concurring in part and dissenting in part:
While I agree with my colleagues that this conviction should be affirmed, I do not agree with the conclusions reached with reference to sentencing.
The defendant and one Geary and a girl (a juvenile) were involved in this offense. The evidence as to the offense indicated that the defendant was driving Geary’s car but the gun was owned and handled by Geary in the course of the robbery. Geary and the defendant were each charged with armed robbery. No charges were filed against the girl. She was released to family and juvenile authorities. Ultimately Geary pleaded guilty and his petition for probation was pending at the time of his testimony in the trial of Curl. Upon Curl’s plea of not guilty, the jury found Curl guilty and his request for probation was denied. Curl was apparently incarcerated for some months, whereas Geary appears to have been released upon bond.
There are remarkable similarities in the background of these two defendants. Curl was 20, had been in military service, received an honorable but hardship discharge. He contributed to the support of a crippled younger sister and lived with the sister. His only involvement with the law was a disorderly conduct charge, and the record indicates that this was not a reduction from a more serious offense. The Geary record is here by stipulation. It shows him to be only one year older than Curl and that he has a speech defect. He lives alone and contributes to the support of a sister and her infant daughter. He, too, has a prior disorderly conduct conviction and another charge — that of illegal possession of liquor — pending but apparently not to be prosecuted. While the trial judge indicated a reluctance to place Geary on probation, he ultimately did so and then denied the request of the State’s Attorney that probation be coupled with a period of incarceration at the Illinois State Farm as a condition of probation. Thus, Geary, upon a plea of guilty, was given probation for a term of three years.
Curl, whose conduct was perhaps less culpable than Geary’s — and certainly no more so — received a penitentiary sentence of not less than three nor more than ten years. The only discernible difference between these two defendants, from the record as to both, is that Geary pleaded guilty and Curl pleaded not guilty and demanded trial. The majority rely upon People v. Darrah, 33 Ill.2d 175, 210 N.E.2d 478, cert. denied, 383 U.S. 919, 86 S.Ct. 917, 15 L.Ed.2d 674, reh. denied, 383 U.S. 963, 86 S.Ct. 1229, 16 L.Ed.2d 306 (1966), as authority for the proposition that acknowledgment of guilt is evidence of a step toward rehabilitation, and thus apparent justification for what I consider disparity in sentencing. I do not understand Darrah to so hold. Mr. Justice Schaefer, in Darrah, discusses negotiated pleas and the undesirability of a rule that would prohibit any differentiation between a sentence imposed after a plea of guilty and one imposed after trial. Indeed, in the course of the opinion, it is stated that:
“* * * a great disparity between the sentence to be imposed upon a plea of guilty and that to be imposed after a trial, combined with other circumstances unrelated to guilt or innocence, may cause innocent persons to plead guilty. * * *” People v. Darrah, 33 Ill.2d 175, 180—181 (210 N.E.2d 478, 481), cert. denied, 383 U.S. 919, 86 S.Ct. 917, 15 L.Ed.2d 674, reh. denied, 383 U.S. 963, 86 S.Ct. 1229, 16 L.Ed.2d 306 (1966).
Some difference in sentencing, under the circumstances found here, may be permissible. The difference here found, as I view it, is not permissible. There is no basis either in the records of the individuals sentenced nor in the nature of the participation of such individuals in the crime that warrants such disparity. (See People v. Steg (3rd Dist. 1966), 69 Ill.App.2d 188, 215 N.E.2d 854.) The court in Steg does acknowledge that lesser sentences are approved where an individual aids in disposition of a case through cooperation with the prosecution.
I do not suggest that the denial of probation to Curl was error. I do suggest that this court is warranted in reducing the minimum sentence of three years to the statutory minimum of two years. Such would be an appropriate use of the power of the Appellate Court to reduce sentence, and indeed such action is specifically approved by the State’s Attorney. He stated: “* * * the People would have no objection to reduction of the minimum portion of the sentence to two years, * *
The American Bar Association Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1968), p. 1, makes this observation:
“The consequences of a sentence are of the highest order. If too short or of the wrong type, it can deprive the law of its effectiveness and result in the premature release of a dangerous criminal. If too severe or improperly conceived, it can reinforce the criminal tendencies of the defendant and lead to a new offense by one who otherwise might not have offended so seriously again."
See also People v. Buell (2nd Dist. 1970), 120 Ill.App.2d 367, 256 N.E.2d 845.
“Judicature”, The Journal of The American Judicature Society, devotes an entire issue to the question of sentencing. An editorial prelude to the articles makes this observation:
“Law enforcement, judicial administration, and corrections are inseparable parts of a seamless whole. The sentence is the end product of the judicial part of the process, and it is remarkable that so much attention has been given, for example, to subtle niceties in regard to the admission of evidence, while sentencing decisions affecting years of a mans life, and largely determining whether or not he ever will be a productive member of society again, have all too often been left to hunch or chance.” Judicature, Vol. 53, No. 2 (Aug.-Sept. 1969), p. 51.
It is ironical that one of the articles suggests that Appellate review is a means of ensuring rational sentencing and the need for such review is based upon an unquestioned showing of sentencing disparity. Appellate review, in Illinois, cannot eliminate disparity if, upon review, this court and other divisions of the Appellate Court condone sentencing such as is here indicated.
I do not understand the admonition in People v. Taylor (1965), 33 Ill.2d 417, 211 N.E.2d 673, and the many cases thereunder, that reviewing courts should use the authority to reduce sentences with such caution and circumspection as to approve sentences that are undebatably disparate. It is disturbing to me that this court refuses to correct what I consider to be a clearly disparate sentence. Such refusal is even more difficult to understand in view of the affirmative statement by the prosecution that there was no objection to such action. Appellate review in Illinois may become an illusion as suggested by Halperin, Appellate Review of Sentence in Illinois — Reality or Illusion?, 55 Ill. B.J. 300 (1966). See also Rubin, The Law of Criminal Correction 148 (1963).