People v. Cox

• Decision Date: 12 October 1979
• Docket Number: 15457,Nos. 15389,s. 15389
• Citation: 32 Ill.Dec. 946,396 N.E.2d 59,77 Ill.App.3d 59
• Parties: , 32 Ill.Dec. 946 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Craig Lee COX, Defendant-Appellant. and The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sharon L. STEVENS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 59

396 N.E.2d 59

77 Ill.App.3d 59, 32 Ill.Dec. 946

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Craig Lee COX, Defendant-Appellant. and The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sharon L. STEVENS, Defendant-Appellant.

Nos. 15389, 15457.

Appellate Court of Illinois, Fourth District.

Oct. 12, 1979.

Woollen, Brown, Hawkins & Basola, Decatur, for appellant in No. 15389; Gregory A. Mattingley, Decatur, of counsel.

Patrick M. Walsh, State's Atty., Decatur, Marc D. Towler, Deputy Director, State's Attys. Appellate Service Commission, Larry Wechter, Staff Atty., Springfield, for appellee in No. 15389.

Moody & Diamond, Decatur, for appellant in No. 15457.

Patrick M. Walsh, State's Atty., Decatur, Marc D. Towler, Deputy Director State's Attys. Appellate Service Commission, Karen L. Boyaris, Staff Atty., Springfield, for appellee in No. 15457.

REARDON, Presiding Justice:

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 section 5-5-4.1 of the Unified Code of Corrections. (Ill.Rev.Stat., 1978 Supp., ch. 38, par. 1005-5-4.1) This section provides that:

"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, 27 Ill.Dec. 606, 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 section 5-5-4.1, to overcome the principle announced in People ex rel. Ward v. Moran (1973), 54 Ill.2d 552, 301 N.E.2d 300, and followed in People v. Bolyard (1975), 61 Ill.2d 583, 338 N.E.2d 168, that a reviewing court did not have authority to reduce a sentence of imprisonment to one of probation. (See Choate; People v. Knowles (1979), 70 Ill.App.3d 30, 26 Ill.Dec. 637, 388 N.E.2d 261.) This purpose is made explicit by the language itself and, as noted in Choate, was reflected in the subcommittee report which formed the basis for the amendments to the Code. See Report to the Illinois House Judiciary II Committee by the Subcommittee on Adult Corrections (hereinafter cited as "Subcommittee Report").

It is much less apparent, however, as to what precisely the legislature meant by the phrase "rebuttable presumption." Examining the evolution of the new Code, the court in Choate concluded that the legislature intended a departure from the old standard of reviewing sentences whereby the appellate court deferred to the discretion of the trial court, absent a showing of abuse of that discretion. (See People v. Perruquet (1977), 68 Ill.2d 149, 11 Ill.Dec. 274, 368 N.E.2d 882.) In an extremely well-reasoned and comprehensive fashion Justice Moran detailed the amendments of the Code which the court felt were indicative of such a legislative intent.

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., Ill.Rev.Stat., 1978 Supp., ch. 38, pars. 1005-5-4.2, 4.3. (The former section grants the supreme court power to prescribe rules of practice and review which will promote uniformity and parity of sentences. The latter provision requires the Department of Corrections to publish statistical sentencing data for trial and appellate judges' use in imposing and reviewing sentences.) See also Ill.Rev.Stat., 1978 Supp., ch. 38, par. 1005-10-2(5).) As argued in Choate, increased appellate scrutiny is integral to the achievement of that end for "(i)f appellate courts continued to defer to the discretion of trial courts whenever a sentence was within the statutory range without regard to whether or not it was appropriate under all the facts and circumstances, then the purpose of the new law would be defeated." 71 Ill.App.3d 267, 273, 27 Ill.Dec. 606, 611, 389 N.E.2d 670, 675.

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 (Supreme Court Rule 615) is rarely used because in most cases the trial court had not communicated on the record the basis of its sentencing decision. Without such information, the appeals court will generally not change the judgment of the trial judge, on the assumption that he had an adequate basis for its (sic) decision." (Subcommittee Report at 11.) The underlying rationale for the abuse of discretion standard can be explained in part by the combined effect of the lack of clearly delineated sentencing guidelines and the frequent absence in the record of the court's justification for a particular sentence. Under such circumstances an appellate court would be left to speculate as to the judge's rationale. Thus, given such a clouded perspective a reviewing court's deferral to the trial court's judgment had a firm pragmatic basis.

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. (Ill.Rev.Stat., 1978 Supp., ch. 38, par. 1005-6-1.) The required contents of the presentence report have been expanded. (Ill.Rev.Stat., 1978 Supp., ch. 38, par. 1005-3-2.) The Code enumerates specific, objective criteria (factors in aggravation and mitigation) which are to be considered in imposing or withholding various forms of punishment. (Ill.Rev.Stat., 1978 Supp., ch. 38, pars. 1005-5-3.1, 3.2, 5-8-2.) Finally, in sentencing offenders for felony convictions the judge is required to set forth on the record his reasons for his sentencing determination. Ill.Rev.Stat., 1978 Supp., ch. 38, par. 1005-4-1.

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 appellate process, resort to presumptions in reviewing decisions is not uncommon. For example, in reviewing the finding of a judge sitting as the trier of fact it is Presumed that the judge considered only competent evidence. (E. g., People v. Gilbert (1977), 68 Ill.2d 252, 12 Ill.Dec. 142, 369 N.E.2d 849.) This presumption is overcome only where the record affirmatively shows that the court in fact relied upon improper evidence. Likewise, an appellate court will presume that a court, in determining the appropriate sentence for an offender, disregarded any incompetent...