APPEAL from the Circuit Court of Clark County; the Hon. CASLON
K. BENNETT, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
On June 2, 1978, defendant entered a plea of guilty to two counts of burglary and one count of criminal damage to property in violation of sections 19-1(a) and 21-1(a) of the Illinois Criminal Code (Ill. Rev. Stat. 1977, ch. 38, pars. 19-1(a), 21-1(a)). Defendant also pled guilty to one count of possession of a stolen vehicle, a violation of section 4-103 of the Illinois Title and Registration Law (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 4-103). On June 21, 1978, the defendant was sentenced to serve terms in the penitentiary of four years on each of the burglary counts, three years for the count of criminal damage to property, and one year on the count of possession of a stolen vehicle. The defendant filed a motion to reduce sentence which was denied. The defendant did not file a motion for leave to withdraw his plea of guilty as required by Supreme Court Rule 604(d) (Ill. Rev. Stat. 1977, ch. 110A, par. 604(d)). This court has, however, exercised jurisdiction to hear this appeal.
All charges against the defendant arose from incidents occurring on April 23 and April 24, 1978. On April 23 the defendant, without authorization from the Huisinga Grain Company, entered a truck located on that property and drove it west on Route 40 until it ran out of gas. The defendant abandoned the vehicle and fled on foot. On April 24, the defendant accompanied by Tonja Graham, Jody Minor, and Misty Davis, broke and entered into the Casey Liquor Store and removed $100 worth of liquor. Subsequently, the defendant and his companions traveled to the Moonshine Store, a rural grocery store in Clark County. After prying open a door, they entered the store and removed approximately $600 worth of merchandise. Thereafter, while the others waited outside, the defendant took a piece of wood and broke several glass display cases and turned over others. Approximately $1,000 worth of damage was done.
Defendant on appeal argues that the trial court acted arbitrarily and abused its discretion in denying probation.
Section 5-5-4.1 of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-5-4.1) provides that the defendant has a right of appeal from sentences entered upon conviction of a felony, that on such appeal "there is a rebuttable presumption that the sentence imposed by the trial judge is proper," and that a reviewing court is authorized to modify the sentence and enter any sentence that the trial judge could have entered, or enter "an alternative sentence to a prison term."
The record discloses that no evidence in aggravation or mitigation was presented at the sentence hearing, but that matters relevant to determining the sentences were presented through facts stated in support of the pleas of guilty, and the presentence report prepared by a probation officer. At the hearing upon defendant's motion to reduce sentence, defendant was not present and no evidence was heard.
Defendant's counsel argued the issues upon sentence which he deemed to justify probation, both at the sentence hearing and at the hearing upon the motion to reduce. It was agreed that substantial economic losses were suffered as a result of the burglaries. Counsel emphasized that the defendant was but 17 years of age with the judgment of a juvenile, and that the series of offenses for which he was convicted occurred within a span of two days and should be treated as a single occurrence. Counsel's claim of defendant's remorse is supported in the presentence report and to some extent by the pleas of guilty. While we find no specific evidence upon the subject, at each hearing it was urged that defendant's restitution was available to mitigate the economic loss. The presentence report discloses a stable family of parents and siblings, albeit no evidence appears upon the guidance and control which the family might provide if probation was granted. The report shows that defendant was a high school dropout with little responsible employment. There were no convictions other than a disorderly conduct charge upon one occasion.
Counsel argued, as factors in mitigation, that the defendant did not cause or contemplate serious harm or injury to any person; that his remorse and attitude indicated that he was unlikely to commit another crime, but rather that he was likely to comply with the terms of probation. Counsel sought a maximum probation with conditions of a jail term and restitution.
The probation officer, through his report, advised that mental health counseling was available and that while the crimes were serious and the prognosis difficult, probation was a possibility. The report notes, "The outcome of this case could well determine how this young man's life will turn out in the years to come."
Section 5-6-1(a) provides in part:
"(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." Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-6-1(a).
In People v. Cox (1979), 77 Ill. App.3d 59, 396 N.E.2d 59, this court noted that the present Unified Code of Corrections "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, 3.2, 5-8-2.) 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." Cox concluded that the legislature contemplated that the reviewing court should seek to determine whether or not the sentence imposed deviated from the sentencing objectives stated in the Unified Code of Corrections. (Ill. Rev. Stat., 1978 Supp., ch. 38, pars. 1005-5-3.1, 1005-5-3.2.) That conclusion is stated in other comparable ...