APPEAL from the Circuit Court of Madison County; the Hon.
EDWARD C. FERGUSON and the Hon. A. ANDREAS MATOESIAN, Judges,
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, Mark C. Horstman, pleaded guilty to the offense of reckless homicide and was sentenced to two years' imprisonment by the circuit court of Madison County. Defendant appeals both the sentence and the trial court's denial of his post-trial motions to have the sentence reduced and to withdraw the guilty plea and vacate judgment. We also consolidated for oral argument and opinion defendant's appeal of the trial court's denial of his petition for post-conviction relief.
Defendant was originally charged by a two-count information with the offenses of reckless homicide and driving under the influence of intoxicating liquor. Pursuant to a plea negotiation, the count charging defendant with driving under the influence was dismissed, and defendant pleaded guilty to the offense of reckless homicide. In exchange for that plea the State joined with the defense in recommending that defendant be placed on 2 1/2 years' probation and fined $1500. After the court explained the nature of the charge defendant stated that he understood it. The court then admonished defendant of the rights that he would forego by pleading guilty and stated that defendant could receive from one to three years' imprisonment and that the court was not bound by the State's sentencing recommendation. The court then asked the prosecution for a factual basis for the plea.
The prosecutor stated that if the matter were to go to trial the State would call the State trooper who investigated the accident and that officer would testify that defendant's automobile had crossed the centerline and collided head on with a motorcycle, with the result that the cyclist was fatally injured. According to the prosecutor the People would also corroborate the police officer's testimony with the testimony of both the county coroner and a motorist, who herself was forced to swerve by defendant moments before the crash and who observed the fatal collision scene seconds after impact. In response to the court's questioning, defendant stated that he agreed with that recitation of the facts and had nothing to add. Defendant's guilty plea was subsequently accepted, and the court ordered the probation department to compile a presentence report for the sentencing hearing. The presentence report disclosed that defendant's only criminal convictions were three convictions for possessing small amounts of marijuana in 1972, 1973 and 1974 and that he had paid fines and successfully completed terms of probation for those offenses. On two of those occasions defendant had also been charged with offenses arising from intoxication, but the report noted no dispositions for those offenses. No police contact was noted for the six-year period immediately preceding this charge. The report also disclosed that during that time defendant had maintained a good employment record and had done a good job of supporting his wife and stepdaughter. It also noted that defendant had "the ability and potential to be a productive member of society and appears to be a very good probation risk." However, the report concluded by stating that "due to the seriousness of the present offense and the fact that he has four prior criminal convictions, this officer does not recommend probation."
At the sentencing hearing the author of the presentence report, Probation Officer Hancel Bailey, was called by defendant. Bailey reiterated his belief that defendant was a good probation risk and admitted that the statement made in his presentence report concerning defendant's four prior convictions was inaccurate. Defendant had only three prior convictions for marijuana possession, and the probation department had no record of a disposition in the fourth case. Bailey stated that his recommendation against probation had nothing to do with defendant's ability to complete successfully a term of probation but was based solely upon the seriousness of the instant offense. Bailey testified that his recommendation would have been the same even if defendant had no prior convictions. During the sentencing hearing defendant moved to strike a portion of the presentence report which referred to empty beer cans, one of which was still cool when found in defendant's vehicle at the time of the collision. The State objected stating that it was a part of the case and "should be assessed whatever weight the court so wishes." The court refused to strike that portion of the report. In addition to the presentence report the court received, without objection, several letters of recommendation from defendant's employers and business associates. The court also received testimony from defendant's wife and from his uncle, who is a trade union official. Both testified as to defendant's good character and his reputation as a hard worker. The wife stated that defendant was a good provider and that without his support she and her daughter would most probably be reduced to welfare.
At the conclusion of the hearing the court stated that after considering the Illinois Criminal Code, the serious harm caused and defendant's prior criminal record it was rejecting the recommendation of probation and instead imposing a sentence of two years' imprisonment.
Defendant filed a motion to vacate judgment and withdraw his guilty plea and a motion for a reduction of sentence. In support of these motions defendant introduced the affidavit of J. William Lucco, an attorney not involved in the case. According to that affidavit, the trial judge in this case spoke with Lucco before defendant's sentencing hearing and stated that he had a tough sentencing hearing coming up and that he believed that the State was sorry that it had recommended probation.
At the hearing on the post-trial motions the judge stated for the record that while talking to Lucco and others about criminal law in general he had said that he had a tough sentencing decision coming up and that he thought the State would regret having recommended probation after seeing the presentence report. Neither the judge's comments nor Lucco's affidavit indicated that the judge had in any way revealed his thinking in the matter, nor was there anything to suggest that the judge had solicited or received any advice.
In arguing its post-trial motions the defense contended: (1) that the trial judge had acted improperly and (2) that the prosecution had in effect breached its agreement not to recommend imprisonment by: (a) cross-examining the probation officer as to his reasons for recommending imprisonment and (b) by objecting to deleting the reference to the beer cans from the presentence report. Following the hearing the trial court denied the post-trial motions.
Defendant filed notice of appeal, and following a hearing which allowed defendant's motion to supplement the record on appeal, defendant filed a petition for post-conviction relief and a petition for relief from judgment under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). Defendant's post-conviction petitions were denied, and his appeal from that denial has been consolidated with his direct appeal.
Defendant's first contention on direct appeal is that the two-year sentence was excessive. Although defendant's prior criminal record was relatively minor it did involve the voluntary use of marijuana, the effects of which are not dissimilar to the mind distorting attributes of alcohol, which contributed to the death here. In addition, defendant's prior arrests for intoxication, while not resulting in convictions and not providing a basis for sentencing, can be considered in denying an application for probation. (People v. Andreano (1978), 64 Ill. App.3d 551, 558-59, 381 N.E.2d 783, 789.) Even though a resulting death is inherent in all charges of reckless homicide and even though the legislature allows probation as a permissible disposition for reckless homicide, the resulting death is nevertheless a serious consequence, the consideration of which is mandated by statute. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(a)(1); People v. Cox (1980), 82 Ill.2d 268, 412 N.E.2d 541.) Similarly, the need to deter others from engaging in similar conduct is also a statutorily mandated consideration. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(a)(7).) This consideration is particularly applicable to reckless homicide which is often committed by otherwise law abiding citizens who decide to drive after having become intoxicated. Upon these people, unlike hardened criminals, the knowledge of a likely prison sentence would have a real deterrent effect, and largely for such reasons similar sentences have been imposed in similar situations. People v. Simkins (1978), 62 Ill. App.3d 758, 379 N.E.2d 391; People v. Gray (1972), 7 Ill. App.3d 526, 288 N.E.2d 26.
• 1 In addition to the need to deter like conduct, the court was faced with other considerations. Although it is undeniable that defendant has an interest in sentencing, it is often forgotten that the public also has an interest in sentencing. This is especially true when, as here, similar prior conduct by defendant casts a doubt upon rehabilitation potential and the usefulness of probation. Under the facts of this case we do not believe that the sentence imposed was an abuse of discretion (see People v. Perruquet (1977), 68 Ill.2d 149, 368 N.E.2d 882), and we see no merit to the claim that the sentence was excessive.
• 2 Defendant attacks the sentence imposed on him by claiming that the trial judge merely followed the probation officer's recommendation rather than making an independent sentencing determination. Since probation is a permitted disposition for reckless homicide, the probation officer was in error in drawing the legal conclusion that probation should be denied solely because of the seriousness of the offense. However, we find nothing in the record to suggest that the trial court gave any consideration to such reasoning or failed to draw the proper legal conclusion. Not only is there a strong presumption that a judge's decision is based upon proper legal reasoning (People v. Bey (1972), 51 Ill.2d 262, 281 N.E.2d 638; People v. Hubert (1977), 51 Ill. App.3d 394, 366 N.E.2d 909), but here the judge acknowledged that he faced a "tough" decision and that he had carefully assessed the proper factors. We find no basis for the claim that the trial judge abdicated to the probation officer his statutorily imposed duty to make an "independent assessment." Ill. Rev. Stat. 1979, ch. 38, par. 1005-4-1(5)(b).
• 3 Defendant also contends that the trial judge acted improperly during conversations with Lucco and others. We note from the outset that this case is not similar to People v. Sumner (1976), 40 Ill. App.3d 832, 354 N.E.2d 18, in which the judge improperly solicited and received opinions as to whether probation would depreciate the seriousness of defendant's actions. In that case the judge engaged in ex parte communication designed to influence his judicial action as prohibited by Supreme Court Rule 61(c)(16) (73 Ill.2d R. 61(c)(16)). The trial judge here merely confided to persons not involved in the case that he had a tough sentencing decision to make and that he believed the prosecution would regret having recommended probation. While, perhaps, it might be best if all judges became mutes once they left their ...