Court of Appeals of Illinois, First District, Second Division
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.
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
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,
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.
11 Is Pepper Spray a ...