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People v. York

OPINION FILED AUGUST 29, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

GARY YORK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Tazewell County; the Hon. IVAN L. YONTZ, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

In this appeal by the defendant, Gary York, which he filed following the revocation of the probation previously imposed after he pleaded guilty to the unlawful delivery of a substance purported to be a controlled substance, three issues are raised concerning the propriety of the sentencing hearing and the sentence itself. Upon revocation, the defendant was sentenced to the maximum term of imprisonment of not less than 3 1/3 years nor more than 10 years. The issues raised by the defendant are: (1) Whether the trial court erred by failing to consider drug treatment as an alternative to sentencing; (2) whether the failure of the trial court to specify the reasons for the sentencing determination denied the defendant his statutory right to a proper sentencing hearing; and (3) whether the sentence imposed is excessive and should be reduced.

In establishing the factual basis for the defendant's original guilty plea, the prosecutor stated that Bobby Friga would testify he was a police officer assigned to the Multi-County Narcotics Enforcement Group and was so employed in an undercover capacity on October 28, 1977. Friga's employment involved the attempted purchase of drugs and marijuana, and it was in this role that he came into contact with the defendant. On the date in question Friga approached the defendant and asked him if he could get him some mescaline. The defendant indicated he could and told Friga to wait. The defendant left, and shortly thereafter, returned with two small bags containing the purported mescaline. Friga then paid the defendant $20. A subsequent chemical evaluation, however, made by Susan H. Johns of the Illinois Department of Law Enforcement Bureau of Scientific Services Laboratory in Pekin, disclosed that the substance weighed 2.9 grams but contained no controlled substance.

The basis for the petition to revoke the defendant's two-year probation was that he knowingly and unlawfully delivered to George Pinkney, an undercover agent, more than 10 grams, but less than 30 grams, of a substance containing cannabis. Both Pinkney and his confidential source, John Spoede, testified that the defendant was given $35 and asked if he could secure some cannabis. The defendant left the car in which they had been travelling and, a short time later, returned to place a bag of cannabis on the console. It was stipulated that a test by a forensic scientist would establish that the material in the bag was 22.3 grams of a substance containing cannabis.

Taking the stand in his own behalf, the defendant testified that Spoede gave him $35 in order to purchase some cannabis. At first the defendant declined, stating that he was then on probation and, in any event, the town was "dry." The defendant nevertheless got into a car with Spoede and another man and attempted to secure some cannabis at two separate locations, but was unsuccessful at each. Thereafter, the defendant returned the money to Spoede without any cannabis. Nevertheless, the trial court found that the defendant had violated his probation.

A presentence report was ordered and prepared. The report indicated the defendant was 22 years old, had no prior juvenile or adult record and, while serving his term of probation, had a good reporting history. Numerous references were also made regarding defendant's long history of drug use and addiction, which at one time resulted in his being discharged from the United States Navy. On the other hand, the defendant's mother informed the presentence investigator that the defendant used drugs in the service to obtain a discharge. She also stated that he tends to exaggerate and that his conversations are questionable at times.

Concerning psychological examinations given to the defendant, Robert Wilderman, Ph. D., director of clinical services at the Tazwood Center for Human Services, directed a letter dated July 26, 1979, to the presentence investigator in which he stated, in part:

"Results

The validity of these results is questionable, as it seems likely that Mr. York did not approach the test sincerely. The degree of psychopathology indicated by his test scores is so high that it is suggestive of someone trying to fake bad so as to get into treatment. Therefore, this report should be viewed cautiously, and decisions about Mr. York should be made in light of other information known about him.

Conclusion

In light of Mr. York's apparent attempt to manipulate the situation in order to appear in need of treatment, the results of this report need verification from other more reliable sources."

On July 19, 1979, another letter was sent to the presentence investigator from David W. Mingus, the program director of Youth Outreach. In part, Mr. Mingus stated:

"On Monday, July 16, 1979, an evaluation in reference to Mr. Gary Yorks drug use and knowledge was conducted at the Tazewell County Jail. Mr. York has been an inmate of the Jail for approximately one month and showed no apparent indications of any withdrawal symptoms. Mr. York expressed he had no significant withdrawal at any time during this stay and attributed his condition to his primary abusing Hallucinogens drugs prior to being incarcerated.

Mr. York expressed he has had prior treatment for the addiction to opiate drugs while in the Navy, however, was not co-operative to the treatment modility. There are apparent indications Mr. York has had an extensive drug abuse pattern since early adolescent years to date. There is a definite street knowledge of drugs and their effects, however, at times certain ...


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