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10/10/97 PEOPLE STATE ILLINOIS v. JERAMIE M. MYERS

October 10, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JERAMIE M. MYERS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 9th Judicial Circuit, Warren County, Illinois. No. 93--CF--104. Honorable James B. Stewart, Judge Presiding.

Released for Publication November 24, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable William E. Holdridge, Justice, Honorable John F. Michela, Justice. Presiding Justice Lytton delivered the opinion of the court. Michela, J., concurring. Holdridge, J., dissenting.

The opinion of the court was delivered by: Lytton

PRESIDING JUSTICE LYTTON delivered the opinion of the court:

Defendant Jeramie M. Myers was convicted of aggravated arson (720 ILCS 5/20--1.1 (West 1994)) and sentenced to a 24-year term of imprisonment. The issues on review are whether the trial court improperly considered statutory factors in aggravation in imposing sentence, and whether the sentence was excessive. We reverse and remand for a new sentencing hearing.

FACTS

At trial, defendant stipulated to the facts concerning his participation in the 1993 arson of Term City, a rent-to-own business in Monmouth, Illinois. Defendant was an employee of the business, and his friend, Mark Skiles, was the manager. During Skiles' tenure as manager, numerous thefts of cash and furniture occurred. Defendant knew of Skiles' involvement in the thefts. On March 5, 1993, Skiles offered defendant a VCR and proposed that defendant torch the store to cover up the thefts. Defendant agreed to the plan.

On the morning of March 6, defendant spread gasoline around the store, lit the fire and left. At 6:14 a.m., the Monmouth fire department responded. As Assistant Fire Chief Dennis Olson attempted to open a door, the roof caved in and a wall collapsed on him. Olson subsequently died from his injuries.

On March 8, defendant received a VCR from Skiles. On November 16, he confessed to the arson. Defendant was charged with murder and aggravated arson; however, the murder charge was nolle prosequied upon defendant's agreement to testify against Skiles and to await his own sentencing hearing until after Skiles was sentenced. Based on the stipulated facts, the court found defendant guilty of aggravated arson. Skiles was subsequently convicted of murder and sentenced to 24 years in the Department of Corrections.

At defendant's sentencing hearing, the court reviewed the presentence investigation report, which disclosed that defendant was 18 years old when he committed the offense; he had a ninth grade education and no criminal record; and he had worked at Term City delivering furniture and collecting late payments before the fire. The court also heard testimony offered in mitigation and a victim impact statement read by the victim's widow, Judy Olson. Defendant exercised his right of allocution to express sympathy for Mrs. Olson and to ask the court to impose the minimum sentence. After receiving recommendations of counsel, the court made findings and imposed sentence.

In mitigation, the court found that defendant did not contemplate that his conduct would cause or threaten serious physical harm to another; his conduct was induced by another; and defendant had no history of criminal activity. 730 ILCS 5/5--5--3.1(2),(5),(7) (West 1994). In aggravation, the court found that defendant's conduct caused or threatened serious harm; he received compensation for committing the offense; by the duties of his office or position, he was obliged to prevent the offense or bring offenders to justice; and a severe sentence was needed to deter others from committing the same crime. 730 ILCS 5/5--5--3.2(a)(1),(2),(4),(7) (West 1994). Considering that Skiles had received a 24-year prison term, the court stated that the same sentence should be imposed for defendant. Defendant's motion to reduce sentence was denied, and he appeals.

ANALYSIS

Initially, defendant claims that the trial court improperly considered that his conduct caused or threatened serious harm. Defendant argues that this factor is implicit in the offense of aggravated arson, yet the court based its sentencing decision "totally" on this factor. We do not agree.

Sound public policy dictates that a defendant's sentence be varied in accordance with the particular circumstances of the crime. People v. Saldivar, 113 Ill. 2d 256, 497 N.E.2d 1138, 100 Ill. Dec. 776 (1986). Certain criminal conduct may warrant a harsher penalty than other conduct punishable under the same statute. Saldivar, 113 Ill. 2d 256, 497 N.E.2d 1138, 100 Ill. Dec. 776. Thus, a sentencing court may consider the degree of harm caused by a certain aggravated arson, even though injury ...


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