Appeal from the Circuit Court of Saline County; the Hon. JACK
C. MORRIS, Judge, presiding. Judgment modified, and as modified,
In a prior appeal, *fn1 this court affirmed the judgment of the Circuit Court of Saline County finding the defendant guilty of violation of the conditions of his probation, and remanded the cause for further proceedings. In compliance with the directions of this court, the circuit court vacated the sentence imposed on the defendant, conducted a hearing in aggravation and mitigation, and upon conclusion of the hearing, imposed a sentence of not less than 12 years nor more than 18 years. This appeal followed.
Defendant, appearing pro se, argues that the sentence imposed is far more severe than is warranted by the record, and contends that this court should reduce it to the time already served.
It is unfortunate that the State's Attorney has not seen fit to file a brief in this cause. The failure of a State's Attorney to file a brief places an undue burden on the reviewing court, in that it makes it necessary to review the record and the applicable law without the benefit of his assistance. In an appeal in a civil matter, we might invoke the rule that failure on the part of an appellee to file a brief warrants reversal of the judgment without a review on the merits, but obviously this is not the solution to the problem that arises in a case where an appellant has been convicted of a felony, since society, unlike a litigant represented by counsel of his selection, should not suffer the penalty of setting at large a convicted felon, because a public official has failed to perform a service to which The People are entitled.
The evidence adduced at the hearing in aggravation and mitigation shows that on January 16, 1962, in the Circuit Court of Massac County, defendant, then 23 years of age, pleaded guilty to the offense of burglary and larceny, and was sentenced to the penitentiary for a term of not less than 1 nor more than 3 years.
Edgar Bramer testified that on January 12, 1962, he was called to the office of the State's Attorney of Massac County, that defendant, defendant's father and an attorney were there, and restitution was made of property previously taken in a burglary at Bramer's home.
William Boyd testified that his home was burglarized twice in 1961, and an attorney, representing defendant, made restitution of the money, and a television set, stolen on those occasions.
Otis Baker testified that he was paid $170 in restitution of money taken in a burglary at his home on November 28, 1961.
James Gowins testified that on October 28, 1961, he, in the company of defendant and two other men, burglarized a house in Metropolis.
James Williams, a police officer at Cairo, testified that on September 24, 1964, he arrested defendant, and two other men, on a charge of disorderly conduct. The record of the disposition of the charge is not in evidence, but the witness thought defendant was fined $34.
George Adams testified that on December 29, 1964, he was a police officer at Brookport, that he charged defendant with reckless driving but did not know what disposition was made of the charge.
A girl, under the age of 16, testified that on January 1, 1965, she had sexual intercourse with defendant in a motel at Metropolis.
The chronology of events relative to imposing sentence on this defendant, is that in April of 1964, after a plea of guilty to the charge of burglary, the State's Attorney joined with defense counsel in recommending that he be admitted to probation. Approximately one year later, probation was revoked, and a sentence of not less than 15 nor more than 20 years was imposed. After a hearing in aggravation and mitigation, held in accordance with the remanding order of this court, during which hearing the above testimony was adduced, the court imposed a sentence of not less than 12 nor more than 18 years.
This court is cognizant of the Supreme Court's admonition in People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673, that the power granted reviewing courts to reduce sentences is to be applied with considerable caution and circumspection. We are, however, also aware of the constitutional provision that all penalties shall be proportioned to the nature of the offense (Article II, Section 11, Constitution of Illinois), and what purposes, hopefully, are to be achieved by the imposition of punishment for ...