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People v. Grau

JUNE 11, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JACK JOSEPH GRAU, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Washington County; the Hon. FRANCIS E. MAXWELL, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

The defendant, Jack Joseph Grau, appeals from a judgment of the Circuit Court of Washington County entered on a plea of guilty to the offense of burglary. Three issues are presented for review: (1) whether the defendant's sentence of 1 to 3 years in the penitentiary was excessive; (2) whether the defendant received a fair sentencing hearing; (3) whether the discrepancy between the sentence imposed on the defendant and the sentences entered on his co-defendants was fundamentally unfair.

Just before midnight on May 15, 1974, the defendant and two co-defendants broke into a grade school building. The defendant and one co-defendant were apprehended inside the building, apparently during the first hour of May 16, 1974. Later the same day, defendant waived preliminary hearing, was arraigned, waived counsel and indictment, and pleaded guilty. His co-defendants also pleaded guilty.

The court convened separate sentencing hearings for the three men. On June 28 the defendant was sentenced to 1 to 3 years' imprisonment. On July 2 his co-defendant, Joseph Broussard, was sentenced to 4 years' probation, and on December 18, the court sentenced co-defendant, Dennis Buss, to 3 years' probation. Originally, Buss had received the same sentence as the defendant, but, on appeal to this court Buss' sentence was vacated and the cause was remanded because he was not advised of his right to counsel at the sentencing hearing. At the sentencing hearing in December, 1974, Buss testified that he was living at home, employed, and was a union member.

While under the facts of this case we believe the appeal to be totally without merit, the number of cases brought before us on this point necessitates some more detailed discussion. While we realize that any review of a sentence imposed hinges upon the history, character, and condition of each particular defendant, we believe that many of the factors present in the instant case recur so frequently that a discussion of the role of reviewing courts in sentence reduction may be warranted.

• 1 The defendant contends that his term of 1 to 3 years should be reduced to one of time served because no reasonable basis exists in the record to justify his sentence or the disparity between the sentence imposed upon the defendant and those imposed upon his co-defendants. Since defendant has served the minimum sentence minus "good time" and is now on parole, we assume that defendant is asking that his maximum sentence be reduced. Defendant, in effect, asks us to impose a determinate sentence. Such a sentence is not authorized by statute. (Ill. Rev. Stat. 1973, ch. 38, par. 1008-5-1.) While we have the power to reduce the sentence imposed (Ill. Rev. Stat. 1973, ch. 110A, par. 615), we seriously question whether we could impose a sentence that the trial court could not. In the view we take of the case, however, we need not reach this question.

The State contends that this appeal should not be treated simply as a prayer for reduction of sentence. Instead, the State maintains that the crucial issue is whether the trial court exercised proper discretion in denying defendant probation.

The standard of review where the sentence imposed is within statutory limits is whether the trial court exercised proper discretion in imposing sentence. The trial court's sentence will not be disturbed except where the record shows a manifest and arbitrary abuse of that discretion. (People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673 (1965); People v. Rednour, 24 Ill. App.3d 1072, 322 N.E.2d 492 (1974); People v. Van Gilder, 26 Ill. App.3d 152, 324 N.E.2d 715 (1975).) In People v. Latson, 5 Ill. App.3d 1100, 284 N.E.2d 436 (1972), the court offered the following guidelines for review of sentences imposed by the trial court:

"The power to reduce the punishment imposed by the trial court should be exercised with caution, and this court will not reduce a sentence unless it clearly appears the punishment is a departure from fundamental law, its spirit and purpose, or that the penalty is not proportioned to the nature of the offense. [Citations.] (5 Ill. App.3d 1100, 1104-05, 284 N.E.2d 436, 437, accord., People v. White, 22 Ill. App.3d 180, 317 N.E.2d 323 (1974).)

The foregoing standard also applies in determining whether a sentence of imprisonment should be reduced to a sentence of probation. (People v. Rednour, 24 Ill. App.3d 1072, 322 N.E.2d 492 (1974).) We reaffirm the principle announced in the above cases and apply it to the case before us.

• 2 In the instant case, the record supports the trial judge's decision denying probation and imposing sentence of 1 to 3 years. A lengthy sentencing hearing was held at which eight witnesses testified, six on behalf of the defendant. The sentence of incarceration imposed was the minimum for a Class 2 felony. The record reflects that defendant had a sporadic employment record, was currently unemployed and had an unstable family background. There was evidence that he had a quick temper and engaged in violent conduct when drinking. In light of this evidence, we conclude that the trial court properly denied probation.

• 3 The trial court is authorized to impose a sentence of imprisonment upon an offender if, having regard to the nature and circumstances of the offense, and to the history, character, and condition of the offender, it is of the opinion that:

"(1) his imprisonment is necessary for the protection of the public; or

(2) the offender is in need of correctional treatment that can most effectively be provided by a ...


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