APPEAL from the Circuit Court of St. Clair County; the Hon.
HAROLD O. FARMER, Judge, presiding.
MR. JUSTICE CREBS DELIVERED THE OPINION OF THIS COURT:
On a plea of guilty to theft of an automobile the circuit court of St. Clair County sentenced the defendant, Henry Langley, to the penitentiary for a term of not less than eight nor more than ten years. The sole issue presented on review is whether such sentence was so harsh and excessive as to require a reduction under the authority of Rule 615 (b) (4), Illinois Supreme Court Rules.
At defendant's hearing on his application for probation it was determined that he was 48 years of age and that he was on parole at the time of his present offense. He had been previously convicted on several occasions for similar offenses and had received a one year sentence in 1954, two years for stealing in 1957, five to ten years for burglary and larceny in 1958, and six to ten years in 1964. Other than statements by counsel that defendant had not been convicted of any crimes of passion or violence and that he had served four years in the armed forces, no evidence in mitigation was offered.
Defendant contends, (1) that the sentence itself violates the principle of indeterminacy and therefore the minimum term should be reduced, (2) that the theft of an eight year old car is so close to a misdemeanor in terms of value that the entire sentence was inappropriate.
Defendant's argument on the principle of indeterminacy is based on the cases of People v. Scott, 117 Ill. App.2d 344, and People v. Jones, 92 Ill. App.2d 124. In these cases notice is taken of the theory that to preserve the principle of indeterminacy a court should not impose a minimum sentence which exceeds one-third of the maximum. The theory is premised on the reasoning that a spread of years between the minimum and maximum terms permits an earlier parole, if warranted, and yet retains control and guidance for a further period of time which can be helpful in rehabilitation. We subscribe to this theory but even as stated in Scott it can be considered only as a guide and not as a hard and fast rule. Sentencing is a difficult task requiring the exercise of discretion based upon the facts of an individual case. It cannot, and should not, be subject to an arbitrary application of a simplistic mathematical formula. Here defendant has been convicted of a number of similar offenses and has received and served substantial sentences. He has shown no inclination to rehabilitate himself, nor has supervision on parole had any beneficial effect as indicated by the fact that he was on parole even at the time of his present offense. But defendant argues that a prior criminal record does not automatically mean that an offender is beyond rehabilitation. However true this statement may be in the abstract, it is irrelevant here. Defendant has demonstrated a remarkable propensity to commit the same type of offense over and over regardless of the penalty imposed and whether or not under parole and subject to supervision. Without some evidence of an effort to rehabilitate himself or even an expression of a desire to do so it can hardly be concluded that he will change his habits at this particular point in time. Under these circumstances we find that the lack of a substantial spread of years between the minimum and maximum of the sentence imposed is not of itself an adequate reason for reduction of the minimum term.
Finally, defendant contends that the entire sentence was inappropriate, that it was too harsh for the crime committed in that the theft involved an 8 year old car that was not worth much more than $150. He cites People v. Marshall, 96 Ill. App.2d 124 and People v. Glasgow, 126 Ill. App.2d 82, in support of his argument. In Marshall the defendant was convicted of an $8, unarmed, non-violent robbery and in spite of his prior record his sentence was reduced from a term of 5 to 12 years to 3 to 6 years. In Glasgow the conviction was for burglary in which the defendant obtained a pair of shoes and though defendant had a substantial prior record his sentence was reduced from a term of 5 to 10 years to 2 to 5 years. We have no quarrel with these cases, but neither do we believe that they should be determinative of the case before us. Here defendant stole an automobile, not a late model but nonetheless probably just as essential to the owner as a new model would be to its owner. As we have recently reiterated in People v. Dodd, Agenda 71-58, (Ill. App.2d), the authority of a reviewing court to reduce a sentence should bet applied with considerable caution and circumspection. (People v. Taylor, 33 Ill.2d 417); and the burden of presenting mitigating circumstances in a record falls upon a defendant and it is he who must make a substantial showing in order to justify a reduction of sentence on review. (People v. Nelson, 41 Ill.2d 364). Here we find a total absence of any mitigating circumstances tending to confirm the possibility of rehabilitation, and in recognizing the need to adequately punish defendant for his crime and to safeguard the public from further offense of a similar nature, we find the sentence imposed by the trial court was proper.
The judgment of the circuit court of St. Clair County is affirmed.
Mr. JUSTICE GEORGE J. MORAN dissenting:
The majority disregards our opinion in People v. Lillie, 79 Ill. App.2d 174, which was authored by a former member of this court, wherein we said at ages 177, 178 and 179:
"* * * 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 a criminal offense. People v. Brown, 60 Ill. App.2d 447, 208 N.E.2d 629; People v. Evrard, 55 Ill. App.2d 270, 204 N.E.2d 777.
`It is generally true that rehabilitation is best achieved under a system which gives great discretion to the parole authorities.' (People v. Brown, supra.)
It is also true that the courts, by exercise of the power to fix minimum and maximum punishments within the limits provided by the Criminal Code, share with the parole authorities the responsibility for ...