People v. Young

• Decision Date: 23 September 2002
• Docket Number: No. 1-00-3525.,1-00-3525.
• Citation: 268 Ill.Dec. 679,334 Ill. App.3d 785,779 N.E.2d 293
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Henry YOUNG, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

779 N.E.2d 293

334 Ill. App.3d 785

268 Ill.Dec. 679

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Henry YOUNG, Defendant-Appellant.

No. 1-00-3525.

Appellate Court of Illinois, First District, First Division.

September 23, 2002.

Rehearing Denied November 1, 2002.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Margaret J. Campos and Emily J. Grzanka, Assistant State's Attorneys, of counsel), for Plaintiff-Appellee.

Michael J. Pelletier, Deputy Defender, Chicago (Lori L. Mosby, Assistant Appellate Defender, of counsel), for Defendant-Appellant.

Justice COUSINS delivered the opinion of the court:

Defendant-appellant, Henry Young, appeals from a judgment revoking his probation and sentencing him to nine years' imprisonment. Defendant presents the following issues upon appeal: (1) whether the trial court's order revoking probation and imposing a 9-year sentence was void because he was not originally eligible for probation; (2) whether the mandatory Class X sentencing provision of section 5-5-3(c)(8) of the Unified Code of Corrections (Code) (730 ILCS 5/5-5-3(c)(8) (West 1998)) violates the right of a defendant to due process and trial by jury because it subjects the defendant to increased punishment without notice or a jury finding upon proof beyond a reasonable doubt of the facts qualifying defendant for Class X sentencing; and (3) whether his case must be remanded so that he is credited with 546 days' sentence credit.

BACKGROUND

In August 1998, defendant was charged with aggravated possession of a stolen motor vehicle (APSMV) and possession of a stolen motor vehicle (PSMV). On April 9, 1999, defendant pled guilty to both counts. He was approved to participate in residential treatment with Treatment Alternatives for Safe Communities (TASC) and placed on three years' probation. The following colloquy occurred at that sentencing:

"THE COURT: State reluctantly gave up the right to a Pre Sentence Investigation and they are arguing that he can't get TASC by law.

MR. ROSENBLUM [Assistant State's Attorney]: If I can just put on the record—

THE COURT: I just did it for that; that by law they believe he can't get TASC.

I am invoking judicial amity entrusted to me by state law in this case, all right?

That is your sentence. If you want to change your mind you have 30 days to do it. * * *

I recognize your drug addiction, but if you do not comply in any way with TASC—

You're 53 years old. Do you understand that? You're 53 years old. I am taking into consideration your age, your drug addiction.

But if you don't comply with TASC in any way, shape or form, you will go to the penitentiary. It's your last—

Basically your last chance. Take advantage of it."

On August 23, 1999, while on probation, defendant was arrested for PSMV. On October 1, 1999, the State filed a three-count petition for violation of probation and warrant alleging PSMV, failure to report to the adult probation department, and failure to comply with TASC rules. A hearing was held on the State's motion for violation of probation on June 12, 2000.

At that hearing, the vehicle owner and two investigative officers testified for the State. After the State's case, defendant made a motion for directed judgment on the charge of possession of a stolen motor vehicle, asserting that there was no testimony that defendant possessed a vehicle. Defendant asserted that there was no evidence that he committed a theft and no evidence that he knew the car was stolen. The motion was denied.

Defendant testified at the hearing. After the close of defendant's case, the parties stipulated that defendant had previously been convicted of APSMV on April 9, 1999. Further, they stipulated that defendant had been convicted of burglary on June 7, 1993.

The trial judge stated that he had considered the testimony of the van owner, the officers, and the defendant. The court held that the preponderance of the evidence showed that the defendant had possession of the van at one time after it had been stolen. Defendant's probation was revoked.

The defendant filed a motion for a new hearing. On July 21, 2000, defense counsel argued the motion. The motion was denied. At the sentencing, the State requested an extended-term sentence for the defendant. Defendant was sentenced to nine years' imprisonment, with credit for 380 days in custody.

ANALYSIS

I

Defendant now asserts that because he was not eligible for probation in the first place, the subsequent order revoking probation and imposing a sentence of nine years' imprisonment was void and, therefore, must be reversed. The State initially responds that defendant has waived this issue for review by not raising it earlier. Alternatively, the State asserts the trial court did not err when it, using its discretion under the Alcoholism and Other Drug Abuse and Dependency Act (Treatment Alternatives Act) (20 ILCS 301/40-5 et seq. (West 1998)), sentenced defendant to TASC.

Before we begin our analysis, a review of the history of the Treatment Alternatives Act is warranted. In summary, the Treatment Alternatives Act (20 ILCS 301/40-5 et seq. (West 1998)) was preceded by the Dangerous Drug Abuse Act (Ill.Rev.Stat.1971, ch. 91 1/2, par. 120.1 et seq.) and the Alcoholism and Substance Abuse Act (Ill.Rev.Stat.1985, ch. 111 1/2, par. 6301 et seq.), which had very similar provisions.

The Dangerous Drug Abuse Act (Ill. Rev.Stat.1971, ch. 91 1/2, par. 120.1 et seq.) was created to provide treatment and rehabilitation to controlled substance abusers charged with a crime. Section 10 indicated that if the court determined that the individual was an addict and would likely be rehabilitated through treatment, the court could place him on probation and under the supervision of the Department of Corrections for treatment. Ill.Rev.Stat. 1977, ch. 91 1/2, par. 120.10.

On September 20, 1979, section 10 of the Dangerous Drug Abuse Act (Ill.Rev.Stat. 1979, ch. 91 1/2, par. 120.10) was amended by Public Act 81-851 (Pub. Act 81-851, § 1, eff. September 20, 1979), which allowed probation with treatment, if such sentence was consistent with section 5-6-1(a) of the Code (Ill.Rev.Stat.1979, ch. 38, par. 1005-6-1(a)).

Effective July 1, 1984, the Alcoholism and Substance Abuse Act (Ill.Rev.Stat. 1985, ch. 111 1/2, par. 6301 et seq.) was created to provide an alternative to criminal prosecution for persons that abused alcohol or drugs. On July 1,1988, the Alcoholism and Substance Abuse Act was repealed (Pub. Act 85-965, eff. July 1, 1988) and replaced by the Illinois Alcoholism and Other Drug Dependency Act (Ill.Rev.Stat. 1987, ch. 111 1/2, par. 6351 et seq.).

The Illinois Alcoholism and Other Drug Dependency Act was created to restore those persons charged with a crime that abuse or misuse alcohol or drugs to good health and become productive citizens. Ill. Rev.Stat.1987, ch. 111 1/2, par. 6351-2. The Illinois Alcoholism and Other Drug Dependency Act was later recodified (20 ILCS 305/1-101 et seq. (West 1992) (Pub. Act 87-895, art. 1, § 1-1, eff. July 14, 1992)). The Illinois Alcoholism and Other Drug Dependency Act was repealed by Public Act 88-80 (Pub. Act 88-80, § 95-5, eff. July 13, 1993). The new act was named the Alcoholism and Other Drug Abuse and Dependency Act (hereinafter, Treatment Alternatives Act) (20 ILCS 301/40-5 et seq. (West 1994)).

For purposes of the instant appeal, section 40-5 of the Treatment Alternatives Act provides:

"An addict or alcoholic who is charged with or convicted of a crime may elect treatment * * * referred to in this Article as `designated program', unless:

(1) the crime is a crime of violence;

* * *

(3) the person has a record of 2 or more convictions of a crime of violence;

* * *

(7) the person has been convicted of residential burglary and has a record of one or more felony convictions." 20 ILCS 301/40-5(1), (3), (7) (West 1998).

Significantly, conviction of a Class 2 or greater felony within 10 years of the pending offense is not delineated as precluding treatment for an addict who requests treatment under the Treatment Alternatives Act if a court has reason to find the individual eligible and the individual is accepted for treatment in a designated program. See 20 ILCS 301/40-5 et seq. (West 1998). Section 40-10 of the Treatment Alternatives Act provides that the trial court may advise an individual that he or she may be placed on probation if he or she elects to submit to treatment and is accepted for treatment by a designated program, subject to the requirements under section 40-5 of the same act (20 ILCS 301/40-10 (West 1998)).

We now turn to the issue presented in the instant appeal by the defendant: whether the trial court's order revoking probation and imposing a 9-year sentence was void because defendant was not originally eligible for probation. Generally, a defendant who wishes to challenge his sentence or any irregularities in the sentencing hearing must first file a timely postsentencing motion in the trial court or the issue will be deemed waived. People v. Reed, 177 Ill.2d 389, 394, 226 Ill.Dec. 801, 686 N.E.2d 584 (1997). However, a sentence that does not conform to a statutory requirement is void and may be corrected at any time. People v. Arna, 168 Ill.2d 107, 113, 212 Ill.Dec. 963, 658 N.E.2d 445 (1995). A judgment is void where the court orders a lesser sentence than is mandated by statute. People v. Wade, 116 Ill.2d 1, 6, 107 Ill.Dec. 63, 506 N.E.2d 954 (1987).

Defendant in the instant case relies on People v. Simmons, 256 Ill.App.3d 651, 195 Ill.Dec. 295, 628 N.E.2d 759 (1993), to support his contention that because the court had no authority to place him on probation originally, his subsequent revocation of probation is also void. In Simmons, Lloyd Simmons was convicted of aggravated discharge of a firearm and unlawful use of a firearm by a felon. The trial court placed him on 30 months' probation, over the State's objection that he was ineligible for...