People v. McAndrew

• Decision Date: 29 July 1968
• Docket Number: Gen. No. 67--155
• Citation: 239 N.E.2d 314,96 Ill.App.2d 441
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John Clifford McANDREW, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 314

239 N.E.2d 314

96 Ill.App.2d 441

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John Clifford McANDREW, Defendant-Appellant.

Gen. No. 67--155.

Appellate Court of Illinois, Second District.

July 29, 1968.

Haye & Keegan, Rockford, for appellant.

Henry S. Dixon, State's Atty., Dixon, for appellee.

DAVIS, Justice.

The defendant, John Clifford McAndrew, was charged with unauthorized possession of narcotic drugs, in violation of section 22--3 of the Criminal Code (Ill.Rev.Stat.1967, ch. 38, par. 22--3). He entered a plea of guilty, was denied probation and was sentenced to a minimum of two years and a maximum of three years in a state penitentiary. He appealed.

While courts have held that refusal to grant probation is not subject to review (People v. Hamby, 6 Ill.2d 559, 563, 129 N.E.2d 746 (1955); The People v. Denning, 372 Ill. 549, 552, 25 N.E.2d 6 (1940)), the granting or revoking of probation is normally within the discretion of the trial court, but is subject to review to the extent of determining whether the trial court did, in fact, exercise discretion in its determination on probation or whether it abused such discretion and acted in an arbitrary manner. The People v. Sims, 32 Ill.2d 591, 596, 208 N.E.2d 569 (1965); The People v. Molz, 415 Ill. 183, 190, 113 N.E.2d 314 (1953); People v. Evrard, 65 Ill.App.2d 118, 128, 212 N.E.2d 305 (1965).

The scope of the judicial discretion vested in the trial court is set forth in Section 117--1 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1967, ch. 38, par. 117--1), which provides in part:

'(a) A person who has been found guilty of any offense except a capital offense, the sale of narcotics or rape may be admitted to probation when it appears that:

(1) The defendant is not likely to commit another offense;

(2) The public interest does not require that the defendant receive the penalty provided for the offense; and

(3) The rehabilitation of the defendant does not require that he receive the penalty provided for the offense.'

It was stipulated that the hearing on probation and in aggravation and mitigation be held at the same time. The court, in this respect, heard the testimony of the police officers, a commissioner of public safety, the mother of the defendant, two physicians--one being the uncle of the defendant--and the defendant; and the court interrogated the defendant at length. The court also had the benefit of a psychiatrist's report obtained on behalf of the defendant; however, the record does not indicate that a probationary report was obtained or used at the hearing.

Briefly, the testimony indicated that the defendant was in need of psychiatric treatment which his mother and stepfather were willing and able to obtain at a recognized psychiatrical center; that he ranked high academically in high school; that presently he was a student at Antioch College and had come to Dixon with a female companion to work at the Dixon State School; that although unmarried, he and his female companion registered at a local motel as husband and wife and subsequently continued to live together. There was also testimony that the rooms of the apartment in which they were living at the time of the arrest, were littered with marihuana leaves in various stages of drying; that there were quantities of crushed packaged marihuana stored at various places throughout the apartment; and that the stove broiler contained marihuana leaves and apparently had been used as a dryer.

The defendant testified that he was twenty years of age and had started using marihuana during his first quarter at Antioch College; that he had also used other drugs; that he and his female companion had packaged the marihuana to sell it and they had a friend who dealt in it; and that he was acquainted with others in Dixon who used or dealt in marihuana. The defendant also testified that he sought to be identified as a 'hippie.' The report of the psychiatrist also contained such statement. The totality of the testimony at the hearing would tend to justify the court in believing that the defendant might commit another such offense.

After completion of the testimony, the court denied probation and recited at some length its reflections and impressions on the use of marihuana, the attitudes of a certain segment of the youth of our society, the actions of this particular defendant and his possible harm to the community had he been able to peddle the marihuana he had gathered.

The defendant here contends that the statements of the court indicated that it acted in an arbitrary manner as a result of intellectual and emotional bias with reference to the denial of probation and the imposition of sentence; and that the court's actions were arbitary under the facts and circumstances of this case.

It is not within our discretion to determine whether or not the trial court should have granted probation. It is only for us to determine the narrow question of whether the trial court abused its discretion in denying probation. In considering the defendant's contention, we will examine the remarks of the court.

At the conclusion of the morning hearing on September 27, 1967, the court commented upon the fact that the defendant wanted to be identified as a hippie. The defendant then stated that during the past two weeks he had seen that the identity of just being a hippie lacked reality and that he was renouncing his identity. Thereupon the court referred to a recent statement of President Johnson which read: 'We cannot tolerate behavior that destroys what generations of men and women have built here in America--no matter what stimulates that behavior,' and asked the defendant what it He replied: 'I don't really think I can say what he meant. I think probably 'We are not going to tolerate behavior', he is talking about everything that is happening that has to do with the younger people, these drugs, black power people, radicals. I don't know if he is talking politically or morally.' The court then asked: 'You don't think he was talking about hippies?' and the defendant replied: 'He could have had hippie ideas in his mind.'

Following the arguments by counsel, the court stated: 'I have spent a lot of time thinking about this case. * * * The State's Attorney didn't have much to say here today, he left it entirely up to the Court. I guess that's right, that's my responsibility. There are a few things I might disagree with the attorney for the defendant. Principally when he gets up here and says to this Court the court should bear in mind that this young man hasn't damaged anybody but himself. I take exception to that, Mr. Merrick, I think he has damaged everybody that he has associated with. I certainly think that he damaged or was certainly in a position possibly of damaging little youngsters who were in a State mental institution placed under this man's care where everybody now decides he is so sick. I think he was damaging somebody there. He has damaged a thousand students out at Sauk Valley College, he has damaged the possibility of a thousand students at Dixon High School because anyone of them could have been exposed to his potential sale which he and this young lady had made very careful plans and by his own admission was about to be in the business of selling. I don't believe it was the intention whatsoever that these packets, all of which were very carefully prepared, all of which were very carefully filled, all of which were very handy, with intention of taking these packets back to Antioch College to sell them because we have got testimony here this young man became acquainted with the individual who has the distribution of this type of thing in this particular area. * * * I don't think that he needed to take it back to Antioch because, by his own testimony, 75 percent of the student body at Antioch College were marihuana users. This to me is a shameful reflection on an educational institution and an educational institution which knew that this boy was using marihuana and did absolutely nothing about it and apparently hasn't done anything about it yet. I would hate to think I had a son or daughter of mine attending a school like Antioch College and I am not going to let Sauk Valley College become an Antioch College, I will tell you that. * * *

'I trust and I hope, and when I say I, I mean this Court hopes, that this is as far as it will go in this community and in this county because we all have children living in this community, we all have children going to school in this community and there are others who have young people going to school in Sauk Valley. * * * I just want to read you a little note here that I read the other day, written by a young person, too. It was in a Chicago paper. * * *

"They may be seen in the streets of our city, at Old Town and in deserted apartments off any college campus, smoking pot, living not within reality but in a universe of crimson hallucinations and having many anxieties that sooner or later may lead to serious brain damage.

'To become involved with marihuana will lead to impaired judgment and altered perceptions. Any impulsive risk you take from smoking grass is a dangerous hazard to your health.

'Some of the people we are talking about are known as hippies, some are innocent teen-agers who are lured into taking these drugs. Many of the hippies and teen-agers are rebelling against society. Most of them are trying to escape from the horror of wars and the problems of life, leaping into a world of beautiful flowers and different color light shades, wanting to remain there forever instead of facing reality. So they continue to consume these drugs. Each day and night they are trying to escape from the world.

'Teen-agers are also rebelling against rules of parents and society. They are easy prey for pushers of marihuana, who think only of how much profit they can make out of it. They give little thought to the welfare of the ones who...