APPEAL from the Circuit Court of Peoria County; the Hon.
ROBERT E. HUNT, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
After entering a plea of guilty of the offenses of armed robbery and aggravated kidnapping, the defendant, Ricardo Godinez, was sentenced to terms of imprisonment of 24 years for armed robbery and 10 years for aggravated kidnapping. From these convictions the defendant appeals, but he challenges only the 24-year sentence for armed robbery, claiming the trial court erred in imposing that sentence since the presentence report reveals several mitigating factors and since the sentence was grossly disparate to that imposed upon two of his co-defendants.
The permissible range for a determinate sentence for the offense of armed robbery is not less than six years nor more than 30 years. (Ill. Rev. Stat. 1977, ch. 38, pars. 18-2(b), 1005-8-1(a)(3).) In pronouncing sentence, the trial judge found no mitigating factors to be present. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-5-3.1.) Rejected was the defendant's contention that consumption of alcohol and drugs led to the commission of the crime since the defendant was sufficiently sober to formulate and execute a criminal plan and to form a criminal intent. Specifically found to be present were the aggravating factors of a threat of serious harm to the victims, the defendant's prior record of delinquency and criminal activity, and the sentence was necessary to deter others from committing the crime. Ill. Rev. Stat. 1977, ch. 38, par. 1005-5-3.2(a)(1), (3), (7).
It is now claimed by the defendant that the following mitigating factors were ignored by the trial court: (1) Defendant was only 19; (2) he is a very intelligent person, had obtained his G.E.D., and expressed an interest in vocational training; (3) shortly before sentencing, he married a co-defendant, Debra Huddleston; (4) the defendant stated he would reform himself in regard to his drug use; (5) he stated that at the time of the offense he was intoxicated, and (6) no actual harm to the victims had occurred. The defendant also argues that the trial court put too great a consideration on the defendant's prior record.
The defendant's juvenile record indicated that he was declared delinquent in September 1974 for reckless driving, having no valid driver's license, and possessing a stolen vehicle. In October 1974 he was committed to the Department of Corrections. Thereafter, as an adult, the defendant was convicted of burglary and theft in 1976, for which he received a sentence of imprisonment of not less than one nor more than three years, and was convicted of burglary in 1977, for which he received a sentence of not less than three nor more than 10 years. While on bond during the appeal of this 1977 conviction, the defendant committed the instant offenses.
Under certain circumstances the factors put forth by the defendant may be considered mitigating since they have some bearing on whether the character and attitudes of the defendant indicate he is unlikely to commit another crime. (See Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-5-3.1(a)(9).) However, any inference which may arise from these factors is negated by the defendant's prior criminal history. This is especially so given the ample opportunity the defendant has had to rehabilitate himself. We cannot agree with the defendant's attempts to deprecate the seriousness of his prior record.
The circumstances of the instant offenses also negate any inference that the defendant is unlikely to commit another crime. The defendant and others kidnapped a woman from a shopping center parking lot and later used the kidnapped victim's automobile in the armed robbery. There is also evidence that the defendant resisted his apprehension by police officers.
The fact that no actual harm occurred to the victims of the armed robbery is irrelevant. The legislature has directed that, for this to be a mitigating factor, harm must also not have been threatened. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-5-3.1(a)(1).) Nor is the defendant's marriage a significant mitigating factor.
Ordinarily, marriage might demonstrate a sense of responsibility from which a judge could infer that the character and attitudes of a defendant are such that he is unlikely to commit another crime. But since his wife is serving a 10-year sentence as a result of the conviction for the instant aggravated kidnapping, the defendant is not taking on the responsibility of supporting or providing for a family. For the same reason, it cannot be argued that the imprisonment of the defendant would entail excessive hardship to his dependent. See Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-5-3.1(a)(11).
The defendant's argument that a consideration of these factors require the imposition of a lesser sentence is without merit. Nor is the fact that his co-defendant, Ralph Trevino, received a lesser sentence a demonstration of the excessive nature of the sentence imposed upon the defendant.
Trevino received a sentence of six years for the armed robbery, while the defendant's older brother, Michael, was given a 15-year sentence for his participation in the armed robbery. The defendant admits that, in some respects, his background is similar to that of Michael, who also has a significant criminal record, but he argues that his potential for rehabilitation is equivalent to Trevino's.
1 At Trevino's sentencing hearing it was established that Trevino had no prior criminal record. One of his high school teachers testified that, while he was a slow learner, lacked self-motivation and was easily led by others, he was, in her opinion, cooperative, responsible and open to rehabilitation. The difference in the backgrounds of Trevino and the defendant is readily apparent and clearly supports the difference in the sentences imposed. In determining whether a defendant's sentence is excessive in light of a lesser sentence imposed on a co-defendant, consideration should be given to the differences in criminal background and the degree of participation by each defendant in the crime. (People v. Williams (1977), 52 Ill. App.3d 81, 367 N.E.2d 167; People v. Steg (1966), 69 Ill. App.2d 188, 215 N.E.2d 854).
On the other hand, a comparison of the criminal records of Michael and the defendant evidences a great deal of similarity. Michael had prior convictions for the unlawful possession of cannabis, two burglaries, a theft and an aggravated assault. At the time of the instant armed robbery, Michael was on parole. In addition, there is evidence that during the armed robbery it was Michael, not the defendant, who carried the gun. Often, the person wielding the gun is considered to have participated to a greater degree in the armed robbery. (See People v. Johnson (1978), 59 Ill. App.3d 640, 375 N.E.2d 1027.) It is true that there is evidence indicating the defendant wielded a knife during the armed robbery, and attempted to avoid apprehension by driving the getaway car away from a Peoria police officer who had stopped it. However, these facts alone do not justify the sentencing of the defendant to nine years more in the penitentiary than his brother, who was equally, if not more, culpable. Therefore, the defendant should have received no greater sentence than that of Michael.
2 Ordinarily, a sentence appealed from is presumed to be proper. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-5-4.1.) Only where this presumption is rebutted by an affirmative showing of error will the sentence be reduced by a reviewing court. (People v. Choate (1979), 71 Ill. App.3d 267, 389 N.E.2d 670.) Here, such an affirmative ...