This article is being co-published by the Chicago Sun-Times
A divided Illinois Appellate Court panel on Tuesday upheld a 10-year prison sentence to an addicted homeless man who had robbed $33 of underwear from a Family Dollar Store in 2015.
Appellate Judge Terrence Lavin, writing for himself and Appellate Judge Mary Anne Mason, stated that it is not the job of the appellate court to substitute its judgment for the decision of the trial judge. In this case Circuit Judge Mary Margaret Brosnahan had imposed the harsh sentence on defendant David Lundy, who had 10 prior convictions.
But in a stinging dissent Appellate Judge Michael B. Hyman wrote that the “sentence punishes Lundy more for the numerous difficulties brought about by his economic status (impoverished), illness (drug addiction), and condition (homelessness) than for the offense for which he was convicted.”
Hyman noted that Lundy had committed his most serious offense, robbery and aggravated battery causing great bodily harm, more than 22 years ago. “Since then, Lundy has been convicted of drug offenses and theft,” he wrote. “No violent crimes.”
His dissent cited the words of former South African President Nelson Mandela, “A nation should not be judged by how it treats its highest citizens, but its lowest ones.”
The majority and dissent disagreed over the severity of the crime. Lundy had entered the store, walked over to the underwear and began stuffing it into his baggy pants and jacket, When Patricia Parker, a store employee, came over to confront him, he pulled out a pocket knife and warned her to back away.
As he left the store and employees tried to recover the goods, Lundy told them “I’m going to kill you,” adding an epithet, “with this knife.”
He then left the store and was apprehended by police whom the store employees flagged down. Police found three packages of T-shirts and a package of underwear, as well as a red pocket knife in Lundy’s pants pocket.
But Hyman wrote, “The majority portrays Lundy as dangerous-a betrayal of the facts. Rather, the testimony of the two store employees describes a minor incident. Again, one employee said that Lundy’s behavior was ‘not that upsetting for a small woman like me,’ and the other expressed no fear or concern for her safety.”
He noted that Lundy’s sentence amounted to one year in prison for every $3.33 of merchandise Lundy took.
But the majority noted the limited role of appellate judges: “Our role to determine that the aggravating factors present in this case are outweighed by what the dissent characterizes as the ‘small, petty, and sad’ nature of the crime.”