63 Ill.2d 134, 140-41. Thereafter, in People ex rel. Carey v. Pincham (1979), 76 Ill.2d 478, this court was called upon to consider whether the circuit court had authority to order a bifurcated trial in a prosecution for felonious unlawful use of weapons. In that case, as in the case at bar, counsel for the defendant objected to the jury being informed as to defendant's prior conviction and incarceration, as well as to the admission of any evidence on these matters.
As previously stated, the legislature has chosen to make a prior felony conviction an element of the offense of UUW by a felon ( 720 ILCS 5/24-1.1(a) (West 2004)), and therefore a bifurcated trial in this case is unnecessary. Further support for our conclusion is found in People ex rel. Carey v. Pincham, 76 Ill. 2d 478, 479 (1979). In Pincham, the defendant was charged with unlawful use of a weapon within five years following his release from the penitentiary on a felony charge.
The Illinois Supreme Court has explicitly rejected the use of a bifurcated proceeding in circumstances similar to those of the case at bar. ( People ex rel. Carey v. Pincham (1979), 76 Ill.2d 478, 394 N.E.2d 1043.) In Pincham, the supreme court said:
In Palmer the court reaffirmed a long line of cases holding, under a similar statutory scheme, that in order to obtain a conviction for the felony offense of unlawful use of weapons the State must both allege and prove the prior conviction during the evidentiary phase of trial. See People v. Ostrand (1966), 35 Ill.2d 520, 529, overruled in part on other grounds, People v. Bracey (1972), 51 Ill.2d 514; People v. Owens (1967), 37 Ill.2d 131, 132; People v. Edwards (1976), 63 Ill.2d 134, 138; People ex rel. Carey v. Pincham (1979), 76 Ill.2d 478, 480. See also Spencer v. Texas (1967), 385 U.S. 554, 17 L.Ed.2d 606, 87 S.Ct. 648 (recidivist statutes which provide that proof of prior conviction be introduced and proved during the guilt or innocence phase of trial do not offend due process.
However, on remand defendant should be sentenced for a Class A misdemeanor, rather than a Class 3 felony, because the fact of defendant's felony conviction was not presented to the jury. This determination is consistent with the supreme court's holding in People ex rel. Carey v. Pincham (1979), 76 Ill.2d 478. In Pincham, the Illinois Supreme Court, on the State's petition for a writ of mandamus, vacated the circuit court's order for a bifurcated trial.
2001) ; People ex rel. Daley v. Fitzgerald, 123 Ill.2d 175, 121 Ill.Dec. 937, 526 N.E.2d 131 (1988) ; People ex rel. Daley v. Strayhorn, 121 Ill.2d 470, 118 Ill.Dec. 387, 521 N.E.2d 864 (1988) ; People ex rel. Daley v. Suria, 112 Ill.2d 26, 96 Ill.Dec. 83, 490 N.E.2d 1288 (1986) ; People ex rel. Daley v. Moran, 94 Ill.2d 41, 67 Ill.Dec. 790, 445 N.E.2d 270 (1983) ; People ex rel. Daley v. Schreier, 92 Ill.2d 271, 65 Ill.Dec. 874, 442 N.E.2d 185 (1982) : People ex rel. Daley v. Limperis, 86 Ill.2d 459, 56 Ill.Dec. 666, 427 N.E.2d 1212 (1981) ; People ex rel. Carey v. Scotillo, 84 Ill.2d 170, 49 Ill.Dec. 342, 417 N.E.2d 1356 (1981) ; People ex rel. Carey v. Bentivenga, 83 Ill.2d 537, 48 Ill.Dec. 228, 416 N.E.2d 259 (1981) ; People ex rel. Carey v. Chrastka, 83 Ill.2d 67, 46 Ill.Dec. 156, 413 N.E.2d 1269 (1980) ; People ex rel. Carey v. Collins, 81 Ill.2d 118, 39 Ill.Dec. 795, 405 N.E.2d 774 (1980) ; People ex rel. Carey v. Cousins, 77 Ill.2d 531, 34 Ill.Dec. 137, 397 N.E.2d 809 (1979) ; People ex rel. Carey v. Pincham, 76 Ill.2d 478, 31 Ill.Dec. 725, 394 N.E.2d 1043 (1979) ; People ex rel. Carey v. Rosin, 75 Ill.2d 151, 25 Ill.Dec. 816, 387 N.E.2d 692 (1979) ; People ex rel. Bowman v. Woodward, 63 Ill.2d 382, 349 N.E.2d 57 (1976) ; People ex rel. Carey v. Covelli, 61 Ill.2d 394, 336 N.E.2d 759 (1975) ; People ex rel. Carey v. Power, 59 Ill.2d 569, 322 N.E.2d 476 (1975) ; People ex rel. Bowman v. Woodward, 61 Ill.2d 231, 335 N.E.2d 433 (1974) ; People ex rel. Ward v. Moran, 54 Ill.2d 552, 301 N.E.2d 300 (1973) ; People ex rel. Hanrahan v. Power, 54 Ill.2d 154, 295 N.E.2d 472 (1973) ; People ex rel. Sears v. Romiti, 50 Ill.2d 51, 277 N.E.2d 705 (1971) ; People ex rel. Hollis v. Chamberlain, 49 Ill.2d 403, 273 N.E.2d 835 (1971) ; People ex rel. Hanrahan v. Felt, 48 Ill.2d 171, 269 N.E.2d 1 (1971) ; People ex rel. Stamos v. Jones, 40 Ill.2d 62, 237 N.E.2d 495 (1968) ; People ex rel. Ward v. Salter, 28 Ill.2d 612, 192 N.E.2d 882 (1963) ; People ex rel. Adamowski v. Dougherty, 19 Ill.2d 393, 167 N.E.2d 181 (1960) ; People ex rel. Swanson v. Fisher, 340 Ill. 2
Illinois courts have also rejected the assertion that the United States and Illinois Constitutions require a prior felony conviction to be admitted as evidence in a bifurcated proceeding only after the jury has otherwise determined the defendant's guilt. People v. Johnson, 27 Ill. App. 3d 1047, 1051-52 (1975); see also People ex rel. Carey v. Pincham, 76 Ill. 2d 478 (1979) (trial court was not authorized to conduct a bifurcated trial on felonious unlawful use of a weapon, at which the jury would determine whether the defendant possessed a gun before hearing evidence of the prior conviction); but see Lathon, 317 Ill. App. 3d at 586-87 (in upholding a recidivist sentencing enhancement, the court observed that putting sentencing factors before a jury would "inevitably interject against the defendant highly prejudicial evidence during the trial" and "raise questions for the defense including issues of jury bifurcation"). We further observe that although recently Supreme Court Rule 451(g) was enacted to permit a bifurcated trial, that rule applies only where an enhanced sentence is imposed under section 111-3(c-5) of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/111-3(c-5) (West 2004)), and not where the legislature has made particular facts elements of the offense.
The State points out that such a procedure is not consistent with supreme court precedent in our state. See People ex rel. Carey v. Pincham, 76 Ill. 2d 478, 479-80, 394 N.E.2d 1043, 1044 (1979). Essentially, defendant's argument is supported by reference to statutes and case laws addressing sentencing factors.
People v. Forcum, 344 Ill. App. 3d 427, 439 (2003) (rejecting defendant's argument that the wanton cruelty, extended-term sentencing issue could have been submitted to the jury in a bifurcated approach after the defendant had been found guilty of murder). See also People ex rel. Carey v. Pincham, 76 Ill. 2d 478, 479-80 (1979) (where defendant was charged with unlawful use of a weapon within five years of a release from prison on a felony charge, the trial court could not bifurcate the trial to have the jury determine guilt first and then consider proof of aggravating circumstances); People v. White, 241 Ill. App. 3d 291, 301 (1993) (applying the Hicks rationale to hold that the State must prove to the jury beyond a reasonable doubt during the evidentiary phase of the trial the fact that the victim was over 60 years of age to raise the degree of the robbery conviction from a Class 2 felony to a Class 1). The trial court properly denied defendant's motion for a bifurcated jury trial on the issue of guilt and bench trial on the issue of wanton cruelty. Accordingly, we affirm the judgment of the trial court.
The defendant argues that the State did not prove beyond a reasonable doubt the prior-felony element necessary for a felony conviction. In support of his argument, the defendant cites a number of cases, including People v. Ostrand (1966), 35 Ill.2d 520, 221 N.E.2d 499, People v. Owens (1967), 37 Ill.2d 131, 225 N.E.2d 15, People v. Edwards (1976), 63 Ill.2d 134, 345 N.E.2d 496, People ex rel. Carey v. Pincham (1979), 76 Ill.2d 478, 394 N.E.2d 1043, and People v. Palmer (1984), 104 Ill.2d 340, 472 N.E.2d 795. In that line of cases, beginning with Ostrand and reaffirmed most recently in Palmer, the supreme court has uniformly held that it is proper to introduce, during the evidentiary stage of trial, evidence of prior convictions that serve to increase the degree of the offense of unlawful use of weapons.