People v. Busse
| Decision Date | 27 December 2016 |
| Docket Number | No. 1-14-2941,1-14-2941 |
| Citation | 2016 IL App (1st) 142941,69 N.E.3d 425 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harley BUSSE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pelletier, Patricia Mysza, and Rachel M. Kindstrand, of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Miles J. Keleher, and Lisanne P. Pugliese, Assistant State's Attorneys, of counsel), for the People.
¶ 1 Harley Busse pilfered $44 in quarters from a vending machine on the University of Illinois at Chicago campus. For this, he was convicted of burglary committed in a school and sentenced to 12 years in the state penitentiary. He now claims that his sentence was excessive.
¶ 2 Busse has committed a number of similar crimes over the years, but not one of them has been either violent or serious. The trial court's discretion to sentence him was limited by his status as a Class X offender. It goes without saying that judges at all levels must follow the law and hold in check their natural sympathies. There are circumstances, however, when applying mandatory sentencing produces an anomalous and absurd result in a particular case.
¶ 3 This is one of those rare cases. Here, the 12-year Class X sentence imposes a punishment grossly disproportionate to the offense. As appellate court judges, we have to explain our decisions, and in this case, simply saying the sentencing judge followed the law, which he did, provides thin justification for the sentence—even fully acknowledging Busse's past crimes and incarcerations.
¶ 4 A paltry crime for a paltry sum does not warrant the unpaltry sentence of 12 years. We hold that the trial court did abuse its discretion in sentencing Busse, and we impose a six-year sentence.
¶ 6 Busse's conviction arose from an incident that took place on July 31, 2012, inside the science and engineering building at the University of Illinois at Chicago (UIC). Before trial, the trial court granted the State's motion to introduce evidence of three prior crimes to show Busse's modus operandi . These crimes were burglaries and a theft that involved coin-operated machines.
¶ 7 At trial, UIC police department Sergeant Jason Huertas testified that while patrolling at about 1:48 p.m. on July 31, 2012, he saw Busse leaving a UIC campus building at 845 West Taylor Street. Sergeant Huertas recognized Busse because he had previously given Busse at least two criminal trespass warnings. Sergeant Huertas continued driving, and Busse continued walking eastbound on Taylor Street. Sergeant Huertas stopped at the corner of Taylor and Halsted Streets, got out of his car, and approached Busse on UIC property. Busse had a black briefcase and wore a beige shirt and beige, khaki-style pants. Huertas testified that Busse had no valid reason to be on campus so he arrested him for criminal trespass and called UIC officer Scott Ruckrich to assist.
¶ 8 Officer Ruckrich searched Busse and found, concealed by Busse's T-shirt, two pieces of a wire clothes hanger about six to eight inches long with a curved end, fastened to Busse's inner shirt tag. Officer Ruckrich also found loose quarters inside the briefcase. Sergeant Huertas told Ruckrich to investigate whether UIC vending machines had been broken into.
¶ 9 Huertas examined a still-image photograph taken from a surveillance video of the vending machine area, which shows a computer room and an individual in the hallway. He testified that the individual in the photograph was wearing beige-colored pants and a beige- or white-colored shirt and was carrying something in his left hand. He further testified that he saw Busse wearing those same clothes on July 31, 2012, and based on the clothing, he was able to tell that the individual in the image was Busse. On cross-examination, Huertas testified that the face of the individual in the photograph was not visible and it was difficult to identify the ethnicity as well as the height of the individual.
¶ 10 Mark Voirol, a vending technician, testified that he had been repairing and inspecting vending machines for 33 years. To determine whether a machine had been broken into, he would look for pry marks and if the door had been left open. He testified that a new way that people were stealing coins was by using a coat hanger or metal rod to "fish" change out of the coin changers. On July 31, 2012, he went with police to the UIC building at 950 South Halsted Street and examined the vending machines, including a coffee machine, two snack machines, a food machine, a cold food machine, and a change machine.
¶ 11 In the coffee machine, Voirol noticed that that the nickel and dime tubes were full and the quarter tube was empty. This was "pretty odd" because his company kept change in all of the machines, so if the quarter tube was empty then all of the other tubes would be as well. In the snack machine, he noticed that the nickels and dimes were full but that there were only five or six quarters left. Of these quarters, three were on the bottom upright on their edge, and a couple quarters were lying flat on top. He testified that this was "highly unusual," that the only way for that to happen was for the coins to be pushed from underneath, and a coat hanger was the most popular item used to push the coins up. When he opened the snack machine and saw the three quarters standing up and the others lying on top, "it pretty much told me that as they were fishing them out, they got stuck and they quit."
¶ 12 On cross examination, Voirol testified that he did not see any pry marks on the machines, the doors were closed, and there did not appear to be anything wrong with the machines. He further testified that he did not know how much change was in the machine before 12:30 p.m. on the day of the incident, that he inspected the machines between 4:30 p.m. and 5:30 p.m. or 6 p.m., and that he did not know when somebody had last visited the snack machine to keep it full.
¶ 13 Sergeant Huertas also testified about an earlier incident on February 8, 2009, at a UIC building at 950 South Halsted Street. While he was on foot patrol in the vending area in that building, he saw Busse shaking change out of a vending machine that had a wire hanger inside its return slot. The hanger was about six to eight inches on the straight end, was curved on one of the ends, and was similar to the hangers Busse was carrying on July 31, 2012. After Busse obtained the change from the vending machine, Huertas saw him put the change into his briefcase, walk to the other side of the hallway, stick the hanger into the return slot of a second vending machine, and begin to shake the change out of that machine. Sergeant Huertas then placed him under arrest.
¶ 14 The trial court found Busse guilty of one count of burglary committed in a school. At the sentencing hearing, Busse's counsel informed the trial court of errors in the presentence investigation, on page 7 in the social history section and on page 10 in the substance abuse section. The court made corrections in the social history section and added the illegal drugs mentioned by Busse's counsel in the substance abuse section.
¶ 15 The State argued for a "substantial sentence" based on Busse's 28 past convictions, including seven felony convictions. Several of Busse's past convictions were for burglary or theft from coin-operated machines. Because of this criminal history, Busses was subject to Class X sentencing.
¶ 16 Busse's counsel provided a letter from Busse's brother. The trial court reviewed the letter and orally summarized its contents: Busse's brother would provide Busse with a job, and their mother was ailing with leukemia. Busse's counsel also provided a letter from the Department of Corrections stating that he was in the gang-free unit. Busse's counsel further explained to the trial court that Busse was 40 years old, that he was working at Easy Movers, and that his mother suffered from hairy cell leukemia and he worried about his mother and that she would die while he was in custody. Also, his mother lives in northern Minnesota and cannot visit him due to the distance. Busse's counsel also noted that, according to the presentence investigation report (PSI), defendant had about 20 jobs since he was 12 years old and asked the trial court to exercise leniency.
¶ 17 The trial court sentenced Busse to 12 years, saying that while the facts were not "particularly egregious," it was offset by Busse's "egregious" criminal history as a "career thief." Since "nothing up to this point has made an impression upon you * * * maybe my twelve-year sentence will make an impression on you." The trial court denied his motion to reconsider sentence.
¶ 18 On appeal, Busse argues that his sentence is excessive given the nonviolent nature of the crime and his nonviolent background and that the trial court did not consider the "nature and circumstances" of his prior convictions. Busse further contends that the trial court did not consider any of the applicable mitigation evidence he presented or weigh the aggravating and mitigating factors. Busse argues that his sentence does not conform with the spirit and purpose of the law and requests that we reduce his sentence to the minimum term of six years or to a reduced prison term.
¶ 20 A reviewing court may only reduce a sentence under Illinois Supreme Court Rule 615 when the record shows that the trial court abused its discretion. People v. Brown , 2015 IL App (1st) 130048, ¶ 42, 391 Ill.Dec. 660, 31 N.E.3d 336. The reviewing court may not reverse the sentencing court just because it may have weighed the relevant factors differently. People v. Streit , 142 Ill.2d 13, 19, 153 Ill.Dec. 245, 566 N.E.2d 1351 (1991). "A sentence within statutory limits will not be deemed...
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