People v. Perry

2019 IL App (1st) 180201-U

• Court: Appellate Court of Illinois
• Decided: December 23, 2019
• Docket: 1-18-0201
• Status: Unpublished

Opinion

2019 IL App (1st) 180201-U No. 1-18-0201 Order filed December 23, 2019 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 18627 ) LENNIE PERRY, ) Honorable ) Lawrence E. Flood, Defendant-Appellant. ) Judge, presiding.

JUSTICE PIERCE delivered the judgment of the court. Presiding Justice Griffin and Justice Walker concurred in the judgment.

ORDER

¶1 Held: The trial court did not abuse its discretion when it imposed a nine-year sentence for bribery that was not disproportionate to the nature of the offense.

¶2 Following a bench trial, defendant Lennie Perry was found guilty of bribery and official

misconduct and sentenced to nine years’ imprisonment. On appeal, defendant contends that his

sentence was excessive because it was disproportionate to the nature of the offense. We affirm. No. 1-18-0201

¶3 Charged with nine counts, defendant ultimately went to trial on two counts of bribery (720

ILCS 5/33-1(d) (West 2014)), two counts of official misconduct (720 ILCS 5/33-3(b) (West

2012)), and two counts of theft (720 ILCS 5/16-1(a)(3)(A) (West 2014)) arising from incidents

which occurred in Chicago on September 7 and 19, 2014.

¶4 At trial, Denise Howard testified that in the late hours of September 19, 2014, or the early

morning hours of September 20, 2014, she drove downtown and parked her vehicle near Columbus

and Balbo Drives. Howard paid for a metered parking space and left her vehicle. When she later

returned to the parking location, her car was gone and defendant, whom she identified in court,

was there outside of his tow truck, which Howard identified as either a yellow or green city tow

truck. Howard asked him if he had towed her car. Defendant told her he had not yet taken her

vehicle to the pound, and she could get it back if she paid $150 to “the young lady in the white

Impala across the street.” Howard told defendant she did not have $150 and he responded that the

woman in the Impala would take her to the bank to get the money.

¶5 Howard did not know the woman and was in “a little bit” of fear for her safety but got into

the Impala. The woman drove her to a bank inside a Jewel Osco store, where Howard obtained

money from an ATM and a cashier. She gave $150 to the woman, who made a phone call. The

woman then drove Howard to a gas station where defendant was waiting, and they followed him

to Howard’s car on “lower Wacker,” a nearby street. Howard did not receive any documentation

acknowledging her payment or the release of her vehicle back into her possession.

¶6 As Howard drove away in her car, she saw two Chicago police officers near Columbus and

Balbo Drives. Howard pulled up to them and, as she explained what happened, the Impala drove

by. Howard pointed out the car and the officers pulled it over. Howard identified the driver as the

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woman who drove her to the bank, and later identified defendant from a photo lineup. Surveillance

video from the Jewel Osco showed Howard in the store, at the ATM, and at the cash register.

¶7 Officer Cynthia Nichols testified consistently with Howard regarding her identification of

the Impala and the officers pulling it over. Police officers recovered $500 in currency from the

woman, subsequently identified as Arica Perry, defendant’s wife.

¶8 Michelle Yee testified that, in September 2014, she parked her car on the corner of

Columbus and Balbo Drives and walked toward Buckingham fountain with her cousin. She heard

a siren, turned to look, and saw her vehicle being towed away. Five minutes later, she flagged

down a tow truck driven by defendant, whom she identified in court, and asked him how to retrieve

her vehicle. He told her he knew where her car was and, if she gave him $200, he might be able to

“have them catch” her car “before it’s brought in and processed into the tow yard.” Yee talked

defendant into accepting $100 and paid him. Defendant drove Yee and her cousin to her vehicle,

which was on a “side street” with meters and no fencing. Yee did not receive receipt for her

payment. When defendant took Yee to her car, he offered to take her to dinner. He gave Yee his

name and phone number written down on a piece of paper, which Yee identified in court. The note

was written on the back of a Streets and Sanitation Traffic Services Relocation Report. Yee

contacted the Office of the Inspector General to report the incident.

¶9 Hector Arellano, an investigator with the Office of the Inspector General, investigated

Yee’s complaint and verified that the phone number the tow truck driver gave her on September

7, 2014, was registered to defendant.

¶ 10 William Higgienbotham, a general superintendent in the Bureau of Traffic Services,

supervised the City’s motor pool truck drivers. He identified defendant as a former City tow truck

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driver and verified that defendant was on duty from 11 p.m. on September 19, 2014, to 6:30 a.m.

on September 20, 2014. After securing a vehicle to a tow truck, a driver must proceed without

stops or breaks to the auto pound and inventory the vehicle. A vehicle towed from the downtown

location of Buckingham Fountain would be towed to the tow yard located at 400 East Wacker

Drive. Drivers are not authorized to accept payments from the public and are not allowed to return

a vehicle to a driver without police permission.

¶ 11 The trial court found defendant guilty on both counts of bribery and both counts of official

misconduct, but not guilty of theft. Defendant filed a motion for a new trial, which the court denied.

¶ 12 The cause proceeded to a sentencing hearing. Defendant’s presentence investigative (PSI)

report showed that he had six prior convictions. The most recent was for theft in 2007, for which

he received two years’ probation. In 1997, defendant was convicted of the manufacture and

delivery of over 100 grams and less than 400 grams of cocaine and sentenced to 12 years in the

Illinois Department of Corrections (IDOC). While incarcerated, he was convicted of possessing

alcohol while in a penal institution and possessing cannabis while in a penal institution, and

sentenced to two years in IDOC for each offense. In 1993, defendant was convicted of possession

of a controlled substance, but violated the probation imposed and was then sentenced to three years

IDOC. Also in 1993, defendant was convicted of unlawful use of a weapon (UUW), for which he

was sentenced to three years in IDOC. While the instant matter was pending, defendant was

arrested and charged with unlawful use of a weapon.

¶ 13 Defendant reported that both his parents had passed away. He had not had a close

relationship with his alcoholic father but had had a “good” relationship with his mother, a former

Cook County Sheriff. His mother raised him as a single parent, in a neighborhood that was “okay,

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but it started getting bad.” Defendant completed elementary school, attended high school until the

eleventh grade when he was incarcerated, received vocational training while in prison, and

attended three months of vocational college in Kentucky. Defendant operated a livery service, a

landscaping business, and a trucking business. His longest employment was with the City of

Chicago from 2005 through 2014. Defendant filed for bankruptcy in 2014. Defendant was married

to Arica Reed Perry, the co-defendant in the case, and reported having three children with her, as

well as two children from a prior relationship. 1

¶ 14 Defendant acknowledged being a member of the Black P Stones gang when he was 15

years old and leaving the gang when he was 21 years old. According to defendant, he had last

consumed alcohol one year before the PSI and did not have a problem with alcohol, but the

investigator noted defendant had been court ordered to substance abuse treatment as part of

previous probationary sentences. Defendant denied any use of illegal or illicit substances.

¶ 15 In aggravation, the State reviewed defendant’s criminal background, and noted that he was

required to be sentenced as a Class X offender given his prior felony convictions. The State asked

the court to consider that defendant’s use of his public employee position to obtain money from

the victims, “however nominal that amount,” constituted public corruption. The State did not

recommend a sentence.

¶ 16 In mitigation, defense counsel argued public corruption was already part of “the crime,”

defendant’s five children and wife would benefit from having him with them, defendant had served

1 Reed Perry pled guilty to theft by threat in exchange for a sentence of 24 months of probation, with restitution and fines. She is not a party to this appeal.

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his time for his prior convictions, and defendant had not committed a crime of violence. Defense

counsel also presented a letter from defendant’s pastor in mitigation.

¶ 17 In allocution, defendant stated that when he worked with the City of Chicago from 2005 to

2014, he never had any infractions and did his work as he was ordered to do. Yet he was forced

into a department he did not want to be in and received no training. He also stated his family was

on the verge of being homeless and he did not want them to “be out there hurting.”

¶ 18 The trial court merged the official misconduct counts into the two bribery counts and

sentenced defendant as a Class X offender based on his background to concurrent terms of nine

years’ imprisonment on each bribery count. 2 In so holding, the court stated it considered evidence

brought out at trial, defendant’s background, and the factors in aggravation and mitigation, and

heard defendant’s allocution. The court told defendant he had violated his position of trust and

responsibility when he solicited money from people in his official capacity as a tow truck driver.

It told him, “in your position it’s wrong to take money from people to get their car back. You don’t

need any training to know that that’s wrong.” The court stated, “it’s more than one case,” as

defendant took money from two people to return vehicles, and, although defendant was eligible

for up to 30 years’ imprisonment, 9 years was a fair sentence. Defendant did not file a motion to

reconsider sentence.

2 The court misspoke at sentencing when it imposed nine-year sentences on bribery counts 1 and 2. (R. 412-14). It is clear from the record on appeal that the State proceeded to trial on, and the court found defendant guilty of, bribery counts 1 (Howard) and 3 (Yee). Count 2, which was based on a third victim, was nolle prossed. In line with the court’s verbal pronouncement, the mittimus reflects sentence was imposed on counts 1 and 2.

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¶ 19 On appeal, defendant argues his sentence is excessive because it is disproportionate to the

“truly paltry instance of bribery” where only a trivial amount of money was taken. He asks that we

reduce his sentence to the six-year minimum term.

¶ 20 As a preliminary issue, the State contends defendant forfeited his claim of sentencing error

because he did not file a motion to reconsider his sentence. Generally, both a contemporaneous

verbal objection and a written postsentencing motion are required to preserve a sentencing issue

for review. People v. Hillier, 237 Ill. 2d 539, 544 (2010). Defendant posits that this court can

consider the issue as plain error.

¶ 21 The plain error doctrine is a “narrow and limited exception” to the general forfeiture rule.

Id. at 545. Pursuant to the doctrine, a reviewing court may address forfeited claims when (1) “a

clear or obvious error occurred and the evidence is so closely balanced that the error alone

threatened to tip the scales of justice against the defendant, regardless of the seriousness of the

error,” or (2) “where a clear or obvious error occurred and that error is so serious that it affected

the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless

of the closeness of the evidence.” (Internal quotation marks omitted.) People v. Harvey, 2018 IL

122325, ¶ 15. However, a defendant must first show that a clear or obvious error occurred to obtain

relief under this rule. Hillier, 237 Ill. 2d at 545. For the following reasons, we find no error

occurred here.

¶ 22 In sentencing, the objective of restoring the offender to useful citizenship must be balanced

against the seriousness of the offense. Ill. Const. 1970, art. I, § 11; People v. Miller, 202 Ill. 2d

328, 337-38 (2002). The trial court has broad discretionary powers in imposing a sentence (People

v. Stacey, 193 Ill. 2d 203, 209 (2000)), and is given substantial deference because of its ability to

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observe the defendant’s credibility, demeanor, moral character, mentality, environment, habits,

and age. People v. Snyder, 2011 IL 111382, ¶ 36. A sentence is therefore presumed proper when

it falls within statutory guidelines (People v. Knox, 2014 IL App (1st) 120349, ¶ 46), and will only

be disturbed “if the trial court abused its discretion in the sentence it imposed” (People v. Jones,

168 Ill. 2d 367, 373-74 (1995)). Sentences which are “ ‘greatly at variance with the spirit and

purpose of the law, or manifestly disproportionate to the nature of the offense’ ” are considered an

abuse of discretion. People v. Alexander, 239 Ill. 2d 205, 212 (2010) (quoting Stacey, 193 Ill. 2d

at 210). However, a reviewing court must not substitute its judgment for that of the trial court

merely because it may have weighed the factors differently. People v. Fern, 189 Ill. 2d 48, 53

(1999).

¶ 23 Bribery is a Class 2 felony (720 ILCS 5/33-1 (West 2014)) with a sentencing range of 3 to

7 years. 730 ILCS 5/5-4.5-35(a) (West 2014). Here, defendant’s criminal history mandates he be

sentenced as a Class X offender, with a sentencing range of 6 to 30 years. 730 ILCS 5/5-4.5-95(b)

(West 2014). Because defendant’s 9-year sentence falls within these statutory guidelines, we must

presume it is proper. Knox, 2014 IL App (1st) 120349, ¶ 46.

¶ 24 Defendant acknowledges his nine-year sentence is presumptively proper, but maintains

that, even in choosing a sentence within the appropriate sentencing range, the court should be

“tempered” by the seriousness of the offense, here a non-violent offense involving “nominal”

financial misconduct by a “bottom rung” City employee. Defendant urges that the scope of the

trust he held in his tow truck driver public employee position was extremely limited. He also

maintains that his most serious prior conviction, for Class X drug manufacture or delivery,

occurred when he was 23 years old, 16 years prior to the sentencing in this case. Defendant

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contends his criminality decreased thereafter, he obtained vocational training, and he was

supporting his family through various forms of legal self-employment.

¶ 25 It is defendant’s burden to make an affirmative showing that the court did not consider the

relevant sentencing factors (People v. Burton, 2015 Il App (1st) 131600, ¶ 38), and he does not

meet that burden here. In mitigation, the court heard the evidence presented at trial demonstrating

the non-violent nature of the offense. It heard the evidence presented at sentencing regarding

defendant’s prior convictions, his work and family circumstances as set forth in the PSI, and the

pastor’s letter. It heard defense counsel’s argument that defendant’s crimes were non-violent and

his wife and children would benefit from having him with them. However, it also heard evidence

that defendant incurred two of those prior convictions while incarcerated and that he was charged

with UUW while the case at bar was pending. It heard evidence that defendant abused his role as

a City employee in the commission of the offense and committed the offense twice, days apart, on

two separate victims.

¶ 26 Not only did the trial court specifically state it considered all factors in aggravation and

mitigation, it is presumed to have taken all the information presented and argument into account

and balanced it against other relevant considerations. People v. Sauseda, 2016 IL App (1st)

140134, ¶ 19. It need not accord more weight to mitigating factors such as defendant’s generally

non-violent background than to the seriousness of the offense, here defendant’s scheme to tow

cars, solicit money from the cars’ owners for return of their vehicles, and then personally pocket

that money, which, as the court noted, he perpetrated against multiple victims. See People v.

Harmon, 2015 Il App (1st) 122345, ¶ 13. Moreover, defendant had six prior convictions, including

for UUW, as well as another UUW charge which he incurred during the pendency of the instant

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case. His criminal history alone may “warrant sentences substantially above the minimum.” People

v. Evangelista, 393 Ill. App. 3d 395, 399 (2009), People v. Hindson, 301 Ill. App. 3d 466, 475

(1998) (“The seriousness of the offense or the need to protect the public may outweigh mitigating

factors and the goal of rehabilitation.”) Further, a sentence above the minimum can be warranted

to deter other tow truck drivers from committing the same offense. See 730 ILCS 5/5-53.2(a)(7)

(West 2014).

¶ 27 Defendant argues his sentence is excessive as his current bribery convictions did not harm

Howard and Yee, claiming they paid no more than they would have paid to the City in tow fees

and the real “victim” was the City of Chicago, which only suffered the damage of being deprived

of “$300 out of the City’s coffers.” However, defendant did not make the specific argument with

regard to the amount of money lost by the City at trial. Defendant also points out that he was

sentenced to probation in 2007 for theft of property valued over $10,000 but here his effective

theft of $300 was punished by nine years’ imprisonment, demonstrating the sentence’s

excessiveness.

¶ 28 Defendant supports his position by citing to People v. Busse, 2016 IL App (1st) 142941,

¶ 30, where this court reduced the sentence of the defendant who was convicted for stealing $44

in loose change from a vending machine in an institution from which he was banned. To the extent

defendant is making a comparative sentencing argument, we decline his request, “as our supreme

court has rejected an approach that compares sentences between defendants in unrelated cases.”

People v. Fern, 189 Ill. 2d 48, 53 (1999).

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¶ 29 Considering the trial court’s broad discretionary powers in imposing a sentence, we find

that the trial court did not abuse its discretion in fashioning defendant’s sentence. Stacey, 193 Ill.

2d at 209; Snyder, 2011 IL 111382, ¶ 36. As no error occurred, there can be no plain error.

¶ 30 For the foregoing reasons, the judgment of the trial court is affirmed.

¶ 31 Affirmed.

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