concurring in part and dissenting in part:
I disagree with the majority’s decision to affirm defendant’s sentence. For the reasons that follow, I would reduce defendant’s sentence to 35 years’ imprisonment.
As the majority notes, our constitution requires that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, §11. Also as the majority notes, “[i]n 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” (Fern, 189 Ill. 2d at 53), and it may not reduce a defendant’s sentence unless the sentence constitutes an abuse of the trial court’s discretion (People v. Streit, 142 Ill. 2d 13, 19 (1991)).
The deference to be given a trial court’s sentencing decision is well illustrated by our supreme court’s decision in Streit. There, a defendant who had no prior criminal history, was gainfully employed, and showed remorse for her actions pled guilty to two counts of benefits fraud, which she had perpetrated in part to help make house payments and pay for clothes for her children. Streit, 142 Ill. 2d at 17. The State recommended that she be sentenced to 30 months’ probation. However, the trial court imposed a sentence of two years’ imprisonment. Streit, 142 Ill. 2d at 18. The appellate court reduced the sentence because, in its view, the trial court abused its discretion by “ignoring] compelling mitigating circumstances” and “reifying] on only one aggravating factor.” Streit, 142 Ill. 2d at 19. The supreme court reinstated the trial court’s sentence. In so doing, the supreme court offered no independent discussion of the factors in mitigation and aggravation, but instead simply observed that the trial court had considered several of each type of factor and that “it is the province of the trial court to balance these factors and make a reasoned decision as to the appropriate punishment in each case.” Streit, 142 Ill. 2d at 20-21. Thus, Streit implies very strongly that a sentencing decision must be upheld on review so long as the trial court considers factors in mitigation and aggravation, regardless of what relative weight the trial court places on those factors.
However, even though the supreme court has indicated that a reviewing court has virtually no oversight over a trial court’s weighing of the sentencing factors, it has also indicated that the trial court’s discretion in sentencing “is not without limitation.” People v. Stacey, 193 Ill. 2d 203, 209 (2000). As noted above, notwithstanding the discretion afforded the trial court in sentencing matters, a sentence within the statutory limits “will be deemed excessive and the result of an abuse of discretion by the trial court where the sentence is greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.” Stacey, 193 Ill. 2d at 210. Under those circumstances, a reviewing court is empowered under Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) to reduce the sentence imposed by the trial court, because Illinois courts “must adhere to our constitution’s mandate that penalties be determined according to the seriousness of the offense.” Stacey, 193 Ill. 2d at 210-11; see Ill. Const. 1970, art. I, §11 (sentences must be determined “both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship”).
In Stacey, the supreme court invoked the constitutional mandate to reduce a defendant’s excessive sentences. In reaching its holding, the court relied exclusively on “the nature of the crimes” to determine that the defendant’s sentences were unconstitutionally excessive, and it expressly stated that it was not reweighing “any aggravating or mitigating factors.” Stacey, 193 Ill. 2d at 210. The rule from Streit and Stacey, then, is that a reviewing court may not reduce a sentence based on the relative strength of the mitigating and aggravating sentencing factors but may reduce a sentence when, based on the nature of the crimes or the circumstances of the case, the sentence violates article I, section 11, of the Illinois Constitution. The question here becomes when a sentence within the statutory limits may be deemed so excessive as to trigger a reviewing court’s constitutional obligation to provide relief. Defendant directs us to several cases that provide guidance.
In People v. Steffens, 131 Ill. App. 3d 141 (1985), the defendant and the eventual murder victim “had a verbal altercation regarding the speed of [the] defendant’s car” outside the victim’s home. Steffens, 131 Ill. App. 3d at 142. After the altercation, the defendant drove away, and the victim entered his house. Steffens, 131 Ill. App. 3d at 142-43. However, the defendant later returned, and the victim and several members of his family went outside. Steffens, 131 Ill. App. 3d at 143. Though there was some conflict in the testimony, it generally showed that, after a short confrontation, the victim started to walk away from the defendant’s car and the defendant accelerated, swerved toward the victim, hit the victim, and dragged him under the car for an appreciable distance (the victim died as a result). See Steffens, 131 Ill. App. 3d at 143-45. The trial court imposed a 30-year sentence (the midpoint of the then-applicable 20- to 40-year range). Steffens, 131 Ill. App. 3d at 151. The appellate court reduced the sentence to 20 years. It reasoned as follows:
“In the present case, the offense was not a calculated murder. The confrontation between [the] defendant and the victim was initiated by the victim, and, even though [the] defendant returned to the scene apparently to cause some sort of trouble, the murder itself was the result of a sudden escalation of the encounter between [the] defendant and the victim’s family. We particularly note the short period of time which elapsed, and, taken in context, the offense did not approach [a premeditated attack].” Steffens, 131 Ill. App. 3d at 152.
The court also noted the defendant’s rehabilitative potential based on his youth (he was 16 at the time of the offense), his desire to continue his education, and his lack of a violent criminal history. Steffens, 131 Ill. App. 3d at 152-53.
In People v. Treadway, 138 Ill. App. 3d 899 (1985), the defendant was convicted of and sentenced for attempted murder, armed violence, and aggravated assault in connection with an incident in which he forced a female bar patron into a back alley, stabbed her repeatedly, and also slashed a man who came to her aid. The appellate court reduced the defendant’s two concurrent 60-year sentences to 30 years apiece, based primarily on the defendant’s rehabilitative potential. Treadway, 138 Ill. App. 3d at 905. The court noted that the defendant was only 24 years old, had suffered from a drug and alcohol problem since a young age but was taking steps to improve, had only a “minor” criminal history (the court did not further describe the defendant’s criminal history), had earned a high school diploma while awaiting trial, and was the father of a young child. Treadway, 138 Ill. App. 3d at 905. The court also briefly considered the nature of the offenses, which it concluded were “perpetrated in a fleeting moment of intoxicated rage upon a stranger.” Treadway, 138 Ill. App. 3d at 905.
In People v. Newell, 196 Ill. App. 3d 373 (1990), the defendant was with a group of people who chartered a limousine and murdered the driver. The defendant was sentenced to 60 years’ imprisonment, but the appellate court reduced the sentence to 30 years. The first expressed rationale the appellate court offered for reducing the sentence was that the nature and circumstances of the offense did not justify the penalty. The court summarized the point as follows:
“[I]n the instant case, [the] defendant was amongst a group of people involved in a shooting, another member of the group brought the gun used in the shooting, and [the] defendant has repeatedly stated that he did not know a member of the group carried a gun the day of the murder. Taken in its proper context, we believe the defendant’s actions do not compare to a calculated, premeditated murderer.” Newell, 196 Ill. App. 3d at 383.
The court also noted that the defendant’s age (he was 17 at the time of the offense) was an indicator of rehabilitative potential. Newell, 196 Ill. App. 3d at 383.
In People v. Nolan, 291 Ill. App. 3d 879 (1997), the defendant was convicted of second degree murder in connection with an incident in which he fatally shot a shopkeeper who suspected the defendant of shoplifting and aggressively approached him, yelled at him, grabbed his wrist, and may have tried to search his pockets. In reducing the defendant’s sentence from 30 years to 15, the appellate court reasoned as follows:
“As the defendant contends, the ‘factual matrix surrounding the shooting’ does not warrant a 30-year prison term. It is clear that [the shopkeeper] was the aggressor in the encounter ***. The evidence consistently showed that [the defendant] was attempting to back away from the encounter and extract himself from the situation. The shooting was not an act of plan or premeditation. Although [the defendant] was unable to prove [the shopkeeper] reached for the gun and the gun went off accidentally, this was a close case and [the defendant] carried his burden of proving mitigating factors that reduced the offense to second degree murder.” Nolan, 291 Ill. App. 3d at 887.
The court also briefly observed that the defendant’s two prior felony convictions did not indicate that he was “a dangerously aggressive criminal.” Nolan, 291 Ill. App. 3d at 887.
The nature and circumstances of defendant’s crime share many parallels with the above cases. Most significantly, the courts in Steffens, Newell, and Nolan specifically relied on the fact that the defendants’ actions were not premeditated, and the court in Treadway relied in part on the idea that the defendant’s actions were perpetrated in a “fleeting moment” of rage. Likewise here, though the evidence did not demonstrate facts sufficient to mitigate his crime to second degree murder, as the trial court noted, the evidence did not show that the act was premeditated in the sense that defendant conceived it before the brawl commenced. Nor was his act performed in cold blood — the testimony uniformly describes the escalating tensions among groups at the bonfire party. Like the defendant in Steffens, defendant here had suffered some provocation from either the victim or someone associated with the victim, even if that provocation was insufficient to provide legal justification for defendant’s actions. Further, like the defendant in Nolan and likely the defendant in Steffens, there was at least some threat of physical violence made toward defendant before he acted. While none of this serves to justify defendant’s actions, it does serve to distinguish his crime from those that warrant maximum or near-maximum sentences. Defendant’s 50-year sentence, which rests on the high end of the 20- to 60-year statutory range (see 730 ILCS 5/5 — 8—1(a)(1)(a) (West 2004)), is not commensurate with the circumstances; though all first degree murder cases are both tragic and reprehensible, I struggle to envision what factual scenario would justify a sentence lower than 50 years if this one does not.
In my view, the unique circumstances of this case compel the conclusion that the trial court’s imposition of a 50-year term of imprisonment violates the constitutional limitations on criminal sentencing, as defendant’s sentence is manifestly disproportionate to the nature of the offense. Pursuant to our power under Rule 615(b)(4), I would reduce defendant’s sentence from 50 years to 35.
In so stating, I briefly address some points raised by the majority. The majority very strongly argues that, even if defendant did not “premeditate” the murder here, he “made the choice to kill” before stabbing Flynn. 387 Ill. App. 3d at 979. Of course, I agree that defendant made the choice to kill or inflict serious harm — that conclusion is implicit, and required, in my agreement to affirm defendant’s conviction of first degree murder. My point is that the circumstances of this murder do not warrant the sentence imposed. Thus, the majority does not undercut my position when it makes several statements directed at the ideas that the circumstances here do not excuse defendant’s crime or that defendant acted with deliberate force. See 387 Ill. App. 3d at 978 (“both said they saw no weapon in Flynn’s hand, which makes it less likely that defendant pulled out the knife in response to a personal attack”); 387 Ill. App. 3d at 978 (“Defendant admitted he did not attempt to run away from Flynn instead of stabbing him”); 387 Ill. App. 3d at 979 (“defendant, at some point before he stabbed Flynn, made the choice to kill, and that thus his act, while spontaneous, was calculated”). In response, I repeat that, if I disagreed with any of these statements, I would not vote to affirm defendant’s conviction of first degree murder. The question I discuss above is whether the sentence imposed by the trial court was warranted; I would hold that it was not.
The majority also takes issue with the idea that defendant suffered some provocation, because, according to the majority, there was no credible evidence that there was any provocation “specifically directed at defendant.” 387 Ill. App. 3d at 978. However, the point that defendant suffered provocation is not that defendant confronted a direct threat (again, that would raise a serious question regarding whether we should affirm his first degree murder conviction), but that he was part of a group that became involved in an immediate and escalating, “in your face” confrontation with other partygoers, thus making this tragedy markedly different from, e.g., a drive-by shooting.
I understand that the majority considers a wider range of factors in affirming defendant’s sentence than I do in arguing that it should be reduced. I offer two explanations for my more narrow analysis. First, I confine my analysis to the constitutional limitation applied in Stacey, I do not engage in a review of the trial court’s overall sentencing determination based on all of the aggravating and mitigating factors the trial court was compelled to consider. My approach mirrors the approach taken in Stacey, where our supreme court held a sentence to be unconstitutionally excessive based solely on the nature of the offenses. See Stacey, 193 Ill. 2d at 210-11. Second, as noted above, our constitution provides two limitations on criminal sentencing: sentences must be determined “both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, §11. A sentence must succeed on both of these tests in order to pass constitutional muster. I would hold that the sentence here fails the first test, regardless of how it measures on the second test.4
Based on the above analysis, I would reduce defendant’s sentence to 35 years.
That said, I observe that there are indicia of defendant’s rehabilitative potential sufficient to refute any argument that defendant’s sentence, even if excessive in light of only the seriousness of the offense, was justified by his lack of rehabilitative potential. Here, just as in Steffens and Newell, defendant was very young at the time of the incident. Further, though defendant had a history of juvenile adjudications, I note that the only previous adjudication that could by its label be considered a result of violence, his aggravated battery adjudication, was aggravated not because it involved a weapon but because it took place on a public way. See 720 ILCS 5/12 — 4(b)(8) (West 2000). Additionally, like the defendant in Treadway, defendant is the father of a young child and had taken some positive steps (though, as the dissent notes, not all possible positive steps) in alcohol and drug treatment programs. Under applicable truth-in-sentencing laws, defendant is required to serve 100% of his sentence without any credit for good conduct. See 730 ILCS 5/3 — 6—3 (West 2004). Thus, if defendant’s 50-year sentence were to stand, defendant would be released at age 68, having spent almost three-fourths of his life in prison. Such a sentence does not advance the constitutional objective of returning offenders to useful citizenship.