APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
518 N.E.2d 266, 164 Ill. App. 3d 742, 115 Ill. Dec. 741 1987.IL.1796
Appeal from the Circuit Court of Cook County; the Hon. Frank Meekins, Judge, presiding.
JUSTICE O'CONNOR delivered the opinion of the court. QUINLAN, P.J., and MANNING, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR
This is an appeal from an order denying defendant Rico Adams' petition for post-conviction relief. The issues raised on appeal are: (1) whether the 20-year disparity between sentences imposed on defendant and his co-defendant violated defendant's constitutional right to due process of law; (2) whether appellate counsel acted incompetently in failing to raise the issue of disparity of sentence on review; (3) whether the court below erred in dismissing the petition without an evidentiary hearing; and (4) whether the trial court erred in ruling that in deciding the issue of excessiveness, the appellate court had also decided the issue of disparity of sentence. We affirm.
Following a jury trial, defendant Adams was found guilty of burglary, armed robbery and armed violence. Defendant was sentenced to an extended term of 14 years for burglary and 35 years for armed robbery, and his codefendant, Fred Johnson, was sentenced to 15 years for armed robbery and an extended term of 10 years for burglary.
The facts giving rise to this appeal are as follows: Prior to trial, defendant Adams made a pro se motion to discharge his attorney and represent himself before the court. After conducting a hearing, the trial court denied the motion. Adams responded to the denial by accusing the trial court of prejudice and directing certain profanities and insults at the court. Defendant was admonished and the trial went forward with defendant represented by counsel. Both defendants were convicted and the convictions and sentences were upheld on direct appeal. (People v. Adams (1982), 106 Ill. App. 3d 467, 435 N.E.2d 1203, appeal denied (1982), 91 Ill. 2d 572.) This court specifically held that the sentences imposed upon each defendant were not excessive. 106 Ill. App. 3d at 476.
Defendant Adams then filed a post-conviction petition alleging that his sentence was grossly disparate from that of his co-defendant and thus a violation of his right to due process and equal protection. He alleged that his sentence was based not on any substantial difference in the prior criminal records of the co-defendants or on commensurately greater participation in the offenses but on the personal prejudice of the sentencing Judge. He also alleged that the failure of his appellate counsel to raise the disparity issue on appeal constituted incompetence and therefore the doctrine of waiver was not applicable. Accompanying the petition was an affidavit from his trial counsel averring that the trial court's attitude toward defendant Adams was demeaning and that in his opinion, the court's prejudice against Adams led to the imposition of disparate sentences. The State's motion to dismiss defendant's petition was granted without an evidentiary hearing and defendant now appeals.
Defendant first contends that the issue of disparity of sentence is of constitutional significance; therefore, the failure to raise the issue on direct appeal does not constitute a waiver.
While disparity of sentence is cognizable under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1), one who seeks relief through such proceedings must allege facts, which, if proven, indicate that his constitutional rights were violated in that regard. The mere disparity of sentences does not, in and of itself, require attention by a reviewing court. (People v. Horton (1977), 47 Ill. App. 3d 915, 918-19, 365 N.E.2d 477, appeal denied (1977), 66 Ill. 2d 633; People v. Hoffman (1974), 25 Ill. App. 3d 251, 270, 322 N.E.2d 865.) Where it is warranted by differences in the nature and extent of participation of the defendants in the offense, a disparate sentence will not be disturbed on appeal. (People v. Godinez (1982), 91 Ill. 2d 47, 55, 434 N.E.2d 1121; People v. Martin (1980), 81 Ill. App. 3d 239, 245, 401 N.E.2d 13.) After reviewing the record here, we believe that the post-conviction petition was properly dismissed, as the difference between the severity of the sentences imposed on the defendants is supported by factors evidenced in the record.
The record shows that in February of 1978, defendant Adams pleaded guilty to an offense listed as murder and reduced to armed robbery. He was sentenced to seven years' imprisonment but released in March of 1978. Within eight months of that conviction, he committed the offense at issue here. There was testimony at both the trial and the post-conviction hearing as to the high degree of violence exhibited by Adams during the instant robbery. Defendant repeatedly threatened the lives of his victims, asking them if they had "ever seen anybody get their brains blown out." He further threatened them by warning them that he had "done it before" and that he did not "mind killing no nigger." One of the victims, who was eight months pregnant, was told by defendant Adams that he did not like pregnant women and she had better do what he said. Defendant also struck one of his victims with a pistol and threatened to kill anyone who "made a mistake." These actions suggest that he is a greater danger to society than is his co-defendant and, as the trial court found, that Adams had a substantially lower rehabilitative potential.
Although Johnson also used a gun to take property from the victims, he did not exhibit the extremely violent and threatening behavior exhibited by defendant Adams. Johnson's prior criminal record was also less serious. He had previously received probation for a battery conviction and a one-year prison sentence for robbery. It is also significant that defendant Adams' extended-term sentence was within the statutory limitations and that the trial court indicated that the sentence took into account what it considered to be exceptionally brutal behavior. See Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-2.
Defendant cites People v. Bares (1981), 97 Ill. App. 3d 728, 423 N.E.2d 538, in which the court found that principles of fundamental fairness required that the disparity between codefendants' sentences be adjusted. In Bares, the defendant had been sentenced to 26 years for armed robbery while his co-defendant received a six-year term for the same offense. On appeal, the defendant acknowledged that he had played a more dominant role in the offense and that he had a more serious criminal record. In reducing the defendant's sentence to 18 years, the appellate court pointed out that both defendants had carried guns; both had contact with the victims of the armed robbery; and both had shared in the proceeds. The court's reduction of the sentence was based on its determination ...