APPEAL from the Circuit Court of Kankakee County; the Hon.
PATRICK M. BURNS, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
This is an appeal by the defendant, Larry Martin, following his conviction for kidnapping. Having pleaded guilty, the defendant was sentenced to a term of imprisonment of not less than two nor more than 15 years. In this appeal, however, the defendant challenges that sentence as being excessive, arguing that there exists no justification for the disparity between the defendant's sentence and the sentence of not less than one year nor more than one year and one day imposed upon a co-defendant.
The co-defendant, Maurice Jones, was tried first and found guilty of both kidnapping and unlawful restraint after a jury trial. At the sentencing hearing, he presented three character witnesses: Martin Downs, Richard Rowman and Goldie Brown. All of these witnesses were employed at the Manteno Mental Health Center. Downs testified that he had over 150 contacts with Maurice Jones while he was at the Center and was of the opinion that Jones was a "nice guy" and had not been a problem patient. Downs qualified his testimony by stating that Jones was not a model patient.
Rowman testified that a week or two prior to this offense, Jones had developed an attitude of internal anger and hostility. He seemed to be having problems with authority figures. Jones informed the witness that he was afraid of being sent to Chester Mental Health Center.
The trial judge then questioned Rowman with respect to the defendant, who was not present at Jones' sentencing hearing. The following exchange occurred between the Court and the witness:
"THE COURT: The most active participant in this whole thing was one Larry Martin. Are you acquainted with him?
A. Yes, possibly better than with Mr. Jones because he was there longer and I had more contact with him.
THE COURT: Based upon what I have heard at the trial and the testimony I intended to come to the conclusion that this whole thing probably would not have happened if it wasn't that Larry Martin wasn't there to act as the catalyst and to lead the thing through this. Do you have any opinion along those lines?
A. Strictly as an opinion I saw Martin as having more to lose by his act than Mr. Jones.
THE COURT: More to lose or more to gain?
A. No, more to lose because my knowledge at that particular point they had been considering him for release to a drug abuse program at Tinley Park so that in essence he
THE COURT: What was Martin awaiting trial for at the time?
A. He had a drug abuse charge and I think at that point they were executing a deal for him to charged to be dropped if he would go into a drug abuse program at Tinley Park I think he was aware of that. In any event I was aware of it and it seemed to me that he had a lot to lose running off at that point. The deal would be thrown out, I would assume."
Goldie Brown also testified on behalf of Jones. She stated that he had at one time come to her aid when another patient had attempted to attack her with a fork.
In addition to this testimony, the court was presented with a presentence investigation report which revealed that Jones was 24 years old at the time of sentencing. His prior record included a finding of delinquency for retail theft and a conviction for armed robbery, for which he received a sentence of not less than four nor more than four years and one day. The report further disclosed that Jones had mental problems stemming from a nervous breakdown he suffered while awaiting trial on the armed robbery charge.
Although the State recommended that Jones be sentenced to a term of not less than three nor more than 12 years, this recommendation was not accepted. In ...