People v. McGee , 2020 IL App (2d) 180998 ( 2020 )

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Appellate Court Date: 2021.12.09
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People v. McGee, 2020 IL App (2d) 180998Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption LIEDGRIN E. McGEE, Defendant-Appellant.
District & No. Second District
No. 2-18-0998
Filed December 29, 2020
Decision Under Appeal from the Circuit Court of Du Page County, No. 17-CF-425;
Review the Hon. Robert A. Miller, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd and Thomas A. Lilien, of State Appellate Defender’s
Appeal Office, of Elgin (David J. Giesinger, of Crystal Lake, of counsel), for
appellant.
Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman
and Mary A. Fleming, Assistant State’s Attorneys, of counsel), for the
People.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Presiding Justice Bridges and Justice Schostok concurred in the
judgment and opinion.
OPINION
¶1 Following a jury trial in the circuit court of Du Page County, defendant, Liedgrin E.
McGee, was found guilty of retail theft of property worth less than $300 (720 ILCS 5/16-
25(a)(1) (West 2016)) and was sentenced to an extended-term sentence of four years’
imprisonment. Defendant argues on appeal that the sentence was excessive. We affirm.
¶2 I. BACKGROUND
¶3 Defendant’s retail theft conviction was based on evidence that he stole several shirts from
Macy’s in Aurora. Because defendant was previously convicted of retail theft, the offense was
a Class 4 felony. Id. § 16-25(f)(2). Furthermore, because of defendant’s history of prior felony
convictions, he was eligible for an extended-term sentence of three to six years in the
Department of Corrections. 730 ILCS 5/5-4.5-45(a), 5-5-3.2(b)(1), 5-8-2(a) (West 2016).
¶4 Defendant’s sentencing hearing was originally set for April 18, 2018, but he failed to
appear, and a warrant was issued. He fled the jurisdiction and was arrested in another state.
The matter proceeded to sentencing on November 20, 2018. Defendant’s presentencing
investigation report (PSI) detailed an extensive criminal history that included convictions of
trespass to land, trespass to vehicles, attempted aggravated robbery, domestic battery,
aggravated battery, resisting a peace officer, possession of cannabis, possession of a stolen
motor vehicle, and driving on a revoked license. Defendant also had several prior retail theft
convictions. The violent offenses—domestic battery, aggravated battery, and attempted
aggravated robbery—were committed before 2008. Defendant had served prison sentences for
several offenses. In 2015, defendant received a three-year prison term for felony retail theft.
He was serving his term of mandatory supervised release when he committed the retail theft in
the case before us now.
¶5 According to the PSI, defendant reported that both his parents suffered from addiction to
drugs and/or alcohol and had spent time in prison. Defendant was raised in foster homes before
being placed in the care of an aunt and uncle in Mississippi. Defendant had three children, who
were born in 2011, 2013, and 2014. Defendant’s youngest child resided with him. Defendant
reported that he used marijuana and that he considered his use to be a problem. A letter from
defendant’s mother stated that defendant was diagnosed with attention deficit hyperactivity
disorder as a child. Speaking in allocution, defendant asked for the opportunity to raise his
youngest child. In sentencing defendant to a four-year extended term of imprisonment, the trial
court noted, inter alia, defendant’s extensive criminal history. The trial court also observed
that defendant was a poor role model for his child.
¶6 Defendant filed a motion to reconsider his sentence, which was denied. He then filed this
timely appeal.
¶7 II. ANALYSIS
¶8 It is well established that “[a] sentence within the statutory limits for the offense will not
be disturbed unless the trial court abused its discretion,” which occurs when “the trial court
imposes a sentence that is greatly at variance with the spirit and purpose of the law, or is
manifestly disproportionate to the crime.” People v. Watt, 2013 IL App (2d) 120183, ¶ 49. “A
trial court has wide latitude in sentencing a defendant, so long as it neither ignores relevant
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mitigating factors nor considers improper factors in aggravation.” People v. Roberts, 338 Ill.
App. 3d 245, 251 (2003). It has been observed that “[t]he Illinois Constitution mandates the
balancing of both retributive and rehabilitative purposes of punishment.” People v. Evans, 373
Ill. App. 3d 948, 967 (2007). Accordingly, “[t]he trial court is therefore required to consider
both the seriousness of the offense and the likelihood of restoring the offender to useful
citizenship.” Id. The court is required to consider all factors in aggravation and mitigation. Id.“A sentence must be based on the particular circumstances of each case and depends on many
factors, including the defendant’s criminal history *** and the need to protect the public and
provide a deterrent to crime.” People v. Jones, 2019 IL App (1st) 170478, ¶ 49.
¶9 Defendant argues that his sentence was excessive when measured against the seriousness
of the offense, which would have been a misdemeanor but for his prior criminal history. He
contends that the case is similar to People v. Allen, 2017 IL App (1st) 151540. In that case, the
defendant was convicted of burglary; he had broken the window of a parked truck and had
taken a hat and two packs of cigarettes. Based on his criminal history, he was subject to Class
X sentencing. The defendant had 11 prior convictions, including 6 for burglary and 3 for theft.
The trial court sentenced him to a 10½-year prison term. On appeal, a divided panel of the First
District reduced the prison term to six years, which is the minimum Class X sentence. The
majority relied heavily on People v. Busse, 2016 IL App (1st) 142941, which was also decided
by a divided panel. The defendant in Busse had stolen $44 in quarters from a vending machine.
Because of the defendant’s history of similar crimes, the trial court sentenced him to a 12-year
prison term. The Busse majority reduced the defendant’s sentence to a six-year prison term. Id.
¶ 38 (opinion of Hyman, J., joined by Neville, J.) As the Allen majority explained:
“[The defendant in Busse] had not harmed or threatened any person during his quest
for loose change, and he was not armed with a weapon; this was consistent with his
past crimes. [Citation.] Further, if his past stays in prison had not rehabilitated him,
there was no point in imposing yet another lengthy sentence, at incredible expense to
the State, simply to punish him for his petty crime.” Allen, 2017 IL App (1st) 151540,
¶ 13 (opinion of Hyman, J., joined by Pucinski, J.).
¶ 10 Applying that reasoning to the facts in Allen, the Allen majority observed that “[m]uch like
our previous decision in [Busse], the trial court [in Allen] imposed a lengthy sentence that
greatly exceeds the seriousness of the crime (or rather, the lack of seriousness).” Id. ¶ 12.
¶ 11 The Allen majority acknowledged that the General Assembly had chosen to punish the
defendant as a Class X offender based on his criminal history. However, the Allen majority
stated:
“[E]ven if the legislature chose not to exclude petty thefts, the trial court’s exercise of
its discretion to tailor the sentence within the Class X range must be tempered by the
amount of harm the defendant inflicted, that is, the seriousness of the offense. That was
not done here. In the face of a legislative judgment, we do not simply throw up our
hands and say that we have no role to play in sentencing. The legislature has created
sentencing ranges, and it is the trial court’s job, and then our job, to impose a sentence
that is appropriate, just, and proportionate, depending on the nature, seriousness, and
character of the offense.” Id. ¶ 16.
¶ 12 In addition, the majority viewed the many failed attempts to rehabilitate the defendant for
his prior crimes as a factor militating against a lengthy sentence. The majority explained, “we
cannot see the point in sending [the defendant] to prison (a place whose partial purpose is
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supposed to be rehabilitation) for a long time if it is unlikely that he will emerge from it better
than he was when he entered it.” Id. ¶ 17.
¶ 13 Justice Mason dissented. She concluded that, as in Busse, the majority applied a judicially
created “ ‘petty offense’ ” exception to the statute governing Class X sentencing for certain
recidivists. Justice Mason noted that the Busse majority had asserted that the General Assembly
created Class X sentencing to protect the public from murderers and rapists, not petty thieves.
Id. ¶ 33 (Mason, J. dissenting) (citing Busse, 2016 IL App (1st) 142941, ¶ 31 (opinion of
Hyman, J., joined by Neville, J.)). Justice Mason responded that such reasoning ignored the
breadth of the Class X sentencing provisions. She explained, “The majority’s willingness to
override discretionary sentencing decisions based on its supposition that the legislature did not
really mean what it plainly said does not reflect the cautious and sparing use of the power of a
reviewing court to reduce a sentence.” Id.¶ 14 Justice Mason also disagreed with the majority’s reliance on defendant’s lack of
rehabilitative potential as a basis for a short sentence. She noted that “defendants deemed
incapable of rehabilitation generally receive longer, not shorter sentences.” Id. ¶ 34.
¶ 15 In People v. Cunningham, 2018 IL App (4th) 150395, the Fourth District rejected the Allen
majority’s reasoning. In Cunningham, the defendant was convicted of burglary, a Class 2
felony, and was sentenced as a Class X offender to a 20-year prison term. The defendant, who
had an extensive criminal history, entered a garage without permission and with the intent to
commit a theft but did not actually steal anything. The defendant argued on appeal that his
sentence was excessive because his crime was less serious than that in Allen. The Cunningham
court rejected the majority’s analysis in Allen and embraced the reasoning of Justice Mason’s
dissent:
“While defendant in this case argues his offense is not serious enough to receive a
Class X punishment, we agree with Justice Mason that it is for the legislature to enact
the laws, not this court. Here, we only determine if the trial court abused its discretion
in sentencing defendant based on his criminal history and factors in aggravation and
mitigation. We find that defendant’s sentence was within the statutory sentence range
based on his lengthy criminal history and his potential to recommit similar offenses.”
Id. ¶ 54.
¶ 16 We agree with the dissent in Allen and the Fourth District’s opinion in Cunningham. The
Allen majority improperly substituted its own judgment of the seriousness of the offense for
that of both the General Assembly and the trial court. The Allen majority thus invaded the
“legislative province to define offenses and determine the penalties required to protect the
interests of our society.” People v. Taylor, 102 Ill. 2d 201, 206 (1984). The General Assembly’s
decision to sentence certain defendants as Class X offenders reflects a legislative judgment
that their crimes, in conjunction with their criminal histories, are more serious offenses
warranting a severe penalty. The same is true of the General Assembly’s decisions to enhance
misdemeanor theft to a felony subject to an extended-term sentence. Given the evidence in
aggravation—most notably defendant’s extensive criminal history—defendant was not entitled
to the three-year minimum extended-term sentence for a Class 4 felony. We cannot say that
the trial court abused its discretion in sentencing defendant to a four-year prison term, which
is below the midpoint of the extended-term sentencing range. We note that defendant
committed the theft while serving a term of mandatory supervised release after serving a three-
year prison term.
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¶ 17 We reject the Allen majority’s reasoning with respect to failed prior attempts to rehabilitate
the defendant. As discussed, the Allen court concluded that those failures suggested that
imposing yet another lengthy sentence would serve no purpose. The Allen court ignored an
obvious purpose: protecting the public from the defendant’s depredations. We, therefore, find
no reason to disturb the trial court’s sentencing decision.
¶ 18 III. CONCLUSION
¶ 19 For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.
¶ 20 Affirmed.
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