Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Marion County,
the Hon. Ronald A. Niemann, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
___ N.E.2d ___ Defendant, Judy Meeks, was convicted in a jury trial in the circuit court of Marion County of three counts of unlawful delivery of a controlled substance, phencyclidine (PCP) (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(d)), and was sentenced to three concurrent two-year terms of imprisonment. The appellate court determined that the sentencing hearing was not conducted in compliance with the directives of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1001-1-1 et seq.) and remanded the cause for resentencing. (75 Ill. App.3d 357.) The appellate court specifically ruled that the presentence report did not comply with the requirements of section 5-3-1 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005-3-1) and further held that the trial judge considered improper and unreliable evidence in determining the appropriate sentence to impose. We allowed the State's petition for leave to appeal.
Following defendant's conviction, a sentencing hearing was held on July 12, 1978. Defendant elected to be sentenced under the recently amended Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1001-1-1 et seq.). A presentence report of investigation, compiled by defendant's probation officer, was submitted at the hearing and considered by the trial judge. By agreement of the parties, the trial judge appended to the presentence report a medical report and a handwritten statement by defendant directed to the trial judge and probation officer. In addition, evidence was presented in aggravation and mitigation of the offense.
The presentence report indicated that defendant was 23 years of age, the mother of a three-year-old son, 4 1/2 months pregnant, and single. Defendant graduated from high school and had completed two semesters of college. In addition, she had completed a course of study in secretarial skills and a two-week course of study in law enforcement. From 1974 through 1976 she was employed by the Black Labor Area Coalition Council, Carbondale, as a counselor. For six months prior to the sentencing hearing, defendant was employed by the Chicago Transit Authority as a bus driver. The report stated that her physical health was good and that she had never received psychiatric treatment. Defendant's prior criminal record consisted of a conviction and sentence of a fine for the offense of disorderly conduct in 1976 and conviction and a sentence of one year of probation for the offense of retail theft on February 24, 1977. The summary of the presentence investigation interview with defendant indicated that she did not desire a sentence of imprisonment and that she insisted that she was innocent of the offenses for which she had been convicted. Also interviewed by the probation officer was Fred Gibson, principal of Centralia High School. He stated that defendant was arrogant and belligerent while a student in high school and he doubted that her attitude had changed. In addition, the probation officer commented that defendant had not complied with the conditions of her probation for retail theft and stated that "Judy Meeks scoffed at probation and had very little appreciation for the opportunity." This report also contained information pertaining to defendant's religious preference, economic status, and family background.
In the letter presented to the trial judge and the probation officer, defendant stated that she had reconsidered the statements made in her presentence investigation interview. She indicated her desire to care for the future needs of her children, especially noting her son's need for her emotional and physical support. She stated that she wished to continue her employment with the Chicago Transit Authority and desired to further her education. She ended this letter with a plea to be sentenced to a period of probation.
Defendant called three witnesses at the sentencing hearing. The first witness to testify was Sara Rogers, a mental health worker employed at the Murray Children Center in Centralia. She stated that she had known defendant for approximately eight years and that throughout this period they had frequently socialized. She stated that defendant had often cared for her children as a baby sitter and that she knew defendant to be a responsible mother. Mrs. Rogers did not contemplate that defendant might in some way become involved in criminal conduct, and she did not believe that defendant posed a threat to the community. On cross-examination, she stated that she was aware of defendant's prior convictions for disorderly conduct and retail theft and aware of the circumstances which led to the sentencing hearing.
Reverend Albert J. Ross, executive director of Black, Inc., Black Labor Area Coalition Council, was the next witness called by defendant. Reverend Ross testified that he had known defendant for five to six years and that he came to know her through her employment as a counselor for the Black Labor Area Coalition Council. It was his opinion that defendant was a responsible and conscientious person who possessed a moral and social consciousness that would prevent her from deliberately hurting herself or her family. He did not think that a sentence of imprisonment was necessary, nor did he believe that defendant was likely to engage in further criminal conduct. On cross-examination, Reverend Ross stated that he would have entertained the same opinion concerning defendant's involvement in further criminal conduct after her conviction for disorderly conduct in 1966, and her conviction for retail theft in 1977.
Doris Meeks, mother of defendant, also testified. She stated her concern for her daughter if she were imprisoned while pregnant and her concern for her grandson. She indicated that defendant had recently announced her plans to marry. On cross-examination, she stated that she had cared for defendant's son for a two-month period while defendant was working in Chicago.
The State called Patsy Blackburn, previously employed at the Marion County probation office as a secretary, and James Griffith, defendant's probation officer. The offenses for which defendant was convicted in the present case occurred while defendant was serving her sentence of probation for retail theft. Blackburn and Griffith testified that defendant was uncooperative while serving this sentence of probation. Miss Blackburn stated that on one occasion defendant was belligerent, disrespectful, angry and intimidating during an interview. In addition, she stated that defendant provided her with either incorrect or false information. Griffith testified that defendant did not faithfully adhere to the conditions of her probation. He also observed that defendant had provided the office with inaccurate and false information on matters related to her probation. In addition, Griffith stated that he had contacted the Dwight Reformatory for Women and was informed that adequate services for pregnant women were provided by the institution. These services consisted of a medical staff at the prison throughout the day, physicians on call on a 24-hour basis, delivery services at the Community Hospital, and delivery performed by defendant's choice of physician. Griffith stated on cross-examination that if defendant were sentenced to a period of probation and she made a good-faith effort to comply with the conditions of her probation, he would assist her in any way possible.
Defendant declined the opportunity to make a statement on her own behalf. Defense counsel informed the court that defendant believed that she could add nothing further to the statement she submitted to the trial judge and probation officer.
After argument by the parties, the trial judge set forth the factors which he considered relevant to defendant's sentence. He noted at the outset that he was guided by the preamble to the Illinois Controlled Substances Act. The portions of the provision relied upon by the trial judge provide:
"Legislative intent. It is the intent of the General Assembly, recognizing the rising incidences in the abuse of drugs and other dangerous substances and its resultant damage to the peace, health, and welfare of the citizens of Illinois, to provide a system of control over the distribution and use of controlled substances which will more effectively: * * * (3) penalize most heavily the illicit traffickers or profiteers of controlled substances, who propagate and perpetuate the abuse of such substances with reckless disregard for its consumptive consequences upon every element of society; * * *. * * *
It is not the intent of the General Assembly to treat the unlawful user or occasional petty distributor of controlled substances with the same severity as the large-scale, unlawful purveyors and traffickers of controlled substances. To this end, guidelines have been provided, along with a wide latitute in sentencing discretion, to enable the sentencing court to order penalties in each case which are appropriate for the purposes of this Act." (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1100.)
The court emphasized that defendant had been convicted of three separately motivated felonies, that each delivery was made for compensation, that defendant had on each occasion represented that she could obtain cocaine from a source in Chicago, that the deliveries were made to a person unknown to defendant, and that based upon the above factors the trial judge was of the opinion that defendant was "no stranger to this type of activity." The court again noted the intent of the legislature to punish more severely those persons "that deal in the sales" of controlled substances. The trial judge then stated, based upon the evidence introduced at trial and in the sentencing hearing, that he believed that imprisonment was necessary for the protection of the public and that probation would deprecate the seriousness of the offense and be inconsistent with the ends of justice. The trial judge also noted that the jury did not believe defendant's alibi defense, and stated further: "[T]he jury drew the only conclusion it had, that she was dealing a false hand." Having reached the determination that a sentence of probation was inappropriate, the trial judge noted defendant's medical condition, the hardship to ...