Appeal from the Circuit Court of Lee County, Fifteenth
Judicial Circuit; the Hon. JAMES E. BALES, Judge, presiding.
Affirmed in part; reversed in part; and remanded with directions.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
The defendant, John Clifford McAndrew, was charged with unauthorized possession of narcotic drugs, in violation of section 22-3 of the Criminal Code (Ill Rev Stats 1967, c 38, par 22-3). He entered a plea of guilty, was denied probation and was sentenced to a minimum of two years and a maximum of three years in a state penitentiary. He appealed.
While courts have held that refusal to grant probation is not subject to review (People v. Hamby, 6 Ill.2d 559, 563, 129 N.E.2d 746 (1955); People v. Denning, 372 Ill. 549, 552, 25 N.E.2d 6 (1940)), the granting or revoking of probation is normally within the discretion of the trial court, but is subject to review to the extent of determining whether the trial court did, in fact, exercise discretion in its determination on probation or whether it abused such discretion and acted in an arbitrary manner. People v. Sims, 32 Ill.2d 591, 596, 208 N.E.2d 569 (1965); People v. Molz, 415 Ill. 183, 190, 113 N.E.2d 314 (1953); People v. Evrard, 65 Ill. App.2d 118, 128, 212 N.E.2d 305 (1965).
The scope of the judicial discretion vested in the trial court is set forth in section 117-1 of the Code of Criminal Procedure of 1963 (Ill Rev Stats 1967, c 38, par 117-1), which provides in part:
"(a) A person who has been found guilty of any offense except a capital offense, the sale of narcotics or rape may be admitted to probation when it appears that:
"(1) The defendant is not likely to commit another offense;
"(2) The public interest does not require that the defendant receive the penalty provided for the offense; and
"(3) The rehabilitation of the defendant does not require that he receive the penalty provided for the offense."
It was stipulated that the hearing on probation and in aggravation and mitigation be held at the same time. The court, in this respect, heard the testimony of the police officers, a commissioner of public safety, the mother of the defendant, two physicians one being the uncle of the defendant , and the defendant; and the court interrogated the defendant at length. The court also had the benefit of a psychiatrist's report obtained on behalf of the defendant; however, the record does not indicate that a probationary report was obtained or used at the hearing.
Briefly, the testimony indicated that the defendant was in need of psychiatric treatment which his mother and stepfather were willing and able to obtain at a recognized psychiatrical center; that he ranked high academically in high school; that presently he was a student at Antioch College and had come to Dixon with a female companion to work at the Dixon State School; that although unmarried, he and his female companion registered at a local motel as husband and wife and subsequently continued to live together. There was also testimony that the rooms of the apartment in which they were living at the time of the arrest, were littered with marihuana leaves in various stages of drying; that there were quantities of crushed packaged marihuana stored at various places throughout the apartment; and that the stove broiler contained marihuana leaves and apparently had been used as a dryer.
The defendant testified that he was twenty years of age and had started using marihuana during his first quarter at Antioch College; that he had also used other drugs; that he and his female companion had packaged the marihuana to sell it and they had a friend who dealt in it; and that he was acquainted with others in Dixon who used or dealt in marihuana. The defendant also testified that he sought to be identified as a "hippie." The report of the psychiatrist also contained such statement. The totality of the testimony at the hearing would tend to justify the court in believing that the defendant might commit another such offense.
After completion of the testimony, the court denied probation and recited at some length its reflections and impressions on the use of marihuana, the attitudes of a certain segment of the youth of our society, the actions of this particular defendant and his possible harm to the community had he been able to peddle the marihuana he had gathered.
The defendant here contends that the statements of the court indicated that it acted in an arbitrary manner as a result of intellectual and emotional bias with reference to the denial of probation and the imposition of sentence; and that the court's actions were arbitrary under the facts and circumstances of this case.
It is not within our discretion to determine whether or not the trial court should have granted probation. It is only for us to determine the narrow question of whether the trial court abused its discretion in denying probation. In considering the ...