¶1concurring in part and dissenting in part.
¶2I concur with my colleagues that it would have been preferred procedure for the trial court to grant a preliminary hearing to determine the admissibility of the in-court identification testimony. However, upon this record, this refusal cannot be said to constitute reversible error.
¶3The majority conclude that the sentence imposed was not related to the recommendation of the prosecutor. I am not so persuaded. The record is susceptible to an interpretation that an enhanced penalty was recommended because the defendant elected to stand trial. If such a recommendation does, in fact, result in an enhanced penalty because a defendant elects to stand trial, such is not permissible. (People v. Moriarty (1962), 25 Ill.2d 565, 185 N.E.2d 688.) In People v. Scott (4th Dist. 1969), 117 Ill.App.2d 344, 253 N.E.2d 553, we quoted with approval language to the effect that one charged with a criminal offense is absolutely entitled to have a jury determine his guilt or innocence and that the exercise of the right should not result in an enhanced penalty. This record presents this issue.
¶4A hearing in aggravation and mitigation was held on August 6, 1969. At that hearing, in response to the trial court’s inquiry as to whether counsel had a “statement” to make with reference to sentencing, the prosecutor discussed the offense and the defendant’s prior record, consisting of criminal trespass to a motor vehicle and a Dyer Act violation, and concluded with a specific recommendation of a sentence of from fifteen to twenty-five years.
¶5Defense counsel characterized this recommendation as “vindictive” and “ridiculous”. He expressed the opinion that the minimum sentence should be two years but made no specific recommendation as to the maximum. The court thereupon sentenced the defendant to a term of not less than ten nor more than twenty years. A notice of appeal was filed August 8, 1969, by the clerk of the circuit court. On September 4, 1969, a motion was filed by the defendant to reconsider the sentence.
¶6That motion asserted the disparity of this sentence when compared to other sentences for the same offense after plea negotiation. Affidavits of defense counsel in two cases were attached indicating that the recommended sentence by the same prosecutor prior to and on the trial date would have been a ten to twenty-year sentence, whereas, upon a negotiated plea, a sentence of three to eleven years was imposed.
¶7The motion to reconsider further asserted that the prosecutor had offered to recommend a sentence in this case of not less than three nor more than ten years upon a plea of guilty. That assertion in the motion was supported by affidavit of defendant’s trial counsel. The motion asserted that the recommendation made after trial was because the defendant elected to stand trial.
¶8Sentencing, at best, is a difficult assignment for the trial court. In his quest for an appropriate sentence he should have the fullest possible information. The American Bar Association Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1968), in section 5.3, suggests:
“(c) Unless asked by the sentencing court, or unless the product of plea discussions or agreement, the prosecutor ordinarily should not make any specific recommendations as to the appropriate sentence.”
¶9The motion to reconsider the sentence presented to the trial court for its determination the question of the excessiveness of this sentence. The trial court did not act upon the motion. While the sentence was imposed on August 6, 1969, and a notice of appeal was filed on August 8, 1969, and the motion to reconsider was filed on September 4, 1969, another notice of appeal is found in the record and it is indicated to have been filed on September 9, 1969.
¶10In People v. Myers (1970), 44 Ill.2d 327, 255 N.E.2d 392, upon a post-conviction appeal, the Supreme Court considered the question of a different recommendation upon a plea of guilty as compared to a trial, and stated that the fact that the State’s Attorney might have indicated he would recommend a shorter sentence if the defendant would plead guilty did not amount to a per se denial of due process.
¶11This record indicates that there is an undisposed of motion to reconsider the sentence. The record, as it stands, further indicates a willingness by the prosecution to recommend a sentence of three to ten years upon a plea of guilty. The record shows a recommendation by the same prosecutor of not less than fifteen years as a minimum and twenty-five years as a maximum upon the conclusion of a jury trial. As I view it, the trial court had jurisdiction to reconsider this sentence and the same should have been reconsidered and the motion disposed of in the trial court. Such procedure would then make the record clear as to whether the trial court reached a judgment as to sentence independent of that recommended by the prosecution.