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People v. Fern

November 18, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. JAY HARRY FERN, APPELLANT.


Agenda 26-May 1999.

JUSTICE BILANDIC delivered the opinion of the court:

The issue in this appeal is whether the propriety of a criminal sentence may be Judged by comparing it to the sentences imposed on defendants in other cases. We hold that the excessiveness of a sentence may not be determined from a consideration of the sentences imposed on defendants in separate, unrelated cases.

FACTS

Defendant, Jay Harry Fern, was charged in the circuit court of McHenry County with the unlawful delivery of 250 grams of cocaine. Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2). This offense carried a sentencing range of 9 to 40 years' imprisonment. Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)(B). Defendant entered an open plea of guilty and was sentenced to 25 years' imprisonment.

Defendant thereafter filed a motion to reconsider his sentence pursuant to Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). Defendant argued that his 25-year sentence was excessive because it failed to account for his rehabilitative potential. In this regard, defendant noted his long marriage, his three children, and his consistent employment history. Defendant also pointed out that he had only one prior conviction, and that he had accepted responsibility for his actions by pleading guilty.

Defendant also argued that his sentence was excessive when compared to the sentences imposed on defendants in other cases for the same or more serious drug offenses. Defendant included a chart of Illinois decisions in which a person convicted of the same or a more serious drug crime was given a sentence shorter than that given to defendant in this case. Based on this comparative information, defendant argued that his sentence was excessive and "should be reduced to bring it in line with sentences for comparable offenses."

The State moved to strike the portion of defendant's motion that asserted his "comparative sentencing" analysis. The State asserted that such an analysis was not a valid basis for judging the propriety of a sentence. The circuit court granted the State's motion to strike. The circuit court subsequently denied defendant's motion to reconsider his sentence.

The appellate court affirmed the circuit court. The appellate court rejected defendant's comparative sentencing analysis. The court reaffirmed its previous decisions declining to use a comparative sentencing analysis in evaluating the propriety of a sentence. The court noted, however, that appellate court decisions from other districts had used sentencing information from similar cases to determine whether the trial court imposed an excessive sentence. No. 2-97-0917 (unpublished order under Supreme Court Rule 23).

We allowed defendant's petition for leave to appeal. 177 Ill. 2d R. 315. We now affirm the appellate court.

ANALYSIS

Defendant contends that the circuit court erred in striking his comparative sentencing argument. He asserts that courts, if presented with comparative sentencing information, must consider it and act on it where the information reveals "an unexplainable and gross disparity." Defendant asks this court to reduce his sentence on the ground that it is "inexplicably and grossly disparate and excessive when compared to sentences imposed on numerous similarly-situated defendants." The issue we must decide, therefore, is whether the excessiveness of a sentence may be determined from a consideration of the sentences imposed on defendants in separate, unrelated cases. We now hold that such information is not a proper basis for judging the excessiveness of a sentence.

A brief review of our state's sentencing structure is necessary. The legislature sets forth by statute the range of permissible sentences for each class of criminal offense. The statutory sentencing scheme is intended to advance four purposes: (1) to prescribe sanctions proportionate to the seriousness of the offense and permit the recognition of differences in rehabilitation possibilities among individual offenders; (2) to forbid and prevent the commission of offenses; (3) to prevent arbitrary or oppressive treatment of persons adjudicated offenders or delinquents; and (4) to restore offenders to useful citizenship. 730 ILCS 5/1-1-2 (West 1998).

Although the legislature has prescribed the permissible ranges of sentences, great discretion still resides in the trial Judge in each case to fashion an appropriate sentence within the statutory limits. People v. Wilson, 143 Ill. 2d 236, 250 (1991); People v. James, 118 Ill. 2d 214, 228 (1987). The trial court must base its sentencing determination on the particular circumstances of each case, considering such factors as the defendant's credibility, demeanor, general moral character, mentality, social environment, habits, and age. People v. Streit, 142 Ill. 2d 13, 19 (1991); People v. Perruquet, 68 Ill. 2d 149, 154 (1977). A reviewing court gives great deference to the trial court's judgment regarding sentencing because the trial Judge, having observed the defendant and the proceedings, has a far better opportunity to consider these factors than the reviewing court, which must rely on the "cold" record. Streit, 142 Ill. 2d at 18-19; Perruquet, 68 Ill. 2d at 154.

In considering the propriety of a sentence, the reviewing court must proceed with great caution and must not substitute its judgment for that of the trial court merely because it would have weighed the factors differently. Streit, 142 Ill. 2d at 19; James, 118 Ill. 2d at 228. A sentence within statutory limits will not be deemed excessive unless it is greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense. People v. Cabrera, 116 Ill. 2d 474, 493-94 (1987).

Defendant contends that the excessiveness of a sentence may properly be Judged by comparing it to the sentences imposed on similarly situated defendants in other cases. He asserts that a sentence cannot be permitted to stand when it is grossly disparate in comparison to the sentences imposed on such similarly situated defendants. Defendant states, however, that he does not seek a requirement that courts independently conduct comparative sentencing analyses. Rather, defendant contends that courts must conduct such an analysis if the parties provide comparative sentencing information. The State, on the other hand, argues that allowing the type of comparative sentencing analysis urged by defendant would interfere with the intended operation and purpose of sentencing.

This court has not directly addressed this issue. Several districts of our appellate court have considered the question, with differing results. Decisions out of the Fourth and Second Districts have refused to apply a comparative sentencing analysis in considering the excessiveness of a sentence. See People v. Thornton, 286 Ill. App. 3d 624, 636 (1997) (refusing to compare the defendant's sentence to that imposed in a separate case); People v. Bien, 277 Ill. App. 3d 744, 753-55 (1996) (same); People v. Lintz, 245 Ill. App. 3d 658, 669 (1993) (same); People v. Terneus, 239 Ill. App. 3d 669, 675-78 (1992) (same); People v. Welsh, 99 Ill. App. 3d 470, 471 (1981) (affirming trial court's refusal to consider comparative sentencing information in imposing sentence); People v. Brown, 103 Ill. App. 3d 306, 309 (1982). The Third District of the Appellate Court has reached seemingly contrary Conclusions on this issue. Compare People v. Conaway, 101 Ill. App. 3d 202, 204 (1981) (affirming a trial court's refusal, in sentencing the defendant, to consider the milder sentence imposed on another person), with People v. Martin, 58 Ill. App. 3d 915 (1978) (although acknowledging that each case must be Judged on its own peculiar facts, reviewing the cases cited by the defendants and finding that the defendants' sentences were "comparable to those received by defendants in other cases"). The First District applied a comparative sentencing analysis in reviewing the excessiveness of a sentence in People v. Harris, 187 Ill. App. 3d 832 (1989); see also People v. Norfleet, 259 Ill. App. 3d 381, 396 (1994) (finding that defendant's sentence "greatly exceeded" those imposed in other cases); People v. Neither, 230 Ill. App. 3d 546, 551 (1992) (comparing defendant's sentence to that imposed in other cases and finding it excessive).

We agree with those decisions rejecting cross-case comparative sentencing as a basis for challenging a sentence. We find that such an analysis does not comport with our sentencing scheme's goal of individualized sentencing and would unduly interfere with the sentencing discretion vested in our trial courts.

As noted above, the range of sentences permissible for a particular offense is set by statute. Within that statutory range, the trial court is charged with fashioning a sentence based upon the particular circumstances of the individual case, including the nature of the offense and the character of the defendant. See People v. Perruquet, 68 Ill. 2d 149, 154 (1977). The sentencing Judge is to consider "all matters reflecting upon the defendant's personality, propensities, purposes, tendencies, and indeed every aspect of his life relevant to the sentencing proceeding." People v. Barrow, 133 Ill. 2d 226, 281 (1989). In reviewing a claim that a sentence within statutory limits is excessive, the court must consider whether, given the particular facts of the case, the sentence is greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense. See People v. Cabrera, 116 Ill. 2d 474, 493-94 (1987). The fact that a lesser sentence was imposed in another case has no bearing on whether the sentence in the case at hand is excessive on the facts of that case. As the appellate court in People v. Welsh, 99 Ill. App. 3d 470, 471 (1981), explained, under our sentencing system:

"[S]entencing becomes an individualized proceeding but is sufficiently structured to prevent the prejudices of an individual Judge from overcoming an evenhanded neutral approach. [Citation.] Like fingerprints or snowflakes, each one bears some similarities to the others, but no two are exactly alike. It therefore follows that sentencing is not an exact science and cannot be reduced to a mathematical formula. It further follows that one sentence is no precedent for another."

See also People v. Lintz, 245 Ill. App. 3d 658, 669 (1993) (declining to compare the defendant's sentence to that imposed in another case "because the proper penalty must be based on the particular circumstances of the individual case").

The propriety of the sentence imposed in a particular case cannot properly be Judged by the sentence imposed in another, unrelated case. Simply because a lesser sentence was imposed in another case does not lead to the Conclusion that the more severe sentence imposed in the case at hand is excessive. " `[N]o indication has been shown of a legislative intent to lessen disparity of sentences by equating all sentences to those that would be imposed by the most lenient trial courts or approved by the most lenient courts of review.' " People v. Terneus, 239 Ill. App. 3d 669, 676-77 (1992), quoting People v. Cox, 77 Ill. App. 3d 59, 77 (1979) (Green, J., Dissenting). Allowing a sentence to be attacked, and potentially reduced, because the sentence imposed in another case is less severe would allow a trial Judge to effectively reduce the permissible range of sentences for a particular offense below that set by statute. Other Judges sentencing persons convicted of that crime would be required to follow suit or have a justifiable reason for not doing so. Defendant responds to this concern by arguing that a prior lenient sentence will not always lead to a reduction of the sentence at bar, because the sentencing court could find a reason to distinguish the facts of the prior case. Under defendant's argument, however, this would be appropriate only if there was a reason justifying the disparity between the two sentences. Absent such a reason, the prior lenient sentence would control the later case.

In addition, use of defendant's comparative sentencing analysis runs the risk of erroneous Conclusions. No two cases are ever truly "the same." Terneus, 239 Ill. App. 3d at 677. In seeking to compare a defendant's sentence to that imposed in another case, a court will necessarily be limited in the information it will possess about that other case. Defendant here suggests that comparisons may be made using merely the reviewing court opinions in other cases. The reviewing court opinion, however, will rarely, if ever, contain a recitation of all the facts and circumstances that were considered in fashioning the defendant's sentence. A review of the actual record in each of the other cases would be necessary. Even assuming such records could be obtained, and it were feasible for the court reviewing the sentence to read such records, a truly accurate comparison of the cases still could not be made as there are factors which will not be apparent from simply reading the record. "The written words of the record rarely if ever fully capture the intricacies that work into the sentencing court's judgment, including but not limited to that court's direct observations of the defendant's demeanor, as well as the victim's pain and ability to cope." Terneus, 239 Ill. App. 3d at 677. Thus, given the limited nature of the information obtainable about a "comparable" case, the defendant in that case may appear to be similarly situated to the defendant in the case at hand when, in fact, some factor exists which solidly differentiates the two. Use of a comparative sentencing analysis to reduce a sentence may, in such an instance, disrupt sentencing parity, not achieve it.

Moreover, comparing a defendant's sentence with the sentences imposed in other cases runs the risk of arriving at an erroneous Conclusion due to a skewed sample. The sample of other sentences with which a court would be presented in the form of appellate court opinions could not include all similarly situated cases. Even assuming that all comparable cases reported in published decisions could be located and presented, the sample would not include those cases resolved in unpublished orders pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23), nor would it include those cases in which the defendant decided not to appeal. See Bien, 277 Ill. App. 3d at 754; Terneus, 239 Ill. App. 3d at 677.

It is true, as defendant points out, that Illinois courts have held that fundamental fairness requires that similarly situated defendants not receive grossly disparate sentences. See, e.g., People v. Cooper, 239 Ill. App. 3d 336, 363 (1992); People v. Owens, 151 Ill. App. 3d 1043, 1048-49 (1987). That principle has been applied, however, only in the context of co-defendants involved in the same crime. See Cooper, 239 Ill. App. 3d at 363; Owens, 151 Ill. App. 3d at 1049; see also People v. Thornton, 286 Ill. App. 3d 624, 636 (1997) (noting that this principle does not apply to defendants in unrelated cases). Defendant asserts that there is no principled reason for not applying this rule beyond the co-defendant situation to compare the sentences imposed in separate, unrelated cases. We disagree. Persons who commit crimes independently are " `seldom, if ever, similarly situated.' " People v. Palmer, 162 Ill. 2d 465, 491 (1994), quoting People v. Conaway, 101 Ill. App. 3d 202, 204. Moreover, comparing the sentences of co-defendants is an entirely different exercise than comparing sentences imposed in separate cases. In the co-defendant situation, the persons whose sentences are being compared were involved in the same crime and there is, therefore, a single set of facts. Further, in the co-defendant situation, the pool of sentences to be compared is, by definition, limited. Extending that principle to compare the sentences imposed in unrelated cases, on the other hand, opens up the process to a potentially vast pool of comparables.

Defendant also asserts that rejection of the comparative sentencing approach is at odds with explicit legislative policy. Defendant argues that, in 1977, the legislature enacted legislation substantially revising the Code of Corrections in order to ensure that similar offenders receive similar sentences for the same crime. Defendant points to comments in the legislative history of the 1977 legislation which indicate that "excessively disparate and inequitable sentences" were a serious problem under the then-existing sentencing system. Defendant also highlights two sections of the Code of Corrections, enacted as part of the 1977 legislation, which he contends clearly express uniformity and parity in sentencing as the public policy of this state. Section 5-5-4.2 of the Code of Corrections, cited by defendant, is entitled "Statewide Sentence Equalization Procedures" and provides that "[t]he Supreme Court may by rule, not inconsistent with law, prescribe such practices and procedures as will promote a uniformity and parity of sentences within and among the various circuit courts and appellate court districts." 730 ILCS 5/5-5-4.2 (West 1998). Defendant also cites to section 5-5-4.3 of the Code of Corrections, entitled "Duties of Department of Corrections," which requires the Department to publish an annual report which "shall be made available to trial and appellate court Judges for their use in imposing or reviewing sentences under this Code." 730 ILCS 5/5-5-4.3(a) (West 1998). That report is to contain, inter alia, data concerning "the range, frequency, distribution and average" of terms of imprisonment imposed on offenders and of the terms actually served in prison. 730 ILCS 5/5-5-4.3(a)(1), (a)(2) (West 1998).

Defendant argues that a rule prohibiting the use of comparative sentencing information as a basis for attacking a sentence would be directly contrary to the legislature's intent in enacting the 1977 legislation. We are not persuaded by defendant's argument. The primary change effected by the 1977 legislation was to abolish our previous system of indeterminate sentencing and replace it with a system of determinate sentencing. According to the legislative history, a chief criticism of indeterminate sentencing was its dependence on rehabilitation as a sole basis of penal policy. See Summary of the Report to the Illinois House Judiciary II Committee by the Subcommittee on Adult Corrections, at 3 (June 24, 1976) (Subcommittee Report). The prior system of indeterminate sentencing was also criticized because its wide ranges of sentences, and its reliance upon the parole board to determine release dates, had led to excessively disparate and inequitable sentences. See ...


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