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People v. Newlin

SEPTEMBER 10, 1975.




APPEAL from the Circuit Court of Williamson County; the Hon. WILLIAM A. LEWIS, Judge, presiding.


Defendant entered a nonnegotiated plea of guilty to the offense of burglary and theft over $150. Following a probation report and sentencing hearing defendant received a sentence of not less than 2 nor more than 20 years' imprisonment. He appeals.

We review the following issues raised by the defendant: (1) whether there was a sufficient factual basis for the plea of guilty as required by Supreme Court Rule 402(c) (Ill. Rev. Stat., ch. 110A, § 402(c)), since (a) the record indicates there was no reason to believe the defendant committed the crime; and (b) the defendant's statements concerning his drug use imposed a duty on the trial judge to inquire further whether such drug use negated the requisite intent to commit the crime; (2) Whether the trial court abused its discretion by failing to consider probation for drug treatment pursuant to section 10 of the Dangerous Drug Abuse Act (Ill. Rev. Stat., ch. 91 1/2, § 120.10) as a sentencing disposition; (3) Whether the trial court abused its discretion by sentencing defendant to 2 to 20 years' imprisonment.

On March 8, 1974, a two-count information was filed charging defendant with burglary and theft against Yuill Music Company. At his first appearance in court on that same date the court informed defendant of the nature of the charges, the possible penalty, right to indictment, the right to a prompt trial, to confront witnesses and the right to counsel. At this juncture the defendant admitted the offenses stating:

"I wouldn't have done it if I hadn't been drinking. If I had just had a job. I just needed money. I tried to get in the Army, couldn't do that. I was drinkin', on dope, I just don't know why I did it."

The judge responded that nothing could be done that day and fixed bond.

A preliminary hearing was conducted on March 18, A police officer testified and summarized a confession that had been given by defendant and the confession was admitted into evidence. In the confession the defendant admitted that he entered the music store with some others and took four guitars.

Indictment was returned against defendant by the grand jury on April 18. Count I charged defendant with burglary and Count II charged theft.

On July 2 a hearing was held on defendant's motion to suppress his confession which was denied. On July 9 the defendant made another appearance in court. The judge again explained the nature of the charges and the possible penalty and advised defendant of his other rights pertaining to trial. The court found that the accused understood the possible sentence and determined that defendant's plea was voluntary. The defendant then entered a plea of guilty to both offenses.

A sentencing hearing was held on August 23. A probation report was furnished to the court and the defendant took the stand to testify in his own behalf. He testified that he was 17 years old and had an eighth-grade education. He was currently employed for $2.40 an hour with opportunity for advancement. He had been convicted of several offenses and had served 4 months at the State Penal Farm for conviction of criminal damage to property. He had also been sentenced to the Department of Corrections for juvenile violations. He did his stealing when he did not have a job and he testified that he had given a statement and confession to the police.

Defendant said he smoked "pot" and took drugs, that he had smoked "pot" all day on the date of the music store burglary. He had recently been fired from two jobs, one for leaving work to see his attorney and the other because he was short on accounting for money, although he later found the money and returned it. He stated that his troubles began after he started on dope. He had started using all kinds of drugs in 1970, and had been getting into trouble ever since, including the commission of theft during periods of unemployment. He was unemployed at the time of the instant crime. He had not wanted to stay on drugs, but that it had become a habit simply because the drugs were available. Just a few days before the sentencing hearing, he had been picked up for a crime that he had not committed. This, in combination with a "big long talk" with his fiancee and parents, made him decide to quit taking drugs for good. That decision was made 2 days prior to the sentencing hearing.

Defendant asked for probation because everything was looking good for him, he had a good job and a chance to get married. He offered to make restitution to the music store and pay his court costs. The State offered the prior record of the defendant in aggravation.

The court denied probation and imposed sentence.

The defendant's initial contention is that the trial court failed to determine that there was a ...

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