People v. Macklin
| Decision Date | 17 September 2013 |
| Docket Number | No. 2-12-0828,2-12-0828 |
| Citation | 2013 IL App (2d) 120828 |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JANEL MACKLIN, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Winnebago County.
¶ 1 Held: The trial court did not err in resentencing defendant after he violated the terms of his probation. Affirmed.
¶ 2 Defendant, Janel Macklin, pleaded guilty to retail theft (720 ILCS 5/16A-3(a) (West 2010) (repealed by Pub. Act 97-597, § 6 (eff. Jan. 1, 2012))) and was sentenced to 180 days in the county jail and five years' probation. Four months later, the State petitioned to revoke defendant's probation. Defendant admitted to count II of the petition and the trial court resentenced him to five years' imprisonment. The court subsequently denied defendant's motion to reduce the sentence.
Defendant appeals, arguing that, in resentencing him after he violated the terms of his probation, the trial court did not sentence him on the underlying offense and failed to consider his rehabilitative potential, where, during the hearing, the court focused on defendant's failed drug test. We affirm.
¶ 5 On April 13, 2011, defendant was indicted on one count of retail theft. The indictment alleged that, on January 27, 2011, defendant stole one bottle of vodka from a Mobil gas station and that, on June 13, 2003, in Winnebago County, he had been previously convicted of retail theft.
¶ 6 On September 12, 2011, defendant pleaded guilty without a sentencing agreement. After he entered his plea, the trial court, at defendant's request, ordered that defendant be evaluated for Treatment Alternative to Street Crimes (TASC). 20 ILCS 301/40-5 (West 2010).
¶ 7 The presentence report and the testimony at the October 19, 2011, sentencing hearing disclosed the following. Defendant testified that, while incarcerated, he put in numerous referrals for Narcotics Anonymous, Cocaine Anonymous, Alcoholics Anonymous, and Rosecrance, but that he was placed on a waiting list. Defendant further testified that he was currently a trustee in the county jail and that his duties included cleaning, working in the kitchen, and doing laundry. Defendant became a trustee because his crime was nonviolent, his bond was under $75,000, and he did not have a disciplinary background or problems with the officers.
¶ 8 Defendant further testified that TASC had evaluated him and found him acceptable for treatment. Initially, he received inpatient treatment at the Sojourn House in Freeport. However, after five days of treatment, defendant was discharged because he had been incarcerated too long to do an inpatient program. Inpatient programs are reserved for those who require more treatment becausethey have not achieved sobriety. Defendant explained that he achieved sobriety during his long stay in jail. Upon his discharge, Sojourn House recommended that defendant receive treatment in an intensive outpatient program.
¶ 9 Defendant apologized for his crime. He stated that he committed the crime when he relapsed due to a problem with his significant other, Charles Duncan.1 Defendant testified that he now realizes that he cannot let anything happen that will cause harm to others; otherwise, he will return to jail. Further, he assured the court that, if he was put on probation, he would maintain the requirements of probation (including receiving outpatient treatment at Rosecrance), maintain sobriety, and stay away from anything that would cause him to return to jail. Defendant stated that he regretted what he did in the past, but that he is older and understands he has to take full responsibility for his actions.
¶ 10 On cross-examination, defendant admitted to having a problem with crack cocaine. He stated that he stole to obtain drugs. Defendant testified that he had been in drug treatment two previous times (after which he stayed clean for a time before relapsing), but that this time was different because he was older, he had gained a lot of understanding about the world, and he did not want to return to jail. Defendant then made a statement in allocution where he again apologized to the courtand asked for probation. Defendant stated that he wanted the opportunity to prove that he could change and maintain his sobriety and that he wanted to move on with his life in a positive manner.
¶ 11 The presentence report reflected that defendant, age 42, had been convicted 19 previous times for theft (aside from two bond forfeitures). Defendant had been given probation, including TASC, seven times, and he had violated probation on several occasions. Additionally, defendant had been imprisoned six times. The State asked the court to sentence defendant to four years' imprisonment in light of his criminal history and his numerous opportunities at probation.2
¶ 12 In announcing its ruling, the trial court stated that it had considered the testimony, the presentence report, defendant's statement, counsels' arguments, and the factors in mitigation and aggravation. The court recognized that defendant had an extensive record. The court also recognized that defendant chose to follow the court's order when he was released from the Sojourn House and immediately reported back to jail. Moreover, the court accounted for the fact that defendant was a trustee of the jail and that defendant had requested treatment a number of times while incarcerated. However, the court stated that rehabilitation is not the only goal the court evaluates; one of the primary obligations is to protect the community from crime. The court acknowledged that defendant was a substance abuser, but it believed that defendant might positivelychange his life. The court cautioned defendant that retail thefts are a significant problem within the community. The court questioned whether the community would be better served by imprisoning defendant or by trying to rehabilitate him. The court ultimately found, however, that the defendant had strong rehabilitative potential and placed him on TASC probation for five years. The court warned defendant that he would be under strict supervision by the court, the probation department, and TASC individuals. The court ordered that defendant: (1) not use alcohol or drugs; (2) submit to random urinalysis and/or blood tests; (3) cooperate with, and satisfactorily complete, any assessment, treatment, education and/or counseling as directed by the probation department and TASC; and (4) have no contact with Duncan.
¶ 14 On December 1, 2011, the court conducted a status hearing on defendant's probation. The status report stated that defendant was compliant with reporting, was actively seeking employment, had begun counseling at Rosecrance, and provided negative urinalysis results on November 16, and 29, 2011. However, the report also showed that, on November 2, 2011, defendant admitted to relapsing with crack cocaine on October 30, 2011. During the hearing, the court stated that it had "some concerns about this" and that "we [the court] have zero tolerance." The court granted a January 12, 2012, status date.
¶ 15 On January 12, 2012, the State petitioned to revoke defendant's probation, alleging that defendant: (1) admitted to using crack cocaine on October 30, 2011; (2) on January 11, 2012, tested positive for cocaine and admitted to using two weeks prior and one week prior; and (3) failed to report to TASC to provide a urine specimen.
¶ 16 At a hearing on the State's petition, defendant admitted that he tested positive for cocaine on January 11, 2012. The court clarified that entering an open plea meant that defendant could receive anything within the possible sentencing range (one to six years in the Department of Corrections along with a mandatory supervised release or a term of probation or conditional discharge). Defendant stated that he understood, and the court found that there was a factual basis for the underlying offense and the State's allegations as to defendant's probation violations and accepted defendant's plea. It ordered a new presentence report and set a May 15, 2012, resentencing hearing.
¶ 17 At the resentencing hearing, Richard Johnson, a criminal justice outpatient addictions counselor at Rosecrance, testified on defendant's behalf. Johnson testified that defendant was transferred into his jail reentry group at Rosecrance and that he had known defendant for four or five months. Defendant attended classes three days each week, and his attendance was excellent. Johnson testified that the classes covered the criminal-thinking model to help the patients understand their errors in thinking, and the classes also addressed various aspects of substance abuse. Johnson stated that defendant made progress in these classes because he opened up and recognized errors in his thinking, he recognized where he had failed in the past, and he became a role model in the group by sharing personal information and giving thoughtful feedback. Johnson testified that, if defendant were released, the next step for him would be to enter an intensive outpatient program at Winnebago County Resource Intervention Center. According to Johnson, defendant had "maintained some long-term sobriety" and "so at this point because he has, you know, the skills to be able to maintain sobriety, he would need an opportunity in the real world while attending classes outside to be able to practice those things." On cross-examination, Johnson stated that his contact with defendant had been while defendant was in custody on the State's petition to...
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