People v. Baker, 65708

• Court: Supreme Court of Illinois
• Writing for the Court: CUNNINGHAM
• Citation: 526 N.E.2d 157,123 Ill.2d 233,122 Ill.Dec. 17
• Parties: , 122 Ill.Dec. 17 The PEOPLE of the State of Illinois, Appellant, v. Frank E. BAKER, Appellee.
• Docket Number: No. 65708,65708
• Decision Date: 20 June 1988

Page 157

526 N.E.2d 157 123 Ill.2d 233, 122 Ill.Dec. 17 The PEOPLE of the State of Illinois, Appellant,
v.
Frank E. BAKER, Appellee. No. 65708. Supreme Court of Illinois. June 20, 1988.

Page 158

[123 Ill.2d 234] [122 Ill.Dec. 18] Neil F. Hartigan, Atty. Gen., Shawn Denney, Sol. Gen., Terence M. Madsen, Michael J. Singer, Chicago, and Nathan P. Maddox, Springfield, Asst. Attys. Gen., for appellant; John F. Dahlem, State's Atty. for Cass County, of counsel.

Page 159

[122 Ill.Dec. 19] Daniel D. Yuhas, Deputy Defender, Office of the State Appellate Defender, Springfield, Gary R. Peterson, Asst. Defender, for appellee.

Justice CUNNINGHAM delivered the opinion of the court:

On July 22, 1986, defendant, Frank E. Baker, pleaded guilty to driving under the influence of alcohol (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501(a)(2)). Pursuant to section 11-501(e) of the Illinois Vehicle Code (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501(e)), the circuit court of Cass County ordered defendant to undergo a professional evaluation to determine if an alcohol or other drug abuse problem exists and the extent of such problem. This court takes judicial notice that, by amendments prior to defendant's arrest and conviction, the [123 Ill.2d 235] General Assembly renumbered the paragraphs in the statute and as a result section 11-501(e) became 11-501(f). Defendant later filed a motion to rescind the order, alleging that section 11-501(f) was unconstitutional because defendant, indigent, is forced to pay a fee to a private industry and is forced to testify against himself in violation of the fifth amendment of the United States Constitution and article I, section 10, of the Illinois Constitution (U.S. Const., amend. V; Ill. Const.1970, art. I, § 10). On August 26, 1986, the court denied defendant's motion, and at his own request, the court found defendant in contempt of court and sentenced him to seven days in jail with the opportunity of purging himself of contempt by complying with the order. The sentence was stayed pending appeal.

The appellate court found that "negative facts and conclusions contained in an alcohol evaluation could cause a court to impose a more severe sentence on an individual convicted of driving under the influence of alcohol than it would impose absent knowledge of the matters stated in the alcohol evaluation." People v. Baker, 158 Ill.App.3d 756, 757, 110 Ill.Dec. 384, 511 N.E.2d 219.) The appellate court stated that since the fifth amendment is applicable and there are so many driving-while-intoxicated cases each year, it would be impractical for the court to determine case by case whether the questions asked will in some way incriminate the defendant. The appellate court also held that defendant need not attend the evaluation with an attorney and refuse to answer the questions. The People appealed and we allowed the petition for leave to appeal pursuant to our Rule 315 (107 Ill.2d R. 315).

The People argue that section 11-501(f) is constitutional and does not violate the fifth amendment of the United States Constitution and article I, section 10, of the Illinois Constitution of 1970. Further, since the section [123 Ill.2d 236] has not been declared unconstitutional, the section must be complied with by defendant.

The significant issue before this court is whether or not a defendant can claim the fifth amendment when answering questions on a professional evaluation needed for sentencing after the defendant has pleaded guilty to driving while intoxicated. The issue requires an analysis of not only the fifth amendment privilege but also the sentencing phase of a trial.

Article I, section 11, of the Illinois Constitution of 1970 provides, in part, that "[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." (Ill. Const.1970, art. I, § 11.) The General Assembly also incorporated that policy into the Unified Code of Corrections (Ill.Rev.Stat.1987, ch. 38, par. 1001-1-1 et seq.), which provides:

"The purposes of this Code of Corrections are to:

(a) prescribe sanctions proportionate to the seriousness of the offenses and permit the recognition of differences in rehabilitation possibilities among individual offenders;

(b) forbid and prevent the commission of offenses;

(c) prevent arbitrary or oppressive treatment of persons adjudicated offenders or delinquents; and

(d) restore offenders to useful citizenship." (Ill.Rev.Stat.1987, ch. 38, par. 1001-1-2.)

Page 160

[122 Ill.Dec. 20] Once a defendant has either been found guilty or pleaded guilty, the court shall hold a sentencing hearing to impose an appropriate sentence. Whether the court follows section 11-501(f) of the Illinois Vehicle Code or section 5-4-1(a) of the Unified Code of Corrections (Code) (Ill.Rev.Stat.1987, ch. 38, par. 1005-4-1(a)), it is necessary for the defendant prior to sentencing to undergo a professional or social evaluation to determine if [123 Ill.2d 237] an alcohol or other drug abuse problem exists and the extent of such a problem. However:

"Whether a statutory provision is to be considered mandatory or merely directory depends upon the drafters' intent. An important aid in determining whether a provision is mandatory or directory is the form of the verb used in the statute. [Citation.] * * * Generally, the use of the word 'shall' is regarded as indicative of a mandatory intent. [Citations.] We recognize, however, that this is not an inflexible rule; the statute may be interpreted as permissive, depending upon the context of the provision and the intent of the drafters. [Citation.]" (People v. Youngbey (1980), 82 Ill.2d 556, 562, 45 Ill.Dec. 938, 413 N.E.2d 416.)

In Youngbey, this court found that the word "shall" coupled with the negative "not" renders the requirement of section 5-3-1 that the defendant shall not be sentenced before a written presentence report of investigation is presented and considered by the court mandatory. Ill.Rev.Stat.1979, ch. 38, par. 1005-3-1.

In this case, this court finds that a professional evaluation prior to sentencing is not a mandatory requirement. This court notes that although both statutes, sections 11-501 and 5-4-1(a), use similar language (section 5-4-1(a) uses the word "must" and section 11-501 uses the word "shall"), the difference in the language does not equate to a difference in intent. Neither section 11-501 nor section 5-4-1(a) contains a negative word and, as such, the sections reveal a directory intent and not a mandatory one.

The requirement of a professional evaluation prior to sentencing is not required in light of other sections of the Code regarding sentencing. When a defendant has been committed to prison, the Department of Corrections may order the defendant to undergo a social evaluation to determine the defendant's "medical, psychological, educational and vocational condition and history, [123 Ill.2d 238] including the use of alcohol and other drugs." (Emphasis added.) (Ill.Rev.Stat.1987, ch. 38, par. 1003-8-2(a).) Whether or not a defendant submits to the evaluation prior to sentencing, the circuit court has the authority as part of sentencing to order the defendant to undergo a professional evaluation, to stay any term of imprisonment and later to modify that sentence within 30 days following entry of judgment according to the results of the evaluation. (107 Ill.2d Rules 604(d), 605(b), 606(b).) The circuit court's authority lies within its sound discretion to determine and impose an appropriate sentence. (People v. La Pointe (1981), 88 Ill.2d 482, 492-93, 59 Ill.Dec. 59, 431 N.E.2d 344.) The authority of the circuit court to modify its order and the requirement of a professional evaluation must be read in conjunction with the responsibility of the circuit court to promptly dispose of all the business before it. (107 Ill.2d R. 63(A)(5).) Without these provisions, a defendant may infringe upon the circuit...