APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
522 N.E.2d 288, 167 Ill. App. 3d 849, 118 Ill. Dec. 833 1988.IL.512
Appeal from the Circuit Court of Crawford County; the Hon. Philip Benefiel, Judge, presiding.
PRESIDING JUSTICE HARRISON delivered the opinion of the court. WELCH and KARNS, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON
On October 20, 1986, defendant, Gary Maxwell, pleaded guilty to the charge of unlawful delivery of a controlled substance in violation of section 401(b)(2) of the Controlled Substances Act (the Act) (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(b)(2)). In determining the sentence, the circuit court of Crawford County relied on three mitigating factors of section 5-5-3.1(a) of the Unified Code of Corrections (the Code): (1) "[the] defendant has no history of prior delinquency or criminal activity or [he] has led a law-abiding life for a substantial period before the commission of the present crime"; (2) "the defendant's criminal conduct was the result of circumstances unlikely to recur"; and (3) "the defendant is particularly likely to comply with the terms of a period of probation." (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.1(a).) The trial court considered three aggravating factors prescribed by section 5-5-3.2(a) of the Code: (1) "the defendant's conduct caused or threatened serious harm"; (2) "the defendant received compensation for committing the offense"; and (3) "the sentence is necessary to deter others from committing the same crime." (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(a).) On November 18, 1986, the circuit Judge sentenced defendant to four years' imprisonment. Defendant appeals, contending that he is entitled to a new sentencing hearing because: (1) the trial court improperly weighed the aggravating factor of defendant's infliction of or attempt to inflict serious bodily harm; and (2) the sentence was disproportionately harsh because Jason Bousquet, the codefendant, received a sentence for the same term of imprisonment as defendant but was "more culpable" and had a history of prior criminal activity, unstable employment and drug problems.
Defendant and Jason Bousquet met about two years before the trial and established an informal social relationship. Seven months after meeting defendant, Bousquet lost his job and subsequently borrowed money from defendant for rent, utilities, and miscellaneous expenses. Defendant lent Bousquet a total of $500 and received as security two air conditioners, a television, some kitchen floor tile, and a wedding ring.
Bousquet did not contact defendant for a year after borrowing the money. After a year had passed, Bousquet called defendant and offered to pay the debt with the proceeds of a cocaine deal. Bousquet asked defendant if defendant knew of anyone who could sell cocaine in large quantities. Defendant mentioned a friend in Crawford County named Michael Kirts.
Defendant called Kirts and asked if Kirts could supply the cocaine. Kirts told defendant in a subsequent conversation that he could easily supply two ounces of the drug. Defendant arranged the deal so that Kirts would deliver the cocaine to defendant, defendant would deliver it to Bousquet, Bousquet would sell it to a prearranged buyer, Bousquet would give the proceeds to defendant, and defendant would return to Kirts with the money.
Kirts picked defendant up on May 19, 1986, in a car driven by David Yager. David Yager stopped on the way to Bousquet's home in Oblong, Illinois, to pick up Scott Yager. Defendant, Michael Kirts, David Yager and Scott Yager then drove to Bousquet's residence. Defendant brought the cocaine into the home and handed it to Bousquet, who carried it upstairs and weighed it. About 10:30 that evening the buyer of the cocaine arrived at Bousquet's home. Bousquet took the buyer into the garage and handed him the brown bag containing the cocaine. Bousquet thought the buyer appeared nervous, and he threatened to turn his dog loose on him. At that moment a car sped up the driveway in front of Bousquet's garage, and as Bousquet turned to look, the buyer put a pistol behind Bousquet's head, declared that he was a special agent from the Department of Criminal Investigation, and ordered Bousquet back into the house. The special agent placed Bousquet, defendant, and three others under arrest.
On September 9, 1986, Bousquet pleaded guilty to unlawful delivery of a controlled substance in violation of section 401(b)(2) of the Act (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(b)(2)), and the circuit court of Crawford County sentenced him to four years' imprisonment. On October 20, 1986, defendant pleaded guilty to the same charge, and the court sentenced him at a hearing on November 18, 1986, to four years' imprisonment.
Defendant appeals, contending that he is entitled to a new hearing on sentencing because the trial court abused its discretion in considering an improper aggravating factor in weighing the term of imprisonment. Defendant also contends that the sentence was disproportionately harsh because Jason Bousquet, the codefendant, received a sentence for the same term of imprisonment as defendant but was "more culpable" and had a history of prior criminal activity, unstable employment and drug problems.
The Illinois Supreme Court in People v. Martin (1988), 119 Ill. 2d 453, recently determined the circumstances under which a trial court's weighing of an improper factor in aggravation entitles the defendant to a new hearing on sentencing. The court found that the consideration of an improper factor in aggravation clearly affects the defendant's fundamental right to liberty, and a court of review must remand for resentencing a cause when an improperly considered aggravating factor is included except in circumstances where the factor is an insignificant element of the defendant's sentence. People v. Martin (1988), 119 Ill. 2d 453, 458.
The trial court's consideration of the factor that defendant inflicted or attempted to inflict serious bodily injury to another person is clearly improper considering all the evidence introduced at trial. Section 5-5-3.2(a)(1) of the Code indicates that some actual or threatened serious harm must have occurred before the court may consider this aggravating factor. (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(a)(1).) The State admits that "the facts do not indicate that the [defendant] did, directly, attempt to inflict bodily injury," but attempts to characterize the trial court's consideration of this aggravating factor as a proper method of incorporating into defendant's sentence an element implicit in the delivery of ...