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09/22/88 the People of the State of v. Joseph Young

September 22, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

JOSEPH YOUNG, APPELLANT



SUPREME COURT OF ILLINOIS

529 N.E.2d 497, 124 Ill. 2d 147, 124 Ill. Dec. 516 1988.IL.1420

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. George M. Marovich, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

The defendant, Joseph Young, age 20, was convicted of the murder and armed robbery of Mrs. Willie Davis, age 63, at a bench trial in the circuit court of Cook County. The People sought the death penalty. Pursuant to the defendant's request, a jury was selected to consider defendant's eligibility for the death penalty and whether to impose it.

At the bifurcated penalty hearing, the jury found the defendant eligible for the death penalty, in that he was over 18 years of age and had committed a murder in the course of an armed robbery. (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b).) In the second phase of the penalty hearing, the jury was unable to unanimously agree that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, a subsequent sentencing hearing was conducted by the court, as required by statute. (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(g).) The court, after considering all arguments and the presentence report, sentenced the defendant to natural life imprisonment, based on the fact that an aggravating factor listed in section 9-1(b) of the Criminal Code of 1961 was present (murder committed in the course of an armed robbery) (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)). (See Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(1).) The court imposed an extended 60-year term for the armed robbery conviction, based on the fact that the offense was accompanied by exceptionally brutal or heinous behavior. Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2(b)(2).

The defendant appealed the convictions and the sentences. The appellate court, in a Rule 23 order (107 Ill. 2d R. 23), upheld the convictions but remanded the matter to the trial court to reconsider the sentence in view of defendant's age and because the sentence precluded any possibility of parole. (113 Ill. App. 3d 1165 (unpublished order under Supreme Court Rule 23).) Following the remand, the defendant moved the court to order a supplemental presentence investigation and report, which would relate information concerning defendant's good conduct while incarcerated. The court denied the motion. At the subsequent hearing, the court again denied a similar motion. It determined that defendant's conduct in prison had no bearing on the sentencing issues it considered at the first hearing, and that it was beyond the mandate of the appellate court's remand order. The court did allow the defendant to present witnesses and letters from prison staff in order to make a record for a potential appeal. Following this, and after hearing arguments of counsel, the Judge reaffirmed the original sentence.

The nature of and authority for the appellate court's remand are not clear. The defendant contends that the appellate court's Rule 23 order set aside or vacated the defendant's sentence and remanded the case for a resentencing hearing. The appellate court, on appeal from the affirmance of the sentence, indicated that its original Rule 23 order did not vacate the original sentence, but remanded only for a reconsideration of that sentence in light of defendant's age and the fact that the sentence precluded parole. 152 Ill. App. 3d at 364.

The authority of reviewing courts in criminal cases is set out in Rule 615(b) (107 Ill. 2d R. 615(b)). The authority of reviewing courts in civil cases is set out in Rule 366 (107 Ill. 2d R. 366). The authority in civil cases, as set out in Rule 366, is much broader and more specifically stated than is the authority of a reviewing court in criminal appeals as stated in Rule 615(b). The authority to enter an order of remandment in criminal cases is not specifically granted in Rule 615(b), but is in Rule 366. It is obvious, however, that a reviewing court has such authority in criminal cases when used in connection with other authority specifically stated in Rule 615(b). Likewise, a reviewing court has certain inherent authority, such as the authority to remand a case for a Batson hearing (whether peremptory challenges were exercised in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712). Also, section 5-5-3(d) (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3(d)) provides that when a sentence is vacated, the case shall be remanded to the trial court.

Courts of review, however, are just that, and should review the case in light of the record made in the trial court. The nature of judicial proceedings does not contemplate that a case be sent back to the trial court for one side or the other to bolster its position by further presentations, and in the interest of the finality of judgments, such remandments should not be made. It appears here that in the Rule 23 order, the appellate court found no reason to reverse the judgment of the trial court. In fact, it stated that it found no reason to modify the judgment or reduce the sentence. The appellate court, apparently for humanitarian reasons, simply wanted the trial court to take another look at (to reconsider) the sentence, in light of the defendant's age and the fact that the sentence precluded parole. Whether the appellate court had the authority to do that is not before us in this appeal.

We must consider that the Rule 23 order which the appellate court entered vacated the sentence and remanded the case to the trial court for a resentencing hearing, but with specific and limiting directions. The trial court was to consider the sentence that had originally been imposed in view of the defendant's age and in view of the fact that the sentence precluded parole. That was the mandate to the trial court as contained in the Rule 23 order. On appeal following resentencing, the appellate court, with one Justice Dissenting, affirmed (152 Ill. App. 3d 361), and found that the trial court had followed the mandate of its previous Rule 23 order.

The defendant raises three issues on appeal. First, the defendant contends that it was mandatory for the trial Judge to order a supplemental presentence investigation and report and to consider defendant's post-conviction prison conduct upon reconsideration of the sentence. Second, the defendant argues that the extended-term sentence for armed robbery violated section 5-8-2 the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-2), because armed robbery was not in the class of the most serious offense for which defendant was convicted. Finally, the defendant urges that if there is a remand granted for resentencing, the case should be assigned to a different trial Judge.

With regard to the first issue, the defendant argues that the provisions of section 5 -- 5 -- 3(d) of the Unified Code of Corrections mandate that after vacation of a sentence and remand, a new sentencing hearing must include evidence of defendant's conduct since the original sentence was passed. Section 5 -- 5 -- 3(d) states:

"(d) In any case in which a sentence originally imposed is vacated, the case shall be remanded to the trial court. The trial court shall hold a hearing under Section 5-4-1 of the Unified Code of Corrections which may include evidence of the defendant's life, moral character and occupation during the time since the original sentence was passed. The trial court shall then impose sentence upon the defendant. The trial court may impose any sentence which could have been imposed at the original trial subject to Section 5-5-4 of the Unified Code of Corrections." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3(d).)

As noted above, we must consider the Rule 23 order as vacating defendant's sentence and remanding the case to the trial court for resentencing. Section 5 -- 5 -- 3(d) is therefore applicable. The defendant reads the clause, "which may include evidence of the defendant's life . . . since the original sentence was passed," in section 5 -- 5 -- 3(d) to mean the court must consider defendant's conduct since his initial incarceration. He cites our decision in People v. Youngbey (1980), 82 Ill. 2d 556, 562, to show that the word "may" can be mandatory, depending on the drafters' intent. He also argues that our decision in People v. Harris (1985), 105 Ill. 2d 290, compels the Conclusion that an additional presentence investigation and report must be had before resentencing. He interprets Harris to hold that a sentencing hearing under section 5 -- 4 -- 1, which is referred to in section 5 -- 5 -- 3(d), must include a supplemental presentence investigation and report conforming with section 5 -- 3 -- 1. The pertinent portion of section 5 -- 4 --1 reads:

"Sentencing Hearing. (a) Except when the death penalty is sought under hearing procedures otherwise specified, after a determination of guilt, a hearing shall be held to impose ...


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