People v. Allen

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Appellate Court 17:29:47 -05'00'

People v. Allen, 2017 IL App (1st) 151540

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption FRANK ALLEN, Defendant-Appellant.

District & No. First District, Second Division
Docket No. 1-15-1540

Filed December 12, 2017

Decision Under Appeal from the Circuit Court of Cook County, No. 14-CR-19355; the
Review Hon. Charles P. Burns, Judge, presiding.

Judgment Sentence reduced.

Counsel on Michael J. Pelletier, Patricia Mysza, and Sean Collins-Stapleton, of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
and Mari R. Hatzenbuehler, Assistant State’s Attorneys, of counsel),
for the People.

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

¶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

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 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 Class X offender with a range of 6 to 30 years’ imprisonment.
730 ILCS 5/5-4.5-25(a), 5-4.5-95(b) (West 2012).
¶ 12 The trial court followed the law: it imposed a sentence within range and considered the
appropriate sentencing factors. But, we conclude, the sentence still amounts to an abuse of
discretion. Much like our previous decision in People v. Busse, 2016 IL App (1st) 142941
(which both parties discuss in their briefs), the trial court imposed a lengthy sentence that
greatly exceeds the seriousness of the crime (or rather, the lack of seriousness). See People v.
Wilson, 2016 IL App (1st) 141063, ¶ 11 (sentence should reflect both seriousness of offense
and objective of restoring defendant to useful citizenship); People v. Willis, 2013 IL App
(1st) 110233, ¶ 123 (in fashioning appropriate sentence, most important factor is seriousness
of crime); see also 720 ILCS 5/1-2(c) (West 2012) (partial purpose of sentencing statutes to
prescribe penalties proportionate to seriousness of offenses). In so doing, we are not, as the
dissent maintains, “carv[ing] out a ‘petty offense’ exception” to Class X sentencing, we are
applying the statutory law as well as the case law that our supreme court has instructed us to
follow.
¶ 13 Busse was caught stealing $44 worth of quarters from a university vending machine.
Busse, 2016 IL App (1st) 142941, ¶¶ 1, 8. The trial court sentenced him to 12 years, well
above the Class X minimum because Busse had a long history of committing similar
vending-machine heists, and his previous stints in jail had not deterred him. Id. ¶¶ 15, 17. We
reduced his sentence to 6 years, the minimum for a Class X sentence, as the 12-year sentence
did not reflect the seriousness of the offense. Id. ¶ 38. Busse had not harmed or threatened
any person during his quest for loose change, and he was not armed with a weapon; this was
consistent with his past crimes. Id. ¶ 29. Further, if his past stays in prison had not
rehabilitated him, there was no point in imposing yet another lengthy sentence, at incredible
expense to the State, simply to punish him for his petty crime. Id. ¶¶ 32, 37.
¶ 14 There are striking similarities between Allen and Busse. Allen broke into the truck to
steal small items with little value, which were almost immediately returned to Sweis. He did
not harm or threaten anyone. Allen also has a long history of committing burglary and
comparable crimes, as the dissent notes, but no history of violence. And Allen also has
bounced in and out of prison for much of his adult life without his incarcerations changing
his behavior after release.

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¶ 15 Most important is the offense’s trivial nature and that the 10½-year sentence does not
reflect its low level of seriousness. Six years is enough to punish an offender for breaking a
truck window and stealing two packs of cigarettes and a cap (which were promptly returned
to the owner). The sentence was “manifestly disproportionate to the nature of the offense”
and thus an abuse of discretion. People v. Fern, 189 Ill. 2d 48, 54 (1999). We are not
substituting our judgment for that of the trial court, or reweighing the factors, when we say
that a decade in prison is “greatly at variance with the spirit and purpose of the law” against
burglary. Id. While the trial court has discretion in sentencing, the exercise of that discretion
has limits and is not “totally unbridled.” (Internal quotation marks omitted.) See People v.
Brown, 2015 IL App (1st) 130048, ¶ 42; People v. Daly, 2014 IL App (4th) 140624, ¶ 26
(“the appellate court was never meant to be a rubber stamp for the sentencing decisions of
trial courts”). We have not created a new legal rule or mandated that all Class X sentences
should be reduced to the minimum; instead, we have applied the law to the circumstances
and evidence presented. If a trial court abuses its discretion in imposing sentence, it is not an
option for an appellate court to modify that sentence—it is our duty to modify it.
¶ 16 The trial court’s discretion was constrained by the Class X sentencing scheme—at
minimum, Allen was going to be sentenced to six years of imprisonment. Class X sentencing
takes into consideration criminal history and reflects the legislature’s judgment that repeat
offenders deserve longer sentences. Application of Class X sentencing doubled Allen’s
minimum sentence from three to six years. The dissent correctly notes that the legislature
chose to have the Class X scheme encompass any Class 1 or 2 felony, even minor ones. But
even if the legislature chose not to exclude petty thefts, the trial court’s exercise of its
discretion to tailor the sentence within the Class X range must be tempered by the amount of
harm the defendant inflicted, that is, the seriousness of the offense. That was not done here.
In the face of a legislative judgment, we do not simply throw up our hands and say that we
have no role to play in sentencing. The legislature has created sentencing ranges, and it is the
trial court’s job, and then our job, to impose a sentence that is appropriate, just, and
proportionate, depending on the nature, seriousness, and character of the offense.
¶ 17 Allen’s criminal history is nonviolent, nonserious, and, over its course, has posed no risk
of harm to any individuals. Allen’s stays in prison have not deterred him from committing
low-level criminal acts or rehabilitated him, and according to the trial court, Allen cannot be
rehabilitated (a conclusion supported by his background and the fact that he committed this
crime while on mandatory supervised release). The dissent would use this as a reason to
uphold the sentence, but we cannot see the point in sending Allen to prison (a place whose
partial purpose is supposed to be rehabilitation) for a long time if it is unlikely that he will
emerge from it better than he was when he entered it. See U.S. Dept. of Just., Bureau of Just.
Stats., Recidivism of Prisoners Released in 30 States in 2005: Patterns From 2005 to 2010, at
1 (Apr. 2014), https://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf. (within five years of
release, 82.1% of property offenders were arrested for new crime).
¶ 18 The dissent questions our characterization of Allen’s crime as “nonviolent” since he
broke the truck window. But the act of breaking the truck window is irrelevant to our point
that Allen did not harm Sweis or anyone else, nor threaten to do so. The use of force against
a truck window is poles apart from the serious use of force against a person, and one cannot
be likened to the other. The dissent makes the same point as to Allen’s criminal history; the
majority of his convictions, and all of his recent convictions, are for burglary and theft. But

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 neither of those crimes includes an element of force used against a person. See 720 ILCS
5/16-1(a) (West 2016) (defining theft as obtaining unauthorized control of property); 720
ILCS 5/19-1(a) (West 2016) (defining burglary as entering without authority a house or
vehicle with intent to commit theft or felony). (Allen does have a 1984 conviction for
robbery, which does have an element of force. See 720 ILCS 5/18-1(a) (West 2016) (defining
robbery as taking property from a person by use of force or threat of force).) Indeed, the State
noted at sentencing that this crime was similar to several of Allen’s burglaries, supporting
our point that Allen is consistent but in no way dangerous to others. This makes Allen far less
culpable, far less dangerous, and far less deserving of a harsh sentence than one who uses
physical force against a person. The 10½-year sentence is not necessary to protect the public.
¶ 19 The dissent emphasizes Allen’s lack of remorse as an appropriate aggravating factor. But
the trial court specifically stated that it drew no inference from Allen’s protestations of
innocence, so this was not a factor in its decision and should not be a factor in the dissent.
¶ 20 Allen’s mental health issues—he had been diagnosed with schizophrenia and bipolar
disorder—cut both ways in this analysis. Their apparent persistence means that Allen is less
able to be rehabilitated, and there is no basis to believe another lengthy prison sentence will
provide more good than harm regarding his mental health treatment or status. But the record
is not sufficiently developed in this area; we do not know, for example, whether Allen was
receiving adequate mental health treatment at the time he committed this offense. So, we do
not rely on his mental health as a reason to reduce his sentence.
¶ 21 All in all, then, what is the point of a sentence over the minimum? The justification is that
Allen deserves to be punished for his actions. But, frankly, these particular facts do not merit
more than a decade of imprisonment.
¶ 22 There is one difference between Busse and Allen, and that is in the damage to the truck.
Busse’s vending-machine theft did not damage the machine, which belonged to a university.
Allen broke Sweis’s truck window, which is a pecuniary inconvenience to Sweis. But
Sweis’s window will not be fixed any faster, or less expensively, if Allen spends 10½ years
in prison versus 6 years. What Sweis (and other victims of property crime) need from the
criminal justice system is not an extra four years of punishment for offenders like Allen;
Sweis needs restitution, which he is almost certain not to get the longer Allen spends in
prison. The State could have achieved better results by focusing on helping Allen to make
Sweis whole, rather than punishing Allen even more severely. Our sentencing scheme’s
relentless focus on incarceration blinds us to other possibilities that would do a better job
helping victims and rehabilitating offenders. Further, shifting away from harsh sentences for
minor, low-level crimes would increase public confidence. Unrestrained sentences like the
one imposed on Allen reflect poorly on the legal system.
¶ 23 Under Illinois Supreme Court Rule 615, we reduce Allen’s sentence to six years.

¶ 24 Sentence reduced.

¶ 25 JUSTICE MASON, dissenting:
¶ 26 The Illinois legislature has determined that certain recidivist offenders should be subject
to Class X sentencing provisions that enhance the sentence that would otherwise apply to the
felony of which they are convicted. 730 ILCS 5/5-4.5-25(a), 5-4.5-95(b) (West 2012) (a

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 defendant over the age of 21 who is convicted of a Class 1 or Class 2 felony and who has two
prior, separate felony convictions of Class 2 or greater, must be sentenced as Class X
offender with a sentencing range of 6 to 30 years). There is no dispute that Frank Allen is a
recidivist offender subject to Class X sentencing and that the sentencing range to which he
was subject as a result of his seven prior felony convictions (including six felony burglary
convictions and a robbery conviction) was 6 to 30 years. Although the majority
acknowledges that the trial court followed the law (see supra ¶ 12 (“The trial court followed
the law: it imposed a sentence within range and considered the appropriate sentencing
factors.”)), and imposed a sentence at the lower end of the sentencing range, it nonetheless
deems Allen’s 10½-year sentence excessive and determines that the minimum 6-year term is
the only sentence that would not constitute an abuse of discretion. Because my colleagues are
merely substituting their judgment for that of the trial court and because a determination that
anything other than the minimum sentence eviscerates the trial court’s well-recognized
discretion in sentencing decisions, I respectfully dissent.
¶ 27 Allen’s criminal history spans a period of 30 years. Beginning at age 17 and continuing to
his current conviction at age 48, he has amassed 13 convictions, primarily for property
related crimes, although, as noted, he does have a robbery conviction as well as a conviction
for “theft from person.” Allen has spent a substantial portion of his adult life behind bars on
prison sentences ranging from 6 months to 15 years.1 At the time of his current offense on
October 21, 2014, Allen was serving a period of mandatory supervised release on his sixth
felony burglary conviction, having been released from prison 11 months earlier. The fact that
a defendant commits another offense while serving a period of mandatory supervised release
is properly recognized as an aggravating factor. People v. Snyder, 2011 IL 111382, ¶ 37. It is
obvious that nothing in Allen’s criminal history supports the conclusion that a sentence
above the minimum must, under any reasonable definition of the term, be deemed
“excessive.”
¶ 28 Allen’s social background, as reflected in the presentence investigation report, likewise
does not provide a basis for overriding the trial court’s exercise of discretion. According to
the PSI, Allen reported that his parents were “kind-hearted, supportive and Christian.” None
of Allen’s family members has criminal backgrounds nor do his four closest friends. Allen
completed the ninth grade at Gerieg High School in Chicago, where he reportedly earned A’s
and B’s, and left school, not because he was suspended or expelled, but because of a “family
matter.” Before his arrest on October 21, 2014, Allen was employed full-time as a painter for
a car rental company earning $13 per hour and was living with his mother.
¶ 29 Allen’s self-reported mental health history included a diagnosis of schizophrenia and
bipolar disorder at age 26. He has been prescribed a number of medications, including
Risperdal and trazodone, and while incarcerated awaiting trial, saw a psychiatrist twice a
month. There is no indication that Allen was not taking his medications. Allen elected to
testify at trial, and while his testimony was implausible, given the two eyewitnesses who saw
him use a chunk of concrete to smash the victim’s car window, it was not delusional. In

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Allen received a six-month sentence for theft in 1984; two 2-year sentences in 1990 and 1991 for
theft from person and possession of burglary tools, respectively; two 3-year and six-month sentences in
1985 and 1988 for burglary; four 7-year sentences, all for burglary, in 1992, 1993, 1997, and 2009; and
a 15-year sentence for burglary in 2000.

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 particular, Allen did not claim that he was suffering any particular mental health problems on
the date of the crime, either during his testimony or in allocution at sentencing. There is thus
no basis to treat Allen’s self-reported mental health issues as a mitigating factor.
¶ 30 Allen continued to maintain his innocence after his conviction and expressed no remorse
for his actions. He claimed both in his testimony and at sentencing that he was merely out
jogging when the police arrested him for no reason. A defendant’s lack of remorse has long
been recognized as an appropriate aggravating factor to take into account at sentencing. See,
e.g., People v. Bannister, 232 Ill. 2d 52, 91 (2008) (“ ‘This court has consistently held that a
convicted defendant’s remorse or the absence of it is a proper subject for consideration at
sentencing.’ ” (Internal quotation marks omitted.) (quoting People v. Burgess, 176 Ill. 2d
289, 317 (1997))).
¶ 31 I further question the characterization of Allen’s conduct as “nonviolent,” a term the
majority uses to diminish the nature of Allen’s criminal history. Merriam-Webster defines
“violent” as “marked by the use of usually harmful or destructive physical force.” See
Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/violent
(last visited Oct. 26, 2017). The circumstances of Allen’s prior convictions are not contained
in the record, so there is no reason to assume that they all involved nonviolent conduct. As
relevant here, using a burglary tool to jimmy a car lock is not violent; using a chunk of
concrete to smash a car window—a textbook example of “usually harmful or destructive
physical force”—is. While the seriousness of Allen’s offense would certainly have been
enhanced had someone been in the car, the fact that no one was present does not render his
conduct “nonviolent.”
¶ 32 Our supreme court has consistently recognized the discretion vested in the trial court in
matters of sentencing and cautioned against a court of review substituting its judgment for
that of the trial court simply because it would have weighed the relevant aggravating and
mitigating factors differently. People v. Alexander, 239 Ill. 2d 205, 212-13 (2010) (“The trial
court has broad discretionary powers in imposing a sentence, and its sentencing decisions are
entitled to great deference.”); People v. Stacey, 193 Ill. 2d 203, 209 (2000); People v.
Lampley, 2011 IL App (1st) 090661-B, ¶ 39. The power to reduce a sentence should be
exercised “ ‘cautiously and sparingly.’ ” (Internal quotation marks omitted.) Alexander, 239
Ill. 2d at 212 (quoting People v. Jones, 168 Ill. 2d 367, 378 (1995)). In order to find that the
minimum term of six years is the only sentence that is not excessive, the majority necessarily
concludes that the multiple aggravating factors discussed above are outweighed by what it
deems is the “petty” nature of Allen’s offense. But that is what trial judges, not reviewing
courts, do.
¶ 33 This is the second time in recent memory that this court has carved out a “petty offense”
exception to legislatively-mandated Class X sentencing in order to reverse a sentence over
the six-year minimum. People v. Busse, 2016 IL App (1st) 142941, ¶ 31 (“We feel confident
that the legislature created Class X sentencing to protect the public from murderers and
rapists, not penny-ante pilferage.”). But the reasoning in Busse and here simply ignores that
the legislature included all types of Class 1 and Class 2 felony convictions for purposes of a
defendant’s eligibility for mandatory Class X sentencing. Had the legislature meant to
exempt nonviolent felonies, “petty” felonies, or any other type of felony from mandated
Class X sentencing, it would have said so. See People v. Giraud, 2012 IL 113116, ¶ 6 (“We
do not depart from the plain language of the statute by reading into it exceptions, limitations,

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 or conditions that conflict with the expressed intent.” (Internal quotations marks omitted.));
People v. Martinez, 184 Ill. 2d 547, 550 (1998) (“A court should not depart from the
language of the statute by reading into it exceptions, limitations or conditions that conflict
with the intent of the legislature.” (Internal quotations marks omitted.)). The majority’s
willingness to override discretionary sentencing decisions based on its supposition that the
legislature did not really mean what it plainly said does not reflect the cautious and sparing
use of the power of a reviewing court to reduce a sentence.
¶ 34 The trial court concluded that given Allen’s criminal history and the repetitive nature of
his offenses, he was beyond rehabilitation. The majority apparently agrees (supra ¶ 17), but
curiously uses this conclusion to justify its imposition of a minimum sentence (see supra ¶ 21
(“All in all, then, what is the point of a sentence over the minimum?”)). But defendants
deemed incapable of rehabilitation generally receive longer, not shorter sentences. See, e.g.,
People v. Kane, 404 Ill. App. 3d 132, 139 (2010) (defendant’s “failure to take advantage of
chances to rehabilitate himself” was properly considered as a factor in aggravation); People
v. Merritte, 242 Ill. App. 3d 485, 495 (1993) (trial court did not err in imposing greater
sentence upon defendants than was imposed upon their codefendant, given evidence of
defendants’ “lack of potential for rehabilitation”); People v. Nelson, 206 Ill. App. 3d 956,
963 (1991) (trial court did not abuse its discretion in sentencing defendant to natural life in
prison for murder, even though it was his first offense, since court determined that defendant
had not shown any rehabilitative potential); People v. Coleman, 201 Ill. App. 3d 803, 809
(1990) (defendant’s sentence was not excessive where “defendant’s criminal history showed
a lack of rehabilitative potential”).
¶ 35 I have expressed my agreement with the majority’s concern about the range of offenses
subject to Class X sentencing. Busse, 2016 IL App (1st) 142941, ¶ 45 (Mason, J., dissenting)
(“I would wholeheartedly support removing nonviolent ‘petty thievery’ from the list of
convictions that can render a defendant Class X eligible”). But we do a disservice to trial
judges to find that they have abused their discretion when they apply a statute as written,
which is exactly what the trial court did here. Indeed, at the sentencing hearing, even defense
counsel did not contend that anything over the minimum sentence would be excessive. In
response to the State’s request for a lengthy prison term, counsel argued that the court should
impose a sentence “closer to the minimum,” thus conceding that there were aggravating
factors the court was entitled to consider. And “closer to the minimum” precisely describes
the sentence Allen received.
¶ 36 In Busse, the majority emphasized the cost of incarceration as a factor weighing heavily
in favor of minimum sentences in “petty theft” Class X cases. Id. ¶ 37 (“[D]oes [defendant’s]
crime—pinching 176 quarters out of vending machines—require the taxpayers to pay close
to 1,000,000 quarters to imprison him for 12 years?”). But using Busse’s formula (calculating
an annual average cost per inmate of $20,627 per year at a minimum-security facility
multiplied by the length of the sentence) here means that if Allen spends 10½ years in jail,
the cost will be $216,583.50, while his minimum sentence (which the majority concedes is
proportionate to the crime) will result in the expenditure of only $123,762. If that is, in fact,
the measure of an excessive sentence (a proposition with which I disagree), both figures are
obviously disproportionate compared to the value of the items stolen—a baseball cap and
two packs of cigarettes.

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¶ 37 This last point drives home that the majority’s real problem is the application of Class X
sentencing provisions to what it considers to be petty criminals (who nonetheless commit
felonies). Id. ¶ 36 (“[T]he [Class X sentencing] statute operates as reflexive—an unthinking,
mechanical application of laws that were never intended for a defendant such as Busse.”).
But that is a decision the legislature has made, and one that we are not at liberty to ignore. I
would affirm Allen’s sentence.

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