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People v. Johnson

Court of Appeals of Illinois, First District, Second Division

May 29, 2018

TERRY JOHNSON, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 14 CR 10019 The Honorable Charles P. Burns, Judge, presiding.

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



         ¶ 1 Terry Johnson and others planned to rob a video game store. After one of his companions used pepper spray to incapacitate the store clerk, Johnson tackled the clerk to the floor and struggled with him. They took the clerk's keys and several video game systems.

         ¶ 2 Before trial, Johnson requested a conference under Illinois Supreme Court Rule 402 (eff. July 1, 2012) to discuss a possible plea deal. The trial court offered Johnson a 13-year sentence, which Johnson rejected. After a bench trial, Johnson was convicted of armed robbery, and the trial court sentenced him to 16 years of imprisonment.

         ¶ 3 Johnson argues that he should not have been convicted of armed robbery because the pepper spray was not a "dangerous weapon" within the meaning of the armed robbery statute (720 ILCS 5/18-2 (West 2014)). We reject this claim for the same reasons laid out in People v. Curry, 2018 IL App (1st) 153635, a case involving the getaway driver. We also reject Johnson's argument that the trial court improperly increased his sentence from the rejected 13-year offer because nothing in the record makes it "clearly evident" that the sentence was imposed as punishment for rejecting the plea offer and exercising his right to a trial.

         ¶ 4 Background

         ¶ 5 Before trial, Johnson's counsel requested a Rule 402 conference with the trial court to discuss a potential plea bargain. The State asserted that Johnson and Curry committed the crime with possibly two accomplices and that Johnson "struggled" with a store employee after the employee was pepper sprayed. The State also noted that Johnson had four prior felony convictions (all for robbery or attempt robbery), and two juvenile adjudications, and offered Johnson an 18-year sentence. Johnson's counsel argued that Johnson was not alleged to have pepper sprayed the employee and had not been caught with any of the robbery's proceeds. Counsel also noted that Johnson was 22 years old and had been paroled for his previous felony sentences less than a year before the commission of this robbery. Counsel asked for a sentence of six to eight years. The trial court offered Johnson a sentence of 13 years, which Johnson rejected.

         ¶ 6 What follows repeats some of the "Background" section in Curry, 2018 IL App (1st) 153635. At trial, Alonzo Mitchell, an employee of the Game Stop, described how he was working behind the counter when three men entered, wearing hooded sweatshirts. One man approached the counter and squirted pepper spray on him, another man (later identified as Johnson) went behind the counter and tackled Mitchell, and the first man squirted Mitchell again. The men took Mitchell's store keys and stole several video game systems.

         ¶ 7 Meanwhile, a coworker who had been hiding in the store's break room called police. An officer, who was nearby at the time of a police radio call for assistance, saw individuals come out of the store and get into a silver Pontiac. The officer followed the Pontiac, which was later found unoccupied and parked on a residential street. The backseat and trunk of the Pontiac contained several video game systems, as well as Mitchell's store keys. On the sidewalk nearby lay a hooded sweatshirt and a can of pepper spray. The car's registration revealed that a woman owned the car; she gave police the name of a potential suspect, Terry Johnson.

         ¶ 8 Johnson told police that he and some friends robbed the Game Stop store while Deontae Curry acted as getaway driver. Curry told police that his friends had planned only to shoplift while he waited in the car. The trial court was able to view the store's surveillance video, showing the robbery and Johnson's actions.

         ¶ 9 Johnson was convicted of armed robbery at a bench trial, with the trial court noting that the evidence showed the robbery was "preplanned" and "very methodical." At sentencing, defense counsel asked the trial court to give Johnson the 13-year sentence originally offered during the Rule 402 conference. The trial court rejected this, stating that it had offered that sentence before trial. At trial, "I hear[d] much more detail with regard to what happened and the sequence of the events, the planned nature of this, all the different steps that were involved here and I heard specifically about your role in this and I believe being one of the major actors in this particular situation." The trial court sentenced Johnson to 16 years.

         ¶ 10 Analysis

         ¶ 11 Is Pepper Spray a ...

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