“A sentence which falls within the statutory range is not an abuse of discretion unless it is manifestly disproportionate to the nature of the offense.”
How later courts described this case
- “A sentence which falls within the statutory range is not an abuse of discretion unless it is manifestly disproportionate to the nature of the offense.”
- McDade, J., specially concurring, and Wright, J., concurring in part and dissenting in part
- contending reviewing court “should require proper judicial balancing that is apparent from the record”
- “[T]his state’s constitution requires the balancing of retribution and rehabilitation. This is not something we should presume on review or base on clairvoyance. We should require proper judicial balancing that is apparent from the record.”
Written by the judges who cited it.
The opinion
JUSTICE McDADE, specially concurring:
It is the decision in this appeal that defendant’s terms of incarceration be affirmed, that two of the three mandatory drug assessment fees be vacated, and that the matter be remanded for a new judgment order reflecting the change. I concur with that decision.
I share the dissent’s dismay at the appearance of entrapment which surrounds defendant’s apparently unprecedented commission of drug offenses and also at seeing a 21-year-old young man sentenced to 20 years in prison. The entrapment argument was rejected by the jury, and while any or all of us might have weighed the evidence on the issue quite differently, there is no discernible basis in the record for finding that no reasonable finder of fact could have agreed with the jury’s assessment of the evidence. Indeed, defendant has not directly asked us to make that determination.
On appeal, defendant argues that his significant rehabilitative potential was essentially ignored by the trial court in sentencing him to such a lengthy period of servitude. Unfortunately, defendant’s persistent juvenile criminal activities despite the opportunities afforded him to avoid prison time and to make better life decisions did not provide compelling support for this argument. I cannot say that the trial court abused its discretion in imposing sentences that, while long, are well within the appropriate sentencing ranges. Hence my concurrence.
I write specially to address the issue of the trial court’s abbreviated discussion of the factors it considered in aggravation and mitigation in arriving at the sentences it imposed. Our opinion correctly states that there is no mandatory requirement that the trial judge recite all of the statutory factors before imposing sentence. People v. McDonald, 322 Ill. App. 3d 244, 251 , 749 N.E.2d 1066, 1072 (2001). My concern is with and my challenge is to the generally accepted “presumption” that the trial judge considered all of the factors “unless the record indicates to the contrary.” McDonald, 322 Ill. App. 3d at 251 , 749 N.E.2d at 1072 ; 375 Ill. App. 3d at 802. Not infrequently we are asked to review cases in which it is quite clear that the trial court did not, in fact, know the law and consequently did not follow it in arriving at the challenged decision. (Indeed, the trial court in the instant case was apparently unaware that it was prohibited from imposing three separate drug assessments.) In the sentencing situation, we are not only asked to presume that the trial judge has considered the factors in aggravation and mitigation but also, necessarily, that he or she was aware of the relevant factors. The report of the presentence investigation report, which the trial court mentioned having considered, is singularly unhelpful in addressing the factors, particularly those in mitigation.
The only way that a reviewing court can find with relative security that the trial court appropriately and thoroughly considered the factors in mitigation and aggravation and did not abuse its discretion is if the court affirmatively demonstrates that consideration by specific articulation in the record.
I believe this was the concern of the legislature when it enacted the sentencing statute, providing:
“In imposing a sentence for a felony *** the trial judge shall specify on the record the particular evidence, information, factors in mitigation and aggravation or other reasons that led to his sentencing determination.” Ill. Rev. Stat. 1983, ch. 38, par. 1005— 4 — 1(c).
Unfortunately, in 1984, the legislature elected to limit this obligation to articulate to “violent” crimes rather than to felonies, as had previously been the case. Pub. Act 83 — 1499, eff. December 27, 1984; 730 ILCS 5/5 — 4—1(c) (West 2006). There is no longer a requirement that the sentencing court articulate its recognition and balancing of the factors in aggravation and mitigation in drug crimes. Instead, the court is only obligated to perform the generic functions of considering and balancing evidence and information offered by the parties in aggravation and mitigation. 730 ILCS 5/5 — 4—1(a)(4) (West 2006). I believe such specific articulation on the record should be required. It does not seem to me to be an unduly onerous obligation when depriving persons of their liberty. Any additional time needed to complete this exercise would be minor in comparison to any sentence.