SUPREME COURT OF ILLINOIS
519 N.E.2d 884, 119 Ill. 2d 453, 116 Ill. Dec. 669 1988.IL.212
Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. Patrick J. Fleming, Judge, presiding.
JUSTICE SIMON delivered the opinion of the court. JUSTICE RYAN, Dissenting. MORAN, C.J., and MILLER, J., join in this Dissent.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SIMON
Following a bench trial in the circuit court of St. Clair County, the defendant, Mary Joyce Martin, was convicted of involuntary manslaughter for the death of Kevin Bagent. In sentencing the defendant to the maximum statutory penalty for the offense of involuntary manslaughter-five years' imprisonment-the trial Judge considered as a factor in aggravation that the defendant's conduct caused serious harm to Bagent, resulting in his death. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2.) The appellate court, in an unpublished order (87 Ill. 2d R. 23), affirmed the defendant's conviction and sentence. (142 Ill. App. 3d 1178.) One Justice Dissented on the ground that the trial Judge, in delivering the sentence, failed to consider all the factors in mitigation listed in section 5-5-3.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.1). We granted the defendant's petition for leave to appeal pursuant to Rule 315 (94 Ill. 2d R. 315(a)). The issue presented for our review is whether the trial court erred by considering as a factor in aggravation that the defendant's conduct caused serious bodily harm resulting in the victim's death.
At about 6 a.m. on March 10, 1984, the victim and two friends, Mark Uhlemeyer and Michael Marshall, left the Roxy Tavern in Brooklyn, Illinois, and went across the street to the Rub-A-Dub massage parlor, where the defendant was employed as a masseuse. They were drunk. Marshall entered the parlor followed several minutes later by the victim and Uhlemeyer. According to Uhlemeyer, Marshall emerged from the rear of the establishment with a woman who was not the defendant. The woman was angry and she stated: "I am not going to give him a massage. I wouldn't give him a massage for $1,000 because that is not what he wants."
The manager heard the interchange and asked the group to leave. Both Uhlemeyer and the victim left the parlor and waited outside for Marshall, who was talking to the manager. According to Uhlemeyer, the manager backed Marshall towards the parlor's front door and pushed him outside. The victim observed this and ran back inside the parlor. He approached the manager and said: "Hey, don't push my friend." A fight broke out. While the fight was taking place, the manager instructed the defendant, who was standing nearby, to get the shotgun from the office. The defendant retrieved the gun and brought it back to the scene of the fight. Although it is not clear whether she pulled the trigger, the gun discharged, killing the victim. The defendant testified at trial that she never intended the gun to go off but had merely meant to scare the victim. She also testified that after a female employee's forcible abduction from the parlor the month before, the manager had brought the shotgun to the office for protection.
At the sentencing the State offered in aggravation that the defendant's conduct caused serious bodily harm to the victim resulting in death, and that a sentence was necessary to deter others from committing a similar offense. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2.) The defense counsel responded by noting numerous statutory mitigating factors. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.1.) He emphasized that the defendant did not intend her conduct to cause serious harm. He stressed that although she had failed to establish an affirmative defense to involuntary manslaughter, there were substantial grounds tending to excuse or justify her conduct. In addition, counsel noted that the offense was induced by another, namely the defendant's employer; that the defendant had no prior criminal history; that her conduct was a result of circumstances unlikely to recur; and that she was no longer a masseuse and was presently gainfully employed as a salesperson. Finally, counsel called the court's attention to the presentence investigation report, which concluded that: "Since the defendant . . . has been employed on a full time salaried basis . . ., no specific rehabilitative resource consideration will be suggested."
In imposing sentence, the trial Judge stated that he had considered the presentence investigation report and the statutory factors in aggravation and mitigation. He then denied probation and found in aggravation "that in committing the felony the defendant inflicted serious bodily injury to another resulting in death, and that a sentence [was] necessary to deter others from committing the same crime." In mitigation the Judge found only that the defendant had no prior history of any delinquent or criminal activity. He then imposed the maximum statutory penalty for the crime of involuntary manslaughter.
On the printed document on which the trial Judge marked the relevant statutory factors considered before imposing the sentence, the trial Judge added the phrase "resulting in death" and then checked the first factor in aggravation listed on the document. Originally, this factor read: "In committing the felony defendant inflicted/attempted to inflict serious bodily injury to another." The Judge corrected it in his own handwriting to read: "In committing the felony the defendant inflicted serious bodily injury to another resulting in death." (Emphasis added.) The Judge also checked the following aggravating factor: "The sentence is necessary to deter others from committing the same crime." On the document listing the factors in mitigation only the factor indicating that the defendant had no prior history of delinquent or criminal activity was checked. The Judge signed and dated these documents.
The State argues that the defendant waived the issue of whether the trial court erred in considering the harm to the victim as an aggravating factor to an involuntary manslaughter conviction. According to the State, since the defendant failed to raise the issue before the trial court or the appellate court, she is barred from raising it before this court.
Although the general rule in Illinois is that failure by a defendant to object at trial or to raise an issue in the appellate court constitutes a waiver, it "is well established that in the interest of Justice, a reviewing court may consider all questions which appear to be plain error or affect substantial rights of a party." (Emphasis added.) (People v. Henderson (1970), 119 Ill. App. 2d 403, 405; see also 107 Ill. 2d R. 615.) The trial Judge's consideration of the fact that the defendant's conduct caused serious harm to Bagent, resulting in his death, as a factor in aggravation in sentencing clearly affected the defendant's fundamental right to liberty (see Ingraham v. Wright (1977), 430 U.S. 651, 673-74, 51 L. Ed. 2d 711, 731-32, 97 S. Ct. 1401, 1413-14) and impinged on her right not to be sentenced based on improper factors (see People v. Conover (1981), 84 Ill. 2d 400, 405 (sentence based on improper factors will not be affirmed unless the court can determine from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence)).
The plain error doctrine may be used in reviewing a sentence if the evidence is closely balanced. (See People v. Garcia (1983), 97 Ill. 2d 58, 87.) The evidence presented at the sentencing hearing was not simply closely balanced, it strongly favored leniency for the defendant. Aside from the harm to the victim, the only other aggravating factor considered by the trial court was that the sentence was necessary to deter others. This factor, however, has, at best, marginal applicability to the circumstances surrounding the offense. The defendant was convicted of involuntary manslaughter-of "unintentionally kill[ing] an individual without lawful justification" (Ill. Rev. Stat. 1985, ...