¶1dissenting:
¶2The sole issue here is whether under the circumstances of this case, the trial court arbitrarily denied the defendant probation. The law requires that sentence be imposed based upon consideration of the nature and circumstances of the offense and the history, character and condition of the offender. Ill. Rev. Stat. 1981, ch. 38, par. 1005— 6-1(1).
¶3The majority has quoted comments made by the judge before he sentenced the defendant. These comments demonstrate that the judge was considering the age and health of the defendant as well as the nature and circumstances of the offense. Indeed, the majority candidly admits that based solely on these comments, it cannot be said that the trial judge arbitrarily denied the defendant probation. But instead of confining their consideration to the record in this case, the majority reaches out to two other cases in which the same judge demonstrated a general unwillingness to impose a sentence of probation in homicide cases. They are People v. West (1982), 106 Ill. App. 3d 1161 (Rule 23 order), and People v. Caroline Scott (Kankakee County, No. 79—LF—270). Those cases are not only irrelevant, they do not stand for the proposition claimed. In People v. Caroline Scott, probation was, in fact, imposed. Regardless of what this judge may have said or done in other proceedings, however, the record in the case before us demonstrates a reasonable exercise of discretion.
¶4The court found that the 73-year-old defendant killed another man by shooting him with a shotgun at point blank range. In the judge’s mind, such conduct warranted a prison term rather than probation. Relying on these facts, the judge felt that he could not impose a sentence of probation solely because of the defendant’s age and health.
¶5With regard to this particular defendant, the record before us provides ample support for a five-year sentence. To conclude that the sentence was arbitrary based on consideration of comments made by this judge in unrelated cases 'is beyond the proper scope of review. Moreover, the ruling is pernicious to the administration of justice. It results in a judicial defrocking of Judge Michela. Its import is that Judge Michela may, in the future, sentence homicide defendants to probation but not to prison. This is an unwarranted boon to such defendants, an improper restraint on Judge Michela and an affront to the public and the administration of justice. Therefore, I respectfully dissent.