APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant Pamela Thomas appeals from a judgment of the circuit court of St. Clair County finding her guilty of the offenses of perjury and forgery in connection with misrepresenting her identity in a primary election in the city of East St. Louis. Following a bench trial, a presentence investigation was ordered which revealed no prior history of criminality and made no specific recommendations as to punishment. At the sentencing hearing defendant elected to be sentenced under the new Illinois sentencing act (Ill. Rev. Stat. 1977 Supp., ch. 38, par. 1005-3-1 et seq.), which significantly revised both the practical and theoretical approaches to sentencing in the State of Illinois. Defendant was sentenced to two years' imprisonment in the Department of Corrections and has sought review of both the judgment and the sentence. Specifically, defendant contends that she was improperly convicted of both perjury and forgery for the single physical act of signing another's name to an election ballot, and that the sentence imposed by the trial court is clearly excessive under the facts of this case.
The State concedes that one of defendant's convictions must be vacated as both of them are based on the same underlying act. The State has no preference as to which conviction is vacated, since both are Class 3 felonies and carry the same penalty. Defendant has requested that the forgery conviction be the one which is vacated, so we hereby vacate count II of the indictment charging defendant with forgery, and the judgment entered thereon. We further hold that the two-year prison sentence for perjury is erroneous in this particular case and hereby remand the cause for renewed sentencing with an order to grant probation on such terms and conditions as the trial court deems proper.
The facts of this case relate to a primary election held on February 8, 1977, in East St. Louis, Illinois, for the election of aldermen. The State produced evidence showing that an individual later identified as the defendant presented herself at Precinct 29 and requested ballots in the name of Eilounder Jones. This individual filled out a "certificate of voter" in that name before one of the election judges and proceeded to enter one of the voting machine booths, drawing the curtains closed behind her. There was apparently some discussion among the election judges to the effect that this person did not look old enough to vote and upon checking the registration book, it was discovered the Eilounder Jones was a woman in her thirties, considerably older than the person voting. Later that day, one of the election judges, an investigator from the State's Attorney's office and a representative from the State Board of Elections went to the address indicated on the ballot and asked for Eilounder Jones. The defendant's stepfather, Bobby Red, answered the door and replied that Eilounder Jones did not live there any longer. The defendant was in the background and was identified by the election judge as the person who had voted under the name of Eilounder Jones. Mr. Red and the defendant were requested to appear at the State's Attorney's office the next day regarding the matter, where they were interviewed and each made a statement.
In her statement, the defendant admitted going to the polls and voting in the name of Eilounder Jones. She stated that this was done at the request of her stepfather, who had been working as a poll watcher that day. The defendant was 18 years of age at the time and was not a registered voter in St. Clair County.
A motion to suppress the confession was denied after a hearing, at which defendant testified that she made the statement with the understanding that "the matter would go no further than that." Her stepfather made a statement at the same time in her presence, apparently claiming responsibility for the incident. The court found the statement to be voluntary and not made in response to promises of non-prosecution.
The defendant was formally charged by indictment nearly four months later. Her plea of guilty to the perjury charge in return for dismissing the forgery charge was retracted when the presiding judge indicated he was not willing to grant probation. Defendant then went to trial before a different judge and was found guilty on both charges.
A sentencing hearing was held at which arguments in aggravation and mitigation were considered. The trial judge afforded the defendant an opportunity to speak on her own behalf and asked the attorneys on both sides for their recommendations. After stating that he had seriously considered the presentence report, the trial judge assessed the defendant's punishment at two years imprisonment, the minimum sentence for a Class 3 felony under the new statute. (Ill. Rev. Stat. 1977 Supp., ch. 38, par. 1005-8-1(a)(6).) His statement on the record for imposing this particular sentence was:
"I think it is necessary that this be done for the simple reason that it should act as a deterrent to some of the other people who actively participate in such activities which have brought this smog of disgrace upon our community."
The presentence report showed the defendant to be 19 years of age at the time of the sentencing. She was working fulltime at a fast food establishment and attending junior college on a part-time basis, taking secretarial courses. Her mother and stepfather were married when defendant was an infant and she regarded her stepfather as her actual father, although she was never adopted. Both parents were employed and the family managed without receiving any type of public assistance. Defendant had no prior convictions although she had once been arrested for trespass, but the charge was dismissed.
At the sentencing hearing, the State presented no evidence in aggravation but argued that the nature of the case warranted some type of deterrent action. The prosecutor commented that the defendant's actions served to disenfranchise others and that she did not appear to be remorseful. He further noted that vote fraud is a difficult offense to detect and prove and that straight probation would not serve to deter others from committing it.
The defendant argued in mitigation that other deterrents than imprisonment existed in this case, such as the adverse publicity her prosecution had engendered, the collateral consequences of her felony conviction, and the prospective sentencing of her co-defendant stepfather who was a more culpable party. In addition, defendant argued that imprisonment would work a severe hardship on her, causing her to lose her job and postpone her education.
In response to these arguments the trial court acknowledged that defendant was not the most culpable party, but stated that there was no indication of any protestation on her part to commit the act. The court believed that her good record indicated that she should have known better and that corrective action by the court was necessary to forestall the abuse of the privilege of voting in East St. Louis.
Defendant contends on appeal that the denial of probation or conditional discharge for the sole purpose of deterrence was unfair, unnecessary and in contravention of the statutory policy of the new sentencing act. The amended Unified Code of Corrections has a legislatively expressed preference for probation as a sentencing alternative in appropriate cases. (Ill. Rev. Stat. 1977 Supp., ch. 38, par. 1005-6-1(a).) An "appropriate case" is one where the Code has not specifically precluded probation (see par. 1005-5-3(c)(2)), or where the nature and circumstances of the offense together with the history, character and condition of the offender indicate (1) that imprisonment is not necessary ...