People v. Youngbey
| Decision Date | 18 November 1980 |
| Docket Number | No. 53141,53141 |
| Citation | 82 Ill.2d 556,413 N.E.2d 416,45 Ill.Dec. 938 |
| Parties | , 45 Ill.Dec. 938 The PEOPLE of the State of Illinois, Appellee, v. Henry YOUNGBEY et al., Appellants. |
| Court | Illinois Supreme Court |
James J. Doherty, Public Defender, Chicago (Marc Fogelberg, Asst. Public Defender, Chicago, of counsel), for appellants.
William J. Scott, Atty. Gen., and Bernard Carey, State's Atty., Chicago , for the People.
This appeal arises from the determination of a Cook County circuit court judge that the statutory requirement that a presentence investigation be conducted and a report be submitted in all felony cases (Ill.Rev.Stat.1979, ch. 38, par. 1005-3-1) (amendment effective February 1, 1978) constitutes an unconstitutional legislative encroachment on the judiciary's sentencing power. The appeal comes directly to this court pursuant to our Rule 603.73 Ill.2d R. 603.
The defendants, Henry Youngbey and Tyrone Watson, were charged by information with unlawful use of weapons (Ill.Rev.Stat.1977, ch. 38, par. 24-1). They waived their right to a trial by a jury and were jointly tried before a Cook County circuit court judge. During the trial, certified statements of the defendants' prior convictions were admitted into evidence. Defendant Youngbey had pleaded guilty on November 20, 1973, to attempted robbery. He had also entered a guilty plea on March 8, 1976, to two charges of robbery. For each of these convictions, Youngbey received a sentence of 2 to 6 years' imprisonment to be served concurrently. The above convictions were also stipulated to by the parties during the trial, and the stipulation included the fact that Youngbey had been released from the penitentiary on June 20, 1977. A certified statement concerning defendant Watson's entry of a guilty plea to robbery on November 25, 1975, was also submitted. He was on probation for the robbery conviction at the time that the information was filed for the unlawful-use-of-weapons charge.
The judge found both defendants to be guilty of the charge and denied their respective motions for a new trial. Both defendants, as well as the State, waived the presentence investigation and they requested that a sentencing hearing be conducted immediately. No specific sentence had been agreed to by the parties. Aggravating evidence was then presented by the State concerning the defendants' criminal history. The State requested that the judge consider the verified copies of conviction which had been put into evidence, and it also represented that defendant Watson had spent "nine days in the House" for an aggravated assault charge in September of 1977. This representation was not challenged by Watson. Following the presentation of mitigating evidence, the judge sentenced defendant Youngbey to a 4-year term of imprisonment, and defendant Watson was sentenced to 2 1/2 years.
Two days later, when the case was before the court in regard to the filing of defendants' notices of appeal, the judge, sua sponte, held section 5-3-1 of the Unified Code of Corrections (Ill.Rev.Stat.1979, ch. 38, par. 1005-3-1) unconstitutional. It was the court's opinion that the provision requiring a presentence report which could not be waived was an invasion of the sentencing powers of the judiciary and also an invasion of executive authority, in that the State's Attorney would not be permitted to waive such an investigation and report. Thus, according to the trial judge, the legislative requirement that a presentence investigation report be made in all felony cases encroaches upon the judiciary in its sentencing function and upon the executive branch of government in the prohibition against the waiver of the investigation and report.
The defendants argue before this court that the legislature was well within its constitutional authority in enacting section 5-3-1. The defendants assert that the statute, as amended, mandates the presentation of a presentence report to the sentencing judge in all felony cases absent an agreement between the parties concerning the sentence to be imposed. Inasmuch as the report was mandatory and there were no agreements as to the sentences, the defendants contend that they did not have the option of waiving the reports and that the judge did not have the authority to accept their waivers. The State, in its brief, concedes that the statute does not constitute an unlawful legislative infringement on the powers of the judicial or executive branches of government. However, the State argues that section 5-3-1 does not deny a defendant the right to waive the presentence investigation report.
Thus, both the defendants and the State contend that the trial court erred in holding section 5-3-1 unconstitutional. This court has held that the imposition of a criminal sentence is a judicial function. (People v. Phillips (1977), 66 Ill.2d 412, 6 Ill.Dec. 215, 362 N.D.2d 1037.) However, this section of the Code does not constitute an infringement upon this judicial function. The aspect of the sentencing function involved in this section relates solely to a presentencing procedure. The General Assembly has the power to enact laws governing judicial practices when the laws do not unduly infringe upon the inherent powers of the judiciary or conflict with a rule of this court. Our opinion in Strukoff v. Strukoff (1979), 76 Ill.2d 53, 27 Ill.Dec. 762, 389 N.E.2d 1170, discusses in depth the limitations which the legislature must observe in enacting laws relating to judicial proceedings. A further detailed discussion of the question is unnecessary here. Under the authority of Strukoff and the cases cited therein, section 5-3-1 of the Unified Code of Corrections does not constitute an unconstitutional encroachment upon either the judicial or executive powers.
The remaining question before this court is whether, in the absence of an agreement as to the sentence to be imposed, a presentence investigation report is a mandatory requirement in felony cases under section 5-3-1 of the Unified Code of Corrections and, if so, whether such a requirement may be waived by the defendant.
Section 5-3-1 provides:
"A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.
However, the court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant's history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment.
The court may order a presentence investigation of any defendant. " (Emphasis added.) (Ill.Rev.Stat.1979, ch. 38, par. 1005-3-1.) (Amendment effective February 1, 1978.)
Prior to February 1, 1978, section 5-3-1 provided that a presentence report of investigation be presented to and considered by the sentencing judge. However, the statute specifically provided that the investigation and report could be waived by the defendant. It provided:
After an examination of the statute both before and after its amendment, we hold that the presentence investigation and report is a mandatory legislative requirement which cannot be waived except in accordance with the exception in the statute.
We note first the specific language of the statute. Section 5-3-1 provides that "(a) defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court." (Emphasis added.) (Ill.Rev.Stat.1979, ch. 38, par. 1005-3-1.) Whether a statutory provision is to be considered mandatory or merely directory depends upon the drafters' intent. An important aid in determining whether a provision is mandatory or directory is the form of the verb used in the statute. (2A A. Sutherland, Statutes and Statutory Construction sec. 57.03, at 415 (1973).) Both before and after its amendment, section 5-3-1 has included the words "shall not be sentenced." Generally, the use of the word "shall" is regarded as indicative of a mandatory intent. (Andrews v. Foxworthy (1978), 71 Ill.2d 13, 21, 15 Ill.Dec. 648, 373 N.E.2d 1332; See 1A A. Sutherland, Statutes and Statutory Construction sec. 25.04, at 301 (1972).) We recognize, however, that this is not an inflexible rule; the statute may be interpreted as permissive, depending upon the context of the provision and the intent of the drafters. Village of Park Forest v. Fagan (1976), 64 Ill.2d 264, 268, 1 Ill.Dec. 42, 356 N.E.2d 42.
However, not only did the legislature use the mandatory word "shall" in this section of the...
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...intent of the drafters. See People v. Davis, 93 Ill.2d 155, 162, 66 Ill.Dec. 294, 442 N.E.2d 855 (1982); People v. Youngbey, 82 Ill.2d 556, 562, 45 Ill.Dec. 938, 413 N.E.2d 416 (1980). It is significant that the legislature, when enacting article 110 of the Code of Criminal Procedure in 196......
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...a statutory provision is interpreted as mandatory or directory depends upon the intent of the drafters. (People v. Youngbey (1980), 82 Ill.2d 556, 45 Ill.Dec. 938, 413 N.E.2d 416.) Generally, the word "shall" is indicative of a mandatory intent; however, such a construction is not absolute ......