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May 31, 1996


Appeal from Circuit Court of Sangamon County. No. 94CF488. Honorable Leo J. Zappa, Judge Presiding.

Honorable James A. Knecht, J., Honorable Robert J. Steigmann, J., Honorable Rita B. Garman, J., Concurring. Justice Knecht delivered the opinion of the court:

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

Defendant William Behl appeals his sentence of 18 years' imprisonment for second degree murder, a violation of section 9-2 of the Criminal Code of 1961 (Code) (720 ILCS 5/9-2 (West 1992)). We affirm.

After a jury trial in the circuit court of Sangamon County, defendant was convicted of aggravated battery, a violation of section 12-4 of the Code (720 ILCS 5/12-4 (West 1992)), and second degree murder for the death of Thomas Dorr.

On August 31, 1994, defendant, after having drunk several beers at a bar, went to the residence of Les Feagan in search of Dorr. Defendant and Dorr had stolen a motorcycle together, but Dorr sold it and kept the proceeds for himself. Defendant arrived at the residence and found Dorr. The two argued, exchanged angry words and defendant then asked Dorr if he had been with defendant's girlfriend that night. Dorr responded yes, and defendant punched him in the face. Dorr fell down, and defendant kicked him in the head numerous times over a several-minute period. Witnesses tried to stop defendant but he pushed them aside. Dorr's girlfriend threw herself on top of Dorr but defendant continued kicking him in the head. Police arrived and Dorr was taken to a hospital, but soon died from the head injuries inflicted by defendant.

The presentence report indicated defendant had a prior criminal record of theft, two counts of unlawful possession of a stolen vehicle, four counts of burglary, and a pending charge of felony theft. Defendant has been evaluated as addicted to alcohol and crack cocaine. He had obtained a GED but had a "minimal work history." The victims' parents and siblings are battling severe depression over his death and have incurred large debts from the funeral as well as from the medical treatment which was given to him at the hospital in an attempt to keep him alive. Defendant admitted his actions but stated it was not his intent to kill Dorr. Defendant also expressed remorse.

The trial court sentenced defendant to 18 years' imprisonment on the second degree murder count, to be served concurrently with 4 years' imprisonment on the aggravated battery count. From the bench, the trial court told defendant:

"We have to send a message to the community that this kind of conduct will not be tolerated. You were drunk, allegedly on drugs, and a man, whether he was a model citizen or not, ended up dead over a stolen motorcycle, and we've got to send a message not only to you but to this community[:] we're not going to take this kind of conduct anymore period, and that is why I've handed down the sentence that I've just handed down."

Defendant now appeals.

The trial court should impose a criminal sentence based on the evidence at trial, the presentence report, the financial impact of incarceration, evidence in aggravation and mitigation, arguments as to sentencing alternatives, any statement by the defendant, and any victim-impact statement. 730 ILCS 5/5-4-1(a) (West 1992). A trial court's judgment as to the appropriate sentence is entitled to deference, and a sentence may not be altered absent a showing the punishment imposed constituted an abuse of discretion. People v. Illgen, 145 Ill. 2d 353, 379, 583 N.E.2d 515, 526, 164 Ill. Dec. 599 (1991); People v. Jones, 265 Ill. App. 3d 627, 639, 637 N.E.2d 601, 610, 202 Ill. Dec. 62 (1994).

Defendant asserts the trial court abused its discretion because it based its sentence on an improper aggravating factor. Defendant contends because second degree murder is necessarily a crime caused by either a sudden and intense passion or an unreasonable belief the use of deadly force was necessary or justified, it is by definition a crime that cannot be deterred. Defendant asserts the trial court improperly relied on deterrence as a sentencing factor. Under the Code, second degree murder is defined as follows:

"A person commits the offense of second degree murder when he commits the offense of first degree murder *** and either of the following mitigating factors are present:

(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation ...

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