concurring and dissenting.
I concur in the affirmance of the conviction but dissent as to the remand with instructions to vacate the order for consecutive sentences.
Obviously the sentencing judge has erred, either in his conclusion that there were no aggravating circumstances or in his order that the sentences be served consecutively. We have no basis for deciding in which respect he erred, and I see no basis for our speculating as to which it was, when by a simple remand the judge can have the opportunity to correct his error.
To me there is an obvious basis for ordering the sentences to be served consecutively, although I recognize and respect the sentencing judge’s prerogative to order them served concurrently, if in his judgment that be appropriate. The majority opinion ignores Rule 1 of our rules for appellate review of sentences which authorize revision only “where such sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender.” There is nothing manifestly unreasonable about the sentencing judge’s order. Rather, it simply is not supported by his statement of findings.
Neither should we overlook that statutory provisions requiring the sentencing judge to state the aggravating and mitigating circumstances are facially applicable only when enhancing or reducing sentences beyond or below the basic period. It is only by virtue of our decisions that the requirement has been made a prerequisite also to the ordering of sentences to run consecutively.
A very reasonable supposition is that the sentencing judge did not see aggravating circumstances within any one of the rape incidences standing alone and hence saw no basis for enhancing any one or more of the sentences but, nevertheless, regarded the defendant’s repetitive pattern of violent rapes and robberies as a sufficient basis for imposing consecutive sentences and was unfamiliar with our decisions extending the scope of the statute to multiple sentencing questions.
I do not think that we should, by a flip of the coin, decide that this defendant should serve thirty rather than ninety years. By a simple remand we can position the judge, who has every faculty and facility for correcting his error by conscientious review and logic, to do so. The result reached by the majority is diametrically opposed to the public policy behind our sentencing statutes and our Rules For Appellate Review of Sentences. I dissent.