Appeal from the Circuit Court of Peoria County; the Hon.
Calvin R. Stone, Judge, presiding.
PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Roberta McCumber, the defendant, for the second time appeals to this court. As to her first appeal, this court affirmed her convictions of guilty but mentally ill for the offenses of voluntary manslaughter, concealment of a homicidal death, and obstructing judgment, but remanded the case to the circuit court of Peoria County for resentencing before a different judge since it was apparent that the sentencing judge considered an improper factor in imposing sentences. For the facts and events underlying the defendant's conviction and incarceration see People v. McCumber (1985), 132 Ill. App.3d 339, 477 N.E.2d 525.
• 1, 2 In this second appeal the defendant presents one issue for review, to wit: whether the resentencing judge imposed an excessive sentence on the conviction for voluntary manslaughter. Before addressing this issue some prefatory observations are in order. The trial judge first imposed a 10-year sentence on the conviction of voluntary manslaughter and a 3-year sentence for the offense of concealment of a homicidal death. These sentences were to be served consecutively. No sentence was imposed on the conviction of obstructing justice. In imposing the foregoing sentences, the trial judge indicated that the defendant placed little value on human life since she had three abortions in three years. In the previous appeal this court held that the matter of defendant's abortions was a factor improperly considered when imposing sentence. The United States Supreme Court has held that the fundamental right to privacy guaranteed by the constitution encompasses a woman's decision to have an abortion. (Roe v. Wade (1973), 410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct. 705.) The lawful exercise of one's constitutional rights is not, and must not be, a factor in aggravation or mitigation in determining a criminal sentence. People v. Moriarty (1962), 25 Ill.2d 565, 185 N.E.2d 688.
On remand to the trial court, the resentencing judge presided at a new sentencing hearing. Prior to the hearing a new presentence investigation and report was ordered and the same was prepared and filed. Both the defendant and the State expressed their satisfaction with the report and stated that the same was accurate. The State presented no testimony at the hearing. The defendant testified on her own behalf. After arguments by counsel the resentencing judge imposed terms of imprisonment identical with those previously imposed by the trial judge, with the exception that they were to run concurrently.
As stated in our prior opinion in this cause, "[i]t is difficult to escape the conclusion that the severity of the sentence imposed upon the defendant resulted from the views of the sentencing judge on abortion." People v. McCumber (1985), 132 Ill. App.3d 339, 345, 477 N.E.2d 525, 530.
The remarks of the trial judge when the defendant was first sentenced are amply set forth in this court's prior opinion. We will not again set them forth verbatim; however, the undisputable essence of the same was that, disregarding the criminal activity of the defendant, she was nonetheless a person of low moral character who placed a low value on human life, and this last conclusion was buttressed by the trial court's observation concerning the defendant's abortions.
The right of a woman to obtain an abortion is a burning issue of national scope. We will not express our personal views on the question, nor should we, since as a lower court of review we must adhere to our nation's highest tribunal, the United States Supreme Court. (Roe v. Wade (1973), 410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct. 705; Thornburgh v. American College of Obstetricians & Gynecologists (1986), 476 U.S. ___, 90 L.Ed.2d 779, 106 S.Ct. 2169.) It is apparent that this court engaged in an act of futility in remanding this cause for a resentencing hearing. We so conclude since it is glaringly clear that the defendant's original sentence was determined after considering improper factors. At defendant's second sentencing hearing the resentencing judge reimposed the same sentence on the voluntary-manslaughter conviction.
• 3 That the resentencing judge changed defendant's sentences by ordering that the 10-year term of imprisonment for voluntary manslaughter should run concurrently with the 3-year term of imprisonment for concealment of a homicidal death is of little consequence since consecutive sentences should not have been imposed in the first sentencing hearing. A court shall not impose a consecutive sentence unless the court determines that such is required to protect the public from criminal conduct by the defendant. Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-4(b); People v. Merz (1984), 122 Ill. App.3d 972, 461 N.E.2d 1380.
The trial judge who imposed the first sentence on the defendant never found that a consecutive sentence was necessary to protect the public from further criminal conduct by the defendant, but, on the contrary, in reviewing various sentencing factors the court stated:
"And as to the factors in mitigation, probably the defendant did act under strong provocation at that particular time. I'll make a finding that the defendant has no history of prior delinquency or prior criminal activity.
As to defendant's criminal conduct, whether the result of the circumstances is likely to recur, how can I make a finding on that when the testimony won't even show whether or not that will occur. Many things are conjecture, speculative in nature, or guess. We certainly don't ask the jury to do that. We ask them to base their decision on the law and the evidence. So I'm not going to give you that. Probably the defendant would comply with the terms of probation * * *."
• 4 It would have been preferable for the trial court to rectify its mistake since sentencing basically falls within the purview of that court; however, since such was not done, for the reason we have just discussed and for others which will be set forth, this court will reduce the sentence imposed upon the defendant by exercising the authority granted by Supreme Court Rule 615(b)(4) (87 Ill.2d 615 (b)(4)).
Before we consider the proper sentence to be imposed, we direct our attention to the second sentencing hearing conducted by the circuit court. The defendant testified in her own behalf and had supporting statements from a psychiatrist, a psychologist, an associate circuit judge, a school board member and a dozen or so other statements from responsible citizens. The only statements received in opposition to a reduced sentence being imposed were from the victim's (Jeffrey Williams') mother and an ex-girlfriend. These latter statements related solely to the victim's temper. The defendant, during trial, testified that she shot and killed the victim as he was beating and choking her. The statements from his mother and ex-girlfriend indicated that the victim had inherited a bad temper, that he got drunk, used pot, and, when he had a temper tantrum, he yelled, kicked doors, threw things, and smashed glass and ashtrays, but that his fits of temper were directed at "things," not people. These two statements were the only evidence admitted in aggravation of sentencing.
We will not set forth in depth the testimony and statements admitted into evidence on behalf of the defendant at the resentencing hearing. The resentencing judge accurately set forth the same in his finding when, in stating the reasons for the sentence imposed, the court noted that the defendant had no history of prior criminality or delinquency and that her character and attitude indicated that she was not likely to commit another crime; that she would comply with any rules or regulations placed upon her; and that she (the defendant) had a good work record and strong family support. The court found that the only statutory aggravating factor present was that a sentence was necessary to deter others from committing the same ...