dissenting:
There are two aspects of this case that compel this dissent. I agree with the majority opinion generally as to its disposition in all matters except the approval of the consecutive sentence and the approval of the use of a prior conviction which was pending on appeal for purposes of impeaching the defendant. The reasons for my views on the latter point are set forth in the dissenting opinion in People v. Spears, 83 Ill App2d 18, 27-31, 226 NE2d 67, 72-73 (4th Dist 1967).1
Section 1-7 (m) of chapter 38, Ill Rev Stats 1967, authorizes the sentencing court to impose concurrent or consecutive sentences for offenses not arising out of the same conduct. It has long been held that in the absence of a specific determination by the sentencing judge, multiple sentences were to be served concurrently. See People ex rel. Clancy v. Graydon, 329 Ill 398, 160 NE 748 (1928); People v. Kamrowski, 412 Ill 383, 107 NE2d 725 (1952). It seems clear from the statutory scheme of sentencing which provides for indeterminate sentences to be imposed by the trial judge and, for the first time in Illinois, appellate review of sentences, that while a sentencing judge is authorized to impose consecutive sentences, the act of so doing must find substantial basis in the record and must be done in the exercise of judicial discretion. No finding is made in this record sufficient to warrant consecutive sentence.
The consequence of the consecutive sentence is that the defendant must first serve the five to fifteen-year sentence and at the conclusion of that sentence he then must serve the five to ten-year sentence. It cannot be determined with certainty the time to be served, but it seems fitting to examine the possible consequences of the consecutive sentence with reference to the legislative framework for sentencing and enlightened penology.
The legislature has said it is the general purpose of the criminal law that sentences be imposed so as to provide penalties that are proportionate to the offense and which permit of recognition of differences in rehabilitation and to prevent arbitrary or oppressive treatment of persons convicted of offenses. (Ill Rev Stats 1967, c 38, § 1-2(c), (d).) Many factors must be considered in the imposition of a sentence. The ultimate objective of a sentence must involve punishment, isolation from society, rehabilitation, deterrence, consideration of the law violated, its immediate and long-range purposes, public attitudes toward the law, as well as all factors personal to the individual offender including his age, mental and physical health, education, occupational capabilities and previous good or bad conduct. (See Boldt, Recent Trends in Criminal Sentencing, Fed Prob, March 1963, p 3.)
A sentencing judge has a difficult and unenviable task. The imposition of a sentence necessarily involves prediction of human behavior. Professionals in the behavioral sciences are imperfect in their predictions after studied evaluation of offenders. A sentencing judge, without the benefit of the studies of the professionals, must, nonetheless, by his sentence, make a prediction. Indeterminate sentencing is provided and is designed to minimize the necessity for such prediction. Few could disagree with the observation of Dr. Karl Menninger that no man can tell in advance how long it will take to effect a change in a human being. (Address by Karl Menninger, M.D., Community Attitudes vis-a-vis the Offender, ABA, Proceedings of Section on Criminal Law 84 (1958).) The indeterminate sentence is designed to keep a defendant incarcerated until such time as his release is thought not to be a threat to the public safety. It is also designed to permit of release at the time of optimum rehabilitation.
This defendant is eligible for parole on the first sentence after the expiration of three years and nine months. Parole to the outside community is impossible by reason of the consecutive sentence. If he is held to do the maximum on the first sentence, without parole, he must serve ten years — then he would start service on the consecutive sentence and would be eligible for parole on that sentence after the total expiration of thirteen years and nine months. Such a period of incarceration is in excess of the statutory period of twenty years less good time or eleven years and three months for all offenses. (Ill Rev Stats 1967, c 38, § 123-2(a) (3).) The offense here involved is subject to an indeterminate sentence with a minimum of not less than two years. (Ill Rev Stats 1967, c 38, § 18-2 (b).)
The Tentative Draft (December 1967) by the Committee of the American Bar Association on Mmimnm Standards for Criminal Justice, in the area of Sentencing Alternatives and Procedures, after its study, concluded that consecutive sentences are “rarely appropriate.” The commentary on its recommendations for action in this regard is convincing.
There being no basis in this record for a consecutive sentence, the same should be vacated and remanded for further proceedings, or this court, under the authority-granted by Supreme Court Rule 615, should modify the sentence by deleting the requirement that it run consecutively.
In People v. Barney, 89 Ill App2d 180, 232 NE2d 481 (1st Dist 1967), the court approved the use of a prior conviction on appeal that was ultimately reversed for purposes of impeachment, but held that sentencing the defendant as a subsequent offender by reason of the prior conviction entitled the defendant to re-sentencing. In the instant case, the conviction on appeal that was used for impeachment was ultimately affirmed (38 Ill2d 607, 232 NE2d 684 (1968)).