Appeal from the Circuit Court of Kankakee County; the Hon.
John F. Michela, Judge, presiding.
JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Following his guilty plea to the offense of voluntary manslaughter, the defendant, Ulysses Williams, was sentenced to five years' imprisonment. The defendant's motion to vacate his plea of guilty and for reconsideration of his sentence was denied.
In this appeal, the defendant raises only one issue: whether the trial judge abused his discretion in sentencing the defendant by arbitrarily denying him probation. The defendant bases his claim on certain language used by the trial judge during the sentencing hearing and the hearing denying the defendant's motion to reconsider the sentence. We have read that language, as well as the entire transcript of both hearings, and find that the defendant was arbitrarily denied probation.
The factual basis for the defendant's guilty plea established that the 73-year-old defendant was living in a trailer with 83-year-old Joseph Daniels, the victim, Daniels' grandson, and Lucy Wright, the defendant's girlfriend. Daniels and the defendant argued about some real property Daniels was buying from the defendant. According to the defendant's testimony, Daniels began cursing and raving and walked down the hallway toward his bedroom. The defendant got a .12-gauge bolt action shotgun and shot Daniels because he believed Daniels was going to obtain a gun and shoot him. There was some dispute regarding the distance from which the defendant shot Daniels, the defendant claiming the distance was 12 to 15 feet, while the examining physician stated that the weapon was held against, or close to, the victim's abdomen.
At his sentencing hearing, the defendant acknowledged that he had been convicted of armed robbery in 1934 and had two prior convictions for driving under the influence of intoxicating liquor. He also testified that he had suffered from a heart condition since 1931 but stated that it had gotten worse as he got older.
Voluntary manslaughter was a Class 2 felony at the time of the defendant's conviction, punishable by a term of probation or by a sentence of imprisonment of three to seven years. (Ill. Rev. Stat. 1981, ch. 38, pars. 9-2(c), 1005-6-2, 1005-8-1.) In sentencing the defendant to a five-year term of imprisonment, the trial judge remarked:
"THE COURT: Mr. Williams, you have entered a plea of guilty to a charge of Voluntary Manslaughter. Voluntary Manslaughter — under the laws of this State — is a Class 2 felony providing a penitentiary sentence of three, four, five, six or seven years. There are provisions in the Statute for extended terms. You will not qualify on extended term.
The Court is aware of your superior age which is some 73 years. Court is aware of the fact that you are suffering a medical condition.
Your testimony in this case would have indicated that the distance from which you fired this weapon was in excess of twelve feet. My recollection is you said further than that. You indicated this dispute was going on with Mr. Daniels, who is not here to tell us what happened. You have, Mr. Williams, taken the life of another person. It seems to me that there are a lot of other ways that you could have avoided this particular incident. There is — it was a fight over property which is generally useless anyway. Not the kind of thing you shoot somebody over unless it's a personal parking lot.
The Court cannot sit here and sentence women to the penitentiary for shooting other women or other men. [Sic.] We have done away with that prejudice in the law. We now send women to jail equally with men. I cannot send the young and not the old. It is the judgment of this Court and the sentence of this Court that you be hereby sentenced to a term of five years in the Department of Corrections, State of Illinois."
In denying the defendant's motion to reconsider the sentence, the judge stated:
"THE COURT: All right. Larry, everything that you have said was thought of. I didn't sentence Mr. Williams out of anger on a given day or because the Sox lost a game the night before, because it was raining or the sun was shining or whatever, as the psychologists will tell you Judges in sentencing would indicate is the problem. I thought about the case itself. The facts. The evidence. The physical evidence. Apparently my interpretation of the physical evidence does not indicate that this incident occurred as explained by this Defendant.
This particular offense was reduced to voluntary manslaughter. The same as a burglary on the classification on the number of years for sentencing. It seems a little bizarre to send someone to the penitentiary for five years for burglary and someone on a voluntary manslaughter gets probation or gets a lesser sentence. I felt that given the crime, that it was a fair sentence. I do not find any basis for vacating the plea. And I find no basis at this time to reduce the sentence."
These statements, even when read in conjunction with the complete transcript, remain ambiguous. Thus, we cannot say, based solely on the transcripts, that the trial judge arbitrarily denied the defendant probation. However, we must consider other remarks by the same trial judge in ...