APPEAL from the Circuit Court of Randolph County; the Hon.
CARL H. BECKER, Judge, presiding.
MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant Clarence Choate appeals from a judgment of the circuit court of Randolph County entered on a jury verdict finding him guilty of three charges of aggravated battery. Following a sentencing hearing, at which defendant elected to be sentenced under the provisions of the new Illinois sentencing act (Ill. Rev. Stat., 1977 Supp., ch. 38, par. 1005 et seq.), the court assessed his punishment at 4 1/2 years on each count with the sentences to run concurrently. Defendant contends (1) that two of the counts of aggravated battery constituted only a single offense as they are based on the same underlying acts and involve the same person, and (2) that the sentences imposed by the trial court were excessive.
The State has conceded that defendant's conviction of aggravated battery under count II should be vacated. Count II is therefore vacated. As to defendant's second allegation that the sentences imposed by the trial court are excessive, we have reviewed the record and find this issue against the defendant. Accordingly, we affirm.
The facts disclose that defendant went to the office of the sheriff of Randolph County on December 9, 1977, to inquire about his common-law wife and child who had been missing for several days. The defendant and the sheriff were acquainted with one another, as the defendant had sought the sheriff's assistance for other matters in the past. After discussing defendant's wife and child for a few minutes, the defendant suddenly lunged at the sheriff, knocking him off the end of his desk where he had been sitting. Defendant continued to strike the sheriff and kicked him in the ribs while he was on the floor. The chief of police of Chester was called and came in to break up the fight. He was also struck by defendant several times in the face. When another officer came in, the defendant calmed himself and quit struggling. The sheriff sustained cracked ribs, a sprained shoulder, two sprained fingers, and a cut on a finger from broken glass on his desk. The chief of police of Chester sustained cuts and bruises on his face.
At the trial, defendant testified that the sheriff was indifferent to his problems, never solving any of them to the defendant's satisfaction. Defendant had a past history of mental problems but had been found mentally fit to proceed in this cause. Following the return of a guilty verdict by the jury on all three counts, a presentence investigation was ordered as required by both the 1977 and the amended Unified Code of Corrections. Ill. Rev. Stat. 1977, ch. 38, par. 1005-3-1.
The defendant elected to be sentenced under the new Illinois sentencing act, known as Class X (Ill. Rev. Stat., 1977 Supp., ch. 38, par. 1005 et seq.), after explanation of the various sentencing alternatives available to him by the court and his attorney. The presentence report recommended commitment to the Department of Corrections as being in the best interests of the defendant and the public. This conclusion was based on a number of factors, including the defendants prior record of two battery convictions, his expressed fondness for fighting, his unsuccessful experience with probation in the past, and the psychiatrist's evaluation of him as dangerous and violent. At the sentencing hearing, the trial judge considered the information in the presentence report, along with the evidence introduced at trial as to the unprovoked nature of the attack and the extent of harm inflicted on the victims. The judge heard arguments in aggravation and mitigation, and afforded the defendant an opportunity to make a statement on his own behalf. At the conclusion of the hearing, the trial judge sentenced the defendant to three concurrent terms of 4 1/2 years to the Department of Corrections, stating his reasons to be the presumed likelihood that the defendant would commit another offense, the expressed opinion of the Probation Department that it could not effectively supervise the defendant, and the belief that incarceration would be the best way of rehabilitating the defendant at this point.
Defendant contends on appeal that the factual circumstances surrounding the offense warrant special consideration in this case and that the new sentencing law permits an appellate court to review these circumstances de novo and adjust a sentence accordingly once a defendant affirmatively shows that a particular sentence is erroneous. This construction of the new sentencing act is a departure from previous Illinois law, which has consistently held that the imposition of sentence is within the sound discretion of the trial court and that an appellate court has no authority to modify it on review absent an abuse of that discretion. People v. Perruquet (1978), 68 Ill.2d 149, 368 N.E.2d 882; People v. Masini (1978), 65 Ill. App.3d 1011, 383 N.E.2d 1.
We will first consider defendant's contention that the new act changes the scope of appellate review of sentences. Prior to the passage of the new act the Subcommittee on Adult Correction of the Illinois House of Representatives submitted to the House Judiciary II Committee a draft of proposed changes to the Illinois Criminal Code. Its report included a recommendation that the appellate court's power to reduce sentences should be statutorily expended. This aspect of its study reads:
"Under the present system where sentences are imposed within a statutorily determined parameter, it is most unusual for a reviewing court to consider the problem of equalization presented by a given sentence. Usually, because of appeal courts>' lack of interest in such questions, the issue of fairness, as opposed to legality, of a sentence is presented as an issue secondary to the primary substantive legal question.
The Illinois Supreme Court Rule 615(b) provides the appellate court with the power to `reduce the punishment imposed by the trial court.' This power to reduce sentence is rarely used, because in most cases the trial court has not communicated on the record the basis of its sentencing decision. Without such information, the appeals court will generally not change the judgment of the trial judge, on the assumption that he had an adequate basis for its decision.
Therefore, for the purpose of providing for truly effective review of sentence the Subcommittee proposes that the sentencing judge be required in every case to state his reason for selecting the particular sentence imposed. Such a statement would be made part of the record for transmission to the reviewing court.
We also propose that the narrow construction of the appellate court's jurisdiction to reduce sentences should be statutorally [sic] expanded. The Illinois Supreme Court has ruled that while Rule 615(b) allows the reviewing court to reduce a term `* * * [it] was not intended to grant a court of review the authority to reduce a penitentiary sentence to probation.' The question of whether the reviewing court should be permitted to substitute any sentence that was available to the sentencing court is an important one that will be further explored by this Subcommittee."
The House Judiciary II Committee adopted the recommendation of the Subcommittee and submitted a sample bill to the legislature which included the following addition to section 5-5-4 of the Unified Code of Corrections:
"§ 5-5-4.1. Appeal Modification of Sentence. The defendant has the right of appeal in all cases from sentences entered on conviction of murder or any other Class of felony, however, in all such appeals there is a rebuttable presumption that the sentence imposed by the trial judge is proper. The court to which such appeal is properly taken is ...