Appeals from the Appellate Court for the First District; heard
in that court on appeals from the Circuit Court of Cook County,
the Hons. Paul A. O'Malley and Earl E. Strayhorn, Judges,
CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 24, 1982.
In each of these consolidated cases (People v. Davis, No. 55318, and People v. Alvardo, No. 55335) the defendant was convicted in the circuit court of Cook County and his conviction was affirmed by the appellate court. This court allowed the defendant's petition for leave to appeal in People v. Alvardo. In People v. Davis, defendant's petition for leave to appeal was originally denied, but that order was later vacated and the case was consolidated with People v. Alvardo in this court.
These consolidated cases present a single issue for review: Do sections 5-4-1(c) and 5-8-1(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, pars. 1005-4-1(c), 1005-8-1(b)), requiring the trial court to state its reasons for imposing a particular sentence, impose a mandatory, non-waivable requirement necessitating remandment upon failure to comply? Section 5-4-1(c) provides:
"In imposing a sentence for a felony, the trial judge shall specify on the record the particular evidence, information, factors in mitigation and aggravation or other reasons that led to his sentencing determination." (Ill. Rev. Stat. 1979, ch. 38, par. 1005-4-1(c).)
And section 5-8-1(b) provides:
"The sentencing judge in each felony conviction shall set forth his reasons for imposing the particular sentence he enters in the case, as provided in Section 5-4-1 of this Code." Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(b).
Defendant Elvin U. Alvardo was charged by indictment with murder, convicted of voluntary manslaughter after a bench trial, and sentenced to seven years' imprisonment. Defendant L.C. Davis was charged by indictment with rape and robbery, convicted of both offenses after a jury trial, and sentenced to 28 years on the rape conviction and seven years on the robbery conviction. Neither defendant requested or moved for a statement of the court's reasons for the sentence imposed; neither defendant objected to the omission at the sentencing hearing; nor did either defendant raise the objection in a post-trial motion.
At the sentencing hearing of Elvin Alvardo, the court read the presentence report, heard arguments in aggravation and mitigation, and heard a statement by the defendant through his interpreter. At the conclusion the court, without a statement of reasons, sentenced the defendant to a term of seven years. At the sentencing hearing of L.C. Davis, the court, after denying defendant's motion for a new trial, hearing arguments in aggravation and mitigation, and offering the defendant the opportunity to make a statement, pronounced the sentence, without a statement of reasons.
On appeal, the appellate court upheld the conviction of Elvin Alvardo in a Rule 23 order (73 Ill.2d R. 23). (96 Ill. App.3d 1198.) With regard to the sentencing issue, the court found that defendant's failure to request a statement of reasons from the trial court and defendant's failure to object to the imposition of a sentence not in conformity with section 5-4-1(c) waived the matter for consideration on review.
The conviction of L.C. Davis was also affirmed on appeal. (97 Ill. App.3d 235.) With regard to the sentencing issue, the appellate court observed that the failure of the trial court to state explicit reasons for imposing a sentence normally requires that the sentence be vacated and that a new sentencing hearing be held. The appellate court determined, however, that the trial court's failure to announce its reasons for imposing a sentence cannot be raised on appeal unless proper objections were made in the trial court. The court held that the failure of the defendant to request an explanation from the trial court and the failure to raise the issue in a post-trial motion waived any objections on that point. 97 Ill. App.3d 235, 239.
In interpreting the statute, the appellate courts> have split in deciding whether the right to a statement of reasons is waived on appeal if the defendant fails to demand compliance with the statute in the trial court. Appellate court decisions finding that the duty to specify reasons at sentencing is an independent duty imposed upon the trial court by statute which cannot be waived by either party are: People v. Rickman (1979), 73 Ill. App.3d 755; People v. Slack (1980), 81 Ill. App.3d 557; People v. Wilson (1981), 93 Ill. App.3d 161. The remedy for failure to comply is remandment of the case for a proper sentencing hearing.
Appellate court decisions finding that defendant's failure to present the question to the trial court, thus providing the court with the opportunity to correct the omission, precludes the defendant from raising the issue on appeal are: People v. Taylor (1980), 82 Ill. App.3d 1075, and People v. Baseer (1980), 90 Ill. App.3d 866. The courts> agree, however, "that the statute entitles defendant to a statement of reasons and that it would be error for the court to refuse to make a statement if requested." People v. Taylor (1980), 82 Ill. App.3d 1075, 1078; People v. Baseer (1980), 90 Ill. App.3d 866, 874.
Urging that the statutory requirement is a mandatory one, defendants rely on this court's decision in People v. Youngbey (1980), 82 Ill.2d 556. In that case, this court held the presentence investigation and report to be a mandatory legislative requirement which cannot be waived, absent an agreement between the parties as to the sentence to be imposed. (People v. Youngbey (1980), 82 Ill.2d 556, 561.) That section of the statute provides:
"A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1005-3-1.)
That amendment became effective February 1, 1978, and was originally a companion provision to the statutory requirement before us in the instant case. Both provisions are part of a broader statutory scheme which introduced determinate felony ...