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People v. Allen

Court of Appeals of Illinois, First District, Second Division

December 12, 2017

FRANK ALLEN, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 14 CR 19355 The Honorable Charles P. Burns, Judge, presiding.

          HYMAN JUSTICE delivered the judgment of the court, with opinion. Justice Pucinski concurred in the judgment and opinion. Justice Mason dissented, with opinion.


          HYMAN JUSTICE.

         ¶ 1 Appellate courts generally defer to the sentencing judge's decision. But "generally" does not mean "always, " and "defer" does not mean "acquiesce." Our sentencing laws must be interpreted in accord with common sense and reason so as to avoid an absurd or unduly harsh sentence. Otherwise we are reduced to little more than a rubber stamp, and that is neither our purpose nor our function.

         ¶ 2 Frank Allen, who has a record of minor, nonviolent offenses, broke a window of a truck parked in front of a courthouse and then grabbed a hat and two packs of cigarettes. The truck owner happened to see Allen in the act, and minutes later, Allen was arrested. Because Allen qualified for Class X sentencing, this minor property offense and theft resulted in 10½ years behind bars. That sentence does not reflect the offense's trivial nature. Accordingly, we impose the minimum sentence of six years.

         ¶ 3 Background

         ¶ 4 Leith Sweis parked his truck in front of a busy courthouse. When Sweis stepped outside for a cigarette, he saw Frank Allen peer into a window of his truck and proceed to use a rock to break the window. Allen took a hat containing two packs of cigarettes. As Sweis ran to his truck, Allen walked away and then sprinted when Sweis began chasing him. In his haste, Allen dropped Sweis's hat and the cigarettes. Sweis picked them up and hailed a police car. The police caught Allen. Another witness saw Allen break the truck's window, and one of the police officers saw Allen drop the hat as he ran. Allen, however, denied breaking into the truck. The trial court found Allen guilty of burglary.

         ¶ 5 The presentencing investigation report (PSI) showed that Allen, born in 1966, had amassed 11 convictions between 1983 and 2009, including 6 for burglary and 3 for theft. His first sentence in 1983 was probation; by 2000, he was sentenced to 15 years of imprisonment for burglary. At this time of this incident, Allen was still on mandatory supervised release for a 2009 burglary conviction. Allen had a girlfriend and a six-year-old son and was receiving medication and therapy for schizophrenia and bipolar disorder.

         ¶ 6 At the sentencing hearing, the State argued that Allen was "a consistent thief and burglar" and qualified as a Class X offender. Defense counsel argued for a sentence "closer to the minimum" since Allen had mental health issues and the modest stolen property was recovered by the owner. In rebuttal, the State asserted as an aggravating factor that Allen committed the offense outside a courthouse. Allen denied committing the offense, noted his relationship with his son, and asked for leniency.

         ¶ 7 The trial court stated that it considered the statutory aggravating and mitigating factors and nonstatutory mitigating factors, adding, "I don't draw any inference from the fact that he says he is not guilty." The trial court observed that Allen's long criminal history with long sentences demonstrates that he cannot be deterred from crime, expressly noting that Allen was on parole or mandatory supervised release for a 2009 burglary. The trial court found that Allen was beyond rehabilitation, and characterized Allen's conduct as "brazen" for having been done outside a busy courthouse. The trial court sentenced Allen to 10½ years' imprisonment under the Class X enhancer (730 ILCS 5/5-4.5-95(b) (West 2012)). Allen's motion to reconsider his sentence was denied.

         ¶ 8 Standard of Review

         ¶ 9 We review a sentence within statutory limits for abuse of discretion, and may alter the sentence when it varies greatly from the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense. People v. Snyder, 2011 IL 111382, ¶ 36.

         ¶ 10 Analysis

         ¶ 11 Allen contends that his 10½-year prison sentence is excessive. Burglary is a Class 2 felony, punishable by a term of 3 to 7 years in prison. 720 ILCS 5/19-1(b) (West 2012); 730 ILCS 5/5-4.5-35(a) (West 2012). When a defendant more than 21 years old is convicted of a Class 1 or 2 felony, having two prior and separate felony convictions of Class 2 or greater, he or she must be sentenced as a ...

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