People v. Dewaele ( 1981 )

Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Corey R. DeWaele, was convicted of felony theft (a Class 2 felony) following a jury trial in Bureau County and was sentenced to a term of three years’ imprisonment. The jury found him not guilty of burglary (a Class 3 felony).

On appeal he contends that the trial court abused its discretion in imposing the three year sentence for felony theft, because Lawson Grubbs, a co-defendant who pleaded guilty to burglary* was given only 30 months’ probation. We disagree with the defendant’s contention.

Disparate sentences for co-defendants may be justified by either a greater relative participation in the offense or a lesser rehabilitative potential. (People v. Godinez (1980), 92 Ill. App. 3d 523, 415 N.E.2d 36, appeal pending, No. 54604; People v. Martin (1980), 81 Ill. App. 3d 238, 401 N.E.2d 13.) In the case at bar the record discloses that the defendant assumed a leadership role in the joint criminal venture with Grubbs. The defendant, a former employee at Mabry’s Auto Shop, the site of the instant offenses, pulled on the doors of the shop until he found one which allowed access to the building. Once inside, he led the way from room to room selecting items to be taken. Apparently the defendant also opened the door when he and Grubbs exited the building and closed the door after Grubbs left. Later the two men loaded the stolen items into the defendant’s car. The defendant drove his car to the trailer where he lived, and he and Grubbs removed the items. This evidence shows that the defendant participated in the joint criminal activity to a relatively greater extent than Grubbs.

In rebuttal the defendant argues that he cannot be said to have participated more fully in the criminal activity when the jury acquitted him of burglary, while co-defendant Grubbs was convicted of burglary by his own guilty plea. Further, the defendant contends that since the jury must not have believed all of Grubbs’ statement, the State cannot now use that statement as the basis for its argument that the defendant assumed a leadership role in the criminal activity. We point out, however, that Grubbs’ statement was substantiated in part by the testimony of other State witnesses and was not rebutted in any way by the defendant. We conclude, therefore that the defendant did participate in the offense to a relatively greater degree than did Grubbs.

This factor alone is sufficient to justify the disparate sentences imposed. In the case at bar, however, a second factor is relevant. That factor is the defendant’s lesser rehabilitative potential which may be demonstrated by a more serious past criminal record and the relative maturity of the defendant. (People v. Walker (1976), 44 Ill. App. 3d 494, 358 N.E.2d 672.) While both Grubbs and the defendant had prior felony convictions — Grubbs was placed on 30 months’ probation in Cook County in 1979 for unlawful delivery of a controlled substance and the defendant was convicted of burglary in Bureau County in 1974 and was sentenced to one to three years’ imprisonment — the defendant’s record included a long list of prison offenses which indicated a greater disregard for the law than did Grubbs’ record. Furthermore, the defendant’s 1974 burglary conviction involved a situation very similar to the instant offense, since it consisted of a burglary of an automobile dealership where the defendant was employed.

Although not compelling, there is some evidence of the defendant’s greater maturity as compared with that of Grubbs. The defendant is married, has one child and owns the trailer in which he lives. In contrast, Grubbs lives with his parents in their trailer.

While it is true that similarly situated co-defendants should be treated similarly at sentencing (People v. Godinez (1980), 92 Ill. App. 3d 523, 415 N.E.2d 36, appeal pending, No. 54604), where a greater relative participation in the offense or a lesser rehabilitative potential is shown (People v. Martin (1980), 81 Ill. App. 3d 238, 401 N.E.2d 13), disparate sentences are justified. In the case at bar, we find both factors justifying disparate sentences present. Therefore, the trial judge did not abuse his discretion in sentencing the defendant to three years’ imprisonment for felony theft. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Parenthetically we note that the three-year sentence imposed is reasonable, since felony theft carries a possible sentence range of two to five years, and the defendants’ previous burglary conviction in 1974 rendered him subject to a maximum extended term of 10 years. Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 8—1(a)(6), 1005 — 8—2(a)(5).

For the foregoing reasons, the judgment of the Circuit Court of Bureau County is affirmed.

Affirmed.

ALLOY, J., concurs.