Appeal from the Circuit Court of Lake County; the Hon.
Lawrence Inglis, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 8, 1985.
On March 6, 1984, defendant, Laurence Mack, entered pleas of guilty to three counts of an information all charging him with the felony of indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11-4(a)(2)) occurring on April 2 and April 3, 1983, involving the same child; a complaint charging him with the misdemeanor of contributing to the sexual delinquency of a child (Ill. Rev. Stat. 1983, ch. 38, par. 11-5(a)(2)) occurring on March 5, 1983, involving a second child; and four counts of an amended information also charging him with contributing to the sexual delinquency of a child occurring on April 2 and April 3, 1983, involving a third child. The pleas of guilty were negotiated to the extent that the court would determine the penalty with probation being one of the possible sentences and with the maximum term of imprisonment to be not more than four years. Following a sentencing hearing, defendant was sentenced to two concurrent four-year terms of imprisonment on two of the indecent liberties counts, a four-year term of probation on the third indecent liberties count to be served consecutive to the terms of imprisonment, and a one-year term of probation on each of the five misdemeanor charges of contributing to the sexual delinquency of a child, all to be served concurrently with the four-year probation term imposed for one of the indecent liberties counts.
On appeal, four issues, all concerning defendant's sentencing, are raised: (1) whether the trial court erred in arbitrarily refusing to even consider a possible sentence of probation; (2) whether the trial court abused its discretion in sentencing defendant to imprisonment under the circumstances in this record; (3) whether the trial court erred in imposing sentences of probation to be served consecutively to the simultaneously imposed sentence of imprisonment; and (4) whether defendant is entitled to a reduction of sentence because the acts to which he pleaded guilty were reduced in penalty by the enactment of new legislation during the pendency of this case.
• 1 Defendant first contends on appeal that the trial court arbitrarily rejected probation as a possible sentence and thereby abused its discretion in sentencing him to a period of imprisonment. Defendant bases his argument on several statements made by the trial court both before and after the entry of the pleas of guilty. In particular, defendant calls attention to the response made by the court prior to the pleas, upon being advised by counsel for both sides that they desired a conference for discussion of a proposed plea agreement under the terms of Supreme Court Rule 402 (87 Ill.2d R. 402). In response, the court stated:
"I don't know whether I want to participate in a 402 conference. Obviously there is a presentence investigation filed and I have read that. If you are going to talk to me about probation, I don't want to talk to you."
Immediately thereafter, the following comment was made by defendant's attorney:
"MR. BROWN: No, Judge, we have a plea to present. The reason Doctor Baron is here is because I think he can give the Court some valuable aid in exploring all the possibilities and I'm sure the Court is not foreclosing all possibilities at this point.
The plea does contemplate a capacity of maximum time in the penitentiary and I would like to discuss that along with Mr. Johnson and the State with you in chambers, along with Doctor Baron."
Defendant also points to several remarks made by the court in the course of the Rule 402 admonishments at the time of the pleas of guilty as follows:
"You heard me before in open court say that and because of your position of trust regarding the children I feel strongly that it's a good potential that you're going to go to prison. But I told them I'd be willing to listen to whatever you might present or they might present on your behalf. You understand all that?
Now, during the time period here before sentencing if you go out and do something and it comes back to me, then all I can do is reject it or I can examine the file and decide that four years is not enough and if I did that, then I would recuse myself and send it to another judge and you'd have a trial, do you understand that?"
Two other statements made by the trial court at the time of imposing sentence and in the course of denying defendant's motion for reduction of sentence, set out respectively below, are argued by defendant as demonstrating the court's arbitrary refusal to consider probation.
"You have two very good attorneys. You probably could be sentenced to 30 years, but they made an agreement for you that I don't really understand which makes it a top of four. And with ...