{ "id": 5659620, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GAYLORD RICHARDSON, Defendant-Appellant", "name_abbreviation": "People v. Richardson", "decision_date": "1983-09-20", "docket_number": "No. 82\u2014661", "first_page": "175", "last_page": "189", "citations": [ { "type": "official", "cite": "118 Ill. App. 3d 175" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "448 N.E.2d 631", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 803", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3591402 ], "pin_cites": [ { "page": "810" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0803-01" ] }, { "cite": "377 N.E.2d 154", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. App. 3d 519", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3350826 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0519-01" ] }, { "cite": "409 N.E.2d 525", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 1026", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3179018 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/1026-01" ] }, { "cite": "415 N.E.2d 323", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "83 Ill. 2d 402", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5473821 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/83/0402-01" ] }, { "cite": "48 Ill. App. 3d 296", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3371613 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/0296-01" ] }, { "cite": "97 Ill. App. 3d 619", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3108727 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0619-01" ] }, { "cite": "440 N.E.2d 961", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "966" }, { "page": "967" } ], "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 446", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5450512 ], "weight": 4, "pin_cites": [ { "page": "453" }, { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0446-01" ] }, { "cite": "296 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 359", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2928991 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0359-01" ] }, { "cite": "200 N.E.2d 416", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill. App. 2d 238", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5276244 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/50/0238-01" ] }, { "cite": "192 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill. 2d 441", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360801 ], "weight": 2, "pin_cites": [ { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0441-01" ] }, { "cite": "117 Ill. App. 3d 55", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3482064 ], "weight": 2, "pin_cites": [ { "page": "58" }, { "page": "58" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/117/0055-01" ] }, { "cite": "69 Ill. 2d 620", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5454414 ], "weight": 2, "pin_cites": [ { "page": "629" }, { "page": "627-28" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/69/0620-01" ] }, { "cite": "46 Ill. App. 3d 448", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2971694 ], "year": 1977, "pin_cites": [ { "page": "452-53" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/46/0448-01" ] }, { "cite": "102 Ill. App. 3d 10", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3076555 ], "weight": 2, "pin_cites": [ { "page": "20" }, { "page": "20" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/102/0010-01" ] }, { "cite": "60 Ill. App. 3d 519", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3350826 ], "pin_cites": [ { "page": "521" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/60/0519-01" ] }, { "cite": "87 Ill. App. 3d 1026", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3179018 ], "pin_cites": [ { "page": "1032" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/87/1026-01" ] }, { "cite": "109 Ill. App. 3d 446", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5450512 ], "weight": 2, "pin_cites": [ { "page": "454" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/109/0446-01" ] } ], "analysis": { "cardinality": 951, "char_count": 32809, "ocr_confidence": 0.751, "pagerank": { "raw": 7.480882369975635e-08, "percentile": 0.4455941253717881 }, "sha256": "658530b3d3a85cf1367ae2b997ce4322a7e35a3e89ed79b277e59509ce1b35d7", "simhash": "1:8c899d4de31d9d71", "word_count": 5535 }, "last_updated": "2023-07-14T15:55:29.032579+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GAYLORD RICHARDSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE ALLOY\ndelivered the opinion of the court:\nThis is an appeal of a conviction for burglary.\nThe 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.\nApart from the damage to the window, nothing in the club was disturbed and none of the club\u2019s property was missing or discovered on Richardson\u2019s person.\nThe defendant was tried, convicted of burglary and sentenced to 10 years in prison under the extended-term sentencing provisions of section 5 \u2014 5\u20143.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2).\nThe 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 \u2014 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.\nIt is a rare case where any direct evidence exists as to a defendant\u2019s 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.\nThe defendant also claims that the fact that nothing was taken or disturbed on the premises constitutes the \u201cinconsistent circumstances\u201d 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.\nHere 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.\nThis court finds that the State met its burden of proof. The conviction is affirmed.\nThe 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.\nA 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\u2019s statement that he was a drug addict.\nSection 10 of the Dangerous Abuse Act provides:\n\u201cIf 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.)\nPrior to its amendment in 1979 this statute read \u201cthe court may advise him.\u201d Advising a defendant of his rights and options under this Act was within the trial court\u2019s discretion at that time. The 1979 amendment, substituting \u201cshall\u201d for \u201cmay,\u201d 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.\nThe first of these conditions is \u201ca court has reason to believe that an individual is an addict or the individual states that he is an addict.\u201d The word \u201cor\u201d is a disjunctive. Either the defendant\u2019s 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:\n\u201cWe 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\u201d\nthey were simply stating the plain English meaning of the statute.\nThe State, obviously distressed by the fact that the court must accept a defendant\u2019s \u201cpotentially self-serving statement\u201d attempts to bring back a discretionary finding of addiction through the second condition of section 10:\n\u201cthe court finds that he is eligible to make the election provided for under Section 8.\u201d\nThey refer us to section 8:\n\u201cAn 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 ***.\u201d (Ill. Rev. Stat. 1981, ch. 91V2, par. 120.8.)\nThe State argues that the use of the word \u201caddict\u201d in this section is not simply a brief way of stating \u201can individual who has stated that he is an addict or has given the court reason to believe that he is an addict.\u201d Rather, they argue, the use of the word \u201caddict\u201d in section 8 requires the court to make a \u201cthreshold finding\u201d apart from any requirements of section 10 that the defendant is, in fact, an addict.\nWe 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:\n\u201cIf 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.\u201d (Emphasis added.) (Ill. Rev. Stat. 1981, eh. 91V2, par. 120.10.)\nThe 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\u2019s attempting to predict the outcome of blood, urine, and psychological tests, and nowhere does the legislature authorize the court to do so.\nThe 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\u2019s \u201cbare assertion\u201d that he is an addict is insufficient. These cases are not supportive of this proposition or the State\u2019s 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 \u201cex-heroin addict\u201d and in Jones the defendant made oblique references to having a \u201cdrug problem.\u201d The issue in both cases was whether, absent the defendant\u2019s statement that he was an addict, the court had \u201creason to believe\u201d that he was' an addict under section 10. Neither case makes any reference to a threshold finding of addiction under section 8.\nThe State also argues that People v. Beasley (1982), 109 Ill. App. 3d 446, 440 N.E.2d 961, recognizes that \u201cthe evidence presented to the trial judge must give the judge reason to believe the defendant is in reality an addict.\u201d Here the State uses the language of section 10 in an attempt to prove that the word \u201caddict\u201d 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:\n\u201cWe note that a mere statement by an eligible defendant that he is an addict entitles him to an advisement of the probation \u25a0 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.\u201d 109 Ill. App. 3d 446, 454, 440 N.E.2d 961, 967.\nIn sum, the State is unable to cite any authority to support its assertion that the word \u201caddict\u201d 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.\nThe State argues alternatively that Gaylord Richardson was on parole, did not have his parole officer\u2019s consent to elect treatment and was, therefore, ineligible under section 8(e):\n\u201cAn 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 ***.\u201d (Ill. Rev. Stat. 1981, ch. 91x/2, par. 120.8(e).)\nCase 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.\nHowever, 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\u2019s eligibility under the Act.\nIn considering disposition under the Act, in the instant case the trial court stated: \u201cI find that the requisite factors to bring that into effect do not exist and have not been shown here.\u201d The State argues in its supplemental brief that \u201cthe trial judge obviously recognized the fact defendant was on parole, had not obtained consent, and was ineligible under Section 8 of the Act.\u201d 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\u2019s parole status \u201cobvious\u201d from the trial court\u2019s statement. The court\u2019s 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.\nThe defendant\u2019s final objection to the procedure below is that he should not have been sentenced under the extended-term sentencing provisions of section 5 \u2014 5\u20143.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 5\u20143.2). This argument is based entirely upon the wording of section 5 \u2014 5\u20143.2(b)(1), which allows for extended term sentencing:\n\u201cWhen 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.\u201d (Ill. Rev. Stat. 1981, ch. 38, par. 105 \u2014 5\u20143.2(b)(1).)\nThe defendant argues that the words \u201cseparately brought and tried\u201d 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\u2019s 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 \u201ca proceeding in which a defendant\u2019s guilty plea is accepted by the trial court after establishing a factual basis for the plea is a trial.\u201d We would add only that defendant\u2019s 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\u2019s guilty pleas were the product of careful plea bargaining, not remorse.\nWe find that the court correctly noted Richard\u2019s 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 \u2014 5\u20143.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 5\u20143.2).\nThe 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.\nSTOUDER, P.J., concurs.", "type": "majority", "author": "JUSTICE ALLOY" }, { "text": "JUSTICE HEIPLE,\ndissenting:\nThe defendant, in his second issue, argues that his sentence should be vacated, and his cause remanded for resentencing, because the trial court neither advised the defendant of his right to elect treatment under the Dangerous Drug Abuse Act, nor referred him for evaluation under the Act, even though the defendant specifically stated he was an addict. The majority opinion agrees with the defendant because it holds that \u201c*** when a defendant states that he is an addict the provisions of the Dangerous 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. ***\u201d Interestingly, the majority also finds it cannot review the sentencing issue because the record does not reflect the exercise of discretion concerning the application of the Dangerous Drug Abuse Act (Act), by the trial court. The majority is sending the case back to the trial court so that the trial court can evaluate, on the record, the factors of the Act which determine whether the Act is applicable to the defendant. I respectfully dissent. I believe the record is complete. The trial court did evaluate the necessary factors and rendered its decision on the record. Furthermore, I would hold the trial court was under no obligation to advise the defendant of the provisions of the Act or to have the defendant evaluated for treatment, and thus, did not err.\nAn examination of the applicability of the Act, to the instant case, must begin with a review of section 10 of the Act which provides, in relevant part, as follows:\n\u201cIf 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 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.\u201d (Emphasis added.) Ill. Rev. Stat. 1981, ch. 91x/2, par. 120.10.\nThe majority notes that there are two conditions to the application of the advisement requirements of section 10. Yet, after reviewing People v. Beasley (1982), 109 Ill. App. 3d 446, as authority, the majority recognizes in effect only one condition to the application of the Act. The majority requires only that \u201c*** a defendant state that he is an addict [in order for] the provisions of the Drug Abuse Act [to be] triggered ***.\u201d The majority misconstrues section 10. It is quite clear from the language of this section that the advisory requirements of the section are not activated until two conditions precedent are present. One, 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. Two, the court finds that he is eligible to make the election provided for under section 8. In the instant case, the defendant stated that he was an addict. Thus, the first condition was present. It is necessary, then, to determine whether the second was present.\nSection 8(e), in relevant part, provides as follows:\n\u201cAn addict *** convicted of a crime is eligible to elect treatment *** unless *** (e) the addict is on *** parole and the appropriate parole *** authority does not consent to that election ***.\u201d (Ill. Rev. Stat. 1981, ch. 91V2, par. 120.8(e).)\nThe provisions of section 8 determine whether a defendant is eligible to elect treatment under the Act. The application of section 8 is also limited by two conditions precedent. One, the defendant must be, in fact, an addict. Two, the proper parole authority must consent to the election. The majority states the legislature did not intend to allow the trial court to determine whether a defendant is, in fact, an addict. The majority contends, first, that to so hold would render the conditions of section 10 superfluous and, second, that the task of determining whether an individual is, in fact, an addict was assigned by the legislature to medical personnel. I disagree with the first contention because section 8 clearly, and unequivocably refers to \u201can addict.\u201d Did the legislature say, in section 8, \u201creason to believe an addict\u201d or \u201cdetermined by medical personnel an addict\u201d or \u201cclaims to be an addict\u201d? No. The legislature said \u201can addict.\u201d The first condition of section 10 allows the court and/or the defendant an opportunity to raise the issue of addiction. Once the issue is raised, the trial court looks to section 8 and makes a factual determination of whether the defendant is, in fact, an addict. There is a reasonable and necessary progression of events. First, the issue is raised (via section 10); then, the court can make an initial finding as to the merits of the addiction allegation (via section 8); then, if the court believes the defendant is an addict and eligible to elect treatment (via section 8), the court can ask a licensed program to evaluate the defendant for possible treatment. Why should the court order an evaluation for treatment every time a defendant claims to be an addict? Why should the State and/or county of the court suffer the expense of an evaluation for treatment every time a defendant claims to be an addict? I would read section 8 to require a finding that the defendant is, in fact, an addict. Obviously, I also disagree with the majority\u2019s second contention and address this second point more fully at the end of my dissent. The trial court is fully competent to evaluate the testimony, the medical reports (if submitted) and \u201cother information\u201d and determine whether a defendant is, in fact, an addict.\nIn the instant case, the record indicates that there was extensive testimony, at a pretrial hearing, concerning the defendant\u2019s addiction problem, by the defendant and a guard at the jail where the defendant resided. The defendant testified to a long history of drug use; but, the testimony could not compel one to conclude the defendant had an addiction problem. Mostly, the testimony showed the defendant had a severe drinking problem. The defendant presented no witness to testify to his drug addiction. The jailhouse guard testified he never noticed the defendant to have exhibited drug withdrawal symptoms. In sum, the record sufficiently demonstrates the defendant was not an \u201caddict\u201d within the meaning of the Act. (Ill. Rev. Stat. 1981, ch. 91V2, par. 120.3 \u2014 3.) Thus, the record supports the conclusion that the defendant was ineligible to elect treatment under the Act. People v. Benedetto (1981), 102 Ill. App. 3d 10, 20.\nThe defendant also did not satisfy the second condition of section 8, which is relevant to the case at hand. The defendant did not present the lower court with evidence of the proper parole authority\u2019s consent to the defendant\u2019s election under the Act. As the majority points out, the defendant has an affirmative obligation to provide such evidence to the trial court. This court has previously held that \u201c[because the defendant\u2019s probation officer has not consented to his treatment under the Dangerous Drug Abuse Act, we find the defendant to be ineligible for such treatment and, therefore, decline to remand this cause for a new sentencing hearing merely to enable the sentencing judge to state, for the record, his reasons for denying the defendant the election for such treatment.\u201d (People v. York (1980), 87 Ill. App. 3d 1026, 1032.) Because the defendant, in the instant case, was unable to meet the conditions of section 8, the defendant was ineligible to elect treatment under the Act. Also, the failure to meet the requirements of section 8 meant the conditions precedent of section 10 were not present; consequently, the trial court was under no obligation to advise the defendant of the treatment alternatives available in the Act. Despite this clear evidence (or perhaps I should say clear lack of evidence favorable to the defendant) in the record in support of the decision of the lower court, the majority chooses to vacate the sentence. In effect, the court is reversing a correct decision by the trial court.\nThe rationale for the court\u2019s decision is that the record does not make clear the trial court\u2019s reasons in rejecting treatment under the Act. The majority notes that:\n\u201cIn considering disposition under the Act, in the instant case the trial court stated: T find that the requisite factors to bring that into effect do not exist and have not been shown here.\u2019 The State argues in its Supplemental Brief that \u2018the trial judge obviously recognized the fact defendant was on parole, had not obtained consent, and was ineligible under Section 8 of the Act.\u2019 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\u2019s parole status \u2018obvious\u2019 from the trial court\u2019s statement. The court\u2019s 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.\u201d\nThe majority cites, in support of its holding, People v. Simms (1978), 60 Ill. App. 3d 519, 521, wherein the court held \u201cthat the absence from the record of proof that defendant had obtained consent of probation authorities does not negate the requirement that the trial judge exercises his discretion on the record when considering treatment under the Act.\u201d By its analysis, the majority is requiring specific and detailed findings of fact for each factor and is reversing the lower court because of his failure to explicitly state the findings in the record.\nI disagree with the majority\u2019s holding for three reasons. One, the rule stated in Simms does not include a requirement that the trial court make a specific finding of fact in the record in order to satisfy the requirement that the exercise of discretion be reflected in the record. In Simms, the court was only able to infer that the trial court considered the Dangerous Drug Abuse Act, and held that there must be an on the record exercise of discretion by the trial judge. Simms relied upon People v. Ruffin (1977), 46 Ill. App. 3d 448, 452-53, wherein there was no mention on the record of the defendant\u2019s addiction problem or the Dangerous Drug Abuse Act and the court could not determine whether the trial judge exercised his discretion. The Simms court also relied upon the supreme court\u2019s decision in People v. Warren (1977), 69 Ill. 2d 620, 629, for the basic rule that the exercise of discretion in denying the defendant treatment under the Act must be reflected in the record. The Warren decision does not state what the trial court must say or what factors must be evaluated on the record. The purpose of this rule is to aid the higher court\u2019s review of the trial court\u2019s decision. It seems sufficient that there is an indication on the record that the judge considered the relevant section of the Act and exercised his discretion by saying whether he would apply the section or not. (People v. Rohman (1983), 117 Ill. App. 3d 55, 58.) In the instant case, the trial court did state the law at issue and its decision under that law. On appeal, this court can review the record and determine as a matter of law, from the facts and applicable law, as they appear in the record, whether the trial court abused its discretion.\nTwo, I disagree with the holding of the opinion because the statement of the trial judge on the record was a specific finding as to the application of the Act. The majority opinion does not fully quote the trial court\u2019s decision. The trial court stated that \u201cif it is the defendant\u2019s theory that he would qualify for commitment under the Mental Health Code, chapter 911!2, paragraph 120.8, I find that the requisite factors to bring that into effect do not exist and have not been shown here.\u201d (Emphasis added.) As discussed above, the application of section 8 to the defendant was a condition precedent to the application of section 10 to the defendant. It cannot be disputed that, in the case at hand, the lower court needed to consider only two factors when evaluating the applicability of section 8, which are as follows: Was the defendant an addict and did the parole authorities consent? The trial judge stated that \u201cthe requisite factors to bring that [section 8] into effect do not exist and have not been shown here.\u201d How much more specific must the trial court be? The two factors are not there. Does the record show otherwise? Unless the record does show otherwise, the decision of the trial court not to advise the defendant of the election provisions of section 10 should be affirmed.\nThree, I disagree with the holding of the opinion because the trial court was, pursuant to the fourth sentence of the second paragraph of section 10, fully within its authority to completely avoid the application of section 10 to the defendant. The fourth sentence of the second paragraph provides as follows:\n\u201cIf the court, acting on the report and other information coming to its attention, determines that the individual is not an addict or is an addict not likely to be rehabilitated through treatment or that his addiction and the crime committed are not significantly related or that his imprisonment or periodic imprisonment is necessary for the protection of the public, the court shall proceed to pronounce sentence as in other cases.\" (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 9U/2, par. 120.10.)\nThe trial court specifically found that \u201chis [the defendant\u2019s] imprisonment is necessary for the protection of the public.\u201d Thus, even if section 10 was applicable to the defendant, the trial court was empowered to ignore the treatment provisions of section 10 and \u201cpronounce sentence as in other cases.\u201d\nThe defendant also argues, and the majority agrees, the trial court erred in not ordering an evaluation of the defendant by a licensed program to determine whether the defendant was an \u201caddict,\u201d within the meaning of section 8. In other words, the majority holds the trial court should not have made the evaluation itself. The majority cites People v. Beasley (1982), 109 Ill. App. 3d 446, 454, for the proposition that the legislature intended that medical expertise be employed in determining whether the defendant is an addict. And, the majority cites the first sentence of the second paragraph of section 10, which provides as follows:\n\u201cIf the individual elects to undergo treatment or is certified for 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.\u201d Ill. Rev. Stat. 1981, ch. 91%, par. 120.10.\nAgain, I must disagree with the majority\u2019s interpretation of the statute. First, the above mentioned sentence applies \u201cif the individual elects to undergo treatment ***.\u201d The individual cannot \u201celect *** treatment\u201d unless he is first eligible to elect treatment; the individual is not eligible to elect treatment unless the requirements of section 8 are first satisfied. (People v. Rohman (1983), 117 Ill. App. 3d 55, 58.) Section 8 does not instruct the trial court to seek the advice of \u201clicensed programs\u201d when evaluating the individual\u2019s claim of drug addiction. Furthermore, the above mentioned sentence should be read in conjunction with the very last sentence of the second paragraph, which provides that \u201cno individual may be placed under supervision unless a licensed program designated by the Commission accepts him for treatment.\u201d Reading the two sentences together, it becomes apparent the court is authorized to order an evaluation simply to allow the licensed program to decide for itself whether it will accept an otherwise \u201celigible\u201d individual for treatment (section 8 also provides that \u201can eligible addict may not be admitted to a treatment program, however, unless the authorities concerned consent as hereinafter set forth\u201d (Ill. Rev. Stat. 1981, ch. 91%, par. 120.8); see also section 11 (Ill. Rev. Stat. 1981, ch. 91%, par. 120.11)). More specifically, the above quoted passage of the fourth sentence of the second paragraph of section 10 empowers the trial court to completely avoid the application of the Act \u201cif the court, acting on *** other information *** determines that the individual is not an addict ***.\u201d (Emphasis added.) The decision whether the defendant is an addict, and eligible under section 8 to elect treatment, is wholly within the discretion of the trial court. (People v. Benedetto (1981), 102 Ill. App. 3d 10, 20; cf People v. Warren (1977), 69 Ill. 2d 620, 627-28.) The decision whether the defendant, if the court finds him to be an addict, is to be. admitted as a treatable addict into a licensed program is within the discretion of the licensed program. (Section 7 of the Act (Ill. Rev. Stat. 1981, ch. 91V2, par. 120.7) states that the decision of the drug abuse commission to deny or discontinue treatment is not appealable.) In the instant case, the trial court was not obligated to order an evaluation of the defendant because the defendant was not eligible to elect treatment. Therefore, I would affirm the decision of the trial court.", "type": "dissent", "author": "JUSTICE HEIPLE," } ], "attorneys": [ "Robert Agostinelli, Verlin R.E Meinz, and Jean Herigodt, all of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Warren T. McNeill, State\u2019s Attorney, of Monmouth (John X. Breslin and Vicki R. Wright, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GAYLORD RICHARDSON, Defendant-Appellant.\nThird District\nNo. 82\u2014661\nOpinion filed September 20, 1983.\nHEIPLE, J., dissenting.\nRobert Agostinelli, Verlin R.E Meinz, and Jean Herigodt, all of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nWarren T. McNeill, State\u2019s Attorney, of Monmouth (John X. Breslin and Vicki R. Wright, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0175-01", "first_page_order": 197, "last_page_order": 211 }