Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 12 CR 15237 The
Honorable Michael B. McHale, Judge, presiding.
Justice Neville concurred in the judgment and opinion.
Justice Mason dissented, with opinion.
1 Harley Busse pilfered $44 in quarters from a vending
machine on the University of Illinois at Chicago campus. For
this, he was convicted of burglary committed in a school and
sentenced to 12 years in the state penitentiary. He now
claims that his sentence was excessive.
2 Busse has committed a number of similar crimes over the
years, but not one of them has been either violent or
serious. The trial court's discretion to sentence him was
limited by his status as a Class X offender. It goes without
saying that judges at all levels must follow the law and hold
in check their natural sympathies. There are circumstances,
however, when applying mandatory sentencing produces an
anomalous and absurd result in a particular case.
3 This is one of those rare cases. Here, the 12-year Class X
sentence imposes a punishment grossly disproportionate to the
offense. As appellate court judges, we have to explain our
decisions, and in this case, simply saying the sentencing
judge followed the law, which he did, provides thin
justification for the sentence-even fully acknowledging
Busse's past crimes and incarcerations.
4 A paltry crime for a paltry sum does not warrant the
unpaltry sentence of 12 years. We hold that the trial court
did abuse its discretion in sentencing Busse, and we impose a
6 Busse's conviction arose from an incident that took
place on July 31, 2012, inside the science and engineering
building at the University of Illinois at Chicago (UIC).
Before trial, the trial court granted the State's motion
to introduce evidence of three prior crimes to show
Busse's modus operandi. These crimes were
burglaries and a theft that involved coin-operated machines.
7 At trial, UIC police department Sergeant Jason Huertas
testified that while patrolling at about 1:48 p.m. on July
31, 2012, he saw Busse leaving a UIC campus building at 845
West Taylor Street. Sergeant Huertas recognized Busse because
he had previously given Busse at least two criminal trespass
warnings. Sergeant Huertas continued driving, and Busse
continued walking eastbound on Taylor Street. Sergeant
Huertas stopped at the corner of Taylor and Halsted Streets,
got out of his car, and approached Busse on UIC property.
Busse had a black briefcase and wore a beige shirt and beige,
khaki-style pants. Huertas testified that Busse had no valid
reason to be on campus so he arrested him for criminal
trespass and called UIC officer Scott Ruckrich to assist.
8 Officer Ruckrich searched Busse and found, concealed by
Busse's T-shirt, two pieces of a wire clothes hanger
about six to eight inches long with a curved end, fastened to
Busse's inner shirt tag. Officer Ruckrich also found
loose quarters inside the briefcase. Sergeant Huertas told
Ruckrich to investigate whether UIC vending machines had been
9 Huertas examined a still-image photograph taken from a
surveillance video of the vending machine area, which shows a
computer room and an individual in the hallway. He testified
that the individual in the photograph was wearing
beige-colored pants and a beige- or white-colored shirt and
was carrying something in his left hand. He further testified
that he saw Busse wearing those same clothes on July 31,
2012, and based on the clothing, he was able to tell that the
individual in the image was Busse. On cross-examination,
Huertas testified that the face of the individual in the
photograph was not visible and it was difficult to identify
the ethnicity as well as the height of the individual.
10 Mark Voirol, a vending technician, testified that he had
been repairing and inspecting vending machines for 33 years.
To determine whether a machine had been broken into, he would
look for pry marks and if the door had been left open. He
testified that a new way that people were stealing coins was
by using a coat hanger or metal rod to "fish"
change out of the coin changers. On July 31, 2012, he went
with police to the UIC building at 950 South Halsted Street
and examined the vending machines, including a coffee
machine, two snack machines, a food machine, a cold food
machine, and a change machine.
11 In the coffee machine, Voirol noticed that that the nickel
and dime tubes were full and the quarter tube was empty. This
was "pretty odd" because his company kept change in
all of the machines, so if the quarter tube was empty then
all of the other tubes would be as well. In the snack
machine, he noticed that the nickels and dimes were full but
that there were only five or six quarters left. Of these
quarters, three were on the bottom upright on their edge, and
a couple quarters were lying flat on top. He testified that
this was "highly unusual, " that the only way for
that to happen was for the coins to be pushed from
underneath, and a coat hanger was the most popular item used
to push the coins up. When he opened the snack machine and
saw the three quarters standing up and the others lying on
top, "it pretty much told me that as they were fishing
them out, they got stuck and they quit."
12 On cross examination, Voirol testified that he did not see
any pry marks on the machines, the doors were closed, and
there did not appear to be anything wrong with the machines.
He further testified that he did not know how much change was
in the machine before 12:30 p.m. on the day of the incident,
that he inspected the machines between 4:30 p.m. and 5:30