People v. Smith

2021 IL App (4th) 190050-U

• Court: Appellate Court of Illinois
• Decided: January 11, 2021
• Docket: 4-19-0050
• Status: Unpublished

Opinion

NOTICE 2021 IL App (4th) 190050-U This Order was filed under FILED NO. 4-19-0050 January 11, 2021 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County DANNY SMITH, ) No. 17CF11 Defendant-Appellant. ) ) Honorable ) John Casey Costigan, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Turner and Holder White concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, concluding the trial court did not abuse its discretion in sentencing the defendant to 48 years in prison for felony murder.

¶2 In September 2018, defendant, Danny Smith, entered an open plea of guilty to first

degree murder, and the McLean County circuit court sentenced him to 48 years in prison.

¶3 Defendant appeals, arguing his sentence is excessive due to the trial court’s

improper consideration of factors in aggravation and mitigation. We affirm.

¶4 I. BACKGROUND

¶5 A. The Charges and Guilty Plea

¶6 In January 2017, the State charged defendant by information with 14 counts related

to events occurring on December 22, 2016, including home invasion, residential burglary, armed robbery, aggravated kidnapping, aggravated vehicular hijacking, possession of a stolen vehicle,

and first degree murder. Later that month, a grand jury returned bills of indictment charging the

same offenses.

¶7 On September 4, 2018, defendant entered into an open plea agreement with the

State. Pursuant to the agreement, defendant pleaded guilty to an amended charge of first degree

murder (720 ILCS 5/9-1(a)(3) (West 2016)) (count XV), alleging that he, without lawful

justification and while committing the forcible felony of aggravated kidnapping (id. § 10-2(a)(1)),

caused the death of Maunds Bryant. In exchange for defendant’s plea of guilty to count XV, the

State agreed to dismiss the remaining 14 charges against him. Defendant additionally agreed to

pay $12,962.50 in restitution to Bryant’s mother, Carmelita Magsby.

¶8 The State presented the following factual basis in support of defendant’s guilty

plea:

“[O]n Friday December 23rd of 2016, the Normal Police Department was called by

the Peoria Police Department after a male identified as Roy Magsby reported that

he had escaped from the basement of a residence located at 1812 West Kettle Street

in Peoria, Illinois[,] after being kidnapped and taken from his residence at 111 West

Raab Road in Normal, Illinois. Additional investigation revealed a second

kidnapping victim still in the basement of 1812 West Kettle in Peoria, Illinois.

The Peoria Police Department officers discovered a male, later identified as

Maunds Bryant, laying on the basement floor with a wound to his head. At that time

the defendant *** fled from the residence and was taken into custody by Peoria

Police Department officers after a short foot pursuit.

-2- Further investigation revealed that during the evening hours of December

22nd of 2016[,] Roy Magsby heard a knock at his door at 111 West Raab Road in

Normal. Magsby did not know the male at the door and asked him what he wanted.

The male, later identified by Magsby as this defendant ***, produced a mailing

envelope, stated that his mother lived down the street and had inadvertently

received Magsby’s mail. Magsby told Smith to leave it on the doorstep and leave.

Shortly after, Magsby heard the door being forced in and Smith entered the

residence. At this same time the defendant was forcing entry in the residence,

Bryant, who suffers from ALS, which is otherwise known as Lou Gehrig’s Disease,

fell forward in the hallway while trying to get away from the front of the residence

and moving away from the home intruder, striking his head on the floor, causing a

laceration to his left eyebrow area that began to bleed profusely. Bryant would later

die from this wound on December 25th, 2016.

An autopsy revealed a severe brain bleed caused from the fall and impacting

his head on the floor.

Due to his ALS, Bryant has [sic] lost functional use of his arms and was

unable to catch himself during the fall.

Defendant *** then bound Magsby with handcuffs and held Magsby and

Bryant until Magsby’s wife, who is also Bryant’s mother, Carmelita Magsby,

returned home. Among other personal property the defendant took cash from Roy

Magsby’s wallet and their personal cellphones.

[Defendant] loaded Roy Magsby and Maunds Bryant into Carmelita’s gray

[J]eep. The defendant ordered Carmelita to stay behind, told her that someone was

-3- watching the house and ordered her not to call the police or he would harm Roy

and Maunds and demanded that Carmelita get him [$]20,000 for the release—for

the release of Roy and Maunds.

Carmelita stated to the police that in July she had won approximately

[$]420,000 in the state lottery, and the defendant must have known this somehow.

Defendant *** also provided her with a black ZTE brand of prepaid cellular

telephone to call him once she had withdrawn the money from the bank the next

morning. This cellphone was recovered by the Normal Police Department from her

residence.

[Defendant] then drove Roy Magsby and Maunds Bryant to 1812 West

Kettle Street in Peoria. Once Normal police officers were notified of the

kidnapping, they responded to 111 West Raab Road where they discovered the front

door had been forced in.

Carmelita was discovered at the residence waiting for a call from the

defendant. During the home invasion the defendant poured bleach all over the first

floor of the residence in an effort to cover up his tracks. When the defendant walked

through the bleach, however, shoe ware impressions were left in the drying bleach.

The shoe impressions made from Nike Air Jordan shoes matched that of the

defendant ***, who was wearing Nike Air Jordan shoes at the time of his arrest.

Furthermore, black duct tape and packaging tape were found inside the 111

West Raab Road residence by the Normal Police Department upon the search of

the residence.

-4- Carmelita and Roy Magsby also indicated to the police that the defendant

*** told them he had been watching their house for a couple weeks.

When the Peoria Police Department evidence technicians processed the

crime scene at 1812 West Kettle in Peoria, they discovered several items of

potential evidence, including a bandana, sock, tape, and handcuffs used to bound

and gag Magsby during the kidnapping. Also discovered was Carmelita’s gray

[J]eep under a tarp, in addition to a mailing envelope addressed to Roy Magsby,

which was located in an outside garbage can outside 1812 West Kettle in Peoria.

Additionally, zip ties were discovered in a garbage can[.] *** Further

investigation also revealed that 1812 West Kettle Street was not the residence of

the defendant ***. Rather it belonged to an individual that [sic] allowed numerous

individuals to come and go from the property, and the owner of the residence was

not aware that [defendant] was using the address to commit the crime.

The residence located at 2418 West Proctor in Peoria, Illinois, is the address

the defendant had listed with the Illinois Secretary of State as being his residence.

On December 28th of 2016[,] the Normal Police Department executed a

search warrant at the defendant’s residence at 2418 West Proctor in Peoria. Located

inside the residence at this time were numerous items of evidentiary value,

including in the defendant’s bedroom in the garbage were found two empty prepaid

phone boxes, which the Peoria Police Department confirmed one of the boxes

matched the prepaid phone located on defendant *** at the time of his arrest and

the other was the box for the black ZTE brand cellular telephone that the defendant

-5- gave to Carmelita Magsby to use to contact him once she had obtained the ransom

money.

Also found in the defendant’s trash was black duct tape matching that used,

keys to the novelty handcuffs recovered by the Peoria Police Department at 1812

West Kettle Street, and then three empty bandana packages and an Auto Zone

receipt for a car cover used to cover the car taken from Carmelita Magsby.”

¶9 Defendant stipulated to the factual basis, and the court accepted defendant’s guilty

plea.

¶ 10 B. Sentencing Hearing

¶ 11 In November 2018, defendant’s case proceeded to a sentencing hearing.

¶ 12 1. Evidence and Arguments

¶ 13 As evidence in aggravation, the State presented six victim impact statements that

were admitted as exhibits. Statements from Roy and Carmelita Magsby (Maunds’s mother and

stepfather), and Juanita Bryant (Maunds’s sister), were read into the record.

¶ 14 In mitigation, defendant presented (1) three letters of support from friends and

family members, (2) certificates showing defendant’s completion of several programs while in jail,

and (3) a report by and curriculum vitae for Dr. Thomas Young, a defense expert, who reviewed

the autopsy report of Maunds Bryant.

¶ 15 During its argument, the State described the events in this case as like “a scene out

of a horror movie.” The State specifically noted Maunds’s disability and “the fact that he spent

some of his last conscious hours a captive bleeding on a dark basement floor.” The State

additionally emphasized (1) defendant’s prior criminal history, which included a 2009 violent

felony from Tennessee, (2) that defendant committed the offense in this case while he was on

-6- probation for felonies committed in Tennessee, (3) that a “serious” sentence was necessary to deter

others, and (4) defendant’s acts were premeditated and thoroughly planned. The State argued

defendant should be sentenced to 58 years in prison.

¶ 16 Defendant’s counsel argued that under the felony murder doctrine, defendant

necessarily lacked the intent to kill Maunds. Counsel further noted that reports from the paramedics

indicated that at the time Maunds was transported for medical treatment, “Maunds was

consci[ous], alert, oriented; that he had regular breathing, non-labored, strong regular pulse, and

they had suctioned some bright red blood from his mouth,” but there was “no indication that it was

bleeding profusely.” Defense counsel further explained that although it was true defendant had

three prior felonies, all three had arisen out of the same 2009 incident in Tennessee. Defense

counsel further disputed the State’s assertion that defendant had committed the offense in this case

while on probation for the Tennessee case. According to records defense counsel obtained from

the Montgomery, Tennessee circuit court, defendant had completed his probation successfully.

Defense counsel emphasized defendant was only 30 years old and that he had taken responsibility

for his actions. Regarding defendant’s rehabilitative potential, counsel stated defendant had been

productive in the two years he had been in custody, completing his GED, food handling and life

skills courses, and moral reconation therapy (MRT). Defense counsel also indicated defendant

suffered from opiate addiction. Defense counsel argued for a sentence of 20 to 25 years in prison.

¶ 17 Following arguments, defendant made a statement in allocution. Defendant

apologized to Bryant’s family and expressed remorse, asking the trial court to consider his

potential for change in fashioning his sentence.

¶ 18 2. Sentencing Decision

¶ 19 The court then issued defendant’s sentence stating, in part, as follows:

-7- “The court understands the evidence, the positions of the parties. I’ve

considered the factual basis, the Presentence Investigation Report, the history,

character, and attitude of the defendant ***, the evidence and arguments, statement

in allocution. The court has considered the relevant statutory factors in aggravation

pursuant to 735 ILCS 5/2-3.2 and the relevant factors in mitigation pursuant to 730

ILCS 5/5-3-5.1.

***

With regard to factors in mitigation, I do—I have read the letters from the

individuals who have written on your behalf. And I understand the person that they

knew you to be, and I am considering that here in the sentence that’s being issued

here today. They certainly have written about an individual who is much different

than the facts that the court has before it with regard to this particular incident that

you pled guilty to. And, so the court is considering that.

I’m considering the fact that since you have been incarcerated, there’s been

a number of programs that have been completed that the court is considering as

well. You have taken advantage—and I would agree with [defense counsel] that

you have taken advantage of the programs downstairs in terms of attaining your

GED, in terms of completing MRT, Life Skills. Those are all, court finds, positives

in what it’s considering here.

Unfortunately, with those positives come a number of negatives as well.

And those are the factors in aggravation. And there’s a number of them in this case.

-8- The conduct that brings us here together today caused and threatened

serious physical harm, threatened serious harm. And the court is not ignoring that.

The court can consider the factual basis. And, frankly, the factual basis is very

aggravating, and the court believes that to be true. There is a history of prior

criminal activity. And as [defense counsel] argued, sometimes the court might see

that a little different than what the general public sees because we deal with that on

a daily basis. We’re here on your fourth felony offense. And the court certainly sees

that on a regular basis in terms of multiple felonies with people who come before

it. However, I’m not ignoring it.

We’re here on a fourth felony offense. There were three prior opportunities

here to turn it around, especially while you were on probation. That’s the purpose

for probation; to cure the conduct that got you here in the first place. And you did

not take advantage of that. And that’s aggravating to the court that you had that

opportunity and it was not taken advantage of.

There’s been mention about deterrence. And this court certainly would

agree with the State on this; that any sentence the court issues is necessary to deter

others from committing the same offense. That probably goes without saying. But

especially in this type of situation, the court, nor society will accept this type of

behavior under any circumstances. And the court is certainly considering the

deterrence factor.

The offense, that was committed against a person physically handicapped.

And I understand [defense counsel] is saying that you didn’t know the person was

physically handicapped. However, I look at the doctor’s report that is marked as

-9- Defendant’s Exhibit No. 3 and in the first paragraph of Dr. Young’s report, he

certainly describes an individual who can’t talk, who has nerve and muscle

dysfunction, who has problems lower and upper neurologically. I heard the

testimony or the victim impact statements of Mr. Bryant’s family who indicate the

condition he was in. And it’s difficult for the court to believe that there was not

some realization here that Mr. Bryant did not suffer from a physical disability. And

that should have been known or was known to you at the time this offense took

place. And the court sees committing an offense against a person who is physically

handicapped—these are the most vulnerable members of society, and they demand

the court’s protection when looking at these situations and issuing a sentence.

The court has looked at your prior record with regard to whether you were

on probation. You were placed on probation in Montgomery, Tennessee on

February 23rd, 2009. It was an eight-year term. And this offense was committed on

December 22nd, 2016. At least according to the record, you were still on probation

at the time this offense took place. Again, probation is an opportunity for you to fix

the conduct that got you into probation in Montgomery, Tennessee, and it was not

done.

This court—you asked me to consider the person you can be, and the court

always does that. The court always considers rehabilitative potential of the

individual. But the court also considers the actions that got somebody here in the

first place. The court sees the actions in this case as significantly aggravating. The

court finds a number of aggravating circumstances in this particular case.

- 10 - The court will issue a sentence of court costs plus 48 years in the Illinois

Department of Corrections. Restitution per the addendum or per the agreement,

$12,962.50.”

¶ 20 In November 2018, defendant filed a motion to reconsider his sentence, arguing the

sentence imposed by the court was excessive. Following a December 2018 hearing, the court

denied the motion.

¶ 21 This appeal followed.

¶ 22 II. ANALYSIS

¶ 23 Defendant argues his 48-year sentence for felony murder is excessive due to the

trial court’s improper consideration of factors in aggravation and mitigation. Specifically,

defendant argues the court misinterpreted his criminal history, gave improper weight to the

deterrence factor, and failed to adequately account for his rehabilitative potential.

¶ 24 A. Standard of Review

¶ 25 “The Illinois Constitution provides penalties are to be determined both according

to the seriousness of the offense and with the objective of restoring the offender to useful

citizenship.” People v. Daly, 2014 IL App (4th) 140624, ¶ 26, 21 N.E.3d 810 (citing Ill. Const.

1970, art. I, § 11). “This constitutional mandate calls for balancing the retributive and rehabilitative

purposes of punishment, and the process requires careful consideration of all factors in aggravation

and mitigation.” Id.

¶ 26 “The trial court has broad discretionary powers in imposing a sentence, and its

sentencing decisions are entitled to great deference.” People v. Alexander, 239 Ill. 2d 205, 212,

940 N.E.2d 1062, 1066 (2010). “The *** court must base its sentencing determination on the

particular circumstances of each case, considering such factors as the defendant’s credibility,

- 11 - demeanor, general moral character, mentality, social environment, habits, and age.” People v.

Fern, 189 Ill. 2d 48, 53, 723 N.E.2d 207, 209 (1999). “It is also required to consider statutory

factors in mitigation and aggravation; however, ‘the court need not recite and assign a value to

each factor it has considered.’ ” People v. Pina, 2019 IL App (4th) 170614, ¶ 19, 143 N.E.3d

794 (quoting People v. McGuire, 2017 IL App (4th) 150695, ¶ 38, 92 N.E.3d 494). “[I]f mitigating

evidence is presented at the sentencing hearing, this court presumes that the trial court took that

evidence into consideration, absent some contrary evidence.” People v. Shaw, 351 Ill. App. 3d

1087, 1093, 815 N.E.2d 469, 474 (2004).

¶ 27 “On review, the sentence imposed by the trial court will not be reversed absent an

abuse of discretion.” Pina, 2019 IL App (4th) 170614, ¶ 20. “A sentence within statutory limits

will not be deemed excessive and an abuse of the court’s discretion unless it is ‘greatly at variance

with the spirit and purpose of the law or manifestly disproportionate to the nature of the

offense.’ ” Id. (quoting Fern, 189 Ill. 2d at 54).

¶ 28 B. This Case

¶ 29 1. Criminal History

¶ 30 Defendant first argues the trial court misapprehended or gave improper weight to

his criminal history when it stated defendant had “three opportunities to turn it around” regarding

his sentence to probation for three felonies in Tennessee. We disagree.

¶ 31 As part of his argument, defendant asserts the trial court “misinterpreted” his

criminal record and, in fact, he “received only one eight-year term of probation that covered all

three felony convictions[ ]” relating to the Tennessee incident. (Emphasis in original.) However,

the presentence investigation report (PSI) does not support defendant’s contention. The PSI

reflects defendant actually received three separate probation sentences of one, three, and eight

- 12 - years, for the three felony convictions in Tennessee. We also disagree with defendant’s claim that

the court’s reference to “three opportunities to turn it around” “necessarily implies that the [court]

treated [defendant’s] previous felony convictions as arising from three separate incidents.” Rather,

the court’s statement reflects its recognition that every sentence of probation offers a defendant

the opportunity to demonstrate his ability to comply with its terms and conditions. Defendant’s

attorney acknowledged the failed opportunity at the hearing on defendant’s motion to reconsider

sentence, saying, “So really, yes, he did screw up probation.” When viewed in context, the court’s

statement demonstrates that it properly concluded defendant’s failure to take advantage of the

opportunities provided to him during the eight-year period of probation constituted an aggravating

factor.

¶ 32 Moreover, the trial court clarified at the hearing on defendant’s motion to

reconsider his sentence that his criminal history was only “a factor” among other factors it

considered in fashioning its sentence. Specifically, the court stated, “[T]he deterrence, the physical

handicap ***, on probation at the time of the offense, the custody infractions, the threatened

physical harm, the nature and circumstances of the offense, that’s why the Court came to the

decision it did with regard to the sentence that it issued.” The record shows the court understood

the nature and circumstances of defendant’s convictions and sentences in Tennessee, and that in

any event, it does not appear it gave undue weight to that criminal history in fashioning its

sentence. We conclude the court’s consideration of defendant’s criminal history was proper and

did not constitute an abuse of discretion.

¶ 33 2. Deterrence

¶ 34 Defendant next argues the trial court gave improper weight to the deterrence factor.

Specifically, defendant argues “deterrence is nearly impossible to achieve in this case” because

- 13 - “[n]ot only did [defendant] not intend to cause Maunds’[s] death, but *** no person in

[defendant’s] position could have foreseen that his actions would eventually lead to Maunds’[s]

death.” We disagree.

¶ 35 “Felony murder derives its mental state from the underlying intended offense.”

People v. Jones, 376 Ill. App. 3d 372, 387, 876 N.E.2d 15, 28 (2007). “Felony murder seeks to

deter persons from committing foreseeable felonies by holding them responsible for murder if a

death results.” Id. Although the felony murder doctrine has an underlying policy goal of deterrence,

a sentencing court is also required to consider, as a statutory aggravating factor, whether a longer

prison sentence is necessary to deter others from committing the same offense. 730 ILCS

5/5-5-3.2(a)(7) (West 2018).

¶ 36 Here, we find the trial court properly considered the deterrence factor in fashioning

its sentence. The factual basis established defendant’s actions in carrying out the predicate felony

of aggravated kidnapping were premeditated and thoroughly planned. First, defendant surveilled

the Magsbys’ home for several weeks prior to the kidnapping. He also purchased various items to

carry out the offense, such as prepaid mobile phones, duct tape, zip ties, handcuffs, face coverings,

and a cover to conceal Carmelita’s stolen vehicle. The factual basis further reflected that, during

defendant’s forced entry into the home, Maunds was knocked to the floor when defendant forced

his way inside, causing a head injury that ultimately resulted in Maunds’s death. Moreover, despite

apparent indications of Maunds’s ALS and head injury, defendant followed through with the

kidnapping and transported him and Magsby to the house in Peoria rather than seeking medical

attention for him. The court, at the sentencing hearing, noted its skepticism that defendant did not

notice Maunds suffered from a physical disability. While defendant may not have intended for

Maunds to die, his actions in carrying out the aggravated kidnapping were calculated and clearly

- 14 - deterrable. Defendant’s forced entry foreseeably led to Maunds’s head injury which, left untreated,

ultimately resulted in his death. Thus, we find the court’s consideration of the deterrence factor

was proper and did not constitute an abuse of discretion.

¶ 37 3. Mitigating Factors

¶ 38 Finally, defendant argues the trial court failed to give proper weight to the

mitigating factors at sentencing, including defendant’s statement in allocution, completion of

educational programs while in jail, and drug addiction. We disagree.

¶ 39 Here, the record shows the trial court fully considered the applicable mitigating

factors in this case. The court specifically stated it had considered letters written in support of

defendant and that it found defendant’s completion of his GED, MRT, and Life Skills courses

while in jail to be “positives.” The court also stated it considered defendant’s statement in

allocution and his rehabilitative potential. Defendant presents no evidence indicating the court

failed to adequately consider these factors.

¶ 40 Additionally, “the trial court is not required to view drug addiction as a mitigating

factor,” and “a history of substance abuse is a ‘double-edged sword’ that the trial court may view

as a mitigating or aggravating factor.” People v. Sturgeon, 2019 IL App (4th) 170035, ¶ 105, 126

N.E.3d 703 (quoting People v. Mertz, 218 Ill. 2d 1, 83, 842 N.E.2d 618, 663 (2005)). Although the

court in this case did not specifically mention defendant’s arguments regarding addiction, it did

indicate it had reviewed the PSI, which detailed defendant’s struggles with opiate addiction. In the

absence of any evidence that the court improperly considered defendant’s drug addiction, we

presume the court adequately considered it at sentencing. See Shaw, 351 Ill. App. 3d at 1093.

¶ 41 In summary, the record shows the trial court carefully weighed all of the

aggravating and mitigating factors and fashioned a sentence that fell well within the statutory range

- 15 - for the offense. In light of the especially troubling facts of this case, we conclude defendant’s

48-year sentence for felony murder was not manifestly disproportionate to the nature of the

offense.

¶ 42 III. CONCLUSION

¶ 43 For the reasons stated, we affirm the trial court’s judgment.

¶ 44 Affirmed.

- 16 -