dissenting.
I do not agree with the decision of my colleagues in this case. Steg and Bravo, the appellants herein, are not claiming that they are innocent of the charge of armed robbery, but rather that the five to twenty year sentences imposed on them should be reduced because (1) these sentences were excessive in view of their prior records and ages, and (2) these sentences were excessive in view of the sentence imposed on Jimmy Witt, their partner in this crime.
Each of the three defendants entered a plea of guilty, but only Steg and Bravo petitioned the court for probation. Witt, after his plea, did not offer evidence in mitigation, nor did the state offer evidence of aggravation. The record, therefore, is silent as to Witt’s character, previous criminal record, employment, education, and ability, and disclosed only that Witt was twenty-five years of age, and was sentenced to a term of not less than two nor more than ten years in the Illinois State Penitentiary, which sentence was to run consecutively with the sentence of the District Court in the State of Iowa. The record further discloses that Witt was remanded by the Illinois trial court to the sheriff of Scott County, Iowa, but does not disclose the nature of the charges against him in Iowa, or the final disposition of these charges.
The record and report of proceeding of the probation hearing of Steg and Bravo includes the probation officer’s report, Steg and Bravo’s testimony, and the testimony of Walter and Alice Seefeldt, the victims of the armed robbery. It is clear from this evidence that Witt conceived the plan to rob the Seefeldts, but that Steg and Bravo willingly acquiesced and fully cooperated in the execution of this heinous crime.
The majority opinion states that the sentences imposed on Steg and Bravo are not excessive in view of the nature of the crime, and “that if all three of the defendants had been sentenced to a term of not less than five years nor more than twenty years, such sentence would not be excessive in any respect and this court would not disturb the sentence on appeal.” The majority apparently conclude that the trial judge sentencing Steg and Bravo abused his discretion by “arbitrarily” imposing a greater sentence on them than was imposed by another trial judge on Witt, and that therefore the sentences of Steg and Bravo “be reduced to conform with the sentence imposed upon . . . Witt.”
What the majority opinion advocates is that equal protection of the law requires uniform sentencing of co-partners in crime. With this concept I cannot agree. Equal protection of the law, in my opinion, means that each defendant in a criminal case shall be afforded the same constitutional and statutory rights and guarantees. It does not mean uniform justice in the sense that all trial judges, when dealing with codefendants, or defendants in substantially similar cases, must reach the same conclusions regarding the sanction to be imposed. Each trial judge is free to make his own independent determination of the sentence to be imposed, and this determination should not be disturbed on review unless the sentence is clearly excessive in light of the crime committed. People v. Hobbs, 56 Ill App2d 93, 205 NE2d 503.
The record before us does not indicate what factors were or might have been considered by the trial judge who sentenced Witt, and there is nothing in the record to indicate that the trial judge sentencing Steg and Bravo was aware of what factors were considered by the first judge in sentencing Witt. The remark of the judge who sentenced Steg and Bravo, to which reference is made in the majority opinion, merely indicates that he concluded that the gravity of the offense warranted a greater penalty than was imposed on Witt. These remarks, however, do not constitute an adjudication that all things concerning the three participants were equal, nor is it evident from these remarks that the judge sentencing Steg and Bravo was any more aware of what factors influenced the sentencing of Witt than are we. The majority of this court, however, without a record sufficient to indicate whether the differences in the sentences is arbitrary, has decided that the sentences imposed on Steg and Bravo are arbitrary merely because they differ from the sentence imposed on Witt. Thus, under the majority theory, when different judges are required to sentence different participants in a crime, the judgment of the first becomes binding on the second, and the second judge may no longer freely exercise his discretion, but must review the record and sentence of an earlier participant by a different judge, rather than make his own determination based on the nature of the crime, and the character and circumstances of the participant before him for sentencing.
The results which the majority opinion hopes to effect are ones which are properly the function of the Parole Board, and not the function of the courts. The guarantee of equal protection of the law has never been construed to require that courts impose the same sentences on joint defendants or joint participants in a crime. Leniency in one case does not transform reasonable punishment in another case to an excessive sentence. Howard v. Fleming, 191 US 126, 24 Sup Ct 49, 48 L Ed 121. The power of Illinois courts of review (Ill Rev Stats c 38, § 121-9 (b) (4)) to reduce sentences should be used with caution, and not for the purpose of granting judicial clemency, or because the reviewing court would have imposed a different sentence if sitting as the trial court. People v. Valentine, 60 Ill App2d 339, 208 NE2d 595; People v. Johnson, 68 Ill App2d 275, 215 NE2d 144.