People v. Young
| Decision Date | 30 October 1985 |
| Docket Number | No. 4-85-0098,4-85-0098 |
| Parties | , 92 Ill.Dec. 632 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Inez Marie YOUNG, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Daniel D. Yuhas, Deputy State Appellate Defender, Springfield, Jeffrey D. Foust, Asst. Defender, Springfield, for defendant-appellant.
Jeffrey K. Davison, State's Atty., Decatur, Robert J. Biderman, Deputy Director, State's Attys. Appellate Service Com'n, Peter C. Drummond, Staff Atty., Springfield, for plaintiff-appellee.
Defendant pleaded guilty to retail theft with a prior theft, a Class 4 felony, and was sentenced in September 1984 to one year of intensive probation supervision. (See Ill.Rev.Stat.1983, ch. 38, pars. 16A-3(a), 16A-10(2).) Her probation was revoked after hearing and she was sentenced to 3 years' imprisonment. She appeals from the judgment of the circuit court of Macon County, arguing that the trial court erred in sentencing her for the revoking offenses rather than the offense for which she was originally placed on probation.
As one of the conditions of defendant's probation, she was ordered to perform 130 hours of community service as directed by the probation office. In November 1984, several thefts occurred in the county building. During the time frame of the thefts, the defendant was working at the building on Wednesday nights as a community project through the Probation Plus program, and cleaned the floor on which the thefts occurred. On two occasions, postage stamps were taken from Judge Sappington's office, from a container on his desk. In addition, a $20 bill was taken from the middle drawer of an unlocked desk in the purchasing office. On questioning after Miranda warnings, defendant admitted to investigators that while working on the assigned floor, she had taken stamps on two occasions and had also taken the $20 bill. A report of violation of intensive probation supervision was filed on December 5, 1984. The allegations of the petition were found proved after hearing on January 9, 1985, and the court proceeded to sentencing.
The State presented no evidence in aggravation, and asked that the defendant be sentenced to 3 years' imprisonment, the maximum sentence for the original offense (see Ill.Rev.Stat.1983, ch. 38, par. 1005-8-1(a)(7)). The presentence report included the following as adult offenses of the defendant apart from the 1984 theft for which she was placed on intensive probation supervision:
Date Offense Case Number Disposition
------- ------------------------ ----------- -----------------
4-16-71 Theft by Deception 71-CM-447 Fined $75 plus
$15
9-28-72 Theft of Property 72-CM-1363 Fined $25 plus
Under $150 costs
4-3-74 Theft of Property 73-CM-1101 Fined $50 plus
Under $150 $15
6-18-74 Theft of Services 74-CM-636 Fined $100 plus
$27.40
2-11-75 Theft of Property 75-CF-429 5 years probation
(Second Offense)
8-10-77 Violation of Probation 75-CF-429 1-3 years DOC
3-12-82 Retail Theft with a 81-CF-650 1 year DOC
Prior Theft Conviction
Defendant testified in mitigation that she recognized that she had a problem with stealing and said she had tried, without success, to obtain help for her problem through a mental health center. Defendant argued that, if imprisonment were imposed, a one-year term would be appropriate to the case.
In pronouncing sentence, the trial judge's remarks included the following:
"THE COURT: Mrs. Young, the Court has heard the evidence. It has heard the arguments of counsel, the recommendations of both the * * * Special Prosecutor, and your attorney, and it has heard your comments, your statement under oath. The Court notes that you have no record as a juvenile. * * * However, there are seven prior theft convictions. You were offered intensive supervision, and I think part of the conditions of your supervision was to clean the courthouse--county building, and during that period of time you took stamps and you took money out of the drawer. I think it commendable that you tried to go to Macon County Mental Health. I think that they were of little help to you. I think it is a tragedy. Maybe you could have been helped, I don't know. There comes a point in time where after being given one chance after another, you fall short. The Court has no other choice than to sentence you to the penitentiary. I don't know how much help you will receive at the penitentiary, but the Court has to consider the welfare and protection of the public. You understand that?
(Defendant nodding in the affirmative.)
On appeal, the defendant maintains that after revoking her probation, the trial court abused its discretion by sentencing her to a term of imprisonment for the revoking offenses, rather than for the offense for which she was originally placed on probation, as shown by the court's remarks in the last quoted paragraph above. The original offense, to which the defendant pleaded guilty as charged, was theft from a retail establishment, (K-Mart)--two wrist watches, three hair roller sets, two bathing suits, and a Clairol Kindness Curly Perm.
When a defendant is admitted to probation and that probation is revoked, the trial court may sentence the defendant to any sentence that would have been appropriate for the original offense. Prior decisions have stated that a defendant may not be sentenced on revocation of probation for the conduct which constituted the probation violation, and be thereby punished for it (People v. Bullion (1974), 21 Ill.App.3d 297, 314 N.E.2d 731); but that it is proper for the trial court to consider the defendant's conduct on probation in assessing his rehabilitative potential (People v. Strickland (1974), 24 Ill.App.3d 560, 321 N.E.2d 309; People v. Brogan (1979), 76 Ill.App.3d 957, 32 Ill.Dec. 298, 395 N.E.2d 408; People v. Tatum (1975), 29 Ill.App.3d 251, 330 N.E.2d 281; People v. Clayton (1977), 51 Ill.App.3d 682, 9 Ill.Dec. 129, 366 N.E.2d 386). Decisions have referred to the "commingling" of matters, as between the original offense and the conduct constituting the probation violation, as improper on sentencing after probation revocation. (See, e.g., People v. White (1968), 93 Ill.App.2d 283, 288, 235 N.E.2d 393, 396; Strickland; People v. Deskin (1977), 47 Ill.App.3d 328, 330, 5 Ill.Dec. 660, 661, 361 N.E.2d 1188, 1189; People v. Locey (1977), 50 Ill.App.3d 179, 181, 8 Ill.Dec. 760, 762, 365 N.E.2d 1146, 1148; People v. Maretti (1978), 61 Ill.App.3d 762, 764, 18 Ill.Dec. 878, 881, 378 N.E.2d 342, 345.) See generally annot., Propriety in Imposing Sentence for Original Offense After Revocation of Probation, of Considering Acts Because of Which Probation Was Revoked, 65 A.L.R.3d 1100 (1975).
In order to resolve the question presented in this appeal, we have reviewed the numerous decisions in this area. It is apparent that an approach merely stating that the trial court is permitted to consider the conduct which was the basis of the probation revocation as pertinent to the defendant's rehabilitative potential is, in application, of little assistance in determining whether error in fact occurred. Further, that approach has led to disparate results on similar facts, which suggests a need for an approach which permits of meaningful review. There is, for example, a marked contrast in the application of the aforementioned approach as between People v. Clark (1981), 97 Ill.App.3d 953, 956-57, 53 Ill.Dec. 596, 598-99, 424 N.E.2d 9, 11-12, and such decisions as People v. Spencer (1977), 52 Ill.App.3d 378, 9 Ill.Dec 881, 367 N.E.2d 315, People v. Shockley (1977), 54 Ill.App.3d 1041, 12 Ill.Dec. 747, 370 N.E.2d 551, and People v. Guiterrez (1979), 71 Ill.App.3d 895, 898, 28 Ill.Dec. 271, 273-74, 390 N.E.2d 438, 440-41.
In Clark, the defendant was placed on probation for a burglary conviction, and probation was revoked in connection with an attack on a woman to take her purse. After the defendant was found guilty of that violation, he was sentenced to a term of 5 years' imprisonment. He appealed, arguing that the trial court had considered improper factors in its imposition of the sentence of imprisonment. The court vacated the sentence and found a new sentencing hearing was required, stating:
"[T]he court may consider as evidence in aggravation a defendant's conduct subsequent to the original conviction where such evidence tends to reflect defendant's rehabilitation potential [citations], but the record must demonstrate a determination based upon other factors as well." (Emphasis...
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