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People v. Prather





APPEAL from the Circuit Court of Coles County; the Hon. WILLIAM J. SUNDERMAN, and the Hon. JACOB BERKOWITZ, Judges, presiding.


Defendant appeals from the order of the trial court revoking supervision under the Dangerous Drug Abuse Act (Ill. Rev. Stat., ch. 91 1/2, par. 120.1 et seq.), as amended effective June 27, 1974, entering a finding of guilt on evidence theretofore heard at bench trial and sentencing defendant to 4 to 12 years for burglary and 1 to 3 years for unlawful use of weapons.

An order dated August 18, 1975, found that defendant was eligible to elect treatment under the supervision of the Department as provided in the Dangerous Drug Abuse Act; that a trial upon guilt had been held before the court and that the Department had advised in writing that it would accept responsibility for supervision and treatment under such Act. It was thereupon ordered that defendant be placed "under the supervision of the Department of Mental Health for treatment" for a maximum of 2 years to be treated or released at the direction of the Department; that the Department shall "certify to the court when and if the Defendant completes the treatment program and if such treatment was successful" and that the criminal charges "shall be continued without final disposition until such certification from the Department of Mental Health."

On November 19, 1975, the State's Attorney filed a "petition to revoke supervision" which alleged that defendant had violated the statute in that he failed to observe the requirements set down by the Department of Mental Health and the Stonehedge Clinic as provided by the Dangerous Drug Abuse Act.

At a hearing on November 26, the State's Attorney introduced the testimony of a certified drug specialist employed by the Stonehedge Clinic, who testified to certain details concerning defendant's failure to follow the requirements of the Clinic and to adequately participate in the program provided. It appears that Stonehedge was certified to provide contributory services for treatment. The witness also testified that Stonehedge had terminated defendant from its program and would not accept him for further treatment. At a hearing resumed on December 17, defendant testified concerning the reasons justifying his failure to follow rules and to participate freely in the group therapy.

The court terminated the supervision and proceeded hearing arguments upon the issue of the suspended trial. Having entered a judgment of guilt the court heard evidence upon a request for probation and for sentencing and imposed sentence.

Upon appeal defendant urges (1) that he was denied due process for want of "adequate notice of the violations" and adequate opportunity to prepare a defense and (2) defendant was denied due process by the failure of the State to produce any evidence that the Department of Mental Health (Department), had determined that defendant could no longer be treated as a medical problem.

It appears that all parties treated the proceeding as a form of revocation of probation. Such conclusion requires examination of the structure and scheme of the Dangerous Drug Abuse Act.

The Act created a Dangerous Drugs Commission and gave it broad powers to establish drug rehabilitation facilities, provide training and education for addicts and to place addicts for "treatment supervision," and to make agreements with public and private agencies to provide treatment. The Department of Mental Health is designated as the administering arm exercising the powers and duties provided by statute. Ill. Rev. Stat. 1975, ch. 91 1/2, par. 120.6.

The statute (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 120.7) provides that in administering the supervised treatment:

"The decision of the Department as to whether to offer treatment to an individual and as to the discontinuance of treatment to any individual is final and not subject to appeal."

Effective in 1976, the statute was amended to replace the word "Department" by the word "Commission." Ill. Rev. Stat. 1976 Supp., ch. 91 1/2, par. 120.7(b)(2).

As a person charged with crime, the defendant was placed under the supervision of the Department as provided by section 9 of the Dangerous Drug Abuse Act. That statute includes the provision that:

"No individual may be placed under the supervision of the Department for treatment under this Section unless the Department accepts him for treatment." Ill. Rev. Stat. 1975, ch. 91 1/2, par. 120.9.

We note the same statutory requirement that the individual be accepted for treatment by the Department in section 10 (par. 120.10) (the individual has been convicted and placed on probation with a condition that he undergo supervised treatment), and section 11 (par. 120.11) (the supervised treatment is a condition of parole).

Section 9 (par. 120.9) provides that after the court has placed defendant under the supervision of the Department, the Department may certify that he has successfully completed the treatment program, but:

"If, by the expiration of the period [not to exceed 2 years], the Department has not been able to certify that the individual has completed his treatment program, the pending proceeding may be resumed. If, however, the court believes that the individual will complete his treatment on a voluntary basis, it may, in its discretion, dismiss the criminal charge. If, before the supervisory period expires, the Department determines that the individual cannot be further treated as a medical problem, it shall so advise the court. The court shall thereupon terminate the supervision, and the pending criminal proceeding may be resumed. * * *." Ill. Rev. Stat. 1975, ch. 91 1/2, par. 120.9.

To support the claim of a "full panoply" of constitutional rights, defendant cites Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L.Ed.2d 656, 93 S.Ct. 1756, and Morrissey v. Brewer (1972), 408 U.S. 471, 33 L.Ed.2d 484, 92 S.Ct. 2593.

In Gagnon, defendant was convicted and sentenced. The sentence was suspended and he was placed on probation. It appears that in Wisconsin probation is administered by an administrative agency as distinguished from the sentencing court. Upon revocation of probation by such agency, defendant was returned to serve the suspended sentence. In Morrissey, the defendant was sentenced and subsequently released on parole. Upon revocation of parole by the administrative agency he was returned to prison.

The issue in the respective habeas corpus proceedings was whether due process required a hearing by the administrative agency before parole or probation was revoked. The opinions set forth the requirements of notice and hearing necessary to due process before the agency could revoke and return the defendant to imprisonment.

In these proceedings under section 9 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 120.9), there are substantial differences in the consequences of termination of supervised treatment. The defendant had not been convicted and sentenced by the court, the termination of supervised treatment simply returned the defendant to the court for further consideration in the suspended proceedings.

We conclude that this appeal is controlled by the opinion in People v. Phillips (1977), 66 Ill.2d 412, 362 N.E.2d 1037. In that case the issue was presented in the context of section 8(e) of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 120.8(e)) stating the conditions of eligibility to elect treatment as one charged with or convicted of an offense. One requirement is that if the defendant is on parole or probation, the appropriate authority must have consented to defendant's election. The probation officer refused consent and the trial court found defendant ineligible for treatment as an addict.

The appellate court concluded that the trial court was the appropriate probation authority to consent and reversed the trial court. The supreme court, however, reversed the appellate court. The rationale of the opinion is that the order for supervision is not a "sentence" under the Unified Code of Corrections, i.e., it is ...

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