People v. Richardson

454 N.E.2d 742, 118 Ill. App. 3d 175, 73 Ill. Dec. 645, 1983 Ill. App. LEXIS 2318

• Court: Appellate Court of Illinois
• Decided: September 20, 1983
• Docket: No. 82—661
• Status: Published

Opinions

JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal of a conviction for burglary.

The defendant, Gaylord Richardson, was arrested at the Eagles Club Building in Monmouth, Illinois, on April 16, 1982, at approximately 3 a.m. Richardson had entered the building by knocking in the paneling covering a window in the meeting room area of the building. This activated an alarm which alerted the Monmouth police department and Cecil Albert, a club trustee. Both the officers and Albert arrived at the Eagles Club quickly. The police officers searched the building, and discovered Richardson in a closet in the storage area of the club. He was placed under arrest. At some point, Richardson asked for the beer and cigarettes he had left in the barroom of the club.

Apart from the damage to the window, nothing in the club was disturbed and none of the club’s property was missing or discovered on Richardson’s person.

The defendant was tried, convicted of burglary and sentenced to 10 years in prison under the extended-term sentencing provisions of section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2).

The defendant raises three issues on appeal. First, the defendant claims his conviction must be reversed because the State failed to prove beyond a reasonable doubt that the defendant entered the Eagles Club with intent to commit a theft. This intent upon entry is an essential element of the crime of burglary. (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1.) It is not necessary that anything be stolen for a burglary to occur. It is well established that a jury may infer the element of intent in a burglary case from the fact of illegal entry into a premises containing movable property which could be the subject of a theft. People v. Johnson (1963), 28 Ill. 2d 441, 192 N.E.2d 864.

It is a rare case where any direct evidence exists as to a defendant’s state of mind at the point of entry. Yet the defendant here argues that the circumstantial evidence against him must be corroborated for the State to meet its burden of proof. This is not required by Johnson. All that is required is that there not be circumstances inconsistent with a reasonable inference of intent to commit theft. 28 Ill. 2d 441, 443.

The defendant also claims that the fact that nothing was taken or disturbed on the premises constitutes the “inconsistent circumstances” contemplated in Johnson and cites People v. Hutchinson (1964), 50 Ill. App. 2d 238, 200 N.E.2d 416, in support of this assertion. In Hutchinson, the defendant entered and left a home in daylight, disturbing or removing nothing, and was apprehended sometime later. The Appellate Court for the First District of the State of Illinois found this completed sequence of actions without a theft occurring inconsistent with an inference of intent to commit theft upon entry.

Here Richardson was apprehended on the premises a short time after entering the club. The evidence shows that he had been in the barroom prior to the arrival of the officers and retreated to a closet in the storage area. The fact that no theft had occurred when the police arrived is at best inconclusive. It is not inconsistent with the reasonable inference that Richardson intended to commit a theft and would have done so but for the arrival of the police. See People v. Hayes (1973), 11 Ill. App. 3d 359, 296 N.E.2d 649.

This court finds that the State met its burden of proof. The conviction is affirmed.

The defendant raises two objections to the sentencing procedure in the court below. The first of these is that the court failed to advise him of his right to elect treatment under the Dangerous Drug Abuse Act. Ill. Rev. Stat. 1981, ch. 91V2, par. 120.1 et seq.

A presentence report was prepared by the probation office in this case. The report was incorporated in the record of the case at the sentencing hearing and was before the court in pronouncing sentence. It contained the defendant’s statement that he was a drug addict.

Section 10 of the Dangerous Abuse Act provides:

“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 he is eligible to make the election provided for under Section 8, the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a licensed program designated by the Commission. (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 911/2, par. 120.10.)

Prior to its amendment in 1979 this statute read “the court may advise him.” Advising a defendant of his rights and options under this Act was within the trial court’s discretion at that time. The 1979 amendment, substituting “shall” for “may,” removed this discretion and required the trial court to advise the defendant of his option to elect treatment if the two conditions of the statute are met. See also People v. Beasley (1982), 109 Ill. App. 3d 446, 453, 440 N.E.2d 961, 966.

The first of these conditions is “a court has reason to believe that an individual is an addict or the individual states that he is an addict.” The word “or” is a disjunctive. Either the defendant’s statement or other evidence which would give the court reason to believe that he is an addict fulfills this condition; both are not required. If an individual states that he is an addict the court must accept that statement, and not make its own determination as to the truth of the statement. When the court said in People v. Beasley (1982), 109 Ill. App. 3d 446, 454:

“We note that a mere statement by an eligible defendant that he is an addict entitles him to an advisement of the probation and treatment possibilities under the Act”

they were simply stating the plain English meaning of the statute.

The State, obviously distressed by the fact that the court must accept a defendant’s “potentially self-serving statement” attempts to bring back a discretionary finding of addiction through the second condition of section 10:

“the court finds that he is eligible to make the election provided for under Section 8.”

They refer us to section 8:

“An addict charged with or convicted of a crime is eligible to elect treatment under the supervision of a licensed program designated by the Commission instead of prosecution or probation, as the case may be, unless ***.” (Ill. Rev. Stat. 1981, ch. 91V2, par. 120.8.)

The State argues that the use of the word “addict” in this section is not simply a brief way of stating “an individual who has stated that he is an addict or has given the court reason to believe that he is an addict.” Rather, they argue, the use of the word “addict” in section 8 requires the court to make a “threshold finding” apart from any requirements of section 10 that the defendant is, in fact, an addict.

We note first that to hold that section 8 requires a finding by the trial court that an individual is, in fact, an addict would render the conditions of the first paragraph of section 10 of the Act entirely superfluous. While such a result might please those who argue in its favor, it would be a poor reflection of legislative intent. The legislature also specifically assigned the task of determining whether an individual is, in fact, an addict to medical personnel qualified to make such a determination. The second paragraph of section 10 reads:

“If an individual elects to undergo treatment *** the court shall order an examination by a licensed program designated by the Commission to determine whether he is an addict and is likely to be rehabilitated through treatment.” (Emphasis added.) (Ill. Rev. Stat. 1981, eh. 91V2, par. 120.10.)

The decision whether the defendant is to be admitted into a licensed program as a treatable addict is within the discretion of those in charge of the licensed program. It is clear from the statutory language that this decision has two aspects. The first is whether the defendant is, in fact, an addict, and the second is whether he is likely to be rehabilitated by treatment. These are medical, not judicial, determinations. Little purpose would be served by a trial court’s attempting to predict the outcome of blood, urine, and psychological tests, and nowhere does the legislature authorize the court to do so.

The State cites People v. Jones (1981), 97 Ill. App. 3d 619, and People v. Knowles (1977), 48 Ill. App. 3d 296, to support the proposition that the defendant’s “bare assertion” that he is an addict is insufficient. These cases are not supportive of this proposition or the State’s argument under section 8. In neither case did the defendant state that he was a drug addict. In Knowles, the defendant stated that he was an “ex-heroin addict” and in Jones the defendant made oblique references to having a “drug problem.” The issue in both cases was whether, absent the defendant’s statement that he was an addict, the court had “reason to believe” that he was' an addict under section 10. Neither case makes any reference to a threshold finding of addiction under section 8.

The State also argues that People v. Beasley (1982), 109 Ill. App. 3d 446, 440 N.E.2d 961, recognizes that “the evidence presented to the trial judge must give the judge reason to believe the defendant is in reality an addict.” Here the State uses the language of section 10 in an attempt to prove that the word “addict” in section 8 requires a separate finding of fact. The defendant in Beasley did not state that he was an addict at the time of the trial. The context of the recognition the State relies upon is:

“We note that a mere statement by an eligible defendant that he is an addict entitles him to an advisement of the probation ■ and treatment possibilities under the Act, and believe that consistent with this statutory scheme little should be required to give a court reason to believe defendant is an addict.” 109 Ill. App. 3d 446, 454, 440 N.E.2d 961, 967.

In sum, the State is unable to cite any authority to support its assertion that the word “addict” in section 8 requires a threshold finding of addiction. There is nothing to indicate that anything more than the requirements outlined in section 10 is necessary to trigger the provisions of the Act. We, therefore, hold that when a defendant states that he is an addict the provisions of the Drug Abuse Act are triggered. Any further determination of addiction is within province of the medical personnel designated by the legislature. It is not within the discretion of the court.

The State argues alternatively that Gaylord Richardson was on parole, did not have his parole officer’s consent to elect treatment and was, therefore, ineligible under section 8(e):

“An addict *** convicted of a crime is eligible to elect treatment *** unless *** (e) the addict is on probation or parole and the appropriate parole or probation authority does not consent to that election ***.” (Ill. Rev. Stat. 1981, ch. 91x/2, par. 120.8(e).)

Case law places an affirmative obligation on a defendant who wishes to be eligible to elect treatment to obtain the consent of his parole officer and present evidence of this consent to the court. (See People v. Kuesis (1980), 83 Ill. 2d 402, 415 N.E.2d 323; People v. York (1980), 87 Ill. App. 3d 1026, 409 N.E.2d 525.

However, in People v. Simms (1978), 60 Ill. App. 3d 519, 377 N.E.2d 154, the Appellate Court for the First District correctly held that absence from the record of proof that the defendant obtained the consent of the requisite authorities does not eliminate the requirement that the record reflect the discretion of the trial court in considering the defendant’s eligibility under the Act.

In considering disposition under the Act, in the instant case the trial court stated: “I find that the requisite factors to bring that into effect do not exist and have not been shown here.” The State argues in its supplemental brief that “the trial judge obviously recognized the fact defendant was on parole, had not obtained consent, and was ineligible under Section 8 of the Act.” Were this true, the requirements of the Act would have been fulfilled. However, this court does not, on the record, find any consideration of the defendant’s parole status “obvious” from the trial court’s statement. The court’s statement seems more likely to be what the State first presumed it to be, a finding that Richardson was not an addict. Since no such finding was proper in this case, we must vacate the sentence and remand for resentencing consistent with the provisions of this Act.

The defendant’s final objection to the procedure below is that he should not have been sentenced under the extended-term sentencing provisions of section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2). This argument is based entirely upon the wording of section 5 — 5—3.2(b)(1), which allows for extended term sentencing:

“When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts.” (Ill. Rev. Stat. 1981, ch. 38, par. 105 — 5—3.2(b)(1).)

The defendant argues that the words “separately brought and tried” mean that only convictions resulting from a bench or jury trial may be considered under the statute; not those which result from guilty pleas as the defendant’s did. We find this argument without merit. The Second District Appellate Court, in considering this same issue in People v. Baker (1983), 114 Ill. App. 3d 803, 810, 448 N.E.2d 631, noted that “a proceeding in which a defendant’s guilty plea is accepted by the trial court after establishing a factual basis for the plea is a trial.” We would add only that defendant’s arguments for leniency for defendant who plead guilty unpersuasive. A guilty plea may, in some cases, be a significant step toward rehabilitation. But where the record shows six prior felony convictions in the last seven years, it appears more likely that Richardson’s guilty pleas were the product of careful plea bargaining, not remorse.

We find that the court correctly noted Richard’s conviction on three counts of burglary in 1977 and his conviction for escape in 1978, as two instances of the defendant being convicted of the same or greater class felony within the 10-year period and that these charges were separately brought and tried. The court acted within its discretion in sentencing Gaylord Richardson under the extended term sentencing provision of section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2).

The conviction is affirmed. The sentence is vacated and the case is remanded to the circuit court of Warren County for determination of the eligibility of Richardson under the Drug Abuse Act, and for sentencing.

STOUDER, P.J., concurs.