People v. McCoy

• Decision Date: 18 February 1975
• Docket Number: No. 59803,59803
• Citation: 332 N.E.2d 690,29 Ill.App.3d 601
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry McCOY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 690

332 N.E.2d 690

29 Ill.App.3d 601

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry McCOY, Defendant-Appellant.

No. 59803.

Appellate Court of Illinois, First District, Second Division.

Feb. 18, 1975.

Supplemental Opinion on Rehearing June 10, 1975.

Paul Bradley, Chicago (Lynn Sara Frackman, Chicago, of counsel) for defendant-appellant.

Bernard Carey, State's Atty., Chicago (Patrick T. Driscoll, Jr., Asst. State's Atty., of counsel), for plaintiff-appellee.

Before DOWNING, P.J., and STAMOS and HAYES, JJ.

PER CURIAM.

On December 17, 1970, the defendant, Larry McCoy, pleaded guilty to robbery and was placed on five years probation on the condition that he serve the first year in the Cook County Jail. On July 2, 1973, following a hearing, the defendant's probation was revoked and he was sentenced to not less than five nor more than 15 years in the Illinois State Penitentiary. (Ill.Rev.Stat.1969, ch. 38, par. 18--1.) On appeal, he contends that the sentence was excessive and that the trial court should have initiated proceedings under the Dangerous Drug Abuse Act. Ill.Rev.Stat.1973, ch. 91 1/2, par. 120.1, Et seq.

On December 17, 1970, when the defendant's plea of guilty to robbery was accepted, the court specifically admonished the defendant that if there was a violation of probation, he would sentence the defendant to 'from ten to twenty' years in the penitentiary. A warrant for violation of probation was issued on July 6, 1972, based upon the report of the probation officer that the defendant had never reported to his probation officer as required by the conditions of probation and that he was scheduled to appear in court on August 7, 1972, to answer charges of theft and resisting arrest. At the hearing on July 2, 1973, defendant, through his counsel, stipulated that on April 4, 1973, he had been convicted of theft and sentenced to ten days in the House of Correction, and that since January of 1973 he had failed to report to the probation officer. The issue at the probation revocation hearing, therefore, was not whether the defendant had violated the terms of his probation, but whether the court should reinstate the defendant's probation. In support of his position, defendant's counsel stated that the defendant was 'a drug addict.' At the beginning of the hearing defense counsel stated that a representative of the Day One Illinois Drug Abuse Program was present in court and the case was passed so that the counselor could talk to the defendant. When proceedings were resumed, defendant's counsel asked the court to place the defendant 'with strict control in Tinley Park, another part of the Illinois Drug Abuse Program.' Defendant also addressed the court and asked if the judge 'would probate' him 'to Tinley Park.' The counselor also addressed the court in an attempt to explain the program.

The State's attorney indicated that the defendant had never reported to his probation officer, and that his prior record consisted of the following: 1969, resisting a peace officer, fined $60; August 26, 1969, indecent liberties, sentence of six months to Vandalia; December 3, 1969, theft, one year probation; December 17, 1970, robbery, five years probation, first year in the Cook County Jail; August 28, 1971, Detroit, Michigan, possession of dangerous drugs, one year probation, fine of $175; March 7, 1972, theft, 30 days in the House of Correction. The defendant, however, contested the second item, saying he was never sentenced and did not serve six months in Vandalia.

The court, after reading at length from the transcript of the December 17, 1970 hearing at which he had promised to sentence the defendant to ten to twenty years, sentenced him to five to fifteen years in the Illinois State Penitentiary. In response to the pleas of the defendant, his counsel, and the counselor, that the defendant be placed on the drug treatment program, the court said: 'They have a program in the penitentiary just for the type of programs you are talking about.'

This case involves interpretation of the following language of Section 120.10 of the Dangerous Drug Abuse Act (Ill.Rev.Stat.1973, ch. 91 1/2, par. 120.10):

' § 120.10 Persons convicted of crime--Placement on probation upon election to undergo treatment

If a court has reason to believe that an individual convicted of a crime is an addict or the individual states that he is an addict and the court finds that he is eligible to make the election provided for under Section 8, the court may advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by the Department. In offering an individual an election, the court shall advise him that (a) if he elects to submit to treatment and is accepted he may be placed on probation and under the supervision of the Department for a period not to exceed the maximum sentence that could be imposed for his conviction or 5 years, whichever is less; (b) during probation he may be confined in an institution or, at the discretion of the Department, he may be released for supervised after care treatment in the community; and (c) if he adheres to the treatment program and fulfills the other conditions of probation, he will be discharged, but any failure to adhere to the treatment program is a breach of probation. The court may certify an individual for treatment while on probation under the treatment supervision of the Department and probation supervision of the proper probation authorities regardless of the election of the individual.

If the individual elects to undergo treatment or is certified for treatment, the court shall order an examination by the Department to determine whether he is an addict and is likely to be rehabilitated through treatment.' (Emphasis added.)

The statute clearly states that the psychiatric examination by the Department of Mental Health is mandatory once either of two events occur: either the defendant makes an election under the Act or the court certifies him for treatment. Although the defendant in the case at bar did not file a written petition asking that the procedures under the Act be initiated and although the statute was not referred to specifically in the trial court, we think a strong argument can be advanced that the defendant did attempt to exercise an election within the meaning of the Act.

In People v. White (1973), 10 Ill.App.3d 566, 294 N.E.2d 699 (abstract), we held that a psychiatric examination was mandatory if the defendant elected to be treated under the Act, but in White the only factual basis for the defendant's contention that he elected treatment was the following brief exchange during the hearing in mitigation:

'DEFENSE COUNSEL: Do you want to get on a program?

DEFENDANT: Yes. sir.'

Although recognizing that there were circumstances that might require the court on its own motion to initiate the Act's procedure, we there stated in concluding that this exchange did not constitute an election under the Act, the following:

'Nothing in the Act supports a view that an election by a defendant to enter the program could be taken lightly. We therefore believe that something more than the above brief comment was required to exercise the 'election' contemplated by the Act. Defendant's answer to his counsel's leading and general question did not indicate that he had considered or even contemplated such an election. It is difficult to imagine any individual embarking on such a serious course of action, including as it did, a compulsory psychiatric examination and perhaps months of confinement in a mental hospital, without expressing his intention to do so clearly and unequivocally.'

In People v. Robinson (1973), 12 Ill.App.3d 291, 292, 297 N.E.2d 621, 623, the court held that if the individual elects to undergo treatment, '* * * the court must order an examination by the Department of Mental Health to determine if he is an addict and likely to be rehabilitated through treatment.' In that case we recognized that the failure to follow the procedures set out in the statute appeared '* * * to have been unintentional due to a lack of information concerning the Act on the part of all parties,' as seems to have happened in the case at bar. 12 Ill.App.3d 291, 294, 297 N.E.2d 621, 624.

In People v. Clinkscale (1973), 14 Ill.App.3d 226, 302 N.E.2d 181, the trial court did initiate proceedings under the Act and ordered a psychiatric examination of the defendant, but then refused the defendant entrance into the program and instead sentenced the defendant to concurrent penitentiary terms of six to ten years for burglary and one to five years for attempt burglary. A major reason for the trial court's action was that the defendant, like the defendant here, was originally placed on five years probation on condition that he spend a year on the work release program at the House of Correction, but the defendant left the House of Correction and did not return. It was only when his probation was being revoked that he filed a petition under the Act. The State argued that since the defendant's probation was properly revoked, he was ineligible for treatment under the Act, a contention which the appellate court specifically rejected. The court also pointed out that the defendant was admitted to probation on November 12, 1970, prior to the effective date of the Dangerous Drug Abuse Act (July 1, 1971), and, therefore, concluded that the defendant never had a proper opportunity of electing to come within the provisions of the Act. Finally, the appellate court stated that trial court should have determined whether or not the 'appropriate parole or probation authority' consented to the defendant's election to be treated under the Act or not, a point on which the record in Clinkscale was equivocal. While Clinkscale speaks to whether the defendant should be admitted to the treatment program, rather than to whether the procedure should be initiated at all,...