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People v. Demma





APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. SCHREIER, Judge, presiding.


Defendant, Joseph Demma, appeals from a finding that he had violated the conditions of several probation sentences. As the result of that finding his probations were revoked and he received concurrent sentences of five years, seven years, and five years for the underlying crimes of felony theft, burglary, and felony theft respectively. On appeal defendant makes the following contentions: (1) the State failed to prove by a preponderance of the evidence that defendant violated the conditions of his probations; (2) the trial court erred in revoking defendant's probations and imposed excessive sentences; (3) the trial court erroneously allowed defendant to waive his right to a presentence investigation report; (4) as to two of defendant's sentences, imposed for acts committed in 1973 and 1974, the trial court improperly denied mandated credit for time defendant had spent on probation; (5) as to the sentence imposed for acts occurring in 1977, the trial court abused its discretion in denying defendant credit for time previously spent on probation.

We affirm the trial court, finding that defendant violated the terms of his probations but remand for a new sentencing hearing.

On December 20, 1974, defendant appeared before Judge Fitzgerald and pleaded guilty to felony theft and burglary. *fn1 It was stipulated that the theft occurred in October 1973 and the burglary occurred in February 1974. Following an introduction of the presentence investigation report and a hearing in aggravation and mitigation defendant was sentenced to five years' probation. One of the conditions of probation was that defendant continue his participation in the Gateway House drug rehabilitation program until discharged by the program director.

On May 26, 1978, before Judge Schreier defendant pleaded guilty to felony theft, possession of burglary tools, and violation of Judge Fitzgerald's probation order. Having waived his right to a presentence investigation report, defendant was sentenced to two years' probation for the theft and possession charges. For the violation of Judge Fitzgerald's probation that five-year period of probation was extended for two years, although it was also specified that this term was to be concurrent with the two years' probation imposed on the substantive offenses to which defendant had pleaded guilty that day. A condition of these two probations was that defendant enter and complete the Gateway House drug program.

On July 24, 1978, in a petition for violation of probation, defendant was charged with having failed to report to his probation officer and with having failed to enter the Gateway program. The hearing on these charges was held before Judge Schreier on December 14, 1978. We summarize the pertinent testimony adduced at that hearing.

Denise Weeks, a Cook County probation officer, testified that on May 26, 1978, she was assigned to Judge Schreier's courtroom, and was present when defendant was sentenced. One of the conditions of probation entered that day was that defendant "join the Gateway residential drug program through TASC" (an acronym for Treatment Alternative to Street Crime). Defendant signed a "spec. sheet" in which he agreed to the conditions of probation including a provision stating that he was to attend the residential drug program through TASC. Weeks gave defendant a copy of this document. She also prepared a probation history sheet which defendant signed and which stated that a condition imposed by the court was that defendant was "[t]o attend residential drug program. GATEWAY HOUSE TASC." Weeks explained to defendant that leaving the program at any time would be a violation of probation, a fact which defendant said he understood. In the early part of June or as early as May 31 defendant appeared at Weeks' office. She asked why he was there when he was supposed to be in Gateway. Defendant told her he had received permission to visit friends and was accompanied by an individual from Gateway. In August defendant telephoned Weeks to tell her he had broken his leg and was in the hospital. On September 11, 1978, he admitted to her that he had left the Gateway program but said he was trying to enroll in another drug program.

Joseph Gioia, supervisor of a TASC unit responsible for placement, testified that on May 31, 1978, he spoke to the defendant, reminding him that a condition of probation was that he enter and successfully complete the Gateway program. He informed defendant that he would be going to the Lake Villa facility, a live-in program. He also warned defendant that leaving the program against medical or staff advice would constitute a "probable violation of probation" and he instructed defendant not to leave the facility without staff approval. According to Gioia at this juncture defendant had been accepted into the program and was scheduled for an orientation interview at Lake Villa.

The next morning Gioia found defendant at his office. Defendant explained that he left the facility because he "couldn't hack it." Gioia spoke to defendant for about 40 minutes, warning him of the probability of being reincarcerated. Defendant responded that he would have to think the matter over. On June 4 defendant telephoned Gioia and asked him for help in relocating to another facility. Gioia advised him that this would have to be done by the facility he had left. He also advised defendant to get back into the facility or to report to "probation" immediately. On June 5 defendant was officially terminated as a participant in the TASC program.

The final State witness was Eduardo Rodriquez, who worked as a court liaison for TASC. On May 26 he interviewed defendant in connection with the charges for which Judge Schreier ultimately placed defendant on probation. At that time defendant signed an agreement to participate in treatment with TASC. This document, introduced into evidence at the hearing, states, inter alia, that defendant could be immediately terminated from TASC for leaving treatment without notifying TASC that his treatment needs required reevaluation.

Testifying in his own behalf, defendant admitted that one condition of his probation was that he receive TASC treatment and enroll in the Lake Villa in-house facility. He also admitted that he knew leaving the facility was a violation of the conditions of probation, but nonetheless did leave. Defendant further testified that he went to the Gateway House facility at Lake Villa on May 31. During a group interview he stated that he did not want to be at the facility but that the court had said he had to be there. According to defendant he was not accepted into the program after this interview and was told to return to the TASC office in Chicago. When he saw Joseph Gioia there he told him he had not been accepted into the program and that he could not "hack" the way the interview had been conducted. He also asked Gioia for help in getting into another program but Gioia refused and told him he would have to beg Gateway to take him back. On June 10 defendant contacted a man named Alex Webber at another drug program, was accepted, and was scheduled for a placement interview late in July. However on July 24 defendant broke his leg and was hospitalized until September 2. Defendant testified that he was still willing to enter Webber's program.

Alex Webber, the assistant clinical director of the Center for Addiction Problems, testified that one function of his office was to place people in drug-treatment facilities. In June 1978 defendant came to him and was accepted as a patient. Prior to defendant's accident arrangements had been made to place him with Safari House, a live-in drug treatment facility. Webber testified that if defendant were to receive a sentence of probation he could still be placed with Safari House.

Prior to sentencing defendant explicitly waived his right to a presentence investigation report. Defendant elected to be sentenced under the Illinois sentencing act passed in 1977. (Ill. Rev. Stat., 1978 Supp., ch. 38, pars. 1003-1-2 through 1008-2-4.) In imposing the three sentences we have previously detailed, the trial court ...

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