THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CRAIG LEE COX, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHARON L. STEVENS, Defendant-Appellant.
Nos. 15389, 15457 cons.
Fourth District
October 12, 1979
We believe the reasoning employed by the Court of Appeals of Maryland in Burton v. Artery Co. (1977), 279 Md. 94, 367 A.2d 935, further supports the result we reach in this case. In Burton, the court was faced with the question of whether an action brought by the seller to recover sums due for the sale of certain trees and shrubs was an action for breach of a contract for sale. The answer to that question was clearly provided by reference to
If Weidenbacher Toyota, Inc., had not assigned this contract to the bank, it is obvious to us that its cause of action on the contract would be governed by
Reversed.
REARDON, P. J., and CRAVEN, J., concur.
GREEN, J., dissenting.
Woollen, Brown, Hawkins & Basola, of Decatur (Gregory A. Mattingley, of counsel), for appellant Craig Lee Cox.
Moody & Diamond, of Decatur, for appellant Sharon L. Stevens.
Patrick M. Walsh, State‘s Attorney, of Decatur (Marc D. Towler, Larry Wechter, and Karen L. Boyaris, all of State‘s Attorneys Appellate Service Commission, of counsel), for the People.
This case involves two defendants, separately found and adjudged guilty of distinct crimes and sentenced to terms of imprisonment. In both of these cases, however, the defendant challenges the propriety of the trial court‘s denial of probation or alternatively argues that the sentence imposed was excessive. In addition to raising this common issue, these appeals also present a broader underlying question concerning the standard by which a sentence should be scrutinized by a reviewing tribunal. Therefore, for purposes of this opinion these appeals have been consolidated.
We diverge from the ultimate task of addressing the individual merits of these cases in the hopes of illuminating the analysis and rationale we have relied on in reaching the decisions herein. We begin our inquiry as to the appropriate standard of appellate review of sentences with an examination of
“The defendant has the right of appeal in all cases from sentences entered on conviction of murder or any other Class of felony, however, in all such appeals there is a rebuttable presumption that the sentence imposed by the trial judge is proper. The court to which such appeal is properly taken is authorized to modify the sentence and enter any sentence that the trial judge could have entered, * * *.”
Ill. Rev. Stat. 1978 Supp., ch. 38, par. 1005-5-4.1 .
Recently, the Fifth District Appellate Court in People v. Choate (1979), 71 Ill. App. 3d 267, 389 N.E.2d 670, in examining the legislative background of the amended Code, determined that the intent of the legislature, by this and other provisions, was to expand the scope of appellate review of sentences. It is unquestioned that the legislature intended, by
It is much less apparent, however, as to what precisely the legislature
Without doubt, the disenchantment with the concept of indeterminate sentencing, with its accompanying emphasis on broad discretionary powers for judges and parole boards, provided, in part, the genesis for the amended Code. The concensus of criticism was aimed at the unexplained and seemingly irrational disparity in sentences for what were essentially like offenses. Although such disparity was certainly contemplated and necessarily embodied in the theory of indeterminate sentencing, the goal of tailoring the punishment to the individual offender was hindered by the apparent incongruity and injustice of the results. (See generally Subcommittee Report; McKay, It‘s Time to Rehabilitate the Sentencing Process, 60 Judicature 223 (1976); Kennedy, Criminal Sentencing: A Game of Chance, 60 Judicature 209 (1976).) The appearance, and oftentimes the fact, of such inequities served to breed contempt and disrespect for the criminal justice system, not merely in the eyes of cellmates, but in the mind of the public as well. Thus, determinate sentencing served to temper the discretionary authority of the sentencing judge and to create greater certainty with respect to the punishment applicable to individual crimes.
It would not necessarily follow, however, from the reduction of judicial discretion at the sentencing stage that there should be a corresponding increase in the authority of reviewing courts to scrutinize the discretion retained by sentencing judges. Nevertheless, the legislative aim to eliminate unwarranted disparity in sentencing is specifically expressed in various provisions of the Code. (See, e.g.,
We are most persuaded, however, that a broader standard of review was intended by reason of the legislature‘s elaborate and detailed specification of sentencing criteria and requisites. In the Subcommittee Report to the Judiciary II Committee, it was observed that the “power to reduce sentence [
The new Code, however, as detailed in Choate, has attempted to eliminate the ambiguity of the sentencing process. For example, we proceed from the assumption that, unless otherwise provided in the Code, probation is the appropriate sentence absent specific conditions. (
Where more detail and completeness is contained in the findings of the trial court, the process of reviewing and detecting sentencing error becomes more defined and certain. The examination of sentences, therefore, is less dependent upon speculation concerning the judge‘s subjective reasoning and there is, consequently, a diminished need to automatically defer to his judgment. Having taken this somewhat protracted path, we find ourselves in agreement with the ultimate conclusion reached in Choate that, by these amendments, the legislature intended a more comprehensive review of sentences by appellate courts.
Having agreed that a broader standard is contemplated by the Code, we are still left with the task of defining the boundaries thereof. In the
What then is the quantum of evidence which must be brought to our attention to constitute an affirmative showing that the trial judge‘s sentence was erroneous? Certainly error will be demonstrated if it is clear from the trial court‘s statements and findings that the wrong standard was applied or that inappropriate circumstances were considered in either aggravation or mitigation. (Cf. People v. Gant (1974), 18 Ill. App. 3d 61, 309 N.E.2d 265; Sawyer.) On the other hand, “[t]he mere fact that the trial judge cites compliance with the statutory criteria is not a guarantee against sentencing error. He may merely apply the factors in a mechanical fashion * * *.” (Choate, 71 Ill. App. 3d 267, 273, 389 N.E.2d 670, 675.) In examining a defendant‘s claim of error, we are not bound by the appearance of regularity. Finally, although a judge may not have acted arbitrarily or capriciously in denying probation or in imposing a particular sentence, we do not believe for that reason alone, a sentence should necessarily be immune from modification. A sentence while not capricious may, nevertheless, be unjustifiably disparate. We believe the new Code authorizes us to correct such an error.
We certainly do not find in the Code, however, the conferral of authority upon appellate courts to modify a sentence merely because in their opinion a different sentence would have been more appropriate. In reviewing sentences, we must remain cognizant of our own biases. As the supreme court recently stated in another context:
“Every human is, consciously or subconsciously, partial to some
degree in that he is influenced by the habits he has been trained in, the experiences he has had, occupationally or otherwise, the people with whom he associates, the area in which he lives and the innumerable unrecognized factors which subconsciously affect every individual‘s philosophy.” People v. Vance (1979), 76 Ill. 2d 171, 179, 390 N.E.2d 867, 870.
Appellate justices do not possess a unique or exclusive insight into justice. Thus, the error which warrants modification of a sentence must amount to more than a difference of opinion or individual sentencing philosophy. The sentencing objectives are spelled out in the Code. It is deviation from those objectives, in view of the standards and criteria therein set forth, which constitutes error. To hold otherwise would allow for ad hoc, instinctive decisions on appeal which could result in merely perpetuating disparity on a different level and which would certainly thwart the development of defined, objective standards. Finally, we draw our sights on the commentary to section 3.1 of the American Bar Association‘s Standards, Appellate Review of Sentences (Approved Draft 1968) wherein reference is made to the English approach to sentencing review. It is stated therein that a court should:
“* * * not simply to substitute its notion of the appropriate sentence for that of the trial judge. The Court * * * will not “tinker” with sentences. * * *. “It is only when a sentence appears to err in principle that the Court will alter it. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was a failure to apply the right principles, then this Court will intervene.“‘” (ABA Standards, Appellate Review of Sentences §3.1, at 49 (Approved Draft 1968).)
Perhaps this most succinctly defines our task.
Defendant Craig Lee Cox
Defendant was charged, on June 12, 1978, with the offense of reckless homicide. (
Briefly, the stipulated facts introduced at defendant‘s trial were as follows. On June 9, 1978, defendant was operating a motor vehicle in the parking lot of the “Great Skate” skating rink in Decatur, Illinois. Two witnesses observed the defendant‘s vehicle “fishtailing” while proceeding at a speed of 25 to 30 miles per hour in the parking lot. Defendant‘s automobile struck another vehicle in the lot, caromed off the car, jumped a curb, and struck a group of children, one of whom was 13-year-old Sharon Uttinger. Uttinger died as a result of head injuries received from
At defendant‘s sentencing hearing, the court examined the presentence report and noted that the investigating officer recommended against a sentence of probation. Defense counsel moved to correct the report to reflect the fact that defendant, who was not working at the time the report was prepared, was presently employed. Defendant, at the time of sentencing, was 19 years old and did not have a past record either as an adult or a juvenile.
At the sentencing hearing, the State called Officer John Mickler, of the Decatur Police Department. He testified that 12 other persons, in addition to Uttinger, had received some injuries as a result of the incident. He also testified that the automobile did not immediately come to a stop after the collision but proceeded out of the parking lot until it came to rest against a utility pole.
Sharon Collins and Larry DeLong, special educators who were acquainted with the defendant from his schooling at Eisenhower High School in Decatur, testified on behalf of the defendant. Defendant had been classified as an educable mentally handicapped student. These students generally have I.Q.‘s ranging from 55 to 80. Defendant functioned academically at between a first and third grade level, but he functioned socially at a much higher level. DeLong observed that the defendant was aware of and at times frustrated by his mental limitations and recommended that defendant be placed on probation although he acknowledged that defendant was at times emotionally unstable and that this instability could be aggravated by alcohol consumption.
The defendant‘s brother, Mark Cox, and his mother, Shirley Cox, testified on behalf of the defendant. Defendant lived at home with his mother and two brothers and would continue to reside there if released on probation. Defendant‘s father had died approximately a year and a half prior to the hearing. The two witnesses testified that defendant had a driver‘s license about 2 years and had prior to the accident always driven sensibly. Defendant, who had begun working as a laborer for a construction company, turned the money he earned over to his mother and she then gave him expense money out of that sum. According to Mark Cox, threatening phone calls had been directed to defendant and to the Cox residence since the time of the accident. The defendant was extremely upset and remorseful about the accident. Both defendant‘s mother and brother indicated that they were prepared to see that the defendant complied with the terms of probation if granted, although Mark Cox admitted that he worked nights and was not home much of the time.
Joe Rickleman, a school psychologist for the Progress Resources Center in Decatur, conducted a psychological examination of the defendant. In his opinion, defendant could be classified as borderline mentally retarded. Rickleman discussed certain proposed recommendations with respect to the defendant. He believed that, as terms of probation, defendant should be placed in a vocational and educational development program. He also felt that defendant should be referred to the Decatur Mental Health Center for counseling. He believed the defendant‘s vocational goals were somewhat unrealistic in light of his handicap and that this counseling would help the defendant develop a greater self-awareness and more realistic goals. Rickleman stated that the Progress Resources Center would be available to coordinate such a program and would provide a caseworker to monitor the defendant‘s participation and development in the various programs. The court questioned Rickleman concerning his observation that the defendant scored weakly on tests designed to measure his judgment and tolerance. Rickleman acknowledged that the defendant‘s emotional instability could be aggravated by his use of alcohol.
Finally, defendant testified on his own behalf at the hearing. Defendant stated that he was very sorry about the accident. He admitted that on the night in question he had purchased a quantity of beer, although he knew this purchase was illegal because of his age at the time. He testified that he had only consumed two beers prior to the accident although the presentence report indicated that he admitted drinking five beers prior to the incident. The defendant also testified concerning a letter he received, purporting to be from an inmate of the Vandalia Correctional Center. The writer referred to the accident at the skating rink and threatened defendant with physical harm if he were sentenced to Vandalia. Finally, defendant admitted that he had on occasion driven an
Having heard the arguments of counsel, the court referred to the new sentencing act and the list of statutory criteria to be considered by the court in imposing sentence. (
“The first is a matter of liquor, the second is a matter of emotional instability and the third is the misuse of an automobile. And using those three elements we approach it, what could be done to prevent those circumstances we are hearing again and the same damage being done. It would appear as to this offender that if those elements appear again, it is a great likelihood that a similar occurrance [sic] may happen, so that really we have as far as the offense a great risk to society. Society shouldn‘t be subjected to a risk that somebody else may be killed or others injured or such an occurrance [sic] could happen.
* * *
We can‘t correct his mental capacity, we can‘t keep him under constant supervision from now on. I am sure that the program suggested has just as much merit, but it also has terminal facilities, too. It may be effective for a short time but it can‘t be a matter from now to hereafter.
I am of the opinion that when I consider the offense, and when I consider the offender, and again from a charitable standpoint, that probation is not the appropriate sentence. It is not appropriate from the standpoint of risk of society, it is not appropriate from the standpoint of whether or not it will successfully correct the problem we are dealing with. I think it might work during the period of the program, if he under goes [sic] the mental health or so forth, but I do not think it would continue.”
As we discussed above, the new sentencing act provides:
“[T]he court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstances of the offense, and to the history, character and condition of the offender, the court is of the opinion that:
(1) his imprisonment or periodic imprisonment is necessary for the protection of the public: or
(2) probation or conditional discharge would deprecate the seriousness of the offender‘s conduct and would be inconsistent
with the ends of justice.” Ill. Rev. Stat. 1978 Supp., ch. 38, par. 1005-6-1 .
In denying defendant probation, the court specifically found in compliance with
We perceive a basic, although somewhat latent, flaw in the logic upon which the court based its conclusion that defendant posed a risk to the public. The court described the three elements which it believed led to the offense. It reasoned that a significant danger existed that the public might be exposed to similar reckless conduct where the defendant‘s lack of judgment was again combined with his use of alcohol and an automobile. The court remarked that nothing could be done to remedy the defendant‘s lack of judgment, and, therefore, imprisonment was necessary to protect the public. Removal of the defendant from society certainly eliminates the risk that he could combine alcohol and driving in a manner endangering public safety. We do not believe, however, that imprisonment is necessary to attain this end. We take judicial notice of
It affirmatively appears that the court‘s rationale for denying probation was to this extent erroneous. Nevertheless, we must yield to all reasonable inferences from the record which would otherwise support the court‘s choice of sentence. Even doing so, however, the record fails to support the judge‘s imposition of a two-year sentence of imprisonment. Reviewing the record in light of the factors in mitigation and aggravation which the court is directed to consider, and which the judge stated he had considered, we conclude a sentence of probation is warranted.
It is initially apparent that the court considered in aggravation that the defendant‘s conduct resulted in the loss of life. Focus on this element was unquestionably appropriate and specifically contemplated by the Code as an aggravating circumstance.
The record evidences, however, a number of mitigating circumstances which counterbalance the effect of this serious, but isolated aggravating element. It is clear from the evidence and testimony and implicit from the nature of the offense that the defendant neither intended nor contemplated that his conduct would cause serious physical harm to
The Code further directs a court to weigh as a factor in mitigation whether defendant has demonstrated the character and attitude which indicate that he is unlikely to commit another crime. (
Finally, we find in this record evidence that the defendant is particularly likely to comply with the terms or conditions of probation. (
Lastly, with respect to defendant‘s proclivity to comply with the terms of probation, consideration should be given his family environment. Because of his mental impairment, the influence of his family could play an important role in his successful completion of a sentence of probation. The court was informed that defendant would continue to reside with his mother and brothers if released. Although defendant was 19 at the time, it was apparent that his mother was able to exert a degree of control and influence over him as evidenced by her management of his income. Both his mother and brother represented to the court their willingness to aid and supervise the defendant. The court in effect recognized their good faith and their ability to fulfill such supervisory tasks. The court in granting defendant‘s request for stay of
It is clear from the foregoing that the trial court erred in concluding that imprisonment was necessary for the protection of society. That finding does not stand up under the court‘s own analysis of the risk and is not otherwise supported by the record, and is in fact contradicted by various evaluations of the evidence made by the court. We have not overlooked the court‘s intimations that it felt the offense warranted some form of punishment. These statements appear to represent the judge‘s concern for societal retribution or atonement for this offense. This concern, to the extent it was a manifestation of the judge‘s unspoken attitude that a sentence other than imprisonment would deprecate the seriousness of the crime, would not have been totally inappropriate. (
For the foregoing reasons, we hereby reduce defendant‘s sentence to probation for a period of 30 months, with a term of 3-months imprisonment as a condition thereof pursuant to sections 5-6-2(b) and 5-6-3(d). (
Defendant Sharon L. Stevens
Defendant was charged by information with possession of less than 30 grams of a controlled substance (phendimetrazine), in violation of section 402 of the Controlled Substances Act (
At the sentencing hearing, held on February 16, 1979, the State‘s Attorney concurred in the recommendation against probation found in the presentence report. The record of defendant‘s previous arrests demonstrated that she was sentenced in 1974 to one year probation for a conviction of burglary. The State presented no evidence in aggravation.
As evidence in mitigation defendant testified that she was 36 years old, married, and pregnant. Her baby was due in August 1979. She had two children living with her and her husband and three children by a previous marriage who lived with their father. The defendant‘s husband, a retired serviceman, was seeing a psychiatrist because of his nerves. The defendant had also been receiving some counseling.
Concerning the offense to which she pleaded guilty, defendant testified that a friend had given her the pills. She took the pills to give her energy and that over the past 4 or 5 years she had occasionally taken these pills when she could get them from a friend. She claimed that she had stopped taking the pills since the offense. Finally, concerning her previous conviction of burglary, she explained that she was involved in the crime with another woman, whom defendant claimed was the one who actually committed the offense.
At the conclusion of direct and cross-examination, the court questioned the defendant about her use of the diet pills. He noted that because she was so thin, they could not have been taken for the purpose of losing weight. Defendant repeated that she occasionally took the pills to give her energy.
Defense counsel, in requesting a sentence of probation, argued that defendant did not pose any kind of danger to the community and had not been in trouble, with the exception of minor traffic offenses, for 5 years. The State‘s Attorney conceded that defendant did not present any threat to the community but recommended the minimum sentence of imprisonment.
The trial court adopted the recommendation of the State, denied defendant‘s request for probation and sentenced her to 2 years’ imprisonment. In setting the sentence, the court stated, “if she hadn‘t had probation she would get probation for this offense within two seconds, no
Defendant contends that the record demonstrated that she was a proper candidate for probation and that the court erred in denying this disposition on the ground that she had previously been placed on probation. We agree.
As we have noted throughout this opinion, the new sentencing act provides that probation is an appropriate sentence absent a determination by the court that imprisonment is necessary to protect the public or that a sentence of probation would deprecate the seriousness of the offense.
There is nothing in the record which indicates that imprisonment was necessary to protect the public. The State conceded that the defendant did not pose any particular threat to society. There is similarly nothing in the record to indicate that the trial judge felt she was a risk to society.
Alternatively, there was no specific finding by the court that probation would deprecate the seriousness of the offense. This may, however, have been the unspoken reasoning of the court inasmuch as it appeared to deny probation solely on the basis that defendant had previously been placed on probation. Nevertheless, if this was in fact the logic of the court, it is undermined by the court‘s own characterization of the offense as one which would generally warrant probation.
Finally, although the defendant‘s previous conviction and sentence could be considered a factor favoring a sentence of imprisonment (
Defendant has affirmatively established that the sentence imposed was erroneous. Accordingly, we direct and order that defendant‘s sentence be reduced to a term of probation of 2 years, with such terms and conditions, excluding incarceration, as the trial court shall determine to be appropriate.
In accordance with the foregoing, the sentence in cause Gen. No. 15389 is reduced and the matter remanded to the circuit court. In Gen. No. 15457, sentence is also reduced and the cause remanded.
Gen. No. 15389—Sentence reduced and cause remanded with directions.
Gen. No. 15457—Sentence reduced and cause remanded.
Mr. JUSTICE CRAVEN, concurring:
I concur in the thorough analysis of sentence review found in the opinion of Mr. Justice Reardon. I write to indicate that concurrence and to express the view that his opinion fashions a very helpful analysis and gives meaningful effect to the clear legislative intention for review of sentence.
In the difficult area of imposition and review of sentence, we have now, by this opinion, arrived at a reasonable and defensible balance. It is unfortunate that the degree of judicial discretion in sentencing has been consistently narrowed, but then even a casual inquiry would show great disparity and unfortunately an increase in the disparity as discretion is increased. In any event, the legislature has now quite appropriately spoken upon the issue of sentencing and appellate review of sentencing. The result reached here is clearly required by the facts, the circumstances, the rules, and the statutory amendments.
Mr. JUSTICE GREEN, dissenting:
The rule is firmly established that we have a responsibility to determine sua sponte whether we have jurisdiction to hear a case. (Clark v. State Police Merit Board (1972), 5 Ill. App. 3d 332, 282 N.E.2d 220.) Logic requires that we also determine sua sponte whether we have jurisdiction to make the disposition proposed. Here, the majority proposes to reduce the sentences to probation. Although I agree with much that is said in the comprehensive and scholarly majority opinion‘s analysis of the legislature‘s intent in enacting
Stamos concerned the validity of legislation providing that stays pending appeal from sentences of imprisonment for forcible felonies could be obtained only from the reviewing court (
The instant situation differs materially from that in Struckoff v. Struckoff (1979), 76 Ill. 2d 53, 389 N.E.2d 1170, where the supreme court held to be valid section 403(e) of the Illinois Marriage and Dissolution of Marriage Act (
I can only conclude that the portion of
As the balance of
Although I wrote the opinion in People v. Stoutenborough (1978), 64 Ill. App. 3d 489, 381 N.E.2d 415, where we applied the rule of People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882, in determining whether a sentence should be set aside, I am now persuaded by the majority that the General Assembly intended a broader standard of review of sentence than Perruquet would indicate. Nevertheless, I consider the phrase “rebuttable presumption that the sentence imposed by the trial judge is proper” to indicate a continued intention that considerable deference be given to the trial judge‘s determination.
I feel that the majority violates their own well-expressed principles of review of sentence in altering the sentence given defendant Craig Lee Cox by simply “substituting its notion of the appropriate sentence for that of the trial judge.”
The majority correctly sets forth a number of mitigating factors. However, it considers the evidence as to whether the offense was the result of circumstances likely to recur conflicting but “on balance” weighing “in favor of the defendant.” The balancing of conflicting evidence at sentencing should be left primarily to the trial judge and we should defer to that determination unless it is clearly out of line. More specifically, the majority assumes that revocation of defendant Cox‘s driver‘s license will assure that he will not engage in further reckless drunken driving. Experience indicates that such revocations are difficult to enforce over a period of time. While it is true that the public would only be protected from defendant‘s driving during the short period of his imprisonment, this is true in all cases of short imprisonment.
At time of sentencing many, if not most, defendants indicate a willingness to cooperate if placed on probation and a remorse for their offense. The weight to be given to such expressions is peculiarly a matter for the trial judge.
The provisions of
The majority notes that the “appearance and oftentimes the fact” of “inequities” arising from disparate sentences have tended “to breed contempt and disrespect for the criminal justice system” in the eyes of both convicts and the public. No indication has been shown of a legislative intent to lessen disparity of sentences by equating all sentences to those that would be imposed by the most lenient trial courts or approved by the most lenient courts of review. Accordingly, a sentencing judge may consider whether his disposition is so lenient as to make the sentence disparately low in comparison to other sentences likely to be imposed by other judges for conduct and circumstances that would appear to the public to be similar to the case before the judge. The provisions of
The trial judge also indicated that he was considering the deterrent effect of the sentence.
In ordering the Cox sentence to be reduced to probation subject to 3 months’ imprisonment, the majority recognized the need for some imprisonment. The difference between a sentence which includes 30 days’ imprisonment and one of 2 years’ where the defendant will be released in 1 year upon good behavior is somewhat a matter of degree. The action of the majority thus approaches a “tinkering” with the sentence. In any event I do not deem the presumption of the propriety of the sentence to have been rebutted. I would affirm that sentence.
I agree with much that is said concerning the sentence of Sharon L.