APPEAL from the Circuit Court of McLean County; the Hon.
LUTHER H. DEARBORN, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
The four cases discussed in this opinion involve allegations that the judge who sentenced the defendants abused his discretion in arbitrarily denying probation. Each defendant was convicted of delivering controlled substances in violation of section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401), and each defendant was sentenced by the same judge. Owing to the similarity of these cases, we have on our own motion consolidated them for opinion.
The charges against 22-year-old Russell Hunt arose from an incident occurring on September 12, 1974, when Christy Schaefer, a Metropolitan Enforcement Group (M.E.G.) agent, appeared at the door of a house occupied by defendant's brother. The defendant answered the door and Schaefer sought to purchase some of defendant's brother's drugs. Defendant complied with the request and sold the agent 50 "hits" of lysergic acid diethylamide (L.S.D.) for $80. Defendant was convicted of delivery of a controlled substance after a bench trial.
Defendant appeals his sentence, alleging that he was arbitrarily denied probation. At the sentencing hearing, a letter from the director and an addiction therapist of Project Lighthouse, a drug rehabilitation center associated with Mennonite Hospital in Bloomington, was introduced into evidence. The letter recommended that defendant be sentenced to probation and stated that, after a detailed evaluation, defendant was not found to be a drug addict. Defendant's high school principal testified at the hearing that defendant was a leader and solid citizen who should be placed on probation. Defendant's junior college dean also testified that defendant was a good athlete and a conscientious student who should be granted probation. This latter opinion was based on the witness' knowledge of defendant's character and a personal acquaintance with the rehabilitative prospects or lack thereof at Stateville Prison. Defendant's employer testified to defendant's high character and good work habits. The State presented no evidence in aggravation; however, the court sentenced defendant to the penitentiary for 1 to 3 years after stating:
"While individual defendants should and do receive individual consideration, it is also has to be to some extent an obligation upon the Court to attempt to discourage and prevent the problems that are associated with deliveries and use of narcotics, drugs, and other controlled substances."
Defendant's motion for bail pending appeal was also denied by the trial court.
The charges against 25-year-old Michael Honn arose from an incident occurring on July 11, 1974, at a residence the defendant shared with five other persons in Bloomington. M.E.G. agent Eugene Maxwell went to the residence to purchase a quantity of methylenedioxyamphetamine (M.D.A.) from Michael Patrick. When Maxwell entered the residence he met the defendant who told him Patrick was at work. Maxwell asked the defendant to phone Patrick at work, which he did. Patrick told the defendant where his M.D.A. was located, what the price should be, and he asked the defendant to deliver it to Maxwell. Defendant then delivered 2.3 grams of M.D.A. to Agent Maxwell.
Defendant pleaded guilty to the offense of unlawful delivery of a controlled substance. At the sentencing hearing, the State presented no evidence in aggravation and it made no sentencing recommendation. The presentence report reflected that the defendant did not have a prior criminal record. The defendant had completed 3 years of art studies at Illinois State University which he was financing with part-time employment, scholarships, loans and grants. Defendant and his wife are separated and their 3-year-old daughter resides with her mother.
Two witnesses testified for the defense. The director of Project Lighthouse stated, after having had his staff evaluate the defendant, that he did not have a drug dependency and that he did not fit the pattern of a member of the drug subculture. One of the defendant's fellow employees in the Browndale-Kaleidoscope foster home program also testified that defendant was a capable worker and that his honesty had never been questioned.
Defense counsel also introduced a letter of reference from a registered nurse and director of Phoenix 7, a rehabilitation program for drug abusers where defendant was a volunteer worker. Defendant also performed volunteer services at the Andrew McFarland Zone Center for retarded children when he lived in Springfield. He worked with the children on arts and crafts projects, using materials purchased with his own funds. After hearing all of this evidence, the court sentenced the defendant to serve 1 to 3 years in the penitentiary and also denied defendant's motion for bail pending appeal.
The charges against 20-year-old Jeffrey Vance arose from an incident occurring on November 13, 1974. I.B.I. agent Dennis Higgins testified that he phoned a Bloomington residence on November 12, 1974, to arrange for the purchase of 2 ounces of M.D.A. at $650. Higgins thought he was speaking to the defendant, but Dan Hunt testified for the defense stating that he arranged the sale with Higgins, that the drugs belonged to him, that he received the proceeds of the sale and that he could not be present at the sale because he was unexpectedly detained out of town by weather on November 13, 1974. Higgins identified the defendant as the person who delivered the drugs on November 13, 1974. At a bench trial, defendant was found guilty of the offense of delivering a controlled substance.
At the sentencing hearing, the State presented no evidence in aggravation, but recommended a sentence of 1 1/2 to 4 1/2 years in the penitentiary because the defendant associated with drug dealers and because of the large quantity of drugs at issue here. Defendant's father testified that defendant had never been in trouble before with the exception of a number of traffic offenses, that he was a hard worker and that he paid some of the household expenses while living at home. Defendant's brother testified that defendant was a hard worker who did not use drugs or alcohol. After taking note of the seriousness of defendant's offense, the court sentenced him to the penitentiary for a period of 1 1/3 to 4 years and denied his motion for bail pending appeal.
The charges against 22-year-old Dennis Kelly arose from an occurrence on December 18, 1974, at which the defendant delivered .08 grams of M.D.A. to M.E.G. agent Dennis Garrett who posed as the friend of one of defendant's friends, Steve Warsaw. For a week prior to the delivery, Warsaw had repeatedly requested that defendant sell him drugs. On each occasion, defendant told Warsaw that he had no drugs, but, in order to end the "pressure," defendant agreed to procure drugs for Warsaw and one of Warsaw's friends. This agreement was reached after another of defendant's friends, Rick Coless, told defendant that he could procure drugs from defendant's brother-in-law, Vaughn McDowell. On the evening of the transfer, Warsaw and Agent Garrett arrived at defendant's house where a number of people, including Coless were present. Coless withdrew some bags of M.D.A. from the freezer where they were in a larger bag containing United States currency and more M.D.A. Coless handed the large bag to defendant who in turn handed three small bags of M.D.A. to Agent Garrett and received $25 in return. The larger bag and the $25 was then returned to McDowell. Garrett asked defendant if he could supply more drugs and defendant said no. Garrett also asked about the quality of the M.D.A. and defendant responded that it was good stuff but that he had not tried it.
The defendant was tried before a jury and found guilty of delivery of less than 300 grams of a controlled substance. At the sentencing hearing, defendant testified that he had been employed as a carpenter and roofer up to the time of his conviction and that he had taken on part time work as well. He has one child and pays $30 per week in child support to his wife from whom he is separated and is seeking a divorce. The State made a recommendation of either probation and 6 months in the county jail or a term of 1 to 3 years. Defendant testified that the offense at issue was an isolated occurrence that never would have occurred but for the inducement of Steve Warsaw. ...