APPEAL from the Circuit Court of Kankakee County; the Hon.
JOHN F. MICHELA, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal from a sentence imposed on the defendant Charles J. Hodges, following his plea of guilty to two conspiracy counts involving delivery of a controlled substance in violation of section 401(a)(1) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(a)(1)). Defendant had pleaded guilty to the conspiracy counts and the State (as a consequence of an agreement) did not prosecute on two delivery counts. Defendant was sentenced to 2 to 6 years in the penitentiary.
Defendant appeals from his sentence only and contends that there were not sufficient distinctions in the record to justify his sentence of 2 to 6 years when his co-defendant, Petko, was sentenced to 1 to 3 years imprisonment.
It is shown by the record that defendant Hodges and his co-defendant Petko were each charged with two counts of conspiracy to deliver a controlled substance and two counts of delivery. Both defendant and the co-defendant pleaded guilty to the two conspiracy charges and the State did not prosecute the unlawful delivery charges. Petko additionally pleaded guilty to unlawful delivery in another case and to a misdemeanor retail theft charge.
The record discloses that an apparent heroin sale took place between an Illinois Bureau of Investigation agent, Jerome Johnson, and the co-defendant Petko on May 20, 1976. Following that transaction, the IBI agent asked to talk to Petko's supplier and was put in contact with the defendant Hodges. The agent talked with Hodges about the sale of a larger amount of heroin than was exchanged on May 20. Hodges told the agent that 5 ounces of heroin would cost more than $5,600. Defendant also said that he would be required to charge at least $1,400 for 1 ounce of heroin because his cost for that amount was $1,200. Defendant Hodges also told the agent, according to the agent's testimony, that he was in the drug business for the money and was not a user of heroin. At the trial, however, Hodges testified that he had been addicted to heroin for nine months but was not aware of his addiction until he went to jail. Hodges said he had snorted the drug through his nose rather than injecting it in his veins. Defendant stated that he had "kicked the habit" during his six-day stay in the Kankakee County jail. Defendant, however, admitted that until he talked to the presentence investigator, he had never told anyone about his heroin habit. Hodges also testified that he had not been engaged in selling drugs until Petko asked him to obtain drugs. He contended that he did not sell the heroin, but only delivered it to Petko. According to Hodges, Petko would give him the money and then defendant would go to Chicago and buy the drugs.
The IBI agent had a second encounter with Hodges on June 3, 1976, at which time Hodges stated that he could not get the 5 ounces of heroin he had promised but that he had 3 ounces. When the agent asked for the 3 ounces, defendant refused, stating that he was afraid of the police and that he would have co-defendant Petko deliver the heroin. The heroin was eventually delivered to the IBI agent by Petko.
It appears from the record, also, that Petko became addicted to heroin in Viet Nam in 1970 and had been on and off the drug for 7 years. At his sentencing hearing, Petko testified that he told Hodges that he had some people who wanted weekly drug deliveries. Petko added that Hodges had told him (Petko) that he would be the middleman and would do the handling.
At the time of sentencing, Petko was on the methadone program of the Threshold drug abuse program. A psychiatrist of that drug abuse program testified (at the hearing in aggravation and mitigation) that Petko had made considerable progress and that he was not taking illegal drugs at the time. The psychiatrist also testified to the change in Petko's motivation, and in his nature and cooperative attitude as well as an improvement in keeping appointments and actively seeking employment.
The drug abuse program's director also testified that random tests of Petko's urine proved negative and that Petko had not used (illegal) drugs from December 1975 until the date of the hearing in February 1977. Defendant and Petko were sentenced, as we have indicated, on March 2, 1977.
At the time the trial court sentenced Petko to 1 to 3 years in prison, the trial court observed that, on the evidence, he concluded Petko was addicted to heroin but was involved in the methadone treatment. He also observed that the offenses involved occurred during the period of time under consideration and that it was indicated that many individuals who were in Viet Nam apparently became addicted to heroin. He also stated that the State's Attorney had pointed out Petko's problem of addiction and that Petko was doing well on methadone at the time of sentencing. The court also stated that the Code of Criminal Procedure would indicate that the court can assess a penalty having regard to the nature and circumstance of the offense and the history and character of the individual involved.
In sentencing defendant Hodges, however, to the 2 to 6 years in prison, the trial court expressed some doubt in noting that defendant Hodges seemed to be contending that he was somewhat addicted to heroin for a 9-month period but then was "cured." The court observed that Petko may have been the "dummy." The court stated further that it appeared strange to the court that Hodges could go to Chicago and find heroin and bring it back to give to Petko and Petko would make the delivery and sale and that Hodges would get the money and that the money would go back to Chicago. The court stated that while there might be some sympathy for a user, there cannot be very much sympathy for those who deliver, supply, lend, sell, or conspire to sell. The court, therefore, denied the petition for probation filed on behalf of defendant Hodges.
Defendant Hodges does not dispute that trial courts may sentence co-defendants differently if there is a basis for disparate sentences but Hodges argues that in the instant case there was no basis for disparate sentences received by him and Petko.
• 1 As we noted in People v. Stambor (3d Dist. 1975), 33 Ill. App.3d 324, 326, 337 N.E.2d 63, 65:
"It is appropriate * * * to impose different sentences on co-defendants based upon important distinctions which ...