APPEAL from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding.
MR. PRESIDING JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
This case involves two defendants, separately found and adjudged guilty of distinct crimes and sentenced to terms of imprisonment. In both of these cases, however, the defendant challenges the propriety of the trial court's denial of probation or alternatively argues that the sentence imposed was excessive. In addition to raising this common issue, these appeals also present a broader underlying question concerning the standard by which a sentence should be scrutinized by a reviewing tribunal. Therefore, for purposes of this opinion these appeals have been consolidated.
We diverge from the ultimate task of addressing the individual merits of these cases in the hopes of illuminating the analysis and rationale we have relied on in reaching the decisions herein. We begin our inquiry as to the appropriate standard of appellate review of sentences with an examination of section 5-5-4.1 of the Unified Code of Corrections. (Ill. Rev. Stat. 1978 Supp., ch. 38, par. 1005-5-4.1.) This section provides that:
"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 authorized to modify the sentence and enter any sentence that the trial judge could have entered, * * *." Ill. Rev. Stat. 1978 Supp., ch. 38, par. 1005-5-4.1.
Recently, the Fifth District Appellate Court in People v. Choate (1979), 71 Ill. App.3d 267, 389 N.E.2d 670, in examining the legislative background of the amended Code, determined that the intent of the legislature, by this and other provisions, was to expand the scope of appellate review of sentences. It is unquestioned that the legislature intended, by section 5-5-4.1, to overcome the principle announced in People ex rel. Ward v. Moran (1973), 54 Ill.2d 552, 301 N.E.2d 300, and followed in People v. Bolyard (1975), 61 Ill.2d 583, 338 N.E.2d 168, that a reviewing court did not have authority to reduce a sentence of imprisonment to one of probation. (See Choate; People v. Knowles (1979), 70 Ill. App.3d 30, 388 N.E.2d 261.) This purpose is made explicit by the language itself and, as noted in Choate, was reflected in the subcommittee report which formed the basis for the amendments to the Code. See Report to the Illinois House Judiciary II Committee by the Subcommittee on Adult Corrections (hereinafter cited as Subcommittee Report).
It is much less apparent, however, as to what precisely the legislature meant by the phrase "rebuttable presumption." Examining the evolution of the new Code, the court in Choate concluded that the legislature intended a departure from the old standard of reviewing sentences whereby the appellate court deferred to the discretion of the trial court, absent a showing of abuse of that discretion. (See People v. Perruquet (1977), 68 Ill.2d 149, 368 N.E.2d 882.) In an extremely well-reasoned and comprehensive fashion Justice Moran detailed the amendments of the Code which the court felt were indicative of such a legislative intent.
Without doubt, the disenchantment with the concept of indeterminate sentencing, with its accompanying emphasis on broad discretionary powers for judges and parole boards, provided, in part, the genesis for the amended Code. The consensus of criticism was aimed at the unexplained and seemingly irrational disparity in sentences for what were essentially like offenses. Although such disparity was certainly contemplated and necessarily embodied in the theory of indeterminate sentencing, the goal of tailoring the punishment to the individual offender was hindered by the apparent incongruity and injustice of the results. (See generally Subcommittee Report; McKay, It's Time to Rehabilitate the Sentencing Process, 60 Judicature 223 (1976); Kennedy, Criminal Sentencing: A Game of Chance, 60 Judicature 209 (1976).) The appearance, and oftentimes the fact, of such inequities served to breed contempt and disrespect for the criminal justice system, not merely in the eyes of cellmates, but in the mind of the public as well. Thus, determinate sentencing served to temper the discretionary authority of the sentencing judge and to create greater certainty with respect to the punishment applicable to individual crimes.
It would not necessarily follow, however, from the reduction of judicial discretion at the sentencing stage that there should be a corresponding increase in the authority of reviewing courts> to scrutinize the discretion retained by sentencing judges. Nevertheless, the legislative aim to eliminate unwarranted disparity in sentencing is specifically expressed in various provisions of the Code. (See, e.g., Ill. Rev. Stat. 1978 Supp., ch. 38, pars. 1005-5-4.2, 4.3. (The former section grants the supreme court power to prescribe rules of practice and review which will promote uniformity and parity of sentences. The latter provision requires the Department of Corrections to publish statistical sentencing data for trial and appellate judges' use in imposing and reviewing sentences.) See also Ill. Rev. Stat. 1978 Supp., ch. 38, par. 1005-10-2(5).) As argued in Choate, increased appellate scrutiny is integral to the achievement of that end for "[i]f appellate courts> continued to defer to the discretion of trial courts> whenever a sentence was within the statutory range without regard to whether or not it was appropriate under all the facts and circumstances, then the purpose of the new law would be defeated." 71 Ill. App.3d 267, 273, 389 N.E.2d 670, 675.
We are most persuaded, however, that a broader standard of review was intended by reason of the legislature's elaborate and detailed specification of sentencing criteria and requisites. In the Subcommittee Report to the Judiciary II Committee, it was observed that the "power to reduce sentence [Supreme Court Rule 615] is rarely used because in most cases the trial court had 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 [sic] decision." (Subcommittee Report, at 11.) The underlying rationale for the abuse of discretion standard can be explained in part by the combined effect of the lack of clearly delineated sentencing guidelines and the frequent absence in the record of the court's justification for a particular sentence. Under such circumstances an appellate court would be left to speculate as to the judge's rationale. Thus, given such a clouded perspective, a reviewing court's deferral to the trial court's judgment had a firm pragmatic basis.
The new Code, however, as detailed in Choate, has attempted to eliminate the ambiguity of the sentencing process. For example, we proceed from the assumption that, unless otherwise provided in the Code, probation is the appropriate sentence absent specific conditions. (Ill. Rev. Stat. 1978 Supp., ch. 38, par. 1005-6-1.) The required contents of the presentence report have been expanded. (Ill. Rev. Stat. 1978 Supp., ch. 38, par. 1005-3-2.) The Code enumerates specific, objective criteria (factors in aggravation and mitigation) which are to be considered in imposing or withholding various forms of punishment. (Ill. Rev. Stat. 1978 Supp., ch. 38, pars. 1005-5-3.1, 1005-5-3.2, 1005-8-2.) Finally, in sentencing offenders for felony convictions the judge is required to set forth on the record his reasons for his sentencing determination. Ill. Rev. Stat. 1978 Supp., ch. 38, par. 1005-4-1.
Where more detail and completeness is contained in the findings of the trial court, the process of reviewing and detecting sentencing error becomes more defined and certain. The examination of sentences, therefore, is less dependent upon speculation concerning the judge's subjective reasoning and there is, consequently, a diminished need to automatically defer to his judgment. Having taken this somewhat protracted path, we find ourselves in agreement with the ultimate conclusion reached in Choate that, by these amendments, the legislature intended a more comprehensive review of sentences by appellate courts>.
Having agreed that a broader standard is contemplated by the Code, we are still left with the task of defining the boundaries thereof. In the appellate process, resort to presumptions in reviewing decisions is not uncommon. For example, in reviewing the finding of a judge sitting as the trier of fact it is presumed that the judge considered only competent evidence. (E.g., People v. Gilbert (1977), 68 Ill.2d 252, 369 N.E.2d 849.) This presumption is overcome only where the record affirmatively shows that the court in fact relied upon improper evidence. Likewise, an appellate court will presume that a court, in determining the appropriate sentence for an offender, disregarded any incompetent evidence brought before it. Similarly, if there is no affirmative demonstration that the judge's decision was influenced by such evidence, it will not be disturbed. (People v. Robinson (1969). 116 Ill. App.2d 323, 253 N.E.2d 570; People v. Sawyer (1971), 1 Ill. App.3d 1096, 275 N.E.2d 771.) Earlier cases even referred to a presumption that a court had not abused its discretion in sentencing a defendant. (See People v. Syer (1948), 400 Ill. 444, 81 N.E.2d 186.) The standard of such appellate presumptions directs the reviewing court to indulge in every reasonable intendment favorable to a ruling of the court below and, in the absence of an affirmative showing to the contrary, to presume that the ruling of the court was properly made and for sound reasons. 5 Am.Jur.2d Appeal and Error § 704 (1962); 24A C.J.S. Criminal Law § 1858 (1962).
1, 2 What then is the quantum of evidence which must be brought to our attention to constitute an affirmative showing that the trial judge's sentence was erroneous? Certainly error will be demonstrated if it is clear from the trial court's statements and findings that the wrong standard was applied or that inappropriate circumstances were considered in either aggravation or mitigation. (Cf. People v. Gant (1974), 18 Ill. App.3d 61, 309 N.E.2d 265; Sawyer.) On the other hand, "[t]he mere fact that the trial judge cites compliance with the statutory criteria is not a guarantee against sentencing error. He may merely apply the factors in a mechanical fashion * * *." (Choate, 71 Ill. App.3d 267, 273, 389 N.E.2d 670, 675.) In examining a defendant's claim of error, we are not bound by the appearance of regularity. Finally, although a judge may not have acted arbitrarily or capriciously in denying probation or in imposing a particular sentence, we do not believe for that reason alone, a sentence should necessarily be immune from modification. A sentence while not capricious may, nevertheless, be unjustifiably disparate. We believe the new Code authorizes us to correct such an error.
We certainly do not find in the Code, however, the conferral of authority upon appellate courts> to modify a sentence merely because in their opinion a different sentence would have been more appropriate. In reviewing sentences, we must remain cognizant of our own biases. As the supreme court recently stated in another context:
"Every human is, consciously or subconsciously, partial to some degree in that he is influenced by the habits he has been trained in, the experiences he has had, occupationally or otherwise, the people with whom he associates, the area in which he lives and the innumerable unrecognized factors which subconsciously affect every individual's philosophy." People v. Vance (1979), 76 Ill.2d 171, 179, 390 N.E.2d 867, 870.
Appellate justices do not possess a unique or exclusive insight into justice. Thus, the error which warrants modification of a sentence must amount to more than a difference of opinion or individual sentencing philosophy. The sentencing objectives are spelled out in the Code. It is deviation from those objectives, in view of the standards and criteria therein set forth, which constitutes error. To hold otherwise would allow for ad hoc, instinctive decisions on appeal which could result in merely perpetuating disparity on a different level and which would certainly thwart the development of defined, objective standards. Finally, we draw our sights on the commentary to section 3.1 of the American Bar Association's Standards, Appellate Review of Sentences (Approved Draft 1968) wherein reference is made to the English approach to sentencing review. It is stated therein that a court should:
"`* * * not simply to substitute its notion of the appropriate sentence for that of the trial judge. The Court * * * will not "tinker" with sentences. * * *. "It is only when a sentence appears to err in principle that the Court will alter it. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was a failure to apply the right principles, then this Court will intervene."'" (ABA Standards, Appellate Review of Sentences § 3.1, at 49 (Approved Draft 1968).)
Perhaps this most succinctly defines our task.
Defendant was charged, on June 12, 1978, with the offense of reckless homicide. (Ill. Rev. Stat. 1977, ch. 38, par. 9-3.) Following a bench trial on stipulated facts, defendant was found guilty and sentenced to a 2-year term of imprisonment.
Briefly, the stipulated facts introduced at defendant's trial were as follows. On June 9, 1978, defendant was operating a motor vehicle in the parking lot of the "Great Skate" skating rink in Decatur, Illinois. Two witnesses observed the defendant's vehicle "fishtailing" while proceeding at a speed of 25 to 30 miles per hour in the parking lot. Defendant's automobile struck another vehicle in the lot, caromed off the car, jumped a curb, and struck a group of children, one of whom was 13-year-old Sharon Uttinger. Uttinger died as a result of head injuries received from this accident. It was further stipulated that defendant admitted driving the automobile involved and that, in his words, he was "driving in a stupid way."
At defendant's sentencing hearing, the court examined the presentence report and noted that the investigating officer recommended against a sentence of probation. Defense counsel moved to correct the report to reflect the fact that defendant, who was not working at the time the report was prepared, was presently employed. Defendant, at the time of sentencing, was 19 years old and did not have a past record either as an adult or a juvenile.
At the sentencing hearing, the State called Officer John Mickler, of the Decatur Police Department. He testified that 12 other persons, in addition to Uttinger, had received some injuries as a result of the incident. He also testified that the automobile did not immediately come to a stop after the collision but proceeded out of the parking lot until it came to rest against a utility pole.
Sharon Collins and Larry DeLong, special educators who were acquainted with the defendant from his schooling at Eisenhower High School in Decatur, testified on behalf of the defendant. Defendant had been classified as an educable mentally handicapped student. These students generally have I.Q.'s ranging from 55 to 80. Defendant functioned academically at between a first and third grade level, but he functioned socially at a much higher level. DeLong observed that the defendant was aware of and at times frustrated by his mental limitations and recommended that defendant be placed on probation although he acknowledged that defendant was at times emotionally unstable and that this instability could be aggravated by alcohol consumption.
The defendant's brother, Mark Cox, and his mother, Shirley Cox, testified on behalf of the defendant. Defendant lived at home with his mother and two brothers and would continue to reside there if released on probation. Defendant's father had died approximately a year and a half prior to the hearing. The two witnesses testified that defendant had a driver's license about 2 years and had prior to the accident always driven sensibly. Defendant, who had begun working as a laborer for a construction company, turned the money he earned over to his mother and she then gave him expense money out of that sum. According to Mark Cox, threatening phone calls had been directed to defendant and to the Cox residence since the time of the accident. The defendant was extremely upset and remorseful about the accident. Both defendant's ...