People v. Lundy

JUSTICE LAVIN delivered the judgment of the court, with opinion.

Appeal from the Circuit Court of Cook County. No. 15 CR 8640 The Honorable Mary Margaret Brosnahan, Judge Presiding. JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Mason concurred in the judgment and opinion.
Justice Hyman dissented, with opinion.

OPINION

¶ 1 Following a bench trial, defendant, David Lundy, was convicted of armed robbery and sentenced to 10 years in prison. On appeal, defendant contends that 10 years is an excessive sentence where he was a homeless addict who stole $33 worth of underclothes. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

court focused on defendant's 10 prior felony convictions, noting that they included a significant number of robberies. While acknowledging that some of the robberies took place long ago, the court commented, "[Y]ou have to take into account the amount of time that's spent in the penitentiary, and pretty shortly after you get out of the penitentiary, along comes another case." The court then ran through the timeline of prior convictions relative to defendant's various release dates from prison in detail, concluding, "So while there's been a long time that's passed from the original robberies in 1988, a long time ago, I'm considering the almost unremitting nature of the revolving door[.] *** And whatever has been going on, it hasn't caused any change in you." Again noting that defendant's criminal history included 10 felony convictions, the court stated that neither the minimum sentence nor a near-minimum sentence would be appropriate. At the same time, the court indicated that given the various factors in mitigation and its review of the PSI report, a sentence of 30 years would also not be appropriate. The court imposed a sentence of 10 years. ¶ 20 Defendant filed a motion to reconsider sentence, which he did not argue. The trial court denied the motion. This appeal followed.

According to paperwork included in the common law record, "WestCare" is a treatment program that includes comprehensive and holistic substance abuse and mental health treatment through cognitive behavioral therapy and case management services. --------

¶ 21 ANALYSIS

¶ 22 On appeal, defendant contends that a 10-year sentence is excessive for a homeless addict who stole $33 worth of underclothes from a dollar store. He asserts that his conviction was based on the "minimum conduct required to establish armed robbery [in that] he flashed a box cutter at a store employee after he had already taken merchandise off a shelf and was trying to leave the store" and argues that Parker even testified that his "flashing of the box cutter was 'not very upsetting.' " Defendant argues that instead of focusing on the minimal nature of the facts of the the knife in his hand while exiting the front doors. Given Parker's testimony, we cannot find that defendant merely "flashed" a box cutter as he was trying to leave the store. ¶ 28 Further, we disagree with defendant's position — shared by the dissent — that his use of the box cutter did not upset Parker. This position is based on Parker's words, "[I]t was not that upsetting." While this may seem like a straightforward statement, viewed in context, Parker's comment on her mental state is actually somewhat ambiguous. Her statement came out in the following exchange with the prosecutor:

"Q. Did the defendant then exit the store?
A. After being irate and cursing some more, yes, he did.
* * *

Q. You say [defendant] was being irate. Before he left the store, was he saying anything in front of you to you and Lakesha?
A. Yes, he was. He actually said, 'I don't have anything. What you gone [sic] do. I will kill you motherfuckers with this knife. You know what I am saying?' Just being — to me it was not that upsetting for a small woman like me."

We do not find, as defendant posits, that Parker's statement means she found his "flashing" of the box cutter not upsetting or, as the dissent concludes, that Parker's statement means she found defendant's behavior, taken as a whole, not upsetting. In our view, Parker's statement, "it was not that upsetting," more likely refers to defendant's verbal threats to Parker and Phillips as he was leaving the store than to his use of the box cutter or than to the incident as a whole. We also do not discount the possibility that Parker's testimony may have been inaccurately transcribed, since logically, it would make more sense for a "small woman" to be upset by threats than not to be. In any case, we disagree with defendant and the dissent that Parker's statement, "it was not that upsetting," demonstrates that the crime was so insignificant that it merits a reduction in sentence. ¶ 29 The crime of which defendant was convicted, armed robbery with a dangerous weapon other than a firearm, is a Class X offense. 720 ILCS 5/18-2(a)(1), (b) (West 2014). Defendant was also mandatorily subject to Class X sentencing based on his criminal background. 730 ILCS 5/5-4.5-95(b) (West 2014). The Class X sentencing range is 6 to 30 years. Id. § 5-4.5-25(a). The sentence imposed by the trial court, 10 years, falls well within and toward the low end of this range. Given the facts of this case, the interests of society, and the trial court's stated consideration of the relevant aggravating and mitigating factors, we cannot find that defendant's sentence is "greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense." Stacey, 193 Ill. 2d at 210. Accordingly, we find no abuse of discretion.

¶ 30 CONCLUSION

¶ 31 For the reasons explained above, we affirm the judgment of the circuit court. ¶ 32 Affirmed. ¶ 33 JUSTICE HYMAN, dissenting: ¶ 34 Illinois requires that sentences reflect the seriousness of the offense and the objective of rehabilitating the offender to useful citizenship. People v. Wilson, 2016 IL App (1st) 141063, ¶ 11; People v. Cooper, 283 Ill. App. 3d 86, 95 (1996). Of these, the seriousness of the offense is the most influential factor. People v. Willis, 2013 IL App (1st) 110233, ¶ 123; People v. Cox, 377 Ill. App. 3d 690, 709 (2007). This principle amplifies one of the Illinois sentencing statute's disproportionate to the nature of the offense." Id. at 210. And this duty to honor our law's requirement of proportionality includes cases in which the offense is "appalling and harmful" or "reprehensible." Id. at 210-11. The circumstances of Lundy's offense fall far short of those in Stacey. ¶ 52 Accordingly, trial courts should not feel compelled to exceed the minimum for petty offenses unless the evidence strongly warrants it. Ten years is a severe sentence especially when the offense is of a trivial nature, and caused no physical harm to anyone. See, e.g., People v. Allen, 2017 IL App (1st) 151540, ¶ 2 (trial court imposed 10½ year Class X sentence for breaking truck window and stealing hat and two packs of cigarettes); People v. Busse, 2016 IL App (1st) 142941, ¶¶ 1-2 (trial court imposed 12-year Class X sentence for stealing $44 in quarters from vending machine.) Disproportionate sentencing for minor common offenses like that of Allen, Busse, and Lundy not only overpunishes but also overburdens an already bloated criminal justice system. ¶ 53 The Class X sentencing scheme doesn't allow for flexibility for small pecuniary losses. The legislature should reevaluate Class X in regard to petty offenses so as to avoid imposing long prison sentences for repeat low level crimes. Regardless, the appellate court still must ensure a sentence passes constitutional muster. My colleagues believe that I am substituting my judgment for that of the trial court. Not true. I am not reweighing aggravating and mitigating factors; I am doing the job that I swore I would—upholding the Illinois Constitution and its laws. ¶ 54 Stripped down to its essential facts, Lundy's crime is small, petty, and sad, far from an offense that merits a decade in prison. Six years provides enhanced punishment enough, and conforms to the State of Illinois's fundamental notions of justice and morality.