dissenting:
I disagree with the majority’s conclusion that the trial court did not abuse its discretion in imposing a sentence of 5 to 20 years to run consecutive to the Jackson County sentence. The Williamson County trial judge committed a clear abuse of discretion in imposing a sentence based on assumptions not supported by the record and in charging defendant with the burden of showing why he should not receive the maximum allowable sentence. The tremendous disparity between the Jackson County sentence and the sentence imposed in this case presents a dramatic example of the potential for abuse and injustice inherent in vesting trial courts with virtually unbridled discretion over sentencing. Unfortunately, the majority fails to recognize the importance of effective appellate review of sentencing, and I believe its cursory review of the Williamson County sentence is an abrogation of this court’s duty to prevent arbitrary and oppressive treatment of offenders and to insure that criminal sanctions comport with constitutional and statutory mandates.
Supreme Court Rule 615(b) (4) vests reviewing courts with the power to reduce sentences imposed by trial courts, but it does not specify the appropriate standard of appellate review of sentencing. (58 Ill. 2d Rule 615(b)(4).) Illinois courts have consistently held that sentencing is within the sound discretion of the trial court and a sentence will not be disturbed upon review unless it represents an abuse of discretion. (People v. Perruquet, 68 Ill. 2d 149, 153; People v. Butler, 64 Ill. 2d 485, 490, 256 N.E.2d 350.) The usual justification offered for this standard of review is that the trial court is in a vastly superior position to evaluate the numerous and sometimes conflicting factors which must be considered in the determination of an appropriate sentence. (People v. Allen, 56 Ill. 2d 536, 309 N.E.2d 544.) The mere fact that the trial court has a superior opportunity to observe and evaluate the rehabilitative potential and dangerousness of a criminal offender, however, does not imply that the sentence imposed in a particular case is just and equitable. (People v. Harpole, 97 Ill. App. 2d 28, 239 N.E.2d 471; People v. Grigsby, 75 Ill. App. 2d 184, 220 N.E.2d 498.) The fact that sentencing decisions are within the discretion of the trial court may affect the nature and scope of appellate review, but it does not preclude meaningful review of sentencing any more than it has precluded review of a wide variety of other determinations which lie within the discretion of the trial court.
The authority of an appellate court to review and, under appropriate circumstances, reduce a sentence is necessary to insure compliance with constitutional and legislative mandates that sentencing be individualized, (People v. Bradford, 1 Ill. App. 3d 38, 272 N.E.2d 259.) Effective appellate review of sentencing is also essential to the development of clear policies and specific guidelines for the sentencing of particular classes of offenders. If the sentencing decisions of trial courts are not made subject to the self-correcting influence of effective appellate review, the potential for abuse inherent in the exercise of unchecked discretion will most certainly lead to arbitrary and unjust sentences. As one commentator has noted:
“The power of judges to sentence criminal defendants is one of the best examples of unstructured discretionary power that can and should be structured. The degree of disparity from one judge to another is widely regarded as a disgrace to the legal system.” K. Davis, Distretionary Justice 133 (1971).
While I agree with the majority that under Perruquet sentences should not be disturbed on appeal absent an abuse of discretion, I cannot accept an application of this principle of judicial restraint which in effect relieves this court of any obligation to scrutinize a trial court’s exercise of discretion.
The distinction between a proper exercise of judicial discretion and an abuse of discretion is, of course, difficult to define and must be determined within the context of a particular case. The Illinois Constitution and the Unified Code of Corrections establish a number of sentencing policies and guidelines which also provide the basis for an evaluation by a reviewing court of a sentencing court’s exercise of discretion. I believe the majority’s rather mechanical iteration of the principle of noninterference with sentencing decisions was erroneous and in complete disregard of the constitutional and statutory limits on the trial court’s exercise of discretion over sentencing.
Article I, section 11 of the Illinois Constitution establishes a policy regarding sentencing which embodies the dual objective of societal protection and rehabilitation:
“All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”
A trial court has a responsibility to impose a sentence which will adequately punish a convicted defendant, protect the public from future offenses, individualize the punishment to fit the particular offender and offense, and reform and rehabilitate the offender into a productive member of society. A sentencing court is thus charged with the difficult task of weighing and evaluating a variety of different and often conflicting considerations before passing sentence. The primary emphasis of the Illinois Constitution and the Illinois system of indeterminate sentencing, however, is on the rehabilitation of criminal offenders.
The General Assembly has also established a number of sentencing guidelines applicable to particular classes of offenders and offenses, some of which the trial court relied upon in this case. In imposing a minimum sentence which exceeded the statutory minimum by four years, the court was required to consider “the nature and circumstances of the offense and the history and character of the defendant.” (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c).) The trial court also ordered the sentence in this case to run consecutive to the Jackson County sentence, a determination which required the court to conclude that a consecutive term was required to protect the public from further criminal conduct. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4(b).) Finally, since this case involved an unlawful delivery of a controlled substance, the trial court also had the benefit of the sentencing guidelines provided in the statute relating to sentencing for drug offenses. Ill. Rev. Stat. 1973, ch. 56M, par. 1411.
Upon consideration of these various factors, the trial judge imposed a sentence of 5 years to 20 years, which was based on the judge’s conclusion that Randy Garrett was a danger to the public and that lengthy incarceration would provide the best correctional treatment. As the majority notes, however, the real basis for the 5- to 20-year sentence was the trial judge’s determination that defendant was a pusher of illicit and highly toxic drugs and therefore presented a serious danger to society. In passing sentence the trial judge commented on the toxicity of heroin and noted that one of the factors to be considered in sentencing a person convicted of a nonpossessory drug offense is how the offender provided for his support at the time of the offense:
“Of course, heroin is a schedule one drug and is highly toxic, and this is the fourth time for selling it during a two-month period. Of course, it points out non-possessory offenses by a person who has no other visible means of support, and there is nothing in the record here to show that the defendant is working at any other job, and I presume that what the legislature is aiming at there is that this man is making a living selling drugs, and this court thinks the minimum should be raised.”
The majority endorses this assessment of defendant’s involvement in drug trafficking, apparently believing that the fact that defendant was unemployed at the time of the offense conclusively established that he was making a living from the sale of drugs. This conclusion is not supported by the record and is, in fact, directly contrary to the record. The trial court’s 5- to 20-year sentence was based on the same presentence report used by the Jackson County court in imposing a 15-month to 4-year sentence for virtually the same offense. The presentence report concluded that defendant “has no visible means of support at this time, other than living with his mother and father; however, he does play music with bands occasionally.” The record clearly shows that the defendant was being supported by his parents and had occasional part-time employment. The trial court’s and the majority’s assumption that defendant was engaged in drug trafficking in order to support himself is directly contrary to the record and in effect penalizes defendant for being unemployed, a result which the legislature clearly did not intend and which is repugnant to the ideals underlying our system of criminal justice.
It is apparent that the trial court viewed Randy .Garrett’s sale of one-third of a gram of heroin as an extremely serious offense. After noting that Garrett made four illegal sales of the drug within a two-month period, the trial judge stated:
“My theory is that when an individual is convicted of so many crimes, heinous crimes against society as heroin, that the burden should be shifted from the public to the defendant. He should be the one who has the burden of showing society that he should be returned and released back into society. Society should not have to continue to protect itself and allow persons that sell drugs on the streets.”
The majority has approved the trial court’s characterization of this offense as a heinous crime against society, noting that heroin is a highly toxic Schedule I drug. The General Assembly, however, has classified delivery of less than 30 grams of heroin as a Class II felony, presumably based on a determination that the sale of heroin in an amount less than 30 grams does not present a serious enough threat to society to justify the severe punishments which may be imposed for the commission of a Class I felony. The majority fails to recognize that the severity of a particular drug offense and the appropriate sentence for that offense is governed by the sentencing provisions of the Uniform Code of Corrections and not by the legislative classification of heroin as a highly toxic substance. While I must agree that the sale and delivery of any amount of heroin is a serious offense, I cannot accept the majority’s conclusion that the delivery of approximately one-third of 1 gram of heroin to two police agents who solicited the defendant’s participation in the sale is so heinous a crime as to require the lengthy term of incarceration imposed in this case.
The presentence report also notes that defendant previously had a dependency for drugs and had two prior drug related arrests, both for possession of marijuana. Defendant’s only other drug offenses were the four sales of very small amounts of heroin to the same two undercover agents within a period of two months. Defendant stated that he did not receive any money from these sales but gave the proceeds to the supplier of the heroin. This is hardly the record of a major drug pusher and does not, in my opinion, justify the severe sentence imposed by the trial court. Defendant’s drug trafficking in this case was initiated by and conducted solely with undercover police agents. I would point out to the majority that the newly enacted sentencing statute requires a trial judge to consider as a factor in mitigation the fact that criminal conduct was induced or facilitated by someone other than the defendant. Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 6—3.1(5).
The trial court completely disregarded the rehabilitative potential of the defendant. (See People v. Perruquet, 68 Ill. 2d 149, 155, 368 N.E.2d 882.) Randy Garrett testified that he was no longer involved in drug trafficking and was planning to go back to school in the near future. The chief of police of Garrett’s home town confirmed that he had been an informant for the police and had, in fact, been instrumental in providing information which led to several drug arrests. Yet the trial court disregarded these mitigating factors and concluded that the burden was on the defendant to establish his rehabilitative potential. Although a criminal offender may offer evidence in mitigation in a sentencing proceeding, the offender is not required to meet a particular burden of proof or overcome a presumption in favor of incarceration for the maximum allowable term. It was an abuse of discretion for the trial court to impose such a burden of defendant. It is the duty of the trial court to weigh all the evidence presented and to seriously consider an offender’s potential for rehabilitation as well as his danger to society. I believe the record clearly shows that the trial court did not properly discharge its duty to base its sentencing decision on relevant evidence in the record and abused its discretion in imposing a 5- to 20-year consecutive sentence.
The sale of heroin involved here was the last of four sales by defendant which took place within a period of approximately five weeks. The first three sales were made in Carbondale and the last took place 8 miles away in Cambria. Unfortunately for defendant, the last sale was made in a different county than the first three. As defendant notes in his brief on appeal, “[ijronically, this difference has possibly cost defendant 20 years.” Whether the result of unfortunate circumstance or design, the actual effect of defendant’s arrest in Williamson County was a dramatic increase in the length of his incarceration for virtually the same course of conduct for which he was sentenced in Jackson County. Such grossly disparate sentencing practices as those exhibited in this case encourage a selective enforcement of the Criminal Code in order to take advantage of the prejudices and idiosyncracies of particular trial judges. As defendant has noted in his brief:
“The offense had been complete and defendant could have been charged at the time of the very first sale, but M.E.G. waited until he had made a sale in a second county several weeks later. Conceivably, they could have waited until he had a string of ten sales in several counties. Such a situation can lead to unbridled discretion in agencies such as M.E.G., unless courts and prosecutors use their discretionary powers to prevent abuse.”
I would remand the cause for the imposition of a lawful sentence.