at 324, 119

S. Ct. at 1222. The Jones majority rejected the dissenting

justices' arguments that Almendarez-Torres "stood for the broad

proposition that any fact increasing the maximum permissible

punishment may be determined by a judge by a preponderance" and

would therefore be dispositive of the issues before the Court.

Jones, 526 U.S. at 249 n.10, 143 L Ed. 2d 330 n.10, 119 S. Ct. at

1227 n.10. Instead, the Court stated Almendarez-Torres "stands

for the proposition that not every fact expanding a penalty range

must be stated in a felony indictment, the precise holding being

- 10 - that recidivism increasing the maximum penalty need not be so

charged." Jones, 526 U.S. at 248, 143 L. Ed. 2d at 329, 119 S.

Ct. at 1226-27. In noting the history of treating recidivism as

a sentencing factor, the Court stated that "unlike virtually any

other consideration used to enlarge the possible penalty for an

offense ***, a prior conviction must itself have been established

through procedures satisfying the fair notice, reasonable doubt,

and jury trial guarantees." Jones, 526 U.S. at 249, 143 L. Ed.

2d at 329-30, 119 S. Ct. at 1227.

A year later in Apprendi, 530 U.S. at 469, 147 L. Ed.

2d at 442, 120 S. Ct. at 2351, the defendant in that case fired

several shots into the home of an African-American family and

later admitted being the shooter. During police questioning, he

gave a statement, which he later retracted, that he fired the

shots because of the family's race and that he did not want them

in the neighborhood. Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at

442, 120 S. Ct. at 2351. The defendant was charged with various

offenses, but none of the counts mentioned the state hate-crime

statute or alleged he acted with a racially biased purpose.

Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at 442, 120 S. Ct. at

2352. The defendant pleaded guilty to two counts of illegal

possession of a firearm and bomb possession. Apprendi, 530 U.S.

at 469-70, 147 L. Ed. 2d at 442, 120 S. Ct. at 2352. At an

evidentiary hearing, the trial court found by a preponderance of

the evidence that the defendant acted with a racially biased

purpose and sentenced him to an enhanced 12-year term on the

- 11 - firearm-possession counts. Apprendi, 530 U.S. at 471, 147 L. Ed.

2d at 443, 120 S. Ct. at 2352.

The Supreme Court found the trial court's enhancement

amounted to "an unacceptable departure from the jury tradition

that is an indispensable part of our criminal justice system."

Apprendi, 530 U.S. at 497, 147 L. Ed. 2d at 459, 120 S. Ct. at

2366. The Court held the fifth and fourteenth amendments to the

United States Constitution (U.S. Const., amends. V, XIV) required

that, "[o]ther 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 reason-

able doubt." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455,

120 S. Ct. at 2362-63.

The Supreme Court revisited issues raised by Apprendi

in Shepard. In that case, the defendant pleaded guilty to

unlawful possession of a firearm by a felon. Shepard, 544 U.S.

at 16, 161 L. Ed. 2d at 211, 125 S. Ct. at 1257. At the sentenc-

ing hearing, the government argued the defendant's sentence

should be extended pursuant to the Armed Career Criminal Act of

1984 (ACCA) (18 U.S.C. §924(e) (2000)). Shepard, 544 U.S. at 16,

161 L. Ed. 2d at 211-12, 125 S. Ct. at 1257. Under federal law,

the ACCA provided for extended prison terms for defendants who

had been convicted of three prior serious drug offenses or

violent felonies. 18 U.S.C. §924(e) (2000). Under the ACCA, a

burglary committed in an enclosed space or building, a so-called

"generic burglary," qualified as a violent felony but a burglary

- 12 - committed in a boat or motor vehicle did not. Shepard, 544 U.S.

at 15-16, 161 L. Ed. 2d at 211, 125 S. Ct. at 1257. On four

previous occasions, the defendant had pleaded guilty to burglary

in Massachusetts, but the state statutes did not differentiate

between generic burglary and burglary committed in a boat or

motor vehicle. Shepard, 544 U.S. at 17, 161 L. Ed. 2d at 212,

125 S. Ct. at 1258.

The Supreme Court stated the issue centered on "whether

a sentencing court can look to police reports or complaint

applications to determine whether an earlier guilty plea neces-

sarily admitted, and supported a conviction for, generic bur-

glary." Shepard, 544 U.S. at 16, 161 L. Ed. 2d at 211, 125 S.

Ct. at 1257. Writing for a plurality of the Court, Justice

Souter noted the record was silent on whether the defendant's

prior convictions were generic burglaries as the defendant did

not admit the generic fact in a plea agreement or recorded

colloquy. Shepard, 544 U.S. at 25, 161 L. Ed. 2d at 217, 125 S.

Ct. at 1262. Justice Souter continued by stating:

"[T]he Sixth and Fourteenth Amendments

guarantee a jury standing between a defendant

and the power of the State, and they guaran-

tee a jury's finding of any disputed fact

essential to increase the ceiling of a poten-

tial sentence. While the disputed fact here

can be described as a fact about a prior

conviction, it is too far removed from the

- 13 - conclusive significance of a prior judicial

record, and too much like the findings sub-

ject to Jones and Apprendi, to say that

Almendarez-Torres clearly authorizes a judge

to resolve the dispute." Shepard, 544 U.S.

at 25, 161 L. Ed. 2d at 217, 125 S. Ct. at

1262.

The plurality concluded as follows:

"[E]nquiry under the ACCA to determine

whether a plea of guilty to burglary defined

by a nongeneric statute necessarily admitted

elements of the generic offense is limited to

the terms of the charging document, the terms

of a plea agreement or transcript of colloquy

between judge and defendant in which the

factual basis for the plea was confirmed by

the defendant, or to some comparable judicial

record of this information." Shepard, 544

U.S. at 26, 161 L. Ed. 2d at 218, 125 S. Ct.

at 1263.

Numerous Illinois courts have found section 33B-1

constitutional as it falls within the recidivism exception to the

rule set forth in Apprendi. See People v. Ligon, 365 Ill. App.

3d 109, 126, 847 N.E.2d 763, 769 (2006); People v. Allen, 335

Ill. App. 3d 773, 785, 780 N.E.2d 1133, 1143 (2002); People v.

Jones, 328 Ill. App. 3d 233, 243, 764 N.E.2d 1232, 1239-40

- 14 - (2002). Illinois courts have also found the Apprendi recidivism

exception remains valid after Shepard. See People v. Johnson,

372 Ill. App. 3d 772, 781, 867 N.E.2d 49, 56 (2007) (recidivism

exception articulated in Apprendi remains viable after Shepard);

People v. Yancey, 368 Ill. App. 3d 381, 393, 858 N.E.2d 454, 464

(2005); Ligon, 365 Ill. App. 3d at 127, 847 N.E.2d at 780.

Defendant argues section 33B-1(c) unconstitutionally

increased his Class X felony sentence to one of mandatory life

imprisonment based on facts that are, as in Shepard, "too far

removed" from the fact of a prior conviction, i.e., that his two

prior convictions did not "result from" and are not "connected

with" the same transaction. See 720 ILCS 5/33B-1(c) (West 2006).

In support of his argument, defendant relies on the Seventh

Circuit's decision in United States v. Ngo, 406 F.3d 839 (7th

Cir. 2005).

There, a jury found the defendant guilty of (1) con-

spiracy to distribute and to possess with intent to distribute

methamphetamine and (2) distributing methamphetamine. Ngo, 406

F.3d at 840. The presentence investigation recommended the

defendant be sentenced as a career offender based on his two

prior armed-robbery convictions. Ngo, 406 F.3d at 841. The

defendant, however, argued he was not a career offender because

his armed-robbery convictions were "related" and only counted as

one prior conviction. Ngo, 406 F.3d at 841. The district court

found the defendant's prior convictions were not "part of a

common scheme or plan," thereby subjecting him to sentencing as a

- 15 - career offender. Ngo, 406 F.3d at 841.

On appeal, the defendant argued the district court's

finding that his prior convictions were unrelated "exceeded the

judicial fact[-]finding exception for recidivism recognized in

Almendarez-Torres [citation], and preserved in Apprendi." Ngo,

406 F.3d at 841. The Seventh Circuit acknowledged the

Almendarez-Torres exception was still viable after Shepard but

stated the exception "is quite narrow." Ngo, 406 F.3d at 842.

The Seventh Circuit found the Shepard plurality "suggest[ed] that

the recidivism exception exempts only those findings traceable to

a prior judicial record of 'conclusive significance.'" Ngo, 406

F.3d at 842.

In finding the defendant a career offender, the dis-

trict court had looked to the fact the robberies took place 10

days apart as well as to the type of establishment burglarized.

The Seventh Circuit, however, concluded the district court's

findings were "determined by resorting to sources of information

without the 'conclusive significance' of a prior judicial record"

and were not authorized by the Supreme Court's ruling in

Almendarez-Torres. Ngo, 406 F.3d at 843. Accordingly, the

defendant's sentence was in violation of the sixth amendment as

it was "based upon impermissible fact[-]finding." Ngo, 406 F.3d

at 844.

We find Ngo distinguishable from the facts presented in

this case. Our supreme court has stated the Act requires convic-

tions on "three temporally separate Class X offenses." Palmer,

- 16 - 218 Ill. 2d at 155, 843 N.E.2d at 296. The Act states multiple

convictions will only be counted as a single conviction if they

"result from or are connected with the same transaction." 720

ILCS 5/33B-1(c) (West 2006). The determination of whether the

convictions are connected can be made from sources of information

bearing the "conclusive significance of a prior judicial record."

Shepard, 544 U.S. at 25, 161 L. Ed. 2d at 217, 125 S. Ct. at

1262. Moreover, that determination bears little difference here

to the determination of the timing and sequence of a defendant's

prior convictions, which have been held to be within the purview

of the trial court. See Ligon, 365 Ill. App. 3d at 127-28, 847

N.E.2d at 780 (section 33B-1 is constitutional "because the

timing and sequence of a defendant's prior convictions are

inherent in the convictions themselves and need not be submitted

to a jury").

The fact that defendant's first two armed-robbery

convictions were not connected with the same transaction is clear

from the record. Defendant was first convicted of armed robbery

in 1990, and he was sentenced to nine years in prison. Defen-

dant's second conviction for armed robbery occurred in 1995.

Defendant's intervening stay as a guest of the government clearly

shows his convictions met the requirements of section 33B-1 of

the Act. That the qualifying offenses here were not part of the

same transaction is inherent in the convictions themselves and

not like a finding of serious bodily harm, as in Jones, or a

racially biased purpose, as in Apprendi, that would require a

- 17 - determination by a jury of defendant's peers.

We find support for this conclusion in United States v.

Thompson, 421 F.3d 278 (4th Cir. 2005), cited by the State on

appeal. There, the defendant pleaded guilty to unlawful posses-

sion of firearms. Thompson, 421 F.3d at 280. Under the ACCA, a

defendant is subject to a minimum 15-year prison term if he has

at least three prior violent felony convictions that were "'com-

mitted on occasions different from one another.'" Thompson, 421

F.3d at 280, quoting 18 U.S.C. §924(e)(1) (2000). The district

court found the conditions applied and sentenced the defendant to

15 years in prison. Thompson, 421 F.3d at 280.

On appeal, the defendant argued his rights under the

sixth amendment were violated when the district court, not a jury

or by his own admission, found his violent felonies were commit-

ted on separate occasions. Thompson, 421 F.3d at 280-81. The

Fourth Circuit, citing Shepard, found "the 'fact of a prior

conviction' remains a valid enhancement even when not found by

the jury." Thompson, 421 F.3d at 282.

In looking at whether the applicable offenses were

committed on different occasions, the court of appeals noted

"'occasions' are 'those predicate offenses that can be isolated

with a beginning and an end--ones that constitute an occurrence

unto themselves.'" Thompson, 421 F.3d at 285, quoting United

States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995). In

looking at the presentence report, the court found the defen-

dant's burglaries were committed on different occasions as they

- 18 - occurred "on distinct days in separate towns in different homes."

Thompson, 421 F.3d at 285. As a matter of common sense, conclud-

ing the offenses occurred on separate occasions could not be seen

"to represent impermissible judicial factfinding." Thompson, 421

F.3d at 285. Instead, "[t]he data necessary to determine the

'separateness' of the occasions is inherent in the fact of the

prior convictions." Thompson, 421 F.3d at 285. That determi-

nation can be made with "data normally found in conclusive

judicial records." Thompson, 421 F.3d at 286.

Likewise, in the case sub judice, whether defendant's

convictions were connected with the same transaction is readily

ascertainable from conclusive judicial records. In looking at

the charging documents and the docket sheets, we note defendant's

first two armed robberies were committed over five years apart

and were separated by a prison sentence imposed following the

first conviction. Our conclusion that defendant's convictions

were not connected cannot be seen as impermissible judicial fact

finding as the separate nature of the offenses is readily appar-

ent from the State's certified copies of the convictions. No

other conclusion can be had. We also note defendant offers

nothing to support a claim the convictions were related.

Here, defendant's criminal history included convictions

on three Class X felonies. Defendant's second offense was

committed after his first conviction. He committed his third

offense after the conviction for his second offense, and the

third offense occurred within 20 years of the date of judgment on

- 19 - his first conviction. Moreover, the three convictions neither

resulted from nor were connected with the same transaction and

were not committed at the same time. Defendant's convictions

thereby satisfied the requirements of section 33B-1 of the Act.

Under these facts, we find the trial court's sentencing defendant

to a life term as an habitual offender under the Act did not

violate defendant's constitutional rights.

III. CONCLUSION

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

judgment. As part of our judgment, we award the State its $50

statutory assessment against defendant as costs of this appeal.

Affirmed.

McCULLOUGH and MYERSCOUGH, JJ., concur.

- 20 -