People v. Lampley

THIRD DIVISION
November 10, 2010

No. 1-09-0661

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County, Illinois.
Plaintiff-Appellee, )
)
v. ) No. 07 CR 24455
)
BRUCE LAMPLEY, ) Honorable Michael Brown,
) Judge Presiding.
Defendant-Appellant. )

JUSTICE MURPHY delivered the opinion of the court:

Following a jury trial, defendant, Bruce Lampley, was found guilty of burglary (720 ILCS

5/19-1 (West 2006)). Based on his criminal history, and pursuant to the Unified Code of

Corrections (730 ILCS 5/5-5-3(c)(8) (West 2006)), defendant was sentenced as a Class X

offender to 14 years’ imprisonment. On appeal, defendant contends that: (1) the trial court

interfered with his right to testify when it deferred ruling on his motion in limine to bar the

introduction of his prior convictions; (2) the trial court failed to properly question potential jurors

as to whether they understood and accepted the principles outlined in People v. Zehr, 103 Ill. 2d

472 (1984), and Supreme Court Rule 431(b) (177 Ill. 2d R. 431(b)); (3) the trial court imposed

an excessive sentence; and (4) the trial court erred in imposing a three-year term of mandatory

supervised release (MSR) instead of a two-year term as required for Class 2 felonies. For the

reasons that follow, we affirm defendant’s convictions and sentence.
No. 1-09-0661

I. BACKGROUND

Defendant was arrested on November 12, 2007, for burglary and possession of burglary

tools. Defendant elected to proceed to a jury trial on the charges. The State moved to nol-pros

the possession of burglary tools charge and proceeded to trial on the one count of burglary.

During jury selection, when the venire was brought into the courtroom, the trial court admonished

the entire panel on several concepts and principles of law. In particular, prior to swearing in and

questioning the venire, the trial court advised:

“In other words, the expression ‘where there’s smoke, there’s fire’ has no

place in a court of law.

In fact, under our law a defendant is presumed to be innocent of the

charges against him in the indictment.

This presumption of innocence remains with the defendant throughout

every stage of the trial and during your deliberations on a verdict. It must be kept

in your mind at all times during the presentation of evidence.

This presumption of innocence is not overcome unless from all of the

evidence in the case you are convinced beyond a reasonable doubt that the

defendant is guilty.

The defendant is not required to prove his innocence, nor is he required to

testify or present any evidence whatsoever on his behalf.

The State has the burden of proving the guilt of the defendant beyond a

reasonable doubt, and this burden remains on the State throughout every stage of

the trial and during your deliberations on a verdict.”

Following a lunch break, the jury panel was sworn and questioning of the venire began.

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The trial court immediately proceeded by asking “four questions of all of you at the same time.”

The court requested that the prospective jurors stand if their answers to any of the questions were

in the affirmative. The trial court asked the venire if they knew any of the parties or attorneys

involved and whether they were currently involved in any litigation. After excusing two

prospective jurors involved in litigation, the trial court continued to query the venire as follows:

“Folks, the third question is this: As I have previously stated, the defendant

is presumed innocent and does not have to offer any evidence on his own behalf

but must be proven guilty beyond a reasonable doubt by the State.

Does anyone here have any problems with those concepts? If so, please

stand up?

***

Folks, the fourth and final question for you is this: As I have also

previously stated, the defendant does not have to testify on his own behalf.

If the defendant decides not to testify, you must not hold that decision

against the defendant.

If the defendant decides not to testify, is there anyone here who believes

that, regardless of what I have just said, you would hold that decision against the

defendant? If so, please stand up.

Let the record reflect that no one has stood up.”

The jury was selected and sent home to return the next day for trial. Before the jury was

called, the trial court considered defendant’s motion in limine to bar the use of evidence of

defendant’s five prior convictions for burglary to impeach his credibility. The trial court stated

that it would enter and continue the motion until the close of the State’s case, because at that

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point a prior ruling would be “advisory” and was not warranted.

The State presented the testimony of Sharon Handelsman. Handelsman, a resident

physician, testified that on the morning of November 12, 2007, she parked her 1996 Geo Prism in

the Rush Presbyterian Hospital parking garage. After parking, she placed her purse in the trunk

of her car and closed and locked the trunk and doors of her car before going into the hospital to

work her shift. Handelsman testified that she returned to her vehicle at approximately 4:30 p.m.

and could not open the trunk of her car with her key. She entered her car, opened the trunk with

the latch release inside her car, and retrieved her purse from the trunk. She then discovered that

her cell phone and wallet (containing her driver’s license, cash and credit cards) were missing.

Handelsman testified that she drove toward the exit and asked the parking attendant to

notify the security office that those items were missing from her purse. She spoke with a security

officer and parked her vehicle at the side of the parking garage. Handelsman was escorted to the

security office, where the officers showed her the items that were stolen. She then left the garage,

leaving her car there for security to investigate.

Dennis Garden, a security guard at the parking garage testified that at 4:35 p.m. on

November 12, 2007, he saw a man he identified as defendant carrying a backpack and exiting the

parking garage. Defendant walked west on West Harrison Street and continued to walk when

Garden called for him to stop. Garden called the dispatcher to report defendant’s appearance and

location.

Edward Altman, another security officer at the parking garage, testified that he saw

defendant, who matched the description given by Garden, crossing West Harrison Street. Altman

stopped defendant at the northwest corner of the intersection of West Harrison Street and South

Wood Street. Altman testified that when he asked to look in defendant’s backpack, defendant

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allowed him to do so. Altman found women’s jewelry and a half-open wallet that displayed a

white woman’s driver’s license. Altman testified that other officers arrived on the scene and he

then placed defendant in custody and handcuffed him. Altman patted down defendant and

discovered a razor knife in his pocket. At the security office, the officers also discovered a

camera, a CD player, cellular phone, screwdriver, and CDs in defendant’s bag.

Altman testified that the driver’s license in the bag belonged to Handelsman. Handelsman

arrived later at the security office and identified the wallet and cellular phone as hers. She stated

that the items had been taken that day from the trunk of her car. Altman testified that the security

officers contacted Chicago police.

The State also presented evidence concerning a fingerprint lift taken from the trunk of

Handelsman’s car on November 12, 2007. The latent fingerprint was compared with a known

fingerprint standard of defendant. The ridge details of the two fingerprints were found to be a

match. Additionally, a videotape taken from the parking garage video surveillance system was

offered into evidence. The video depicted an African-American man wearing a baseball cap and

backpack walk toward Handelsman’s car, open the trunk, enter the trunk, stand up with his

backpack and walk away from the vehicle. Later, the videotape showed a white female approach

the vehicle, have difficulty opening the trunk, and then pop the trunk from inside the vehicle. Due

to the grainy quality of the image, no positive identification could be made with the video.

The State rested and defendant moved for a directed verdict. The trial court denied the

motion and considered defendant’s motion in limine to bar the introduction of prior convictions.

The State indicated that, if defendant took the stand, it would seek to introduce evidence of

defendant’s 2001 conviction for burglary in order for the jury to properly weigh defendant’s

credibility. The trial court rejected defendant’s argument that evidence of the conviction was too

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No. 1-09-0661

prejudicial and denied the motion. The court recognized the prejudicial impact as the prior

conviction was for the same kind of crime, but since it occurred within 10 years and had probative

value as a crime of dishonesty, the use of proper jury instructions could minimize that prejudice.

Defendant chose to testify. Defendant testified that he was homeless and on November

11, 2007, he had slept at the Rush Presbyterian Hospital parking garage and as he was leaving the

garage, defendant found a wallet and cellular telephone on the ground. Defendant put them in his

backpack, which already contained DVD movies, CDs, earrings, a Palm Pilot, a Nikon camera,

watches and other items. As he left, defendant passed one officer and then another officer. The

second officer stopped him and asked to look into his backpack. Defendant testified he was taken

into custody and eventually transported to the police station about 1.5 hours later.

Defendant testified that when he arrived at the police station, a uniformed police officer

driving a gold GMC vehicle pulled up next to the squad car that he was in. The officer got out of

the car, walked to the trunk and removed defendant’s backpack. Defendant testified that he was

let out of the squad car and he and the two other officers stood at the rear of the gold GMC

talking. While they talked, defendant leaned against the GMC vehicle. Defendant denied stealing

the wallet and cellular phone.

On rebuttal, the State presented the testimony of Officer Donald Verdon. Verdon testified

that he drove Handelsman’s car to the police station and parked 50 to 60 feet from the squad car

containing defendant. Verdon testified that when he arrived, defendant had already been escorted

into the police station. Verdon further testified that defendant did not touch the trunk of

Handelsman’s vehicle at any time in his presence.

The jury found defendant guilty. Defendant filed a motion for new trial, the motion was

denied, and defendant was sentenced. The parties offered arguments in aggravation and

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No. 1-09-0661

mitigation. The State cited to defendant’s extensive history of burglary convictions and lack of

rehabilitation despite years in prison and a lack of truthfulness in his postsentence investigation

interview where he denied a past drug problem. The State sought the mid to upper range of the

statutory provision for Class X felonies of 6 to 30 years. Defendant conceded that he was eligible

to be sentenced as a Class X felon, but argued in mitigation that his current conviction was not for

an act of violence and that his prior convictions were almost all over 10 years old. The trial court

considered the factors and sentenced defendant to 14 years’ imprisonment. Defendant filed a

motion to reconsider sentence, which was denied, and this appeal followed.

II. ANALYSIS

A. Defendant’s Montgomery Motion

Defendant first argues that the trial court erred when it deferred ruling on his motion in

limine seeking to bar the State from introducing his 2001 conviction for burglary for purposes of

impeachment. The trial court did not conduct the balancing test pursuant to People v.

Montgomery, 47 Ill. 2d 510, 516 (1971), until after the State rested its case. Defendant did not

include this issue in his posttrial motion and the State argues that this issue was not preserved for

review. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Defendant argues that his claim should be

considered under plain-error review. People v. Herron, 215 Ill. 2d 167, 186-87 (2005).

The plain-error doctrine allows a reviewing court to review an unpreserved error when

either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is

serious, regardless of the closeness of the evidence. Herron, 215 Ill. 2d at 186-87. Under the

first prong, the defendant must show that the evidence at trial was so closely balanced that the

error alone “threatened to tip the scales of justice against him.” Herron, 215 Ill. 2d at 187. For

the second prong, the defendant must prove that the error was so serious that it affected the

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No. 1-09-0661

fairness of the trial and questions the integrity of the judicial process. Herron, 215 Ill. 2d at 187.

We first must determine whether the trial court committed any error at all. Defendant

argues that the trial court’s decision to defer ruling on his motion in limine limited his ability to

proactively deal with his prior convictions during opening arguments. Furthermore, defendant

argues that his credibility was absolutely crucial to his case. His presentation of the facts - that he

simply found the wallet and cell phone - was diametrically opposed to the State’s theory of what

happened. Therefore, defendant contends that establishing his credibility was essential and

required ruling on his motion at the earliest possible moment.

Defendant argues that People v. Patrick, 233 Ill. 2d 62 (2009), holds that when a trial

court has sufficient information but fails to make a ruling on a motion in limine concerning the

admissibility of prior convictions, it commits reversible error. In Patrick, the trial court followed

a blanket policy in every criminal case in refusing to rule on the defendant’s motion in limine on

the admissibility of prior convictions until after the defendant testified. Patrick, 233 Ill. 2d at 74.

Our supreme court found that the defendant was unjustifiably required to make a tactical decision

without the ability to evaluate the impact it would have on his defense, for which the defendant’s

testimony was critical. Patrick, 233 Ill. 2d at 75. Because the trial court’s refusal was not based

on any specific facts, but purely due to the blanket policy, “the trial court abused its discretion by

refusing to exercise any specific discretion.” Patrick, 233 Ill. 2d at 74.

While the trial court in this case did not follow an absolute blanket policy and ruled on

defendant’s motion at the close of the State’s case-in-chief, defendant points to the Patrick

court’s discussion of the impact on a defendant of deferring such a decision. He argues that he

was prejudiced by having to make tactical decisions, such as whether to introduce evidence of his

prior convictions during opening arguments to lessen the prejudicial effect of them, without the

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No. 1-09-0661

ability to evaluate the impact on his defense. See Patrick, 233 Ill. 2d at 75. Defendant argues

that this court has followed Patrick in cases such as People v. Hogan, 388 Ill. App. 3d 885, 891-

94 (2009), and People v. Hernandez, 394 Ill. App. 3d 527, 533 (2009), and asserts this emerging

line of case law supports a finding that the trial court abused its discretion.

The State responds that Patrick only stands for the proposition that a defendant has a right

to have all of the relevant information before he chooses to exercise his constitutional right to

testify, not after he testifies. The State asserts that the trial court complied with Patrick by

deciding defendant’s motion in limine before defendant decided whether or not to testify and,

therefore, no error was made. The State adds that, in considering the prejudice to a defendant in

this situation, our supreme court has recently added to this discussion and consideration of

Patrick and in People v. Averett, 237 Ill. 2d 1 (2010). In following Patrick in concluding that

deferring ruling until after the defendant testified was an abuse of discretion, the Averett court

further found that this did not violate the defendants’ constitutional rights to testify. Averett, 237

Ill. 2d at 17.

We agree that the facts of this case are distinguishable from Patrick and the line of cases

cited by defendant because a ruling was made prior to the decision to testify. While the ultimate

holdings might not be fully applicable here, these cases all discuss how a trial court abuses its

discretion when faced with an uncomplicated evidentiary issue but defers ruling. The parties here

do not develop arguments concerning the information before the trial court when defendant

presented his motion in limine and whether the trial court could have made an intelligent decision

even earlier. Based on the record and the trial court’s prompt consideration of the motion

following denial of defendant’s motion for directed verdict, under Patrick, we do not find that the

trial court abused its discretion. We note that based on the discussion in Patrick, it would be

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No. 1-09-0661

preferred practice for the trial court to rule on the admissibility of prior convictions prior to trial.

In the event there are compelling facts that necessitate deferral of such a decision, the trial court

should make those concerns of record.

Even assuming the trial court erred, that error was not so serious as to call into question

the integrity of the judicial process. As argued by the State, defendant had the benefit of the

ruling on the motion prior to the presentation of his case and his decision to testify. The harm of

any error, following the dicta in Patrick, is limited to defendant’s tactical decision to raise the

issue of his prior convictions during opening statements. The evidence in this case was

overwhelming against defendant and any tactical choice concerning defendant’s prior convictions

before the ruling on the motion in limine would not have been so crucial as to change the jury’s

verdict.

The State presented testimony from the security guards who apprehended defendant and

searched his backpack as well as Handelsman, who identified the stolen items. The surveillance

video was presented that showed a man dressed like defendant go into the trunk of Handelsman’s

car as well as video that corroborated Handelsman’s testimony that she was unable to access her

trunk with her key when she returned to her car. Evidence of a fingerprint lifted from the trunk of

Handelsman’s car that matched defendant’s prints was also presented. Therefore the alleged error

did not threaten to tip the scales of justice against defendant and his conviction is affirmed.

B. Supreme Court Rule 431(b)

Next, defendant argues that his conviction should be reversed because the trial court did

not properly question prospective jurors about the principles enumerated in People v. Zehr, 103

Ill. 2d 472 (1984), and required pursuant to Supreme Court Rule 431(b) (177 Ill. 2d R. 431(b)).

In Zehr, our supreme court held that “essential to the qualification of jurors in a criminal case is

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No. 1-09-0661

that they know” that the defendant: (1) is presumed innocent; (2) is not required to offer any

evidence on his own behalf; (3) must be proved guilty beyond a reasonable doubt; and (4) may

decide not to testify on his own behalf and that cannot be held against him. Zehr, 103 Ill. 2d at

477. It follows that this qualification must come at the outset of trial because if a juror has a bias

against any of these basic guarantees, an instruction given at the end of the trial will have little

effect. Zehr, 103 Ill. 2d at 477. Rule 431(b) was amended in 2007 to impose a sua sponte duty

on the trial court to question each individual juror as to whether he or she understands and

accepts the Zehr principles. People v. Gilbert, 379 Ill. App. 3d 106, 110 (2008).

The State argues that defendant forfeited this issue by failing to object at trial or raise the

issue in his posttrial motion and defendant again argues that this issue should be considered under

plain-error review. In numerous recent cases, this court has applied the reasoning of People v.

Glasper, 234 Ill. 2d 173 (2009), to the amended version of Rule 431 in concluding the error at

trial was not structural and, therefore, not subject to automatic reversal. See People v.

Magallanes, 397 Ill. App. 3d 72, 94-97 (2009). Our supreme court recently affirmed this

conclusion and held that such an error does not necessarily render a trial fundamentally unfair or

unreliable and does not require automatic reversal. People v. Thompson, No. 109033, slip op. at

9-10 (October 21, 2010).

In Thompson, the trial court violated Rule 431(b) in that it failed to question the

prospective jurors on the third principle and whether they accepted the first principle. Thompson,

slip op. at 6-7. While compliance with Rule 431(b) is certainly important, the Thompson court

determined, as in Glasper, that this was not a structural error requiring reversal. Thompson, slip

op. at 9-10. Since the defendant forfeited appellate review of this issue by failing to object at trial

or raise the issue in his posttrial motion, the court also considered the forfeiture rule and plain-

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No. 1-09-0661

error doctrine. It concluded that, where there is no compelling reason to relax the forfeiture rule,

such as evidence of a biased jury, the plain-error rule may be followed to allow review of a

defendant’s claim of a 431(b) violation. Thompson, slip op. at 11.

Having determined the trial court erred in failing to comply with Rule 431(b) and the

defendant did not argue that the evidence was closely balanced, the court considered whether the

error was so serious it affected the fairness of the trial. The court noted that the amended rule

does not indicate that compliance is indispensable for a fair trial. Therefore it found that the

holding in Glasper stands and a violation does not implicate a fundamental right or constitutional

protection. Thompson, slip op. at 12-13. Defendant did not present any evidence of jury bias and

therefore failed to meet his burden of showing that the error affected the fairness of his trial and

did not satisfy the second prong of plain-error review. Thompson, slip op. at 13. The court

concluded by declining the defendant’s request for a bright-line rule of reversal for every violation

of Rule 431(b). Thompson, slip op. at 14.

In the instant case, defendant forfeited this issue and has not presented a compelling

reason to relax that rule. Therefore, we first consider whether the trial court erred. Rule 431(b)

provides as follows:

“[T]he court shall ask each potential juror, individually or in a group,

whether that juror understands and accepts the following principles: (1) that the

defendant is presumed innocent of the charge(s) against him or her; (2) that before

a defendant can be convicted the State must prove the defendant guilty beyond a

reasonable doubt; (3) that the defendant is not required to offer any evidence on

his or her own behalf; and (4) that the defendant’s failure to testify cannot be held

against him or her; however, no inquiry of a prospective juror shall be made into

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the defendant’s failure to testify when the defendant objects.

The court’s method of inquiry shall provide each juror an opportunity to

respond to specific questions concerning the principles set out in this section.”

177 Ill. 2d R. 431(b).

In this case, the parties agree that the trial court admonished the entire panel on the four

factors. However, defendant argues that it is clear that the trial court failed to comply with Rule

431(b) as “it is simply not enough to recite the principles and ask a question about them.” We

agree with defendant that this failure to ask more than whether any of the venire had “any

problems with those concepts” was error. The trial court in the instant case admonished the

venire on each of the Zehr principles and asked if the prospective jurors had “any problems” with

the principles. We agree that the trial court should have followed a straightforward questioning

of the Zehr principles as outlined by Rule 431(b) and, as a result, committed error. Pursuant to

Thompson, we do not find that the trial court’s approach requires automatic reversal; rather, we

conduct a plain-error review.

In applying the first prong of the plain-error rule, we have already concluded that the

evidence against defendant was overwhelming and defendant’s argument that the evidence was

closely balanced is rejected. For the second prong, the failure to specifically question each juror

on each individual principle was not so serious to overcome the overwhelming evidence. The jury

was questioned on all four principles. While the trial court could have done a better job

complying with the spirit of Rule 431(b) to assure understanding and acceptance of each principle,

this was not reversible error.

The record indicates that not only were the prospective jurors admonished of the

principles, they were given a clear opportunity to speak. No evidence or questions of bias were

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raised by either party regarding any of the jurors. Accordingly, not only was the evidence

overwhelming, but the jury was apprised of the principles, and questioned sufficiently to elicit

comments. There was no error so serious to question the fairness of defendant’s trial and require

reversal.

C. Excessive Sentence

Next, defendant argues that the trial court abused its discretion in sentencing him to a term

of 14 years’ imprisonment. For sentencing issues, we consider whether the trial court abused its

discretion in handing down a sentence. People v. Shaw, 278 Ill. App. 3d 939, 953 (1996). As

defendant notes, it is imperative that the trial court carefully consider the personal history of the

defendant and the nature and circumstances of the crime in imposing a sentence. People v.

Maldonado, 240 Ill. App. 3d 470, 485-86 (1992). However, as the sentencing court is in the best

position to analyze these factors as well as the defendant’s credibility, demeanor, general moral

character, mentality, social environments, habits, age, and potential for rehabilitation, great

deference is granted its decision. People v. Ramos, 353 Ill. App. 3d 133, 137 (2004).

Defendant asserts that this deference is not unfettered and notes this court has not shied

away from reversing a sentence where factors have not been considered, even where the sentence

imposed lies within the statutory guidelines. He cites People v. Steffens, 131 Ill. App. 3d 141,

151-53 (1985), People v. Center, 198 Ill. App. 3d 1025, 1032-35 (1990), and People v. Gibbs, 49

Ill. App. 3d 644, 648 (1977). In fact, as highlighted by the Center court, our constitution

mandates balancing of the retributive and rehabilitative purposes of punishment by considering the

nature of the offense with the objective of restoring the offender to useful citizenship. Center,

198 Ill. App. 3d at 1032-33, citing Ill. Const. 1970, art. I, §11. Nevertheless, where the factors

have been considered, it is within the trial court’s discretion to determine what significance is

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given to each aggravating and mitigating factor. People v. Saldivar, 113 Ill. 2d 256, 272 (1986).

Unless the sentence is grossly disproportionate to the nature of the offense committed, the

sentence should be affirmed. People v. Phillips, 265 Ill. App. 3d 438, 449 (1994).

Defendant argues that the trial court ignored several mitigating factors, in particular that

his offense did not involve violence or a threat of harm and the “minimal proceeds” of the

burglary were returned to the victim. He contends that this case is similar to Center, where the

defendant was eligible for sentencing as a Class X offender based on two prior Class 2 felony

convictions. Center, 198 Ill. App. 3d at 1032. In Center, the defendant had been convicted four

years’ earlier, at age 19, of the robbery of a bicycle from a 9-year-old boy and for the burglary of

the same laundromat for which his conviction at issue involved. Defendant was sentenced as a

Class X felon to 15 years’ imprisonment with the trial court stating, without elaboration, that it

had considered all the factors raised. Center, 198 Ill. App. 3d at 1034.

This court found the term imposed excessive as it was nine years more than the minimum

for Class X felonies and one year more than the maximum extended sentence for the crime. The

court noted that the circumstances of the offense showed the laundromat was closed, the

defendant was a lookout, no proceeds were obtained, and none of defendant’s convictions

involved or resulted in bodily harm. Furthermore, the court cited to defendant’s personal

background of being raised in a normal home environment, a high school graduate, employed, and

accepted into a firefighter-paramedic training program. Accordingly, the court concluded that a

15-year sentence did not further the objectives of rehabilitation and restoration to useful

citizenship. Center, 198 Ill. App. 3d at 1035.

In this case, defendant notes that his criminal history, though more extensive than the

defendant’s in Center, is also entirely nonviolent. He notes that his history does not paint the

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picture of a dangerous criminal, but of a nonviolent homeless man who erred in breaking into the

trunk of a car. He asserts that this sentence, more than quadruple of his prior sentence, is

excessive and does not serve the purpose of rehabilitation.

We agree with the State that, considering the discretion vested in the trial court, the

factors presented in aggravation and mitigation, and that the sentence imposed falls well within

the statutory guidelines, we do not find the sentence excessive. The State notes that, where

mitigation evidence is before a court, it is presumed that the court considered that evidence,

absent evidence to the contrary. People v. Canet, 218 Ill. App. 3d 855, 864 (1991). In handing

down the sentence, the trial court stated that it reviewed the evidence before it, including

defendant’s presentence investigation report, which contained the information defendant uses for

support.

It is important to note that defendant’s most recent conviction resulted in a sentence of

four years’ probation; however, that turned into a three-year prison term when defendant violated

the terms of his probation. While the jump from that to a 14-year sentence is large, based on the

information before the trial court, it is not per se excessive. As the trial court noted, that sentence

resulted from defendant’s election to be treated as a drug addict. Furthermore, unlike Center,

defendant had five prior felony convictions and served terms in prison. The prior convictions

were not merely for robbery of a bicycle and a Class 2 burglary. Defendant is an elementary

school dropout with a history of drug issues and five prior convictions. Based on the record, the

trial court did not abuse its discretion in imposing a sentence well within the statutory guidelines.

D. Defendant’s Term of Mandatory Supervised Release

Finally, defendant argues that the three-year MSR term imposed by the trial court was in

error. Defendant argues that, while his record allowed the trial court to sentence him as a Class X

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offender, he contends that he committed a Class 2 offense that requires only a two-year term of

MSR. Defendant contends that the three-year term imposed is void. Defendant contends that our

supreme court’s reasoning in People v. Pullen, 192 Ill. 2d 36 (2000), requires correction of the

mittimus to reflect the proper MSR term of two years. We disagree with defendant’s application

of Pullen and agree with the State that defendant was properly sentenced.

In Pullen, because of his prior convictions, the defendant was sentenced as a Class X

offender following his negotiated plea of guilty to five counts of burglary. Defendant’s sentence

resulted in an aggregate term of 30 years’ imprisonment, two years’ greater than the sum of

maximum permissible extended-term sentences for two Class 2 offenses. Pullen, 192 Ill. 2d at

42-43. There was no dispute that the defendant was to be sentenced as a Class X offender, but

the issue was whether the maximum was the sum of the maximum permissible extended-term

sentences for Class X or Class 2 offenses. The Pullen court concluded that the offense was

explicitly defined as a Class 2 felony and the character and classification of those offenses

remained, regardless of whether the defendant was subject to the sentence enhancement or not.

Therefore, since the sentence imposed exceeded the maximum aggregate term for Class 2

felonies, the sentence was void. Pullen, 192 Ill. 2d at 46.

Unlike in Pullen, this case does not involve the character and classification of the

convictions. This case is in line with the decisions of this court on this issue. See People v.

Anderson, 272 Ill. App. 3d 537 (1995); People v. Smart, 311 Ill. App. 3d 415 (2000); People v.

Watkins, 387 Ill. App. 3d 764 (2009); People v. Lee, 397 Ill. App. 3d 1067 (2010). Each of these

cases found that by the plain language of the statute, the MSR term is part of the sentence. In

fact, the Lee court specifically rejected defendant’s argument here that Pullen mandates a change

in his MSR term. Lee, 397 Ill. App. 3d at 1072-73. Therefore, when subject to the enhancement,

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the MSR term for Class X offenses attaches to the sentence imposed.

III. CONCLUSION

For the foregoing reasons, we affirm defendant’s convictions and sentence.

Affirmed.

QUINN, P.J., and STEELE, J., concur.

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Plea se Use REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
Following (Front Sheet to be Attached to Each Case)
Form:

Complete THE PEOPLE OF THE STATE OF ILLINOIS,
TITLE
of Case Plaintiff-Appellee,

v.

BRUCE LAMPLEY,

Defendant-Appellant.

Nos. 1-09-0661
Docket No.
Appellate Court of Illinois
First District, THIRD Division
COURT

Opinion November 10, 2010
Filed (modified upon rehearing)
(Give month, day and year)

JUSTICE MURPHY delivered the opinion of the court:
JUSTICES
Quinn, P.J., and Steele, J., concur [s]

Lower Court and Trial Judge(s) in form indicated in the margin:
APPEAL from
the Circuit Ct. of The Honorable Michael Brown , Judge Presiding.
Cook County,
Criminal Div.

Indicate if attorney represents APPELLANTS or APPELLEES and include
For attorneys of counsel. Indicate the word NONE if not represented.
APPELLANTS,
John Doe, of
Chicago.
Attorneys for Petitioner-Appellant: Michael J. Pelletier, State Appellate Defender
Patricia Unsinn, Deputy Defender
Jessica Wynne Arizo, Asst. Appellate Defender
203 N. LaSalle Street, 24th Floor
Chicago, IL 60601
Phone: (312) 814-5472

Attorneys for Respondent-Appellee: Anita Alvarez, State’s Attorney of Cook County
Of counsel: Allen J. Spellberg, Carol L. Gaines, Molly E.
Donnelly, Asst. State’s Attorneys
For 309 Richard J. Daley Center
APPELLEES,
Chicago, IL 60602
Smith and Smith
of Chicago, Phone: (312) 603-3362
Joseph Brown,
(of Counsel)
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