People v. Lampley ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Lampley, 2011 IL App (1st) 090661-BAppellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption BRUCE LAMPLEY, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-09-0661
Filed December 14, 2011
Held Defendant’s sentence to 14 years’ imprisonment as a Class X offender for
(Note: This syllabus burglary was upheld over his contentions that the trial court interfered
constitutes no part of with his right to testify by deferring its ruling on his motion in limine to
the opinion of the court bar evidence of his prior convictions, failed to properly question
but has been prepared prospective jurors about the Zehr principles, imposed an excessive
by the Reporter of sentence, and imposed a three-year term of mandatory supervised release
Decisions for the rather than a two-year term, since any error in delaying a ruling on
convenience of the defendant’s motion was harmless beyond a reasonable doubt, the failure
reader.)
to comply with Supreme Court Rule 431(b) was not reversible error,
defendant’s sentence was not an abuse of discretion, and the MSR term
for Class X offenses attached to the sentence imposed on defendant.
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-24455; the
Review Hon. Michael Brown, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Patricia Unsinn, and Jessica Wynne Arizo, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Carol
L. Gaines, and Molly E. Donnelly, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE MURPHY delivered the judgment of the court, with opinion.
Justices Quinn and Steele concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Bruce Lampley, was found guilty of burglary (720 ILCS
5/19-1 (West 2006)). Based on his criminal history, and pursuant to the Unified Code of
Corrections (730 ILCS 5/5-5-3(c)(8) (West 2006)), defendant was sentenced as a Class X
offender to 14 years’ imprisonment. On appeal, defendant contends that: (1) the trial court
interfered with his right to testify when it deferred ruling on his motion in limine to bar the
introduction of his prior convictions; (2) the trial court failed to properly question potential
jurors as to whether they understood and accepted the principles outlined in People v. Zehr,
103 Ill. 2d 472 (1984), and Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1,
1997)); (3) the trial court imposed an excessive sentence; and (4) the trial court erred in
imposing a three-year term of mandatory supervised release (MSR) instead of a two-year
term as required for Class 2 felonies.
¶2 Our supreme court entered a supervisory order directing this court to vacate our prior
holding and reconsider the judgment in light of People v. Mullins, 242 Ill. 2d 1 (2011). That
judgment was vacated. For the following reasons, we affirm defendant’s convictions and
sentence.
¶3 I. BACKGROUND
¶4 Defendant was arrested on November 12, 2007, for burglary and possession of burglary
tools. Defendant elected to proceed to a jury trial on the charges. The State moved to nol-pros
the possession of burglary tools charge and proceeded to trial on the one count of burglary.
During jury selection, when the venire was brought into the courtroom, the trial court
admonished the entire panel on several concepts and principles of law. In particular, prior
to swearing in and questioning the venire, the trial court advised:
“In other words, the expression ‘where there’s smoke, there’s fire’ has no place in a
court of law.
In fact, under our law a defendant is presumed to be innocent of the charges against
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him in the indictment.
This presumption of innocence remains with the defendant throughout every stage
of the trial and during your deliberations on a verdict. It must be kept in your mind at all
times during the presentation of evidence.
This presumption of innocence is not overcome unless from all of the evidence in the
case you are convinced beyond a reasonable doubt that the defendant is guilty.
The defendant is not required to prove his innocence, nor is he required to testify or
present any evidence whatsoever on his behalf.
The State has the burden of proving the guilt of the defendant beyond a reasonable
doubt, and this burden remains on the State throughout every stage of the trial and during
your deliberations on a verdict.”
¶5 Following a lunch break, the jury panel was sworn and questioning of the venire began.
The trial court immediately proceeded by asking “four questions of all of you at the same
time.” The court requested that the prospective jurors stand if their answers to any of the
questions were in the affirmative. The trial court asked the venire if they knew any of the
parties or attorneys involved and whether they were currently involved in any litigation. After
excusing two prospective jurors involved in litigation, the trial court continued to query the
venire as follows:
“Folks, the third question is this: As I have previously stated, the defendant is
presumed innocent and does not have to offer any evidence on his own behalf but must
be proven guilty beyond a reasonable doubt by the State.
Does anyone here have any problems with those concepts? If so, please stand up?
***
Folks, the fourth and final question for you is this: As I have also previously stated,
the defendant does not have to testify on his own behalf.
If the defendant decides not to testify, you must not hold that decision against the
defendant.
If the defendant decides not to testify, is there anyone here who believes that,
regardless of what I have just said, you would hold that decision against the defendant?
If so, please stand up.
Let the record reflect that no one has stood up.”
¶6 The jury was selected and sent home to return the next day for trial. Before the jury was
called, the trial court considered defendant’s motion in limine to bar the use of evidence of
defendant’s five prior convictions for burglary to impeach his credibility. The trial court
stated that it would enter and continue the motion until the close of the State’s case, because
at that point a prior ruling would be “advisory” and was not warranted.
¶7 The State presented the testimony of Sharon Handelsman. Handelsman, a resident
physician, testified that on the morning of November 12, 2007, she parked her 1996 Geo
Prism in the Rush Presbyterian Hospital parking garage. After parking, she placed her purse
in the trunk of her car and closed and locked the trunk and doors of her car before going into
the hospital to work her shift. Handelsman testified that she returned to her vehicle at
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approximately 4:30 p.m. and could not open the trunk of her car with her key. She entered
her car, opened the trunk with the latch release inside her car, and retrieved her purse from
the trunk. She then discovered that her cell phone and wallet (containing her driver’s license,
cash and credit cards) were missing.
¶8 Handelsman testified that she drove toward the exit and asked the parking attendant to
notify the security office that those items were missing from her purse. She spoke with a
security officer and parked her vehicle at the side of the parking garage. Handelsman was
escorted to the security office, where the officers showed her the items that were stolen. She
then left the garage, leaving her car there for security to investigate.
¶9 Dennis Garden, a security guard at the parking garage testified that at 4:35 p.m. on
November 12, 2007, he saw a man he identified as defendant carrying a backpack and exiting
the parking garage. Defendant walked west on West Harrison Street and continued to walk
when Garden called for him to stop. Garden called the dispatcher to report defendant’s
appearance and location.
¶ 10 Edward Altman, another security officer at the parking garage, testified that he saw
defendant, who matched the description given by Garden, crossing West Harrison Street.
Altman stopped defendant at the northwest corner of the intersection of West Harrison Street
and South Wood Street. Altman testified that when he asked to look in defendant’s backpack,
defendant allowed him to do so. Altman found women’s jewelry and a half-open wallet that
displayed a white woman’s driver’s license. Altman testified that other officers arrived on
the scene and he then placed defendant in custody and handcuffed him. Altman patted down
defendant and discovered a razor knife in his pocket. At the security office, the officers also
discovered a camera, a CD player, cellular phone, screwdriver, and CDs in defendant’s bag.
¶ 11 Altman testified that the driver’s license in the bag belonged to Handelsman. Handelsman
arrived later at the security office and identified the wallet and cellular phone as hers. She
stated that the items had been taken that day from the trunk of her car. Altman testified that
the security officers contacted Chicago police.
¶ 12 The State also presented evidence concerning a fingerprint lift taken from the trunk of
Handelsman’s car on November 12, 2007. The latent fingerprint was compared with a known
fingerprint standard of defendant. The ridge details of the two fingerprints were found to be
a match. Additionally, a videotape taken from the parking garage video surveillance system
was offered into evidence. The video depicted an African-American man wearing a baseball
cap and backpack walk toward Handelsman’s car, open the trunk, enter the trunk, stand up
with his backpack and walk away from the vehicle. Later, the videotape showed a white
female approach the vehicle, have difficulty opening the trunk, and then pop the trunk from
inside the vehicle. Due to the grainy quality of the image, no positive identification could be
made with the video.
¶ 13 The State rested and defendant moved for a directed verdict. The trial court denied the
motion and considered defendant’s motion in limine to bar the introduction of prior
convictions. The State indicated that, if defendant took the stand, it would seek to introduce
evidence of defendant’s 2001 conviction for burglary in order for the jury to properly weigh
defendant’s credibility. The trial court rejected defendant’s argument that evidence of the
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conviction was too prejudicial and denied the motion. The court recognized the prejudicial
impact as the prior conviction was for the same kind of crime, but since it occurred within
10 years and had probative value as a crime of dishonesty, the use of proper jury instructions
could minimize that prejudice.
¶ 14 Defendant chose to testify. Defendant testified that he was homeless and on November
11, 2007, he had slept at the Rush Presbyterian Hospital parking garage and as he was
leaving the garage, defendant found a wallet and cellular telephone on the ground. Defendant
put them in his backpack, which already contained DVD movies, CDs, earrings, a Palm Pilot,
a Nikon camera, watches and other items. As he left, defendant passed one officer and then
another officer. The second officer stopped him and asked to look into his backpack.
Defendant testified he was taken into custody and eventually transported to the police station
about 1.5 hours later.
¶ 15 Defendant testified that when he arrived at the police station, a uniformed police officer
driving a gold GMC vehicle pulled up next to the squad car that he was in. The officer got
out of the car, walked to the trunk and removed defendant’s backpack. Defendant testified
that he was let out of the squad car and he and the two other officers stood at the rear of the
gold GMC talking. While they talked, defendant leaned against the GMC vehicle. Defendant
denied stealing the wallet and cellular phone.
¶ 16 On rebuttal, the State presented the testimony of Officer Donald Verdon. Verdon testified
that he drove Handelsman’s car to the police station and parked 50 to 60 feet from the squad
car containing defendant. Verdon testified that when he arrived, defendant had already been
escorted into the police station. Verdon further testified that defendant did not touch the
trunk of Handelsman’s vehicle at any time in his presence.
¶ 17 The jury found defendant guilty. Defendant filed a motion for new trial, the motion was
denied, and defendant was sentenced. The parties offered arguments in aggravation and
mitigation. The State cited to defendant’s extensive history of burglary convictions and lack
of rehabilitation despite years in prison and a lack of truthfulness in his postsentence
investigation interview where he denied a past drug problem. The State sought the mid to
upper range of the statutory provision for Class X felonies of 6 to 30 years. Defendant
conceded that he was eligible to be sentenced as a Class X felon, but argued in mitigation
that his current conviction was not for an act of violence and that his prior convictions were
almost all over 10 years old. The trial court considered the factors and sentenced defendant
to 14 years’ imprisonment. Defendant filed a motion to reconsider sentence, which was
denied, and this appeal followed.
¶ 18 II. ANALYSIS
¶ 19 A. Defendant’s Montgomery Motion
¶ 20 Defendant first argues that the trial court erred when it deferred ruling on his motion in
limine seeking to bar the State from introducing his 2001 conviction for burglary for
purposes of impeachment. The trial court did not conduct the balancing test pursuant to
People v. Montgomery, 47 Ill. 2d 510, 516 (1971), until after the State rested its case.
Defendant did not include this issue in his posttrial motion and the State argues that this issue
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was not preserved for review. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Defendant argues
that his claim should be considered under plain-error review. People v. Herron, 215 Ill. 2d
167, 186-87 (2005).
¶ 21 The plain-error doctrine allows a reviewing court to review an unpreserved error when
either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is
serious, regardless of the closeness of the evidence. Id. Under the first prong, the defendant
must show that the evidence at trial was so closely balanced that the error alone “threatened
to tip the scales of justice against him.” Id. at 187. For the second prong, the defendant must
prove that the error was so serious that it affected the fairness of the trial and questions the
integrity of the judicial process. Id. at 187.
¶ 22 We first must determine whether the trial court committed any error at all. Defendant
argues that the trial court’s decision to defer ruling on his motion in limine limited his ability
to proactively deal with his prior convictions during opening arguments. Furthermore,
defendant argues that his credibility was absolutely crucial to his case. His presentation of
the facts–that he simply found the wallet and cell phone–was diametrically opposed to the
State’s theory of what happened. Therefore, defendant contends that establishing his
credibility was essential and required ruling on his motion at the earliest possible moment.
¶ 23 Defendant argues that People v. Patrick, 233 Ill. 2d 62 (2009), holds that when a trial
court has sufficient information but fails to make a ruling on a motion in limine concerning
the admissibility of prior convictions, it commits reversible error. In Patrick, the trial court
followed a blanket policy in every criminal case in refusing to rule on the defendant’s motion
in limine on the admissibility of prior convictions until after the defendant testified. Id. at 74.
Our supreme court found that the defendant was unjustifiably required to make a tactical
decision without the ability to evaluate the impact it would have on his defense, for which
the defendant’s testimony was critical. Id. at 75. Because the trial court’s refusal was not
based on any specific facts, but purely due to the blanket policy, “the trial court abused its
discretion by refusing to exercise any specific discretion.” Id. at 74.
¶ 24 While the trial court in this case did not follow an absolute blanket policy and ruled on
defendant’s motion at the close of the State’s case-in-chief, defendant points to the Patrick
court’s discussion of the impact on a defendant of deferring such a decision. He argues that
he was prejudiced by having to make tactical decisions, such as whether to introduce
evidence of his prior convictions during opening arguments to lessen the prejudicial effect
of them, without the ability to evaluate the impact on his defense. See Id. at 75. Defendant
argues that this court has followed Patrick in cases such as People v. Hogan, 388 Ill. App.
3d 885, 891-94 (2009), and People v. Hernandez, 394 Ill. App. 3d 527, 533 (2009), and
asserts this emerging line of case law supports a finding that the trial court abused its
discretion.
¶ 25 The State responds that Patrick only stands for the proposition that a defendant has a
right to have all of the relevant information before he chooses to exercise his constitutional
right to testify, not after he testifies. The State asserts that the trial court complied with
Patrick by deciding defendant’s motion in limine before defendant decided whether or not
to testify and, therefore, no error was made. The State adds that, in considering the prejudice
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to a defendant in this situation, our supreme court has recently added to this discussion and
consideration of Patrick in People v. Averett, 237 Ill. 2d 1 (2010). Following Patrick, the
Averett court concluded that deferring ruling until after the defendant testified was an abuse
of discretion, but that did not warrant reversal as a violation of defendants’ constitutional
rights to testify because the error was harmless beyond a reasonable doubt. Id. at 18.
¶ 26 As noted above, subsequent to this court’s original opinion, our supreme court issued its
opinion in People v. Mullins, 242 Ill. 2d 1 (2011), which considered Patrick and Averett. The
Mullins court stated that Patrick and Averett recognized that reserving ruling on a motion in
limine to exclude prior convictions for impeachment constitutes an abuse of
discretion–absent “rare cases.” (Internal quotation marks omitted.) Id. at 21. The court
highlighted that Averett clarified Patrick, noting that the reserved-ruling error was serious,
but not structural. As such, automatic reversal is unwarranted and a court of review must
determine whether the error in delaying ruling was harmless beyond a reasonable doubt. Id.
at 22-23. Under this standard, the State has the burden to prove beyond a reasonable doubt
that the error did not affect the outcome of the proceeding. Id. at 23. The reviewing court will
consider: the defendant’s need to testify in order to present a defense; whether the parties
mentioned the defendant’s prior conviction during argument; and the strength of the evidence
against the defendant. Id. at 23-24.
¶ 27 In this case, defendant’s theory of the case was that he found the wallet and cellular
telephone on the ground and that he leaned on Handelsman’s car at the police station, leaving
the fingerprint the police identified as his. This testimony was the only way to present
defendant’s explanation for possessing Handelsman’s wallet and phone. In addition, it was
the only way to try and explain his fingerprint on the vehicle. As for the second factor, the
parties did not improperly raise the argument concerning the defendant’s credibility due to
the fact he had been convicted on a prior occasion.
¶ 28 Most importantly, as argued by the State, the evidence in this case was overwhelming
against defendant. The State presented testimony from the security guards who apprehended
defendant and searched his backpack, as well as testimony from Handelsman, who identified
the stolen items. The surveillance video that showed a man dressed like defendant go into
the trunk of Handelsman’s car was presented, as well as video that corroborated
Handelsman’s testimony that she was unable to access her trunk with her key when she
returned to her car. Evidence of a fingerprint lifted from the trunk of Handelsman’s car that
matched defendant’s prints was also presented. Defendant testified that he found the items
in his backpack, but the State’s evidence rebuts defendant’s theory. If the court’s error were
removed, the result at retrial would have been the same; therefore, the trial court’s error in
delaying ruling was harmless beyond a reasonable doubt.
¶ 29 B. Supreme Court Rule 431(b)
¶ 30 Next, defendant argues that his conviction should be reversed because the trial court did
not properly question prospective jurors about the principles enumerated in People v. Zehr,
103 Ill. 2d 472 (1984), and required pursuant to Supreme Court Rule 431(b) (Ill. S. Ct. R.
431(b)). In Zehr, our supreme court held that “essential to the qualification of jurors in a
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criminal case is that they know” that the defendant: (1) is presumed innocent; (2) is not
required to offer any evidence on his own behalf; (3) must be proved guilty beyond a
reasonable doubt; and (4) may decide not to testify on his own behalf and that cannot be held
against him. Zehr, 103 Ill. 2d at 477. It follows that this qualification must come at the outset
of trial because if a juror has a bias against any of these basic guarantees, an instruction given
at the end of the trial will have little effect. Id. at 477. Rule 431(b) was amended in 2007 to
impose a sua sponte duty on the trial court to question each individual juror as to whether
he or she understands and accepts the Zehr principles. People v. Gilbert, 379 Ill. App. 3d
106, 110 (2008).
¶ 31 The State argues that defendant forfeited this issue by failing to object at trial or raise the
issue in his posttrial motion and defendant again argues that this issue should be considered
under plain-error review. In numerous recent cases, this court has applied the reasoning of
People v. Glasper, 234 Ill. 2d 173 (2009), to the amended version of Rule 431 in concluding
the error at trial was not structural and, therefore, not subject to automatic reversal. See
People v. Magallanes, 397 Ill. App. 3d 72, 94-97 (2009). Our supreme court recently
affirmed this conclusion and held that such an error does not necessarily render a trial
fundamentally unfair or unreliable and does not require automatic reversal. People v.
Thompson, 238 Ill. 2d 598, 611 (2010).
¶ 32 In Thompson, the trial court violated Rule 431(b) in that it failed to question the
prospective jurors on the third principle and whether they accepted the first principle. Id. at
607. While compliance with Rule 431(b) is certainly important, the Thompson court
determined, as in Glasper, that this was not a structural error requiring reversal. Id. at 611.
Since the defendant forfeited appellate review of this issue by failing to object at trial or raise
the issue in his posttrial motion, the court also considered the forfeiture rule and plain-error
doctrine. It concluded that, where there is no compelling reason to relax the forfeiture rule,
such as evidence of a biased jury, the plain-error rule may be followed to allow review of a
defendant’s claim of a 431(b) violation. Id. at 612.
¶ 33 Having determined the trial court erred in failing to comply with Rule 431(b) and the
defendant did not argue that the evidence was closely balanced, the court considered whether
the error was so serious it affected the fairness of the trial. The court noted that the amended
rule does not indicate that compliance is indispensable for a fair trial. Therefore it found that
the holding in Glasper stands and a violation does not implicate a fundamental right or
constitutional protection. Id. at 614-15. Defendant did not present any evidence of jury bias
and therefore failed to meet his burden of showing that the error affected the fairness of his
trial and did not satisfy the second prong of plain-error review. Id. at 615. The court
concluded by declining the defendant’s request for a bright-line rule of reversal for every
violation of Rule 431(b). Id. at 616.
¶ 34 In the instant case, defendant forfeited this issue and has not presented a compelling
reason to relax that rule. Therefore, we first consider whether the trial court erred. Rule
431(b) provides as follows:
“[T]he court shall ask each potential juror, individually or in a group, whether that juror
understands and accepts the following principles: (1) that the defendant is presumed
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innocent of the charge(s) against him or her; (2) that before a defendant can be convicted
the State must prove the defendant guilty beyond a reasonable doubt; (3) that the
defendant is not required to offer any evidence on his or her own behalf; and (4) that the
defendant’s failure to testify cannot be held against him or her; however, no inquiry of
a prospective juror shall be made into the defendant’s failure to testify when the
defendant objects.
The court’s method of inquiry shall provide each juror an opportunity to respond to
specific questions concerning the principles set out in this section.” Ill. S. Ct. R. 431(b).
¶ 35 In this case, the parties agree that the trial court admonished the entire panel on the four
factors. However, defendant argues that it is clear that the trial court failed to comply with
Rule 431(b) as “it is simply not enough to recite the principles and ask a question about
them.” We agree with defendant that this failure to ask more than whether any of the venire
had “any problems with those concepts” was error. The trial court in the instant case
admonished the venire on each of the Zehr principles and asked if the prospective jurors had
“any problems” with the principles. We agree that the trial court should have followed a
straightforward questioning of the Zehr principles as outlined by Rule 431(b) and, as a result,
committed error. Pursuant to Thompson, we do not find that the trial court’s approach
requires automatic reversal; rather, we conduct a plain-error review.
¶ 36 In applying the first prong of the plain-error rule, we have already concluded that the
evidence against defendant was overwhelming and defendant’s argument that the evidence
was closely balanced is rejected. For the second prong, the failure to specifically question
each juror on each individual principle was not so serious to overcome the overwhelming
evidence. The jury was questioned on all four principles. While the trial court could have
done a better job complying with the spirit of Rule 431(b) to assure understanding and
acceptance of each principle, this was not reversible error.
¶ 37 The record indicates that not only were the prospective jurors admonished of the
principles, they were given a clear opportunity to speak. No evidence or questions of bias
were raised by either party regarding any of the jurors. Accordingly, not only was the
evidence overwhelming, but the jury was apprised of the principles, and questioned
sufficiently to elicit comments. There was no error so serious to question the fairness of
defendant’s trial and require reversal.
¶ 38 C. Excessive Sentence
¶ 39 Next, defendant argues that the trial court abused its discretion in sentencing him to a
term of 14 years’ imprisonment. For sentencing issues, we consider whether the trial court
abused its discretion in handing down a sentence. People v. Shaw, 278 Ill. App. 3d 939, 953
(1996). As defendant notes, it is imperative that the trial court carefully consider the personal
history of the defendant and the nature and circumstances of the crime in imposing a
sentence. People v. Maldonado, 240 Ill. App. 3d 470, 485-86 (1992). However, as the
sentencing court is in the best position to analyze these factors as well as the defendant’s
credibility, demeanor, general moral character, mentality, social environments, habits, age,
and potential for rehabilitation, great deference is granted its decision. People v. Ramos, 353
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Ill. App. 3d 133, 137 (2004).
¶ 40 Defendant asserts that this deference is not unfettered and notes this court has not shied
away from reversing a sentence where factors have not been considered, even where the
sentence imposed lies within the statutory guidelines. He cites People v. Steffens, 131 Ill.
App. 3d 141, 151-53 (1985), People v. Center, 198 Ill. App. 3d 1025, 1032-35 (1990), and
People v. Gibbs, 49 Ill. App. 3d 644, 648 (1977). In fact, as highlighted by the Center court,
our constitution mandates balancing of the retributive and rehabilitative purposes of
punishment by considering the nature of the offense with the objective of restoring the
offender to useful citizenship. Center, 198 Ill. App. 3d at 1032-33 (citing Ill. Const. 1970,
art. I, § 11). Nevertheless, where the factors have been considered, it is within the trial
court’s discretion to determine what significance is given to each aggravating and mitigating
factor. People v. Saldivar, 113 Ill. 2d 256, 272 (1986). Unless the sentence is grossly
disproportionate to the nature of the offense committed, the sentence should be affirmed.
People v. Phillips, 265 Ill. App. 3d 438, 449 (1994).
¶ 41 Defendant argues that the trial court ignored several mitigating factors, in particular that
his offense did not involve violence or a threat of harm and the “minimal proceeds” of the
burglary were returned to the victim. He contends that this case is similar to Center, where
the defendant was eligible for sentencing as a Class X offender based on two prior Class 2
felony convictions. Center, 198 Ill. App. 3d at 1032. In Center, the defendant had been
convicted four years’ earlier, at age 19, of the robbery of a bicycle from a 9-year-old boy and
for the burglary of the same laundromat for which his conviction at issue involved.
Defendant was sentenced as a Class X felon to 15 years’ imprisonment with the trial court
stating, without elaboration, that it had considered all the factors raised. Id. at 1034.
¶ 42 This court found the term imposed excessive as it was nine years more than the minimum
for Class X felonies and one year more than the maximum extended sentence for the crime.
The court noted that the circumstances of the offense showed the laundromat was closed, the
defendant was a lookout, no proceeds were obtained, and none of defendant’s convictions
involved or resulted in bodily harm. Furthermore, the court cited to defendant’s personal
background of being raised in a normal home environment, a high school graduate,
employed, and accepted into a firefighter-paramedic training program. Accordingly, the court
concluded that a 15-year sentence did not further the objectives of rehabilitation and
restoration to useful citizenship. Id. at 1035.
¶ 43 In this case, defendant notes that his criminal history, though more extensive than the
defendant’s in Center, is also entirely nonviolent. He notes that his history does not paint the
picture of a dangerous criminal, but of a nonviolent homeless man who erred in breaking into
the trunk of a car. He asserts that this sentence, more than quadruple of his prior sentence,
is excessive and does not serve the purpose of rehabilitation.
¶ 44 We agree with the State that, considering the discretion vested in the trial court, the
factors presented in aggravation and mitigation, and that the sentence imposed falls well
within the statutory guidelines, we do not find the sentence excessive. The State notes that,
where mitigation evidence is before a court, it is presumed that the court considered that
evidence, absent evidence to the contrary. People v. Canet, 218 Ill. App. 3d 855, 864 (1991).
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In handing down the sentence, the trial court stated that it reviewed the evidence before it,
including defendant’s presentence investigation report, which contained the information
defendant uses for support.
¶ 45 It is important to note that defendant’s most recent conviction resulted in a sentence of
four years’ probation; however, that turned into a three-year prison term when defendant
violated the terms of his probation. While the jump from that to a 14-year sentence is large,
based on the information before the trial court, it is not per se excessive. As the trial court
noted, that sentence resulted from defendant’s election to be treated as a drug addict.
Furthermore, unlike Center, defendant had five prior felony convictions and served terms in
prison. The prior convictions were not merely for robbery of a bicycle and a Class 2 burglary.
Defendant is an elementary school dropout with a history of drug issues and five prior
convictions. Based on the record, the trial court did not abuse its discretion in imposing a
sentence well within the statutory guidelines.
¶ 46 D. Defendant’s Term of Mandatory Supervised Release
¶ 47 Finally, defendant argues that the three-year MSR term imposed by the trial court was
in error. Defendant argues that, while his record allowed the trial court to sentence him as
a Class X offender, he contends that he committed a Class 2 offense that requires only a two-
year term of MSR. Defendant contends that the three-year term imposed is void. Defendant
contends that our supreme court’s reasoning in People v. Pullen, 192 Ill. 2d 36 (2000),
requires correction of the mittimus to reflect the proper MSR term of two years. We disagree
with defendant’s application of Pullen and agree with the State that defendant was properly
sentenced.
¶ 48 In Pullen, because of his prior convictions, the defendant was sentenced as a Class X
offender following his negotiated plea of guilty to five counts of burglary. Defendant’s
sentence resulted in an aggregate term of 30 years’ imprisonment, two years’ greater than the
sum of maximum permissible extended-term sentences for two Class 2 offenses. Id. at 42-43.
There was no dispute that the defendant was to be sentenced as a Class X offender, but the
issue was whether the maximum was the sum of the maximum permissible extended-term
sentences for Class X or Class 2 offenses. The Pullen court concluded that the offense was
explicitly defined as a Class 2 felony and the character and classification of those offenses
remained, regardless of whether the defendant was subject to the sentence enhancement or
not. Therefore, since the sentence imposed exceeded the maximum aggregate term for Class
2 felonies, the sentence was void. Id. at 46.
¶ 49 Unlike in Pullen, this case does not involve the character and classification of the
convictions. This case is in line with the decisions of this court on this issue. See People v.
Anderson, 272 Ill. App. 3d 537 (1995); People v. Smart, 311 Ill. App. 3d 415 (2000); People
v. Watkins, 387 Ill. App. 3d 764 (2009); People v. Lee, 397 Ill. App. 3d 1067 (2010). Each
of these cases found that by the plain language of the statute, the MSR term is part of the
sentence. In fact, the Lee court specifically rejected defendant’s argument here that Pullen
mandates a change in his MSR term. Lee, 397 Ill. App. 3d at 1072-73. Therefore, when
subject to the enhancement, the MSR term for Class X offenses attaches to the sentence
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imposed.
¶ 50 III. CONCLUSION
¶ 51 For the foregoing reasons, we affirm defendant’s convictions and sentence.
¶ 52 Affirmed.
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