*1 Inc. 89, 91-92, v. Industrial Com. 471 N.E.2d 953, 956.) The existence aof is loaned-employee relationship generally question of Commission, fact whose determined Industrial will not finding unless it is contrary weight disturbed the manifest evidence. 129 Ill. 471 N.E.2d
Our review the record indicates that there was no evidence that Board any right had direct or the manner in Os control which born performed his work. Bennett urges that evidence indicates existence of implied Board; contract between Osborn and employment however, there is nothing record which establishes control or may imputed direction which Consequently, to Board. Industrial Commission’s that Osborn contrary loaned employee the manifest weight evidence. reasons,
For the foregoing judgment of the circuit court of Peoria County affirmed.
Affirmed.
WEBBER, P.J., LINDBERG, BARRY, McNAMARA, JJ., concur. ILLINOIS, Plaintiff-Appellee,
THE PEOPLE OF THE STATE OF McCUMBER, Defendant-Appellant. ROBERTA Third District No. 3 — 86—0052 10, 1986. Opinion filed October *2 HEIPLE, J., dissenting. Ottawa, Office, for Carusona, Defender’s of State
Peter A. appellant. Mertel, of State’s Barra, (Terry of Peoria A. Attorney, A. State’s
John Commission, counsel), People. for the Appellate Service Attorneys opinion delivered SCOTT JUSTICE PRESIDING court: time McCumber, appeals for
Roberta
to her first
this court affirmed
convic-
appeal,
to this court. As
ill
man-
voluntary
tions of
for
offenses
guilty but
death,
obstructing judg-
of a homicidal
and
slaughter,
concealment
of Peoria
ment,
County
the case to the circuit court
but remanded
it was
judge
apparent
a different
resentencing before
imposing
factor in
sen-
improper
considered
judge
tences.
and
the defendant’s convic-
underlying
For the facts
events
v. McCumber
tion and incarceration
see
Ill.
3d
In this second
appeal
review,
an excessive
judge imposed
to wit: whether
manslaughter.
on the
Before ad-
voluntary
conviction
dressing this issue some
observations are
order.
prefatory
trial sentence on the conviction of vol
of con
untary manslaughter
the offense
cealment
a homicidal
These sentences
death.
were
be served
consecutively.
No sentence was
on the conviction
ob
sentences,
structing justice.
imposing
foregoing
judge indicated that the
little
life
placed
defendant
value
human
since she had three abortions in
years.
previous appeal
three
this court held that the matter of defendant’s abortions
a factor
was
considered
improperly
when
sentence. The United States
imposing
guar
Court
held that the fundamental
right
privacy
anteed by the constitution
a woman’s decision to have
encompasses
an abortion.
v.
(Roe
L.
Wade
U.S.
Ed.
93 S.
Ct.
rights
lawful exercise
one’s constitutional
not,
be,
and must not
aggravation mitigation
factor in
deter
mining a criminal sentence.
People Moriarty (1962),
Ill.
565,
On remand court, the resentencing judge presided at a new sentencing hearing. Prior to the hearing a new presentence investigation and report ordered and the same was prepared Both filed. State expressed their satisfac- tion with the *3 that report stated the same was accurate. The State no presented testimony the The defendant hearing. testified on her own behalf. arguments After counsel the by resentencing judge imposed imprisonment terms of identical with those previously imposed by the trial judge, with the exception they that were to run concurrently.
As cause, stated in our in prior opinion is difficult to “[i]t the escape conclusion the severity that of the sentence imposed upon the defendant resulted from the the views of sentencing judge on abortion.” v. 339, McCumber (1985), 345, 132 Ill. 3d 525, N.E.2d 530.
The of the remarks trial the judge when defendant was first sentenced, are set amply forth in this prior opinion. court’s willWe not again verbatim; however, set them forth the undisputable es- that, sence of the same was disregarding the criminal activity defendant, she was nonetheless a lowof moral character who person placed a low on life, value human and this last conclusion was but- by tressed concerning court’s observation the defendant’s abortions. right a woman obtain an is a issue of burning abortion
national will scope. express personal We our views on the ques-
tion, we, review must ad- nor since as a lower court of we should tribunal, highest here to our nation’s the United States 147, (Roe 113, Court. v. 410 U.S. 35 L. Ed. 93 S. Wade 705; Thornburgh College Gyne- Ct. American Obstetricians & _, 779, 476 U.S. L. cologists (1986), Ed. 2d S. Ct. It is that in an act of in re- apparent engaged futility manding this cause for so hearing. We conclude it is clear that glaringly the defendant’s sentence was deter- original mined considering after At improper factors. the
sentencing hearing resentencing judge reimposed the same sen- on the tence voluntary-manslaughter conviction.
That the resentencing judge changed defendant’s sentences term ordering imprisonment voluntary by of im concurrently run with the term manslaughter should is of little conse a homicidal death prisonment for concealment of not have been quence since consecutive sentences should a consecutive sentencing hearing. impose A court shall not required protect sentence unless the court determines that such is criminal Stat. public from conduct the defendant. Ill. Rev. ch. par. 8—4(b);People v. Merz 1005 — on first sentence to protect never found that a consecutive sentence was necessary but, further criminal conduct on public the court various factors contrary, stated: mitigation,
“And as to the factors probably did at that time. I’ll strong provocation particular act under make that the defendant has no de- finding prior activity. criminal prior or linquency conduct, As criminal whether the result to defendant’s recur, can make a likely circumstances is how or not won’t even show whether testimony that when things speculative occur. are Many conjecture, that. ask to do nature, guess. certainly jury don’t We the evi- on the law and We them to base their decision ask give Probably that. *4 going you dence. I’m not So ***.” probation the terms of defendant would with comply rectify the trial court to It been preferable would have of that purview the basically falls within its mistake since the have done, not reason we court; however, since such was forth, court will set for others which discussed and just exercising the the imposed upon reduce the sentence defendant (87 Ill. 2d granted by 615(b)(4) Court Rule authority 615(b)(4)). consider the we direct proper imposed,
Before we our to the the cir- sentencing hearing attention second conducted sup- behalf had cuit The testified in own court. defendant a an associate psychologist, from a porting psychiatrist, statements other state- and a dozen or so circuit a school board member judge, op- ments statements received only from citizens. The responsible the position to a victim’s being imposed reduced sentence were state- (Jeffrey Williams’) ex-girlfriend. mother and an These latter ments related solely during the victim’s The temper. trial, she testified that shot and beating killed victim as he was and choking her. The statements ex-girlfriend from his mother and indicated that the victim had a temper, inherited bad that he got drunk, and, he a pot, tantrum, used when had he temper yelled, doors, things, glass kicked threw and smashed and ashtrays, but that fits his were temper “things,” people. directed These two only statements were the evidence aggravation admitted sentencing.
We will not set forth in depth testimony and statements ad- mitted into evidence on behalf of the defendant at hearing. resentencing judge accurately set forth same in his when, stating the reasons imposed, court noted that the prior defendant had no criminality that delinquency and her character and attitude indicated that she crime; was not likely commit another that comply she would with her; or regulations rules that placed upon she defend- (the ant) good strong had work record and family support. The court found aggravating factor only statutory present was that sentence was necessary to deter others from committing same Finally, crime. the court noted the shooting the victim and dismemberment and disposal body and defendant’s atti- tude justified after crime the sentence imposed.
At the time of the crime the defendant was old. The record replete with various which indicate she testings I.Q. above-average good She had a record sev- employment eral former willingness employers expressed reemploy her. is, defendant has fact, an unblemished record and pris- a model oner at the correctional institution she is where incarcerated. Con- siderable evidence was introduced concerning strong family sup- port that awaits her when released from incarceration. *5 like factor committing crime is a proper others
Deterring to sentencing hearing. be considered at a We doubt applicability of in the It is if deter an such factor instant case. doubtful it would ill, individual is as the the defendant jury who found in mental and amnesia could well post-crime this case. Such illness explain bizarre to the crime. It subsequent the defendant’s behavior is filed at the correc- psychiatric report by noted that the doctor tional was no psychiatric longer institution indicated that treatment during treated her psychologist needed. A clinical placed if would probation prognosis confinement felt that good to excellent. this case sentencing judges obviously gave
While the consider offense, ation nature and of to the circumstances we believe give did not to the and character they adequate weight of A for rehabilitation. potential of a criminal proper determining the extent and nature objective 1970, citizenship. (Ill. restoration of useful Const. art. penalty I, examining case, in this sec. the record we find number of which the courts deem of a present supportive factors reduction, as to previous wit: unblemished record 203, (1980), activity (People criminal v. Goodwin 1051), availability strong family favorable em support, record, Ill. ployment age Bailey (People 416, 545). 410 N.E.2d manslaughter elevated to status of Class
Voluntary 38, 1983, par. ch. felony January 1, (Ill. Rev. Stat. effective offense, of not 2.) For the commission of such an a sentence less 9 — Rev. (Ill. than 4 more than 15 Stat. years may imposed. years 1983, A 8—1(a)(4).) probation may par. ch. 1005 — 38, par. 5—3(b)(1). also Ill. Rev. Stat. ch. be imposed. 1005 — statistical information as to the number privy
We are not upon pro- which a sentence voluntary-manslaughter convictions however, impris- year bation was 1985 sentences imposed; cases eight voluntary manslaughter onment were Third of 21 counties in comprised Court which District cases, As to me- part eight northern central of Illinois. these and two months. years dian sentence was six of voluntary who had the offense imprisoned individuals been Corrections, and Department were released manslaughter by was two the median time served these individuals time figure spent pending three This includes incarcerated months. months. year was one and six Illi- prison-time stay trial. median Statistical Presentation Department nois Corrections 21, 51, 86. authority granted to the
For the and pursuant reasons stated (87 615(b)(4)), Ill. 2d 615(b)(4) Court Rule sentence to a court the defendant Roberta McCumber’s reduced term years’ imprisonment. of seven mod- sentence of the court is affirmed as judgment and
ified.
Affirmed as modified.
STOUDER, J., concurs. HEIPLE, dissenting:
JUSTICE else, pure what to power play, nothing major- amounts of has ity chosen reduce the defendant’s sentence from years same years. majority initially This reversed sentence and remanded the for cause by a judge. different No of sort oc- alleged error to have curred hearing. Nonetheless, at the second sentencing the majority finds that sentence is too severe.
In arriving at what the believes is of majority figure a correct seven it years, arbitrarily chose eight voluntary-manslaughter cases from the Third District from determined that median in those cases eight years was six and two months, then reduced the defendant’s sentence this case years. seven
It goes saying without there is no scientific for yardstick determining beyond peradventure the exact punishment amount of which the State should for impose a crime. G. Hegel *** W. F. was cor- rect opined when he that “reason cannot determine any princi- ple whose could decide application justice requires whether for an *** offense or (1) forty lashes or thirty-nine, (2) a fine of five tha- Hegel, lers or G. F. four.” W. of Philosophy Right (English transla- tion 1971). case, this to be the
Knowing legislature State has range of sentence of 4 to 15 for years voluntary manslaughter. range, Within that judge weighs various factors determining he believes to the appropriate what be sentence. While discretion, sentences subject are to review for of abuse law clear that court is not called its upon to substitute own for that judgment trial court. That is what has precisely A this its case. court substituted majority occurred in this the trial own for that of the trial court in a case where judgment its court did not exceed discretion. function, court the majority appar- this usurpation great a fine with fu-
ently young to be lady believes ture find no potential. she has been model They prisoner ill longer job opportunities upon and who has release gathers One also from the that the custody. majority’s analysis shot, into may victim in this case deserved cut pieces have and his Illinois. Reference is body parts distributed about central for grisly made to initial dissent in this case details of this crime my this and the initial erroneous decision to remand case majority’s resentencing. See v. McCumber
345, 477 it noted that if the sentence reduction
Parenthetically, should be sticks, custody to seven the defendant’s release from years day all This is Illinois one credit gives but imminent. so because good additional conduct plus days each served some day A supervised under conditions. possibility early release into less than 3V2 something such formula translates sentence under ago, 3Vs years. approximately years This crime occurred for a interven- custody goodly portion defendant has been ing time. or comment the defendant’s rehabilitation lack make no
it. I no on whether the initial sentence likewise make comment more or something some- case should have been only issue thing germane. Such comments would less. *7 the statutory here is was within whether It exceeded his discretion. is clear range judge and whether that, range and since permissible the sentence was within discretion, his did exceed subject tampering. not a fit appellate the rule law rule of
What is at issue here is versus really case a de novo sentenc- men. decision in this institutes majority it doing, justice In so subverts ing appellate court. procedure to the rule of law. and does violence I dissent.
Accordingly,