APPEAL from the Circuit Court of Marion County; the Hon.
RAYMOND O. HORN, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
The defendant, Michael Phillips, appeals from the judgment of the circuit court of Marion County which held him to be ineligible for treatment under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1973, ch. 91 1/2, pars. 120.1 to .29) and which sentenced him to concurrent terms of imprisonment for three to nine years on the basis of his pleas of guilty to the charges of burglary and unlawful possession of controlled substances.
Phillips was indicted in Marion County for the unlawful possession of controlled substances in violation of section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1402(b)). Criminal complaints were also filed against Phillips in Effingham County charging him with two burglaries of drug stores in contravention of section 19-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 19-1). Phillips filed a petition in the circuit court of Marion County which stated that he believed himself to be an addict within the meaning of section 3.03 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1973, ch. 91 1/2, par. 120.3-3), and which requested that he be given treatment by the Illinois Department of Mental Health in accordance with the Dangerous Drug Abuse Act. A motion made by Phillips in Marion County stated that he wished to plead guilty to the charges against him in Effingham County and that he desired to have the charges disposed of by the circuit court of Marion County. The burglary charges and the controlled substances charge were consolidated under section 5-4-2 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-4-2) for a hearing before the circuit court of Marion County with the consent of the State's attorney of Effingham County.
The hearing was held on November 12, 1974. The circuit court of Marion County first considered the question whether Phillips should be treated under the Dangerous Drug Abuse Act, or sentenced and imprisoned. In denying Phillips's petition for treatment under that Act, the circuit court said:
"Let the record show that this case is set for trial before a jury on November 13, which is tomorrow; that there has been a motion filed for consolidation of felonies in Effingham for the purpose of a negotiated plea; that there has been no consent by the state's attorney or by the probation officer of Marion County to consent to this section of the statute to refer the defendant for treatment, and for that purpose and reason the motion will be denied."
At the close of the hearing, the circuit court also said:
"It would be the recommendation of this court that this defendant all the cases that he has been involved in, in these cases, not only the cases in which were listed in this negotiated plea, but all the cases that have been before the court in other counties have all been drug-related criminal activities, and that if there is any treatment available in the state for a person who is either addicted to drugs or doesn't have the will power to resist taking drugs, that he be given whatever treatment is available for him."
After denying the defendant's petition for treatment under the Dangerous Drug Abuse Act, the circuit court addressed him and sought to ascertain whether he understood the consequences of pleading guilty to the charges against him, and whether there were factual bases for the guilty pleas. The circuit court then accepted the pleas of guilty that were made by Phillips and fully and completely admonished him as to his rights.
Before being sentenced Phillips testified at the hearing concerning his habitual use of drugs. He said that he had often used morphine and that he had burglarized the drug stores in order to obtain morphine. The court then sentenced Phillips to imprisonment for three to nine years on each of the burglary charges and on the controlled substances charge, with the terms of imprisonment to run concurrently.
Phillips now argues that the circuit court erred in deciding that he was ineligible for treatment under the Dangerous Drug Abuse Act, and that the trial court should not have accepted his pleas of guilty because they were not knowingly and intelligently made. Phillips also asserts that he did not plead knowingly and intelligently because the circuit court did not advise him that he had a right not to plead guilty, that he waived his right to confront his accusers by pleading guilty, and that he subjected himself to a mandatory parole term of three years on each charge by pleading guilty.
The Dangerous Drug Abuse Act confers upon a sentencing court the discretion to offer a defendant an opportunity to receive treatment for his addiction instead of imprisonment. (Ill. Rev. Stat. 1973, ch. 91 1/2, pars. 120.9, 120.10.) This discretion exists, however, only if the court has reason to believe that the defendant is an addict, or the defendant states that he is an addict, and the court finds that the defendant meets the requirements for eligibility that are set forth in section 8 of the Act. (Ill. Rev. Stat. 1973, ch. 91 1/2, par. 120.8.) If the discretion exists, it must be exercised by the court. People v. Robinson, 12 Ill. App.3d 291, 297 N.E.2d 621.
In the present case, the testimony of the defendant, Phillips, at the hearing indicated that there was reason to believe that he was an addict within the meaning of section 3.03 of the Act. (Ill. Rev. Stat. 1973, ch. 91 1/2, par. 120.3-3.) Moreover, the remarks made by the court at the close of the hearing revealed that the court did consider Phillips an addict, and may have extended an opportunity to him to be treated under the Act if the court had thought that he met the requirements of section 8. (Ill. Rev. Stat. 1973, ch. 91 1/2, par. 120.8.) Because of its interpretation of section 8, the court thought that it had no discretion to offer Phillips an opportunity to receive treatment under the Act; therefore, the court declined to exercise discretion on this matter. Whether the court's refusal to exercise discretion was error depends on the propriety of the court's interpretation of section 8. Ill. Rev. Stat. 1973, ch. 91 1/2, par. 120.8; see People v. Robinson.
Section 8 of the statute says in part:
"An addict charged with or convicted of a crime is eligible to elect treatment under the supervision of the Department instead of prosecution or probation, as the case may be, unless * * * (d) other criminal proceedings alleging commission of a felony are pending against the addict, or (e) the addict is on probation or parole and the appropriate parole or probation authority does not consent to the election. * * * An eligible addict may not be admitted to a treatment program, ...