Donna Dupree appealed her three-year sentence for retail theft of property with a total value of more than $300. In its discretion, the district court made the three-year sentence consecutive to a cumulative 11-year sentence imposed after probation revocation in three prior cases, involving retail theft and unlawful use of a credit card.
IN People of the State of Illinois v. Donna Dupree, 2022 IL App (2d) 210400-U, no. 2-21-0400, Court of Appeals of Illinois, Second District (June 22, 2022) Dupree argued that the court abused its discretion by making the sentence in this case continuous, where “[n]something about the nature of the crime or [her] character indicated that consequential punishment was required to protect the public.”
BACKGROUND
The trial court held a combined sentencing hearing in this case and three prior cases in which Dupree received probation in drug court.
- On July 3, 2018, Dupree entered non-negotiated guilty pleas to three counts. In one, Dupree pleaded guilty to four Class 4 felony counts of unlawful use of a credit card. The factual basis of the plea was that on four occasions Dupree knowingly used the deceased victim’s Discover credit card for purchases at Family Dollar stores.
- In two other cases, Dupree pleaded guilty to one count of Class 3 grand larceny.
- Dupree was out on bail in one theft case when she committed the crimes in the other cases.
The presentence investigation report (PSI) contained Dupree’s mental health evaluations from earlier years that showed diagnoses of bipolar 2 disorder, post-traumatic stress disorder, and a personality disorder – not otherwise specified – with obsessive-compulsive and antisocial features.
The PSI showed 21 previous convictions, including at least 12 felonies. Most of the convictions were for theft or forgery. Dupree also had three drug-related convictions, including unlawful delivery of a controlled substance, and one conviction for unlawful use of a weapon. Dupree had previously been in drug court, but the court suspended her participation when she reoffended. The PSI writer gave her maximum risk of relapse.
Dupree’s prior convictions made her eligible in all three cases for an extended sentence. The court made the two five-year periods concurrent. However, because Dupree committed these retail thefts while on pretrial release, the six-year term in that case was mandatory consecutive to the five-year term. The total suspended sentence was 11 years in prison.
The current case
On December 15, 2018, the state charged Dupree by complaint with two counts of retail theft of property. Based on these allegations, the State filed a petition on December 19, 2018 to revoke Dupree’s probation and terminate her participation in drug court.
On April 24, 2019, a grand jury indicted Dupree on two counts of theft of property. Both counts charged that on Dec. 14, 2018, Dupree unlawfully took merchandise from the Kohl’s store in South Elgin.
In a mental health and substance abuse evaluation, the biopsychosocial evaluator said: [Dupree] was severely traumatized as a child physically, sexually and emotionally abused by many of the adults in her life. She ran away from home at the age of 14, which was also when she started drinking. She has struggled with [substance use disorder] (alcohol, cocaine and cannabis) and has been sober for just one year (3/14/18). She also struggles with kleptomania and will have a court date for this later this week.”
Sentencing
Dupree had 17 felony convictions at the time of the hearing. These included the crimes in this case and a felony in Cook County, all of which she committed while on drug court probation.
The district court re-sentenced the 11-year cumulative sentence and sentenced in this case to a consecutive prison sentence of 3 years on count I for a cumulative sentence of 14 years.
She committed two new crimes, two new felonies.
The court found that a concurrent sentence is necessary after considering the nature and circumstances of the offense and Dupree’s history and character. Consecutive sentences are required to protect the public, specifically, Dupree has 17 prior felony convictions.
ANALYSIS
The State responds that, under the Consequential Sentencing Act, the concern is Dupree’s criminal behavior. Consecutive sentencing is necessary in this case to protect the public from Dupree’s propensity for theft, forgery and credit card fraud.
Dupree was diagnosed with kleptomania and admitted to the PSI investigator in this case that her “klepto brain” had caused her to steal from Kohl’s. She also admitted in a mental health assessment in March 2018 that she “c[ould]don’t go into a store without going out and stealing things.”
The problem for the court was that Dupree did not demonstrate the ability to be deterred from his crimes.
CONCLUSION
The trial court did not abuse its discretion in finding that consecutive sentences were necessary to protect the public from Dupree’s criminal conduct. While on drug court probation for retail theft and credit card fraud, she committed the current crimes – additional retail theft. Dupree had an extensive history of theft and forgery and was diagnosed with kleptomania. The district court could reasonably conclude that the only way to prevent Dupree from stealing was to keep her in custody.
Fraud, theft and other crimes require punishment to protect the public. The Illinois court, after Dupree was convicted of nearly two dozen felonies, receiving probation or treatment rather than prison, ultimately required the court to protect the public from her inability to stop stealing. Perpetrators of insurance fraud are similar although they are rarely caught and for that reason rarely go to jail. That needs to change – to protect the public – criminals need to be punished and courts dealing with insurance fraud need to understand and consider the fact that most insurance fraud offenders have succeeded many times before they are caught and that tougher sentences are required.
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