Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Macon County;
the Hon. Albert G. Webber III, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Following a bench trial in the circuit court of Macon County on October 22, 1973, defendant, Frances Eugene Bolyard, was convicted of indecent liberties with a child and sentenced to 6 to 18 years in the penitentiary. On appeal, the appellate court affirmed his conviction. (People v. Bolyard, 23 Ill. App.3d 497.) We granted defendant leave to appeal, and the sole issue presented is whether the trial court's announced sentencing policy was arbitrary and failed to conform to the standards of the Unified Code of Corrections. Due to the limited scope of this review, only those facts necessary for a determination of the issue on appeal will be related.
At the completion of defendant's trial and after a finding of guilt, a presentence hearing was conducted. The trial judge informed the parties that he was prepared to hear arguments on the question of whether defendant should be sentenced to a period of probation rather than imprisonment. Following the presentation of these arguments, the trial judge stated:
"There was a time some years back in this court when the then judges of the court had what amounted to an inflexible policy that any crimes involving physical violence, any crimes involving sexual violence, were simply not probationable, and the lawyers in that day didn't even submit probation requests. The net effect of submitting a probation request at that time was only to increase the sentence of your client. This was a matter that was well understood by the Bar of the Sixth Circuit. In recent years, perhaps that policy has been relaxed somewhat, although personally I still subscribe to it."
He then recited the facts of the case as disclosed by the testimony of various witnesses, and found that there was no excuse for what was, in his opinion, the "most sinful, reprehensible act of all offenses." The trial judge expressed no hesitation in denying defendant's request for probation, and sentenced him to imprisonment.
Defendant maintains that the trial judge superimposed his personal belief in the severity of the crime charged and was predisposed to disregard arguments for probation. He relies upon the Unified Code of Corrections which specifically provided that a period of probation was a possible sentence alternative for the crime of which he was convicted. (Ill. Rev. Stat. 1973, ch. 38, par. 1005-5-3(d).) Moreover, the Unified Code required the trial court to hear arguments on sentencing alternatives (Ill. Rev. Stat. 1973, ch. 38, par. 1005-4-1), and specified the factors the trial judge should consider in imposing a term of imprisonment or a period of probation. Those factors are:
"(a) The court shall 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, the court 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 sentence to imprisonment; or
(3) probation or conditional discharge would deprecate seriousness of the offender's conduct and would be inconsistent with the ends of justice.
(b) The court may impose a sentence of conditional discharge for an offense if the court is of the opinion that neither a sentence of imprisonment nor of probation supervision is appropriate." Ill. Rev. Stat. 1973, ch. 38, par. 1005-6-1.
This court has consistently held that the question of granting probation is within the discretion of the trial court. (People ex rel. Ward v. Moran (1973), 54 Ill.2d 552, 555.) The scope of review from a denial of an application for probation is limited to the extent of determining whether the trial court did, in fact, exercise its discretion or whether it abused that discretion by acting in an arbitrary manner. People v. Saiken (1971), 49 Ill.2d 504, 514-15.
In People v. Hamby (1955), 6 Ill.2d 559, it was found that no error occurred in the denial of an application for probation, an authorized disposition under the law effective at that time, based upon the personal opinion of the trial judge that sellers of narcotics, who are found guilty, "are certainly never entitled to probation." (6 Ill.2d at 563.) We do not believe, however, that the basis for the trial judge's summary denial of probation as detailed in Hamby is consistent with present concepts of sentencing procedures and alternative sentences under the Unified Code of Corrections.
In the present case the trial judge heard defendant's argument for granting probation and then expressed his opinion that perpetrators of such a crime should not receive probation. Under these circumstances we find, as the record affirmatively shows, that the trial judge arbitrarily denied probation because defendant fell within the trial judge's category of disfavored offenders. Accordingly, defendant ...