Presiding Justice Henry Scudder

Smart appealed from a judgment convicting him of burglary. The divided panel modified the judgment in the interest of justice reducing the imposed sentence of 20 years to life to an indeterminate term of 15 years to life. Smart was sentenced as a persistent felony offender, and the panel noted that while the trial court did not abuse its discretion in sentencing him as a persistent felon, they found the sentence was unduly harsh and severe. The panel noted a reduction was appropriate, finding Smart did not employ actual violence in the instant offense despite being confronted by the woman whose home he unlawfully entered. It stated that despite Smart’s lengthy criminal history, it appeared he never used or threatened violence when committing a crime. The dissent said it would affirm judgment without reducing the sentence, believing it was neither harsh nor severe. It noted that the unavailability of a witness was attributable to Smart and his mother’s significant efforts to prevent the witness from appearing and testifying against him. The dissent said reducing the sentence improperly interfered with the province of the trial court, noting the sentence imposed fell at the mid-point of the minimum and maximum sentencing guidelines.