{ "id": 3345827, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS BLUMSTENGEL, Defendant-Appellant", "name_abbreviation": "People v. Blumstengel", "decision_date": "1978-07-13", "docket_number": "No. 77-116", "first_page": "1016", "last_page": "1022", "citations": [ { "type": "official", "cite": "61 Ill. App. 3d 1016" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "251 N.E.2d 202", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill. 2d 124", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2842982 ], "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/43/0124-01" ] }, { "cite": "270 N.E.2d 102", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. App. 2d 558", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2534291, 2537022 ], "pin_cites": [ { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/132/0558-01", "/ill-app-2d/132/0558-02" ] }, { "cite": "245 N.E.2d 7", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. App. 2d 250", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1598173 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/106/0250-01" ] }, { "cite": "248 N.E.2d 137", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill. App. 2d 412", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1595858 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/108/0412-01" ] }, { "cite": "220 N.E.2d 498", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. App. 2d 184", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2578409 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/75/0184-01" ] }, { "cite": "239 N.E.2d 471", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "97 Ill. App. 2d 28", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2477376 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/97/0028-01" ] }, { "cite": "309 N.E.2d 544", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405478 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0536-01" ] }, { "cite": "356 N.E.2d 330", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. 2d 485", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5430641 ], "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0485-01" ] }, { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "opinion_index": 1, "case_paths": [ "/ill-2d/68/0149-01" ] } ], "analysis": { "cardinality": 817, "char_count": 15876, "ocr_confidence": 0.816, "pagerank": { "raw": 6.22383782585142e-08, "percentile": 0.38505893586846185 }, "sha256": "09493e8eca1c2fc78a2c686fc4276e715f78543acff7168c480c7e29578183f3", "simhash": "1:f34b66fc74ef84db", "word_count": 2662 }, "last_updated": "2023-07-14T16:49:01.727672+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS BLUMSTENGEL, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE GEORGE J. MORAN\ndelivered the opinion of the court:\nDefendant Dennis Blumstengel pleaded guilty to 10 charges of deceptive practices and one charge of burglary. He was also found guilty at a bench trial of an additional burglary charge arising from the same set of circumstances upon which the first burglary charge was based. He was sentenced to concurrent terms of imprisonment of 2 to 20 years for each burglary and 364 days on each deceptive practices charge. On appeal defendant contends that the court considered improper factors and abused its discretion in sentencing him and erred in failing to modify the sentence on his motion to withdraw his plea of guilty.\nDefendant Blumstengel and Wanda Casey were stopped by the Illinois State Police while hitchhiking on Interstate 57 on September 14,1976. A routine warrant check was made and it was discovered that there were 11 warrants out on defendant for deceptive practices. Defendant was arrested and he and Wanda Casey consented to a search of two suitcases which they were carrying. The suitcases contained an AM-FM radio and a citizen\u2019s band radio which were later identified as stolen property. Blumstengel was arrested on a theft charge concerning the AM-FM radio although he contended that he had purchased the radio from a friend. The following day Casey was also arrested on theft charges. Blumstengel and Casey were charged individually and jointly with burglary and theft concerning the stolen AM-FM and CB radios. Defendant Blumstengel entered an unnegotiated plea of guilty to the charge of burglary of the CB radio and to 10 of the 11 charges of the deceptive practices. The factual basis offered by the State\u2019s attorney for the plea of guilty on the burglary charge was that defendant had driven the car for the persons who actually had entered the vehicle containing the CB radio and committed the theft. The factual basis for the guilty plea on 10 charges of deceptive practices was that the defendant willfully and with intent to defraud, delivered checks to 10 different parties knowing that the checks would not be paid by the depository institutions.\nFollowing defendant\u2019s plea of guilty on the charges of deceptive practices and burglary of the CB radio, a bench trial was held on the information charging defendants Blumstengel and Casey jointly with burglary concerning the theft of the AM-FM radio which was stolen from a pickup truck on September 13, 1976, and found in Blumstengel\u2019s and Casey\u2019s possession the following day. Defendant testified at trial that on the night of September 13,1976, he had been at Barra\u2019s Tavern in Herrin, Illinois, with Wanda Casey and Rebecca Lannon. He stated that at Casey\u2019s request he had left the tavern and picked up Lannon\u2019s car which was parked about a block away. Defendant testified that when he pulled up in front of the tavern, the women jumped in the car with the stolen AM-FM radio and directed him \u201cto get the heck out of here.\u201d According to defendant the first he knew of the stolen AM-FM radio was when Casey jumped in the car, pulled the radio from under her blouse and told him she had taken it. The trial judge refused to believe defendant\u2019s denial of any involvement in the burglary of the AM-FM radio and instead found defendant guilty of the burglary beyond a reasonable dtmbt.\nThe presentence report indicated that the 28-year-old Blumstengel was one of 8 children and had been plagued by a history of family and personal problems. Defendant was referred to the juvenile court in St. Louis County when he was 14 years of age by the County Department of Welfare as a result of parental rejection and neglect. He was placed with the Lakeside Center for Boys when he was 15 years of age because of these problems. After a year at Lakeside the staff of the Center determined that although Dennis was suitable for discharge, \u201cneither parent appears to be able to provide the kind of understanding and emotional support that this boy needs at this time.\u201d Upon his discharge from the Lakeside Center the staff concluded that defendant\u2019s problems were \u201cclearly and directly related to anxiety and resentment he has experienced because he has felt unloved by his parents.\u201d Following his discharge from the Center in the spring of 1975, Dennis was placed with his father despite strong reservations on the part of the Center\u2019s staff that Dennis\u2019s father would be unwilling or unable to properly care for Dennis.\nDefendant has been married three times and is presentiy separated from his third wife. He spent two years in the U. S. Army, including a year in Vietnam, during which time he earned a number of medals and awards. He also underwent psychiatric evaluations and was courtmartialed on two separate occasions. Defendant has had serious marital problems which he attributes to excessive drinking. He has been treated for alcoholism and has spent some time at a veterans hospital, half-way houses for alcoholics, and in a counseling program with Alcoholics Anonymous. In the opinion of the director of the Alcohol Information Center, one of the half-way houses where defendant stayed, defendant \u201chad numerous problems other than alcohol abuse\u201d and was in need of \u201cguidance in a long term, structured, mandatory program, with concern for the total man.\u201d Defendant had one prior conviction for disorderly conduct-intoxication for which he was assessed a $35 fine. The probation officer who compiled the presentence report advised the court that defendant should be put on probation or sentenced to a periodic term and probation. The State recommended that he be sentenced to a term of 1 to 5 years.\nAt the sentencing hearing defendant testified that his mind \u201chad been screwed up\u201d since he was 10 or 11 years old and that he had turned to drinking in order to escape his disappointing life. He also stated that he could quit drinking if he received the proper help and asked that he be given probation and an opportunity to seek treatment. Defendant\u2019s counsel then requested that he be placed on probation and be required to undergo treatment for his alcoholism.\nThe trial judge commented extensively on defendant\u2019s problems with alcohol and the judge\u2019s own experiences with alcoholics in imposing concurrent sentences of 2 to 20 years for each burglary charge and 364 days for each deceptive practices charge:\n\u201cNow there\u2019s some disagreement on how to achieve rehabilitation of an individual. It has been my experience, and I\u2019ve had extensive experiences in this particular area, because I am a judge from Union County, which has the Anna State Hospital. The four years I had all mental illness cases and alcoholic cases from Zone 8; in other words all committments [sic] to the Anna State Hospital from all the 26 or 28 southern counties. I have experiences in my own family of alcoholics. I have an uncle who went to Vandalia for a year. He was an alcoholic. The point is he has now cured himself, in a sense that he quits for the next minute. He says he hasn\u2019t quit drinking, he just quits for the next minute. If he gets by that minute, he quits for the next minute. That\u2019s been going on for over 25 years. * * *The point is he made it clear to me, over and over to see that I went straight in my youth that the only person who can stop any person from drinking, is that individual himself. The burden is on you. You\u2019ve tried all these programs; you\u2019ve been in various hospitals; the record\u2019s replete here and yet you haven\u2019t cured yourself. Now the question is when are you going to cure yourself and how are you going to cure yourself. Now am I supposed to put you on probation, when there\u2019s nothing in your record to indicate to me that you\u2019re not going to walk right out of this court and get drunk and start taking pills.* * *\nYou\u2019re the one who\u2019s going to have to make the decision whether you\u2019re going to stay out of the penitentiary. You\u2019re the one who has to make the decision whether you\u2019re going to drink or not drink. I threw away cigarettes and I\u2019ve been told by many an alcoholic that it\u2019s more difficult to throw away cigarettes than it is booze. I have an urging, even now, for it. So I realize who can stop you from drinking and that\u2019s you. I don\u2019t care how many psychologists you talk to or psychiatrists or social workers or what have you.* * *\nI\u2019ve had too many cases, too many individuals, I\u2019ve had them come back to see me and indicate they\u2019ve finally realized that there\u2019s only one person that can help, and that\u2019s you, yourself. * * * Now I don\u2019t want to be harsh but I feel it\u2019s my duty and I\u2019ve seen it work and I\u2019ve had it work, over and over, that if I sent that individual to the penitentiary \u2014 I\u2019ve seen them come out and have had them come in here and thank me for they finally realized who\u2019s responsible for their conduct. And they thank themselves. * * * Now how can I be of the opinion, looking at your record, that you\u2019re not a danger to society, under your present condition? How can I honestly say, when it\u2019s been my past experience that imprisonment has been the best correctional treatment, for a person who claims to be an alcoholic; from my own personal relationship with my own family I\u2019ve seen the change come over them, let alone the last twelve years of practice. I\u2019ve had case after case of alcoholics. * * * So, I\u2019m going to put the burden on you, Mr. Blumstengel. You can go up and think about it. * * * This court finds your imprisonment necessary for the protection of the public. That the best correctional treatment can most effectively be provided to you by a sentence to imprisonment; that it would deprecate the seriousness of your conduct and be inconsistent with the ends of justice to grant you probation. * * * Now I\u2019m going to fashion a sentence which I believe has been successful in the past because it puts the burden on you.\u201d\nDefendant contends that the trial court abused its discretion in sentencing him to a 20-year maximum based in part on the judge\u2019s personal experiences with alcoholics. The Illinois Constitution provides that \u201c[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.\u201d (Ill. Const. 1970, art. I, \u00a711.) A sentencing judge thus has the responsibility to impose a sentence which will adequately punish a convicted defendant, protect the public from future offenses, individualize the punishment to fit the particular offender and offense and reform and rehabilitate the offender into a productive member of society. It is generally held that sentencing is within the sound discretion of the trial court and a sentence that is within statutory limits will not be disturbed upon review unless it represents an abuse of discretion. (People v. Perruquet, 68 Ill. 2d 149, 163, 368 N.E.2d 882; People v. Butler, 64 Ill. 2d 485, 490, 356 N.E.2d 330.) This general rule is based on an assumption that the trial court is in a superior position to evaluate the numerous and sometimes conflicting factors which must be considered in the determination of an appropriate sentence. (People v. Allen, 56 Ill. 2d 536, 309 N.E.2d 544.) The mere fact that the trial court has a superior opportunity to observe and evaluate the rehabilitation potential and dangerousness of a criminal offender, however, does not imply that the sentence imposed in a particular case is just and equitable. People v. Harpole, 97 Ill. App. 2d 28, 239 N.E.2d 471; People v. Grigsby, 75 Ill. App. 2d 184, 220 N.E.2d 498.\nDefendant asserts the trial judge improperly focused on his dependence on alcohol in imposing sentence. The State essentially acknowledges that the trial court was primarily concerned with defendant\u2019s alcoholism, but contends that there is no indication in the record that the trial court based the sentence on defendant\u2019s alcoholism or the judge\u2019s personal experience with alcoholics. We agree with the State that a criminal offender\u2019s dependence on alcohol may properly be considered as a factor in determining the offender\u2019s rehabilitation potential and the most appropriate disposition. (See People v. Gavin, 108 Ill. App. 2d 412, 248 N.E.2d 137; People v. Daugherty, 106 Ill. App. 2d 250, 245 N.E.2d 7.) A number of other factors, however, must also be considered by a trial court in imposing sentence, including the prior criminal record of a defendant (People v. Hart, 132 Ill. App. 2d 558, 563, 270 N.E.2d 102) and the extent of defendant\u2019s participation in the crime (People v. Morris, 43 Ill. 2d 124, 131, 251 N.E.2d 202). While we agree with the State that a defendant\u2019s alcoholism does not preclude incarceration and may be considered in imposing sentence, we believe the record clearly indicates that in this case the trial judge was concerned almost exclusively with defendant\u2019s addiction to alcohol rather than with his criminal conduct.\nDefendant\u2019s only prior conviction was for the minor misdemeanor offense of disorderly conduct. Defendant\u2019s participation in the two burglaries for which he was sentenced was very limited. He pleaded guilty to driving the car in one burglary and was found guilty of the other burglary, apparently on a theory of accountability. Yet the court imposed the statutory maximum and an enhanced minimum for these offenses. (Ill. Rev. Stat. 1975, ch. 38, pars. 1005 \u2014 8\u20141(b)(3) and (c)(3).) A fair inference to be drawn from the record in this case is that the trial judge\u2019s objective in sentencing defendant was to cure defendant of his alcoholism rather than to rehabilitate a criminal offender. The trial judge offered the following justification for rejecting defendant\u2019s request for probation:\n\u201cNow am I supposed to put you on probation, when there is nothing in your record to indicate to me that you are not going to walk right out of this court and get drunk and start taking pills?\u201d\nThe judge also devoted considerable attention to his own personal experience with alcoholism and alcoholics. \u201cHow can I honestly say, when it\u2019s been my past experience that imprisonment has been the best correctional treatment, for a person who claims to be an alcoholic; from my own personal relationship with my own family I\u2019ve seen the change come over them, let alone the last 12 years of practice.\u201d There is no indication in the record that the trial judge considered defendant\u2019s limited participation in the burglaries or the complete absence of any significant prior criminal offenses. We hold that this sentence was excessive and an abuse of judicial discretion. The trial court\u2019s stated justification for the sentence clearly does not comport with the constitutional mandate to consider both the seriousness of the offense and the rehabilitative potential of the criminal offender. We are unable to assess the precise impact of the trial judge\u2019s concern for defendant\u2019s alcoholism or the judge\u2019s observations about his personal experience with alcoholics. However, in view of the court\u2019s inordinate concern with these factors and utter failure to consider other proper and very relevant factors in imposing sentence, we must vacate defendant\u2019s sentence and remand the cause to the circuit court of Williamson County for resentencing.\nReversed and remanded with instructions.\nWINELAND, J., concurs.", "type": "majority", "author": "Mr. JUSTICE GEORGE J. MORAN" }, { "text": "Mr. JUSTICE JONES,\ndissenting:\nBelieving that the case of People v. Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882, requires affirmance, I respectfully dissent.", "type": "dissent", "author": "Mr. JUSTICE JONES," } ], "attorneys": [ "Michael J. Rosborough and Randy E. Blue, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Robert H. Howerton, State\u2019s Attorney, of Marion (Bruce D. Irish and Martin N. Ashley, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS BLUMSTENGEL, Defendant-Appellant.\nFifth District\nNo. 77-116\nOpinion filed July 13, 1978.\nJONES, J., dissenting.\nMichael J. Rosborough and Randy E. Blue, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nRobert H. Howerton, State\u2019s Attorney, of Marion (Bruce D. Irish and Martin N. Ashley, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "1016-01", "first_page_order": 1038, "last_page_order": 1044 }