THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. RICKY LEE COOK, Defendant-Appellant.
Second District No. 81-466
Second District
Opinion filed February 2, 1983.
445 N.E.2d 824 | 112 Ill. App. 3d 621
The court found that the 73-year-old defendant killed another man by shooting him with a shotgun at point blank range. In the judge‘s mind, such conduct warranted a prison term rather than probation. Relying on these facts, the judge felt that he could not impose a sentence of probation solely because of the defendant‘s age and health.
With regard to this particular defendant, the record before us provides ample support for a five-year sentence. To conclude that the sentence was arbitrary based on consideration of comments made by this judge in unrelated cases is beyond the proper scope of review. Moreover, the ruling is pernicious to the administration of justice. It results in a judicial defrocking of Judge Michela. Its import is that Judge Michela may, in the future, sentence homicide defendants to probation but not to prison. This is an unwarranted boon to such defеndants, an improper restraint on Judge Michela and an affront to the public and the administration of justice. Therefore, I respectfully dissent.
G. Joseph Weller and Manuel Serritos, both of State Appellatе Defender‘s Office, of Elgin, for appellant.
Daniel D. Doyle, State‘s Attorney, of Rockford (Phyllis J. Perko and Martin P. Moltz, both of State‘s Attorneys Appellate Service Commission, of counsel), for the People.
JUSTICE VAN DEUSEN delivered the opinion of the court:
On January 17, 1981, defendant, Ricky Lee Cook, with two others, Michael Anderson and Larry Keen, escaped from the Winnebago County jail by breaking a window on the third floor and sliding down a rope made of blankets. Keen broke his wrist when the rope broke and was apprehended at that point. Cook and Anderson were apprehended shortly thereafter, a few blocks from the jail, and were returned to custody.
Defendant Keen, agе 23, entered into a plea agreement whereby he pleaded guilty to the instant escape and to felony theft, after the indictment charging burglary was amended to felony theft. Defendant Anderson, age 25, entered into a plea agreement whereby he pleaded guilty to the instant escape and to an unrelated offense of armed robbery. On March 16, 1981, he was sentenced to a term of imprisonment of threе years for the escape and 10 years for the armed robbery. The sentence for this escape was to run concurrently with the sentences for the armed robbery conviction and for a Wisconsin armed robbery conviction.
Defendant Cook, age 29, pleaded guilty to the offense of escape (
On May 7, 1981, defendant Cook filed a motion for reconsideration of his sentence on the grounds that it was excessive and disparate from the three year sentence received by his codefendants Anderson and Keen. The trial court denied the motion and also denied defendant‘s motion made pursuant to
On aрpeal defendant Cook contends that his sentence was excessive due to the disparity between his sentence and that received by defendants Keen and Anderson, who were equally active in the оffense of escape and whose prior records were of a more violent nature than that of defendant.
Illinois has long recognized that fundamental fairness and respect for the law requires that dеfendants similarly situated not receive grossly disparate sentences. (People v. Kline (1981), 99 Ill. App. 3d 540, 553-54, rev‘d on other grounds (1982), 92 Ill. 2d 490; People v. Bares (1981), 97 Ill. App. 3d 728, 738.) This rule of law has its inception in the concept of equal justice under the law, a constitutional right which all persons have and which all judgеs must respect. (99 Ill. App. 3d 540, 554.) A disparate sentence may be supported by either a more serious criminal record or greater participation in the offense; otherwise, defendants similarly situated ought to receive similar treatment in sentencing, as is required by fundamental fairness. People v. Martin (1980), 81 Ill. App. 3d 238, 245.
In this case, the record does not contain any evidence that would in any way indicate that Cook‘s participation in the escapе was greater than that of Anderson and Keen. Yet, the sentence imposed was more than twice that of Anderson and Keen. The only basis for such a disparity must necessarily be found in differences among their priоr criminal records.
Defendant Keen‘s prior record consisted of a 1975 misdemeanor theft conviction, for which he received 30 days in the county jail, and felony convictions for a 1976 armed robbery and attеmpt (murder), for which he was sentenced to a term of imprisonment of four to 10 years. Defendant Anderson‘s presentence report revealed that he had
Though defendant Cook has an extensive criminal record demonstrating a pattern of criminal conduct over a longer period of time than that of Anderson and Keen, the crimes for which Cook has been convicted do not exceed the violеnt nature or severity of the crimes committed by Anderson and Keen and cannot justify the grossly disparate seven-year sentence for the offense of escape when that sentence is comparеd with the three-year sentences imposed upon Keen and Anderson for the same offense. We are cognizant of the frequently stated rule that the trial court‘s decisions regarding sentencing are entitled tо great deference and weight. (E.g., People v. Perruquet (1977), 68 Ill. 2d 149, 154.) However, a review of the report of proceedings of the hearing on the motion for reconsideration reveals that while the trial judge reiterated his reasons fоr imposing a seven-year sentence on Cook, there is no indication whatsoever contained in the record that he gave any consideration to the issue of the disparity among the sentences imposed upon Cook, Keen and Anderson. We are frank to admit that separate and apart from the sentences imposed upon Keen and Anderson, we would uphold the seven-year sentence imposed upon Cook. The sentence which Cook received, however, measured against the sentences imposed upon Anderson and Keen was grossly disparate. Fundamental fairness requires that defеndant Cook‘s sentence be reduced to be more consistent with the sentences imposed upon his accomplices. Pursuant to
Affirmed as modified.
SEIDENFELD, P.J., concurs.
JUSTICE UNVERZAGT, dissenting:
I respectfully dissent from the majority opinion. The majority reduces the sentences because the trial judge, while giving rеasons for imposing a seven-year sentence on Cook, did not explain the reason for a greater sentence imposed on him than on his codefendants. I do not believe every conceivаble reason for the sentence has to be included if the trial judge does include sufficient reasons to satisfy the requirements of section 5-4-1 of the Unified Code of Corrections (
In any event, in this case, the defendant and his codefendants did possess serious criminal records. Codefendаnt Keen had two prior violent felony convictions; codefendant Anderson also had two prior, violent felony convictions and had previously attempted escape from a Wisconsin jail. Howevеr, the defendant‘s prior criminal record was more extensive, if not more serious, than those of his codefendants.
The circuit court noted, and the defendant personally acknowledged, that he spent thе majority of the 10-year period prior to sentencing behind bars. The defendant‘s prior criminal record includes 21 prior misdemeanor convictions, including traffic, weapons, sex, theft, and battery offenses, felоny offenses including theft, forgery, false pretenses (North Carolina), first degree robbery (California), and possession of heroin (Federal). This prior criminal history clearly influenced the circuit court in its imposition of a severe sentence on the defendant, which sentence was nonetheless more lenient than the maximum, consecutive, extended-term sentence requested by the State. I conclude that the circuit court did not abuse its sentencing discretion regarding the seven-year sentence imposed on the defendant on the instant offense. People v. La Pointe (1981), 88 Ill. 2d 482, 492-93; People v. Cox (1980), 82 Ill. 2d 268, 280; People v. Perruquet (1977), 68 Ill. 2d 149, 154.
I therefore dissent from the majority opinion.