Opinion
No. 70-159 Judgment affirmed.
December 6, 1971.
APPEAL from the Circuit Court of Kankakee County; the Hon. VICTOR N. CARDOSI, Judge, presiding.
James Geis, of Defender Project, of Ottawa, for appellant.
Edward Drolet, State's Attorney, of Kankakee, for the People.
This is an appeal from the circuit court of Kankakee County.
The defendant, Robert Manuel Clay, pleaded guilty to the offense of armed robbery upon representation by the State's Attorney that two other informations charging the defendant with the crime of armed robbery would be nolle prossed and subsequently these two additional informations were in fact dismissed.
In the armed robbery for which the defendant was convicted and in one of the other two armed robberies to which he admitted committing the defendant was armed with a sawed-off shotgun.
The defendant made application for release on probation and after investigation the probation officer filed a report recommending that probation be denied. After a hearing the defendant's motion for probation was denied. A further hearing in mitigation and aggravation of the offense was had and the defendant was thereafter sentenced to an indeterminate term of imprisonment of not less than two nor more than six years.
The record discloses that at the time of the conviction the defendant was 18 years of age. He had a high school education but because of his age and inability to learn quickly enough the various jobs assigned to him his employment record is quite meager. Although not married the defendant acknowledged he is the father of a child born out of wedlock and there is evidence in the record that he contributed to the support of this child.
Prior to his arrest the defendant was a regular attendant at church and in fact was active in Sunday School and a member of the choir.
During the hearing upon the defendant's motion for probation 16 witnesses including the defendant testified in support of his motion. The witnesses included two ministers, church associates, a Boy Scout Master, a high school principal, fellow employees, the defendant's mother, his fiancee, and a gentleman who was both Clerk of the Kankakee School Board and an official with General Foods Corporation. This latter individual testified that if granted probation he would offer the defendant employment with General Foods as soon as he had an opportunity to do so.
The issues presented on appeal are whether the trial court erred in denying probation and whether the sentence imposed is excessive and disproportionate to the offense in its maximum term and thereby should be reduced.
Directing our attention to the issue regarding the denial of probation we find that our Criminal Code provides as follows:
"(a) A person who has been found guilty of any offense except a capital offense, the sale of narcotics or rape may be admitted to probation when it appears that
(1) The defendant is not likely to commit another offense;
(2) The public interest does not require that the defendant receive the penalty provided for the offense; and
(3) The rehabilitation of the defendant does not require that he receive the penalty provided for the offense * * *." Chap. 38, par. 117-1, Ill. Rev. Stat.
• 1-3 Examining these provisions we find it quite evident that the granting or denying of an application for probation rests within the discretion of the trial court. Therefore it is the trial court that has the burden of exercising its best judgment in determining whether or not the defendant is likely not to commit another offense, whether public interest does not require the incarceration of the defendant, and whether the rehabilitation of the defendant does not require the imposition of the penalty provided for the offense committed. The law is well settled in our state that the ruling of the trial court in the matter of denying probation will not be disturbed unless there has been a clear abuse of discretion. People v. Burdick, 117 Ill. App.2d 314, 254 N.E.2d 148; People v. Smice, 92 Ill. App.2d 83, 234 N.E.2d 47.
• 4, 5 In the case before us the defendant produced a long list of witnesses, some of whom were prominent members in his community and all of them testified in support of his motion for probation. It is the contention of the state that the testimony of these witnesses was not convincing, but assuming that it was we are still confronted with the question as to whether or not the trial court abused its discretion. We believe not, for the defendant pleaded guilty to the grave charge of armed robbery and the weapon used during the commission of this crime was a most lethal one, being a sawed-off shotgun. Also in the record is the defendant's statement that he was a participant in two other armed robberies and in one of them he was the bearer and wielder of the same dangerous weapon. We are cognizant of the fact that no one was harmed during the course of these crimes and it may well be that the defendant did not intend to "pull the trigger" if he met with resistance, but he nevertheless by his reckless and dangerous conduct exposed innocent people to grave bodily harm or possible death. It has been held to be within the discretion of the trial court to deny probation to a defendant who committed the crime of armed robbery even though the defendant had no prior felony conviction and voluntarily surrendered himself to the police after commission of the crime. (See People v. Bauswell, 120 Ill. App.2d 149, 256 N.E.2d 37.) It is not the prerogative of reviewing courts to substitute their judgment for the trial court, but instead the only question to be determined is whether or not the trial court's denial of probation was an abuse of discretion. As previously stated, we find no such abuse in the case before us.
The defendant next asks this court to utilize that power given to it by Supreme Court Rule 615(b)(14) and thereby reduce the maximum term of imprisonment imposed by the trial court. It is the defendant's contention that the sentence imposed is not commensurate with the offense charged and that further this court should consider his youthfulness, lack of criminal record, family responsibilities and employment opportunities.
In People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673, our Supreme Court stated:
"Reviewing court's authority to reduce sentences imposed by trial courts where circumstances warrant should be applied with considerable caution and circumspection, since trial judge ordinarily has superior opportunity in course of trial and hearing in aggravation and mitigation to make sound determination concerning punishment to be imposed than do appellate tribunals."
• 6 So while we are specifically granted authority to reduce sentences imposed by trial courts, we must exercise such power with caution and circumspection.
• 7 The record before us discloses that the trial court in imposing sentence specifically considered the youthfulness of the defendant but expressed the opinion that it was necessary for the defendant to rehabilitate himself and therefore the sentence of imprisonment would be not less than two nor more than six years. The two year minimum was in fact the minimum period of incarceration permitted to be imposed at the time the defendant was sentenced. The trial court in imposing the six year maximum sentence stated that it felt such a spread between the minimum and maximum was necessary in order for the defendant to demonstrate whether he could rehabilitate himself and thereby warrant an early parole.
We cannot question the wisdom of the ruling of the trial court for the sentence imposed is minimal for the crime of armed robbery. It is interesting to note that subsequent to the sentencing of the defendant our legislature has deemed it necessary to raise the minimum sentence in armed robbery cases from two to five years.
The American Bar Association Project on Minimum Standards for Criminal Justice urges the so-called three to one ratio sentence which in effect would provide that the maximum sentence imposed should be at least three times the minimum sentence so that the prison authorities and parole authorities shall have a greater opportunity to assist in a prisoner's rehabilitation.
The sentence imposed by the trial court in our opinion is not only minimal but it reflects properly the three to one ratio recommended by the American Bar Association Project on Minimum Standards for Criminal Justice. Under such circumstances we would not be warranted in reducing the sentence imposed by the trial court. Accordingly judgment is affirmed.
Judgment affirmed.
STOUDER and DIXON, JJ., concur.