{ "id": 5255189, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROY L. LIVENGOOD, JR., Defendant-Appellant", "name_abbreviation": "People v. Livengood", "decision_date": "1991-12-19", "docket_number": "No. 4-91-0414", "first_page": "350", "last_page": "355", "citations": [ { "type": "official", "cite": "223 Ill. App. 3d 350" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "574 N.E.2d 850", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "854" } ], "opinion_index": 0 }, { "cite": "215 Ill. App. 3d 148", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5294529 ], "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0148-01" ] }, { "cite": "515 N.E.2d 715", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "720-21" } ], "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 833", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3466197 ], "weight": 2, "pin_cites": [ { "page": "841" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0833-01" ] }, { "cite": "477 N.E.2d 836", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "839" } ], "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 764", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3443039 ], "year": 1987, "pin_cites": [ { "page": "767-68" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0764-01" ] }, { "cite": "552 N.E.2d 397", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "397" } ], "opinion_index": 0 }, { "cite": "195 Ill. App. 3d 430", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2494273 ], "pin_cites": [ { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/195/0430-01" ] }, { "cite": "496 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "296-97" } ], "opinion_index": 0 }, { "cite": "145 Ill. App. 3d 863", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3535643 ], "pin_cites": [ { "page": "865" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0863-01" ] }, { "cite": "470 N.E.2d 1024", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1029" }, { "page": "1028-29" } ], "opinion_index": 0 }, { "cite": "104 Ill. 2d 8", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146647 ], "weight": 2, "pin_cites": [ { "page": "17" }, { "page": "16-17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0008-01" ] } ], "analysis": { "cardinality": 651, "char_count": 11370, "ocr_confidence": 0.78, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15696668029680494 }, "sha256": "699e3a1bc71dfa7fb30facd9a033704d1d632e6c94304b7c5c93fe84d50b4eaa", "simhash": "1:968900853ec892e5", "word_count": 1849 }, "last_updated": "2023-07-14T19:46:44.574739+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. ROY L. LIVENGOOD, JR., Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE KNECHT\ndelivered the opinion of the court:\nThe Adams County circuit court revoked defendant\u2019s probation and sentenced him to three years\u2019 imprisonment. Defendant appeals the sentence imposed. We affirm.\nAn information filed in February 1990 charged defendant, then 27 years old, with three counts of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 \u2014 1(a)) and three counts of theft (Ill. Rev. Stat. 1989, ch. 38, par. 16\u2014 l(aXl)). Defendant entered a plea agreement and in March 1990, pleaded guilty to one count of burglary. The court accepted the plea and, in June 1990, sentenced defendant to 18 months\u2019 probation. The sen-tenting order stated defendant was not to consume alcohol and stated: \u201cEvidence being held may be released to lawful owner with the exception of the defendant\u2019s vehicle which shall be held pending forfeiture.\u201d\nIn February 1991, the State filed a petition to revoke defendant\u2019s probation. The petition alleged defendant violated probation when, in November 1990, he committed the offenses of driving under the influence (DUI) (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 \u2014 501(a)(2)), illegal transportation of alcohol (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 \u2014 502), and driving without taillights (Ill. Rev. Stat. 1989, ch. 95V2, par. 12\u2014 201(b)). He also violated probation when he consumed alcohol that same date. (We note that in February 1991, the court had sentenced defendant to one year\u2019s probation on the aforementioned traffic offenses, and ordered him to attend Alcoholics Anonymous (AA) meetings and complete DUI evaluation and classes at Recovery Resources.)\nOn April 24, 1991, defendant admitted to the allegations in the petition to revoke probation and the court revoked his probation.\nAt the sentencing hearing on May 30, 1991, Illinois State Police Officer Robert Ryan testified he had stopped defendant on May 3, 1991, after the car defendant was driving crossed the centerline of the highway several times. Defendant\u2019s eyes were bloodshot, his speech slurred, and his breath smelled of alcohol. Defendant failed all three field-sobriety tests administered. Defendant informed Ryan his driver\u2019s license had been revoked in February 1991 after a DUI arrest. Defendant informed the court he sold his car so he would not drive anymore.\nAfter reviewing defendant\u2019s presentence report, the court stated:\n\u201cI am not going to endanger the people that travel on the streets of this State for someone *** who knew he was in trouble, that he was on probation. It\u2019s not enough that you got caught doing it once; you did it again, a second DUI in a short period of time. You, sir, pose a threat to the citizens of the State, and you don\u2019t want to take the helping hand that is offered to you through counseling in alcohol, and how to straighten your life up through probation so you can lead a decent life, so I have got to show you what the other alternative is. You have been given the chance and didn\u2019t take advantage of it. I wish you had.\nHaving regard to the nature and circumstances of the offense, and the history, character, and condition of the offender, the Court is of the opinion that imprisonment is necessary for the protection of the public, that additional probation or conditional discharge would deprecate the seriousness of his conduct and would be inconsistent with the ends of justice.\u201d\nThe court sentenced defendant to three years\u2019 imprisonment on the original burglary conviction. The court later denied defendant\u2019s motion to vacate the admissions made on the petition to revoke probation. The defendant appeals.\nThe first issue on appeal is whether the court erred in failing to advise defendant of the possibility of treatment under the Illinois Alcoholism and Other Drug Dependency Act (Act) (Ill. Rev. Stat. 1989, ch. lll@^, par. 6351 \u2014 1 et seq.). Section 10 \u2014 101 of the Act allows an addict or alcoholic convicted of a crime to elect treatment. (Ill. Rev. Stat. 1989, ch. HV-k, par. 6360 \u2014 1.) Section 10 \u2014 102 of the Act provides, in pertinent part:\n\u201cIf a court has reason to believe that an individual who is charged with or convicted of a crime is an addict or alcoholic and the court finds that he is eligible to make the election provided for under Section 10 \u2014 101, 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 designated program.\u201d Ill. Rev. Stat. 1989, ch. im/2, par. 6360-2.\nAn alcoholic is defined as:\n\u201ca person who suffers from an illness characterized by preoccupation with alcohol which is typically associated with physical disability and impaired emotional, occupational or social adjustments as a direct consequence of loss of control over consumption of alcohol and demonstrated by persistent and excessive use of alcohol such as usually leads to intoxication if drinking is begun; by chronicity; by progression; and by tendency toward relapse.\u201d Ill. Rev. Stat. 1989, ch. HV-k, par. 6351 \u2014 3.\nThe Illinois Supreme Court has held a similar provision of the predecessor statute, the Dangerous Drug Abuse Act (see Ill. Rev. Stat. 1979, ch. 91V2, par. 120.10), required the trial judge to inform eligible defendants of the possibility of treatment; the admonishment was deemed mandatory. (People v. Richardson (1984), 104 Ill. 2d 8, 17, 470 N.E.2d 1024, 1029.) The court also stated, however:\n\u201cThe purpose of the statute is informational. But, unless the defendant already knows that he may be eligible for treatment under the Act, he will not know that he needs any consent. *** There seems little point to a statute which requires a judge to tell the defendant something he already knows. The statute is meaningful only if we assume that the defendant is unaware of his possible eligibility ***.\u201d Richardson, 104 Ill. 2d at 16-17, 470 N.E.2d at 1028-29.\nSee also People v. Bean (1986), 145 Ill. App. 3d 863, 865, 496 N.E.2d 295, 296-97 (applying the above Richardson analysis in context of the Act).\nDefense counsel in this case requested a residential treatment program for his client, though defendant had not yet been evaluated by the Treatment Alternatives to Street Crimes program. These statements indicate defendant was fully aware of the possibility of electing treatment under the Act, and was seeking such consideration by the court. The trial court was not, therefore, obligated to inform him of the option to elect treatment pursuant to the Act.\nWe note, however, that on appeal the parties have instead focused their arguments on what has been described as the threshold question in cases: \u201cWas the information before the court sufficient to give the court \u2018reason to believe\u2019 defendant is an alcoholic?\u201d (People v. O\u2019Bannon (1990), 195 Ill. App. 3d 430, 431, 552 N.E.2d 397, 397.) The phrase \u201creason to believe\u201d has been deemed the semantic equivalent of \u201cprobable cause.\u201d (People v. Jones (1985), 132 Ill. App. 3d 764, 767-68, 477 N.E.2d 836, 839; People v. Santana (1987), 161 Ill. App. 3d 833, 515 N.E.2d 715.) \u201cWhether there is reason to believe that an individual is an addict must be determined from the facts brought to the attention of the trial court.\u201d (Santana, 161 Ill. App. 3d at 841, 515 N.E.2d at 720-21.) Accordingly, we will briefly address the issue from that perspective.\nDefendant argues there was sufficient evidence to give the trial court reason to believe he was an alcoholic. The presentence investigation report and supplement indicate defendant was intoxicated on February 4, 1990, when he committed the burglary. His wife indicated they separated for a period of time in 1990 because of defendant\u2019s alcohol consumption. Defendant was arrested for DUI in 1984 and subsequently completed four DUI classes. Defendant\u2019s driver\u2019s license was apparently revoked after his February 1990 DUI conviction. Although he attended the AA meetings as required, he did not complete evaluation and classes at Recovery Resources. Defendant contends this evidence should have led the trial court to conclude he was an alcoholic.\nThe State contends the evidence shows defendant had an alcohol problem, but did not provide the court with a reason to believe defendant was an alcoholic within the meaning of the Act. We agree.\nThe presentence investigation report and supplement indicate defendant is in good physical health. The amount of alcohol he consumed depended upon the amount of money he had to spend. Defendant never described himself as an alcoholic; indeed, he indicated he did not feel he had an alcohol problem. There was no evidence showing defendant had a \u201cpreoccupation with alcohol which is typically associated with physical disability and impaired emotional, occupational or social adjustments,\u201d and thus he did not meet the statutory definition of an alcoholic. (Ill. Rev. Stat. 1989, ch. IIIV2, par. 6351 \u2014 3.) However, even if the trial court had specifically addressed the issue and concluded defendant was an alcoholic, as we have stated above, there would have been no error in failing to inform defendant of his eligibility to elect treatment as he already knew of this option. There would also be no error in refusing to order such treatment because the trial court here had ample evidence to conclude, and did so conclude, the defendant\u2019s imprisonment was necessary for the protection of the public.\nThe second issue on appeal is whether the court abused its discretion in revoking defendant\u2019s probation and sentencing him to three years\u2019 imprisonment. We find no abuse of discretion.\nDefendant argues the court failed to give adequate weight to mitigating evidence and to his rehabilitative potential. The mitigating evidence consisted of statements from employers describing defendant as hardworking and dependable, the positive relationship he shared with his children, and his problem with alcohol.\nBurglary is a Class 2 felony (Ill. Rev. Stat. 1989, ch. 38, par. 19\u2014 1(b)), and the minimum sentence for a Class 2 felony is three years\u2019 imprisonment (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u2014l(aX5)). Another sentence of probation would, as the trial court stated, deprecate the seriousness of the offense and would not protect the public. Probation had proved ineffective. This did not speak well of his rehabilitative potential. While a defendant\u2019s rehabilitative potential is one factor to consider in determining the appropriate sentence, it need not be regarded as outweighing other relevant factors militating against it. \u201cAbsent an abuse of discretion, a sentence within the statutory limits will not be disturbed.\u201d (People v. Lucas (1991), 215 Ill. App. 3d 148, 154, 574 N.E.2d 850, 854.) The trial court did not abuse its discretion in refusing to order probation or in sentencing defendant to the minimum term of imprisonment for a Class 2 felony.\nThe sentence imposed by the Adams County circuit court is affirmed.\nAffirmed.\nSTEIGMANN and McCULLOUGH, JJ., concur.", "type": "majority", "author": "JUSTICE KNECHT" } ], "attorneys": [ "Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Scott H. Walden, State\u2019s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROY L. LIVENGOOD, JR., Defendant-Appellant.\nFourth District\nNo. 4 \u2014 91\u20140414\nOpinion filed December 19, 1991.\nDaniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nScott H. Walden, State\u2019s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0350-01", "first_page_order": 374, "last_page_order": 379 }