People v. McNulty

• Court: Appellate Court of Illinois
• Decided: June 25, 2008
• Docket: 1-06-2947 Rel
• Status: Published

Opinion

THIRD DIVISION June 25, 2008

No. 1-06-2947

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) GREGORY McNULTY, ) Honorable ) Mary Margaret Brosnahan, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE QUINN delivered the opinion of the court:

Following a bench trial, defendant Gregory McNulty was

convicted of possession of a controlled substance and sentenced

to an extended term of four years' imprisonment based upon his

criminal record. On appeal, defendant does not challenge his

conviction, but contends that the trial court erred at sentencing

when it failed to advise him that he was eligible for an

evaluation by a substance abuse treatment program where the

record shows that he suffered from alcoholism and substance

abuse.

Because defendant does not contest the sufficiency of the

evidence to sustain his conviction, a detailed discussion of the

facts of this case is unnecessary. The evidence established that 1-06-2947

on February 23, 2006, a police officer observed defendant conduct

two separate narcotics transactions, and shortly thereafter,

defendant was detained and found to be in constructive possession

of a plastic bag containing 12 smaller plastic bags which tested

positive for 0.5 gram of cocaine. The trial court found

defendant guilty of possession of a controlled substance.

At sentencing, the State noted that defendant had 11 prior

felony convictions for drug and burglary offenses and asked the

court to sentence him to an extended term of imprisonment in

excess of seven years. In mitigation, defense counsel noted that

the presentence investigation report (PSI) indicated that

defendant suffered from long-term substance abuse issues. In

requesting the minimum sentence, counsel explicitly argued:

"Mr. McNulty has requested that

whatever sentence your Honor would give

him that consideration be given that he

get some substance abuse treatment while

he is incarcerated. He very much wants

structure and treatment opportunities while

he is incarcerated."

In allocution, defendant informed the court that he was 46

years old and had been incarcerated for over half of his life.

He then stated:

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"I have a habit. I used to use drugs a lot.

And I haven't had no treatment. And I know

that I am fixing to go to the penitentiary.

I know that. I know that help is the only

thing I can ask for your Honor. And I

appreciate it if you give me the minimum

sentence and let me get some help."

Counsel further noted that defendant had prepared a pro se

motion requesting drug treatment, but that counsel explained to

defendant that he would address that issue orally in court.

Counsel argued that defendant was "serious about seeking

treatment at this point."

Information contained in the PSI indicates that prior to his

incarceration in this case, defendant consumed 12 cans of beer

and a fifth of Hennessy cognac on a daily basis. Defendant

stated that his alcohol usage caused problems with his wife and

family, that he was never evaluated or treated for alcohol abuse,

and that he was in need of treatment. The PSI further indicated

that defendant began using marijuana when he was 18 years old,

that at the age of 22, he stopped using marijuana and started

snorting powder cocaine on a daily basis, and at the age of 29 he

began smoking crack cocaine and continued to smoke $50 to $60

worth of crack daily until he was arrested in this case.

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Defendant denied that he was under the influence of alcohol or

cocaine at the time of his arrest. Defendant further reported

that in 2005, he attended outpatient drug treatment at Gateway

for three months, then "just stopped going to treatment."

The trial court stated that it reviewed the information

contained in the PSI, and considered the aggravating and

mitigating evidence, in addition to defendant's statement in

allocution. The court further stated that it would recommend

defendant receive treatment in the penitentiary, but advised him

that it would be partially his responsibility to ensure that he

entered a treatment program when he arrived at the prison. The

court then found defendant eligible for an extended-term sentence

based upon his extensive criminal background and sentenced him to

four years' imprisonment. When advising defendant of his appeal

rights, the court admonished him that any issue or claim of error

regarding his sentence or any part of the sentencing hearing that

was not raised in a written postsentencing motion would not be

considered by the appellate court. The court again stated that

it was recommending defendant receive drug treatment in prison.

Defense counsel immediately submitted a written motion to

reconsider sentence to the court. The motion alleged that the

sentence was excessive, that the court improperly considered in

aggravation matters that are implicit in the offense, that the

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State failed to prove defendant's eligibility for the extended

term, that the sentence improperly penalized defendant for

exercising his right to trial, and that the sentence imposed was

improper. The trial court denied the motion. The parties agree

that records from the Illinois Department of Corrections show

that defendant was released from prison on August 20, 2007, and

is currently serving a term of mandatory supervised release (MSR)

which will end on August 20, 2008.

On appeal, defendant solely contends that the trial court

erred when it failed to advise him that he was eligible for an

evaluation by a substance abuse treatment program pursuant to the

Alcoholism and Other Drug Abuse and Dependency Act (the Act) (20

ILCS 301/1-1 et seq. (West 2006)) where the record showed that he

suffered from alcoholism and substance abuse. Defendant argues

that the trial court had ample reason to believe that he was

eligible for and interested in a treatment program, and

therefore, it was required to admonish him of his eligibility for

Treatment Alternatives for Criminal Justice Clients (TASC).

Defendant thus argues that he was denied his right to a substance

abuse evaluation and consideration for a treatment program

instead of a traditional sentence. He asserts that this court

must vacate his sentence and remand this case to the trial court

for "further proceedings" under the Act. Defendant acknowledges

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that he failed to raise this issue during his sentencing hearing

and in his motion to reconsider his sentence, but claims that

this court should address the issue under the plain error

doctrine because his substantial rights were affected.

The State argues that defendant forfeited review of this

issue when he failed to raise it at the sentencing hearing and in

his postsentencing motion and that the plain error doctrine does

not apply in this case. Alternatively, the State argues that

defendant's claim is moot as this court is precluded from

granting him effectual relief where he has completed his term of

imprisonment, making it impossible for him to now be sentenced to

treatment as an alternative to prison.

Defendant replies that the issue is not forfeited as there

is no indication in the record that he or his counsel was aware

of his "right" to treatment as an alternative to prison, and

therefore, the issue must be considered as plain error.

Defendant further argues that the issue is not moot as his

sentence will not be fully discharged until his term of MSR ends

on August 20, 2008.

A sentencing issue is forfeited on appeal where defendant

failed to object during the sentencing hearing and failed to

raise the issue in a postsentencing motion. People v. Casillas,

195 Ill. 2d 461, 489 (2000). Here, defendant failed to raise the

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issue of alternative sentencing to TASC at the sentencing hearing

and in his written postsentencing motion. As this issue was

never raised before the trial court, defendant has forfeited the

issue on appeal.

Furthermore, we reject defendant's contention that the issue

he now presents is reviewable under the plain error doctrine. In

his opening brief, defendant asserts that the trial court's

failure to order a TASC evaluation was subject to plain error

review because it affected a substantial right, citing to People

v. Wallace, 331 Ill. App. 3d 822, 835 (2002). In the split

decision in Wallace, another division of this court made that

finding relying on People v. Hamilton, 155 Ill. App. 3d 555, 558

(1987). However, the dissent in Wallace quoted our supreme

court's holding in People v. Reed, 177 Ill. 2d 389 (1997), which

stated " 'the legislative purpose behind section 5-8-1(c) [of the

Unified Code of Corrections (730 ILCS 5/5-8-1(c) (West 1998))]

was to require sentencing issues be raised in the trial court in

order to preserve those issues for appellate review.' " Wallace,

331 Ill. App. 3d at 840 (Quinn, J., dissenting), quoting Reed,

177 Ill. 2d at 393. The dissent maintained that Wallace

forfeited his claim that the trial court erred when it failed to

order a TASC evaluation because he had failed to raise the issue

in his motion to reconsider his sentence.

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The dissent noted that Hamilton had been decided "six years

before the language of section 5-8-1(c) was amended to make a

postsentencing motion mandatory and 10 years before the holding

in Reed." Wallace, 331 Ill. App. 3d at 840-41 (Quinn, J.,

dissenting). It further stated that plain error exists only

where there has been a breakdown in the adversary system, as op-

posed to cases where there had been " 'typical trial mistakes.' "

Wallace, 331 Ill. App. 3d at 841 (Quinn, J., dissenting), quoting

People v. Keene, 169 Ill. 2d 1, 17 (1995). Significantly, the

dissent found that Wallace did not want to be sentenced to TASC

where the facts showed that the defendant had previously failed

to comply with TASC, told defense counsel that he wanted to ask

the court about TASC, and counsel then expressly asked the court

to impose the minimum prison term. The dissent concluded that

the only person who wanted Wallace to be evaluated for TASC was

his appellate counsel and that the majority's decision to vacate

Wallace's sentence and remand the case for a TASC evaluation not

only placed an unnecessary burden on the trial court, but also

required that TASC's scarce resources be spent on a defendant who

did not want them. Wallace, 331 Ill. App. 3d at 841 (Quinn, J.,

dissenting).

We find the reasoning in the dissent in Wallace to be

persuasive in this case. Similar to Wallace, defendant here

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notified trial counsel that he wanted drug treatment, and counsel

then explicitly asked the court to impose the minimum prison

sentence and give defendant "some substance abuse treatment while

he is incarcerated." (Emphasis added.) Counsel stated that

defendant "very much wants structure and treatment opportunities

while he is incarcerated." In allocution, defendant himself

asked the court to impose "the minimum sentence and let me get

some help." It is significant to note that defendant was

arrested in this case in February 2006, and he reported in the

PSI that shortly before that in 2005, he attended outpatient drug

treatment at Gateway for three months, then "just stopped going

to treatment." Although defendant did not specifically refer to

TASC, we find that the facts in this case establish that both

defendant and defense counsel believed defendant required the

"structure" of imprisonment with drug treatment provided to him

"while he is incarcerated." Accordingly, we find that plain

error does not apply here, and appellate counsel's claim that the

trial court erred when it failed to request a TASC evaluation is

forfeited.

Forfeiture aside, we also agree with the State's assertion

that the issue in this case is moot. When the issues involved in

the trial court no longer exist due to intervening events that

have rendered it impossible for the appellate court to grant

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effectual relief to defendant, the case is moot. People v.

Roberson, 212 Ill. 2d 430, 435 (2004). A sentencing challenge is

moot where defendant has completed serving his sentence. People

v. Campbell, 224 Ill. 2d 80, 83 (2006).

Here, defendant completed serving his term of imprisonment

and was released from prison on August 20, 2007. We acknowledge

that defendant's term of MSR is considered part of his sentence

(People v. Whitney, 368 Ill. App. 3d 678, 681 (2006)), and

although he has already completed two-thirds of his MSR, his term

does not end for a few months, and thus, his sentence will not be

fully discharged until August 20, 2008. However, the only relief

available for us to grant, and the relief requested by appellate

counsel, is to vacate defendant's sentence and remand this case

to the trial court for further proceedings under the Act. Such

proceedings would consist of a resentencing hearing at which time

the trial court would consider whether a TASC evaluation should

be ordered and whether defendant should be sentenced to probation

with drug treatment in lieu of a term of imprisonment. People v.

Brown, 267 Ill. App. 3d 482, 484 (1994). Obviously, it is

impossible to sentence defendant to probation with drug treatment

in lieu of imprisonment where he has already completed his term

of incarceration. Accordingly, as it is impossible for this

court to grant defendant any effectual relief, the case is moot.

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See People v. Porm, 365 Ill. App. 3d 791, 794-95 (2006) (where

defendant had discharged his prison term and only the period of

MSR remained, it was impossible for the appellate court to grant

an equitable solution, and thus, his sentencing claim challenging

the term of MSR was moot).

Based on our finding that the sole issue raised by defendant

has been forfeited, and alternatively, is moot, we dismiss this

appeal.

Appeal dismissed.

THEIS and CUNNINGHAM, JJ., concur.

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