Richard Wanke’s 2nd Appellate Brief Argument

Posted: February 2, 2010 by parchangelo in 2006 Burglary Case, Local Issues, Prosecutorial Misconduct, Richard's Cases

Taken from the Appellate Brief filed January 20, 2010, in appeal of Richard Wanke’s 2006 burglary conviction:

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING MR. WANKE TO THE MAXIMUM EXTENDED TERM SENTENCE WHERE THE NATURE AND CIRCUMSTANCES OF THE OFFENSE DID NOT CALL OUT FOR SUCH A LENGTHY SENTENCE AND WHERE THE COURT RELIED ON SENTENCING FACTORS THAT WERE NOT SUPPORTED BY THE EVIDENCE OFFERED AT SENTENCING.

Richard Wanke was found guilty by a jury of having committed a burglary. (R1032; C99) The sentencing range for the Class 2 offense is three to seven years. 730 ILCS 5/5-8-l(a)(5) (2006). Because of a conviction entered on a Class 2 burglary on May 29,1997, (the prior conviction was the subject of the appeal in People v.Wanke, 303 111. App. 3d 772 (2d Dist. 1999). In People v. Wanke, 311 111. App. 3d 801 (2d Dist. 2000), this Court noted that the conviction in the former case was entered on May 29, 1997. As noted previously, this Court is also asked to also take judicial notice of the pleadings in the former appeal, referencing Appeal No. 2-97-0581). Mr. Wanke was not eligible for probation and was eligible for an extended term sentence. 730 ILCS 5/5-5-3(c)(2)(F) (2006); 730 ILCS 5/5-5-3.2(b)(1) (2006). Consequently, the sentence possibilities facing Mr. Wanke ranged from the three years previously mentioned up to a 14-year extended term sentence. 730 ILCS 5/5-8-2(a)(4) (2006).

The sentence imposed on Mr. Wanke – the maximum extended term of 14-years – is over four times greater than the minimum prison sentence. The sentence is excessive and overly harsh since the defendant did not injure anyone, never contemplated injuring anyone, and the laptop alleged to have been taken was abandoned in front of its owner immediately following its taking and its owner picked it up, undamaged, in the same short span of time. Further, the sentence imposed was the result of an abuse of discretion where the lower court relied upon improper aggravating factors as well as the judge’s own opinions that were directly contrary to what the evidence showed. Accordingly, this Court should either reduce Mr. Wanke’s sentence or remand the instant cause for resentencing.

Standard of Review

The standard of review for a sentencing issue such as this is whether the trial court’s sentencing determination constituted an abuse of discretion. People v. Rucker, 260 111. App. 3d 659, 664 (2nd Dist. 1994). A reviewing court’s analysis of the trial court’s exercise of discretion must be based on the particular facts and circumstances of the case. People v. Fern, 189 111. 2d 48, 62 (1999).

Argument:

When imposing a sentence, a trial court must balance the retributive and rehabilitative purposes of punishment, accounting for both the seriousness of the offense and the objective of restoring the offender to useful citizenship. 111. Const., Art. I, § 11; 730 ILCS 5/1-1-2 (2006). A sentence must be appropriate and just, and take into consideration the defendant’s background and the relevant circumstances of the offense. People v. Robinson, 221 111. App. 3d 1045, 1052 (1st Dist. 1991); People v. Treadway, 138 111. App. 3d 899, 904-905 (2d Dist. 1985); People v. Kosanovich, 69 111. App. 3d 748, 751 (1st Dist. 1979).

Although a trial court’s sentencing determination is entitled to substantial deference, the “mere fact that the trial court has a superior opportunity to make a determination concerning final disposition and punishment of a defendant does not imply that a particular sentence imposed is always just and equitable.” People v. O’Neal, 125 111. 2d 291, 298 (1988). That is, a sentencing court’s discretion is not unfettered. 125 111. 2d at 297. Rather, a reviewing court has the authority to reduce excessive sentences. Supreme Court Rule 615(b)(4); People u. Perruquet, 68 111. 2d 149, 154 (1977). Moreover, an abuse of discretion may be found even when the sentence is within statutory limitations if that sentence is at odds with the purpose and spirit of the law. People v. Maldonado, 240 111. App. 3d 470, 485 (1st Dist. 1992); People v. Center, 198 111. App. 3d 1025, 1032 (1st Dist. 1990).

In this case, the trial court failed to properly consider Mr. Wanke’s background and the circumstances of the offense. The resulting sentence, therefore, was both excessive and unjust. In particular, there was no physical harm involved in this offense, nor did Mr. Wanke’s prior criminal conduct include any offenses of violence. 730 ILCS 5/5-5-3.1(a)(l) (2006).

Courts should also consider whether the defendant contemplated that his conduct would cause or threaten serious physical harm to another. 730 ILCS 5/5-5-3.1(a)(2) (2006). There was absolutely no indication that this offense would, or could, have involved any type of violence or harm to anyone. In fact, prior to imposing the sentence, the question arose, in the context of whether a victim impact statement should be considered, as to whether this offense was one of violence. (R1476-1482) The court found that no force or threat of force was involved in the commission of the burglary “even though it is a forcible felony.” (R1481) Contrarily, the court later found that, while the absence of any contemplation of harm was a mitigating factor, “the specific facts of this case and the conduct of this offense and the conduct immediately after the commission of the offense posed a threat of physical harm.” (R1519)

The manner in which this offense was committed was that the defendant allegedly entered Professor Robert McCauley’s office while the professor was not there, took the professor’s laptop, and left the office, walking out of the Clark Arts Building. The professor took it upon himself to try to get the laptop back by grabbing onto the defendant and holding on to him as the two walked outside. (R649-653) Not to suggest that the professor should be blamed for trying to protect his property, but the fact is that the defendant neither contemplated any harm nor created the possibility of harm. This is particularly so considering the defendant “gently” placed the laptop on the ground and walked quickly away once they were outside. (R653) Clearly, there was no threat of physical harm to either the professor, or the laptop, contemplated or caused by the defendant. This factor, then, relied upon by the court in imposing the sentence, was improper.

Sentences must be based on the particular facts of each crime. People v. Nevitt, 228 111. App. 3d 888, 891 (1st Dist. 2003).   As noted, the evidence supporting this conviction shows that the offense was, in proportion to other offenses, a non-aggravated event. For whatever reason, the defendant allegedly took the laptop when no one was present, continued to hold the laptop as the professor attempted to grab at it, but carefully returned the laptop by gently placing it on the ground. The professor said the defendant was silent during the offense, (R663), so there were no words that would cause additional and undue fear for the professor. The professor said he was “shaken a bit,” and his 3:00 class did not start on time as a result,(R660), but it seems he was able to go on and conduct his life pretty much as usual.

And, as the court found, the offense was completed when the defendant left the professor’s office and at the time the professor attempted to “recapture his property.” (R1481) The burglary itself, then, was simply a taking of property from an open and unoccupied office. A 14-year maximum extended term sentence, based on the circumstances of this offense and the absence of any contemplation or possibility of harm during the commission of the offense, is wholly excessive and unjustified.

What makes this sentence even more difficult to justify are the additional reasons, both stated and inferred, that underlie it. It is true that the defendant has a couple of prior convictions for burglaries, dating back to 1991. However, as defense counsel argued, (R1507), there was no criminal conduct by the defendant from 1992 (R1282, 1341, 1362, 1396, 1406-1408, 1409, 1424, 1434-1436), until the alleged commission of this burglary in 2006 – a period of 14 years of law-abiding life.   The stipulated testimony from defense witnesses supports that the defendant had rehabilitated himself to a great degree during that 14 year period. (Supplemental Brown Envelope labeled “Sentencing Exhibits”) Surely, consideration of that lengthy period of successful and peaceful citizenship, coupled with the statements of the stipulated witnesses, would have mitigated against an equally lengthy sentence.

However, the court found otherwise. In imposing the sentence, the court accused the defendant of holding a “measure of conceit” toward law enforcement personnel. The court went on to say, ignoring the evidence of the lengthy period of law-abiding life, that,

I suppose there is some reason for you to feel that
way inasmuch as you have had a largely successful
career as a burglar in the time which has past (sic)
between this offense and the other offense for which
you were convicted and the other criminal conduct
that  we  heard  about in  the  first  part  of the
sentencing hearing.
* * * *
Your attorney points out that the time lapse between
the first conviction and this conviction, and actually,
I see a different side of that coin, and that is that
although the first offense was committed sometime
ago, that you continued along the lifestyle or pattern
of criminal behavior… that you continued to maintain
the same criminal thinking patterns and take things
from people for money, for profit, rather than work,
rather than use your skills and abilities to be a
productive member of society.

(R1521-1522
)

As referenced above, there was no evidence presented at the sentencing hearing that the defendant engaged in any criminal behavior of any type from the time of the previous burglaries in 1991 and 1992, to this alleged offense in 2006. There is nothing to support the court’s conclusion that the defendant “continued along the lifestyle… of criminal behavior.” There was no evidence to support the court’s other conclusion that the defendant’s rehabilitative potential was “extremely low” or that “[his] criminal thinking patterns as exhibited by your conduct is (sic) deeply ingrained.” (R1523) The court’s opinions, unsupported as they were by the evidence presented, were clearly erroneous and constitute an abuse of discretion in imposing the lengthy 14-year maximum extended term sentence.

In fact, the evidence at trial and in the stipulated statements of defense sentencing witnesses showed that the defendant helped with childcare for various people, helped maintain properties owned by Diane Chavez in exchange for his rent, and did odd jobs of many types. (R848, 850, 874-875, 879-880; Supplemental Brown Envelope labeled “Sentencing Exhibits,” Deft. Ex. 1-4) The defendant’s employment may not have netted him a large salary, but it obviously was a successful life in that he helped others and maintained his own food, clothing, and shelter. By all appearances – living a law-abiding life for quite a lengthy period of time, by earning the praise and respect of others, by enjoying the affection of his nieces and nephews as well as other children, and by helping others through odd jobs and maintaining properties – the defendant was a successful, competent member of society who had been, to quite a great extent, rehabilitated since the previous run of offenses 14 years earlier. The court was simply wrong in finding, then, that the defendant was incapable ofrehabilitation. (R1522)

The defendant suggests that the actual reason why the maximum 14-year extended term sentence was imposed was due to the underlying current of suspicion created by the death of attorney Greg Clark. The defendant acknowledges the sentencing court’s comments that:

It’s appropriate to begin by stating that the sentence
imposed in this case is for this offense. I want it to be
clear that the court is not punishing Mr. Wanke  for
allegations that are uncharged and unproven. The
sentence is being imposed for this offense and solely
for this offense.
(R1516
)

The court noted a second and third time that it was considering the “facts of this case” and “the nature and circumstances of this offense.” (R1517) To paraphrase Shakespeare, it appears the court protested too much.   See Hamlet, Act III, Scene 2.

Following the jury’s finding of guilt in this case, the prosecution made a motion to revoke bond (the defendant had been on bond since March 13, 2006 (Cl9)). The trial court denied the motion and the defendant remained out on bond following the finding of guilt. (R1036) A couple of months after the denial of the motion for new trial and the defendant’s own motion concerning ineffective assistance of counsel, (R1043-1060), attorney Greg Clark was the victim of a homicide. (R1075) Judge Truitt, based on information he was made aware of from the investigation into Clark’s death, ordered the defendant’s bond be revoked on February 6, 2008. (R1078-1079,1093) Motions to reconsider that revocation, and to reinstate the no-bond status, were repeatedly denied by both Judge Truitt and Judge McGraw, notwithstanding no charges were brought against the defendant in relation to Clark’s death. (On information and belief, no charges have yet been brought against Richard Wanke, or anyone else, in the death of Greg Clark.) (R1095-1098, 1107, 1180, 1216,1249-1252) The defendant remained in jail pending his sentencing hearing on August 6 and August 7, undoubtedly appearing before the court in jail garb, with the stigma it carries with it subhminally suggesting guilt of much more serious conduct than the offense at issue in this case.

Richard Wanke, therefore, asks that this Honorable Court vacate the sentence imposed and either reduce the sentence under this Court’s powers under Supreme Court Rule 615(b)(4), or remand this matter for a new sentencing hearing. The sentencing court here considered numerous factors that were not only unsupported by the evidence presented at the sentencing hearing, but formed opinions that were clearly contrary to the evidence that was admitted. The defendant further asks that, if the matter is remanded for a new sentencing hearing, that, because of the nature of the comments made by Judge McGraw, the hearing proceed before a different judge.

The Appellate Brief filed January 20, 2010, in appeal of Richard Wanke’s 2006 burglary conviction and excessive sentencing can be viewed in it’s entirety at https://richardwanke.com/richards-appellate-brief/

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Comments
  1. polly says:

    Thanks for the update on Richards case

    Like

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