Cumulative Acts of Fraud Requires Jail
Donna Dupree, appealed from her three-year sentence for retail theft of property with a total value of more than $300. In its discretion, the trial court made the three-year sentence consecutive to a cumulative 11-year sentence imposed after revocation of probation in three prior cases, which involved 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 contended that the court abused its discretion in making the sentence in this case consecutive, where “[n]othing about the nature of the offense or [her] character indicated that consecutive sentencing was needed to protect the public.”
BACKGROUND
The trial court held a combined sentencing hearing in this case and three prior cases where Dupree received drug-court probation.
On July 3, 2018, Dupree entered nonnegotiated guilty pleas in three cases. In one, Dupree pleaded guilty to four Class 4 felony counts of unlawful use of a credit card. The factual basis for 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 felony retail theft.
Dupree was free on bond in one theft case when she committed the offenses in case the other cases.
The presentence investigation report (PSI) contained Dupree’s mental health evaluations from prior years showing diagnoses of bipolar disorder 2, posttraumatic stress disorder, and a personality disorder-not otherwise specified-with obsessive-compulsive and antisocial characteristics.
The PSI showed 21 prior convictions, including at least 12 felonies. Most of the convictions were of theft or forgery. Dupree also had three drug-related convictions, including unlawful delivery of a controlled substance, and one conviction of unlawful use of a weapon. Dupree had previously been in drug court, but the court terminated her participation when she reoffended. The PSI writer scored her at maximum risk to reoffend.
Dupree’s prior convictions made her eligible in all three cases for an extended-term sentence. The court made the two five-year terms concurrent to each other. However, because Dupree committed those retail thefts while on pretrial release the six-year term in that case was mandatorily consecutive to the five-year terms. The aggregate stayed sentence was 11 years’ imprisonment.
The Present Case
On December 15, 2018, the State charged Dupree by complaint with two counts of retail theft of property. Based on those charges, the State, on December 19, 2018, filed a petition to revoke Dupree’s probation and terminate her drug-court participation.
On April 24, 2019, a grand jury indicted Dupree on two counts of retail theft of property. Both counts charged that, on December 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 stated:” [Dupree] was severely traumatized as a child-physical, sexual, and emotional abuse from many of the adults in her life. She ran away from home at age 14, which is also when she started drinking. She has struggled with [substance use disorder] (alcohol, cocaine, and cannabis) and has been sober for just short of a 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 as of the hearing. These included the offenses in this case and a Cook County offense, all of which she committed while on drug-court probation.
The trial court reimposed the 11-year cumulative sentence and imposed in this case a consecutive three-year prison sentence on count I for a cumulative sentence of 14 years.
She committed two new criminal offenses, two new felony offenses.
The Court made a finding that a consecutive sentence is necessary after having regard for the nature and circumstances of the offense and the history and character of Dupree. Consecutive sentences are required for the protection of the public, specifically, Dupree has committed 17 prior felony offenses.
ANALYSIS
The State responds that, under the consecutive-sentencing statute, the concern is Dupree’s criminal conduct. Consecutive sentencing is necessary in this case to protect the public from Dupree’s proclivity 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 led her to steal from Kohl’s. She also admitted in a March 2018 mental health assessment that she “c[ould]n’t walk into a store without walking out and stealing things.”
The problem facing the court was that Dupree did not show the capacity for being deterred from her crimes.
CONCLUSION
The trial court did not abuse its discretion in finding that consecutive sentencing was 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 present offenses-further retail thefts. Dupree had an extensive history of theft and forgery and was diagnosed with kleptomania. The trial court could reasonably conclude that the only way to keep 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 almost two dozen felonies, given probation or treatment rather than prison, finally required the court to protect the public from her inability to stop stealing. Insurance fraud perpetrators are similar although they are seldom caught and for that reason seldom go to jail. That needs to change – to protect the public – criminal must be punished and courts that deal with insurance fraud must understand and consider the fact that most insurance fraud perpetrators have succeeded many times before they were caught and sever punishment is required.
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