People v. Oestringer

• Decision Date: 14 November 1974
• Docket Number: No. 73--170,73--170
• Citation: 24 Ill.App.3d 185,321 N.E.2d 146
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth W. OESTRINGER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 146

321 N.E.2d 146

24 Ill.App.3d 185

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth W. OESTRINGER, Defendant-Appellant.

No. 73--170.

Appellate Court of Illinois, Fifth District.

Nov. 14, 1974.

George R. Ripplinger, Jr., Belleville, for defendant-appellant.

Robert H. Rice, State's Atty., Belleville, for plaintiff-appellee; Charles H. Stegmeyer, Asst. State's Atty., of counsel.

EBERSPACHER, Justice:

This is an appeal by the defendant, Kenneth W. Oestringer, from a judgment entered, on a jury verdict, by the circuit court of St. Clair County convicting him of the offense of armed robbery and the imposition of a sentence of four to six years with the Department of Corrections.

The defendant arises four contentions in this appeal: (1) that the State failed to prove him guilty beyond a reasonable doubt; (2) that the mandatory four year sentence for the offense of armed robbery is unconstitutional; (3) that the trial judge made comments to the jury which prejudiced his, defendant's, right to a fair trial; and (4), that the trial court erred in refusing to consider periodic imprisonment.

We shall first consider the defendant's contention that he was not proven guilty beyond a reasonable doubt. The defendant asserts that the trial court must be reversed since the prosecution evidence was 'improbable, unconvincing, unreasonable and completely unsatisfactory.' After a thorough review of the record in the instant case, we find no support for this contention.

The evidence against the defendant in the instant case is substantial. The victim of the armed robbery, Homer Hunter, positively identified the defendant as the man who took his money at gunpoint and testified as to the circumstances surrounding this incident. The greater part of this testimony was corroborated by Gerald 'Jake' Showalter who was sitting next to the victim at the time of the alleged robbery. Even though Showalter did not actually see the defendant take money from the victim, he did testify that he saw the defendant with 'what appeared to be a gun' and heard the defendant say, 'Pull your wallet out.'

The defendant, on the other hand, testified that he did not even talk to the victim on the day of the alleged robbery. He further testified that he never pointed a gun at, nor did he take any money from, the victim.

The jury, as the triers of fact, have the responsibility to determine which of the conflicting testimony of the witnesses is to be believed. (People v. Henderson, 18 Ill.App.3d 457, 309 N.E.2d 242; People v. Alexander, 15 Ill.App.3d 607, 305 N.E.2d 61.) In People v. Goodpaster,35 Ill.2d 478, 221 N.E.2d 251, cert. den., 386 U.S. 967, 87 S.Ct. 1051, 18 L.Ed.2d 120, our Supreme Court stated,

'* * * we find a direct and irreconcilable conflict in the testimony. In such a circumstance it is the peculiar prerogative of the jury to determine where the truth lies.' (221 N.E.2d 251.)

It is within the province of the jury to determine the credibility of the witnesses and the weight to be given their testimony. (People v. Zuniga, 53 Ill.2d 550, 293 N.E.2d 595; People v. Lee, 48 Ill.2d 272, 269 N.E.2d 488.) As our Supreme Court stated in People v. Woodruff, 9 Ill.2d 429, 137 N.E.2d 809,

'The rule is well known that the credibility of witnesses and the weight of evidence are, in the first instance, questions best determined by the jurors who are in a position to see and hear the witnesses and to observe their demeanor while testifying.' (137 N.E.2d at 811.)

The Court continued by stating:

'It is fundamental that this court will not disturb a verdict of guilty on the ground that the evidence is not sufficient to convict unless it is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify the court in entertaining a reasonable doubt of the defendant's guilt. Nor will we substitute our judgment for that of the jury in merely weighing the credibility of witnesses where the testimony is conflicting. People v. Tensley, 3 Ill.2d 615, 621, 122 N.E.2d 155.' (137 N.E.2d at 812.)

See also, People v. Bey, 51 Ill.2d 262, 281 N.E.2d 638; People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771.

We are unable to say that the evidence in the instant case was insufficient to justify the jury, beyond a reasonable doubt, in the verdict that was rendered.

It is next contended that the mandatory four year sentence for the offense of armed robbery is unconstitutional. The defendant urges this Court to declare the mandatory four year minimum penalty for armed robbery unconstitutional because it violates the state constitutional provision relating to 'Limitation of Penalties after Conviction,' Ill.Const., art. I, sec. 11, S.H.A., and requires an excessive sentence for the defendant.

In defendant's argument in support of this contention he refers to the A.B.A. Project on Minimum Standards for Criminal Justice, Probation, (Approved Draft, 1970); Sentencing Alternatives and Procedures, (Approved Draft, 1968). These and a great many other authorities, E.g., Ruben, Allocation of Authority in Sentencing--Correction Decision, 45 Texas L.Rev. 445, 463--65 (1967), President's Commission on Law Enforcement and the Administration of Justice, Task Force Report: The Courts (1967), have advocated the position that mandatory minimum sentences are evil and destructive. Although these authorities, perhaps foreshadowing the trend away from mandatory minimum sentences, are persuasive, they are of little aid to us in our deliberations with respect to the instant case. We are not faced with the question of what we would recommend, rather we are faced with determining whether the minimum mandatory sentence adopted by the legislature for the offense of armed robbery (Illinois Revised Statutes 1973, Chap. 38, pars. 18--2(b), 1005--5--3, 1005--8--1) contravenes the constitutional requirements of article I, section 11 (Ill.Const. art. I, sec. 11).

The relevant portion of Ill.Const., art. I, sec. 11, provides, that,

'All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. * * *.'

In People v. Cantrell, 14 Ill.App.3d 1068, 304 N.E.2d 13, and in People v. Moore, 15 Ill.App.3d 691, 304 N.E.2d 696, the court was confronted with arguments similar to the argument being advanced in the instant case. In Cantrell, the defendant contended that a minimum sentence of not less than 14 years upon a conviction for murder violated the constitutional provisions embodied in article I, section 11 (Ill.Const., art. I sec. 11). Therein the court concluded that the statutory minimum sentence for murder of 14 years was 'constitutionally permissible' after making the determination,

'* * * that section 11 does not present a mandate opposing minimum sentences. Rather, section 11 requires the legislature to develop sentencing standards that reflect the goal of restoring the offender to useful citizenship, as well as providing a penalty that is proportionate to the nature of the offense (Sixth Ill. Constitutional Convention, Record of Proceedings at 1391).' (304 N.E.2d at 16.)

In Moore, the defendant contended that the statutory minimum sentence of four years without possibility of probation for the offense of rape violated the 1970 Illinois Constitution, article I, section 11, which requires that the objective of punishment be to restore the defendant to useful citizenship. The court refused to 'subscribe to the narrow interpretation interposed by defendant' and explained its reasons in the following manner:

'Section 11 clearly provides that all penalties shall also be determined According to the seriousness of the offense. The State's position, to which we subscribe, is that article I, section 11, is a statement of public policy aimed at both the legislature and the court. The legislature considered both rehabilitation and the seriousness of the offense of rape and determined that in the interest of the public the statutory minimum must be four years. We do not feel the call for a consideration of the rehabilitative aims in sentencing contained in article I, section 11, now deprives the legislature of fixing minimum penalties for crime, which has long been within their domain. (See People v. Landers, 329 Ill. 453, 457, 160 N.E. 836, 838.) Furthermore, the framers of the 1970 Constitution apparently did not intend the document to abolish the death penalty, since a separate referendum regarding its retention was submitted to the voters at the same time the constitution was submitted for approval. (See S.H.A.Const., art. I, sec. 11, Constitutional Commentary, at 545.) Since the death penalty is the antithesis of rehabilitative sentencing, this buttresses the notion that article I, section 11 was not intended to make rehabilitation the only consideration in sentencing.' (304 N.E.2d at 698.)

A similar result was reached in the abstracted opinion of People v. Dunigan, 17 Ill.App.3d 498, 308 N.E.2d 338.

In our analysis of the defendant's contention that the minimum penalty of four years for the offense of armed robbery contravenes article I, section 11 (Ill.Const., art. I, sec. 11), we start with the basic proposition that there is a presumption of the validity of the legislative classifications, and the burden of rebutting that presumption is on the party challenging the validity of the classification. (People v. Sherman, 57 Ill.2d 1, 309 N.E.2d 562; People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407.) Of course, it is our judicial obligation to insure that this power has not been exercised arbitrarily or in a manner repugnant to our Constitution. After consideration of People v. Cantrell, 14 Ill.App.3d 1068, 304 N.E.2d 13; People v. Moore, 15 Ill.App.3d 691, 304 N.E.2d 696, and the numerous authorities cited by the defendant, ...