APPEAL from the Circuit Court of Rock Island County; the Hon.
DAVID DeDONCKER, Judge, presiding.
MR. PRESIDING JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
The defendant, Bertha L. Dale, was charged in a one count information which alleged that on July 12, 1977, the defendant committed the criminal offense of voluntary manslaughter in violation of section 9-2(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-2(b)). She was accused of shooting to death her husband, John Dale, at a time when she believed the circumstances to be such that they would justify the killing but that this belief on her part was unreasonable. On July 28, 1977, the defendant entered a plea of guilty to the charge against her. The trial court ordered a presentence investigation and report. Following a hearing in mitigation, the trial court denied the defendant's request of a sentence of probation and sentenced her to serve a term of imprisonment of not less than 1 nor more than 20 years. The defendant timely filed a motion to withdraw her guilty plea and to vacate the judgment, which motion was denied following a hearing thereon. Defendant brought the present appeal in which she only challenges the sentence imposed by the trial court.
The issue raised is whether the trial court abused its discretion by sentencing this defendant to a term of imprisonment rather than probation. The defendant's argument is based upon the case of People v. Bolyard (1975), 61 Ill.2d 583, 168 N.E.2d 338, and its progeny. The supreme court found that the trial judge in Bolyard arbitrarily denied the defendant probation and refused to exercise his sentencing discretion as a result of the trial judge's statement at the sentencing hearing that the type of crime involved in that case was never proper for a sentence of probation. The same result was reached with similar reasoning in People v. Wilson (4th Dist. 1977), 47 Ill. App.3d 220, 361 N.E.2d 1155, where the trial judge's statements at the sentencing hearing disclosed his policy that a certain class of crime should never be granted probation. In applying the Bolyard standard to the trial judge's statements in the instant case we conclude that no abuse of discretion was evident nor did the judge arbitrarily deny this defendant probation.
The applicable statute which sets forth the criteria for guidance to trial courts> in determining whether a sentence of probation is proper is section 5-6-1 of the Unified Code of Corrections (Ill. Rev. Stat., 1977 Supp., ch. 38, par. 1005-6-1), which provides:
"(a) Except where specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that:
(1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or
(2) probation or conditional discharge would deprecate the 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 periodic imprisonment nor of probation supervision is appropriate.
(c) The court may, upon a plea of guilty or a stipulation by the defendant of the facts supporting the charge or a finding of guilty, defer further proceedings and the imposition of a sentence, and enter an order for supervision of the defendant if the defendant is not charged with a felony and having regard for the circumstances of the offense, and the history, character and condition of the offender, the court is of the opinion that:
(1) the offender is not likely to commit further crimes;
(2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and
(3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code.
The court shall consider the statement of the prosecuting authority with regard to the standards set forth in this Section."
1 In this case the trial court heard extensive evidence in mitigation, including the defendant's lack of a criminal record and favorable psychiatric testimony. At the conclusion of the evidence at the sentencing hearing the trial judge referred to the language of section 5-6-1 (Ill. Rev. Stat. 1977, ch. 38, par. 1005-6-1), and made several statements which the defendant asserts showed his arbitrariness and failure to exercise his sentencing discretion. The trial judge stated specifically that incarceration of the defendant was not necessary for the protection of society, nor was he convinced that the defendant would be likely to commit this type of offense again. The trial judge also commented that the defendant was not in need of correctional rehabilitation treatment. Nevertheless the trial court did also consider the circumstances of the offense and the history, character and condition of the offender; that this defendant, fully aware of her husband's past violent tendencies and use of weapons, consciously chose to approach him at a place outside the home upon learning from others of the possibility that he was seeing another woman; that defendant sought out her victim and took her gun along; that upon confronting her husband she shot him multiple times as he emerged from his van and allegedly reached for his pocket. Having considered these circumstances surrounding the commission of this offense the trial judge stated that the defendant had committed "a serious offense and a penalty other than incarceration would deprecate that seriousness." Rather than placing the defendant's crime in a disfavored category as in People v. Bolyard (1975), 61 Ill.2d 583, 338 N.E.2d 168, and People v. Wilson (4th Dist. 1977), 47 Ill. App.3d 220, 361 N.E.2d 1155, the trial court here correctly considered the statutory probationary sentencing criteria and concluded that the conduct of this defendant in this case was such that a penalty other than incarceration would deprecate the seriousness of that conduct. Such a statement does not reflect an arbitrary sentencing decision by the trial court but is evidence of a proper exercise of sentencing discretion as afforded by statute. In the case ...