APPEAL from the Circuit Court of Du Page County; the Hon.
HELEN C. KINNEY, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
The defendant, George Benedetto, was charged by information with the offenses of burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19-1(a)), possession of burglary tools (Ill. Rev. Stat. 1977, ch. 38, par. 19-2), and theft over $150 (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(a)(1)) as a result of an incident occurring on December 18, 1978. He pleaded guilty to the burglary charge and was sentenced to a three-year term of imprisonment for that offense. The State nolle prossed the remaining counts. The court also denied the defendant's petition to be treated as a drug addict under the provisions of the Dangerous Drug Abuse Act (Act) (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.1 et seq.).
The defendant appeals and presents four issues for review: (1) whether the trial court abused its discretion in refusing to grant his motion to withdraw his guilty plea; (2) whether the court failed to exercise any discretion or abused its discretion in determining that the defendant was not an addict; (3) whether the trial court erred in its interpretation of section 5-5-3(c)(2)(G) of the Unified Code of Corrections (Code) (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-5-3(c)(2)(G)) as it relates to sections 9 and 10 of the Act (Ill. Rev. Stat. 1977, ch. 91 1/2, pars. 120.9, 120.10), and whether the defendant was entitled to elect to proceed under the law as construed by People v. Teschner (1980), 81 Ill.2d 187, 407 N.E.2d 49, or the law as revised by Public Act 81-851, effective September 20, 1979; and (4) whether the trial court properly concluded that section 5-5-3(c)(2)(G) precluded the defendant from receiving a sentence of probation.
On July 12, 1979, the defendant informed the court that he wished to withdraw his prior plea of not guilty to the charges in question and enter a plea of guilty to the charge of burglary in return for the State's agreeing to nolle pros the remaining charges. *fn1 After the court began to admonish the defendant, pursuant to Supreme Court Rule 402 (Ill. Rev. Stat. 1977, ch. 110A, par. 402), of his rights and the maximum and minimum sentences for burglary, a Class 2 felony, the State informed the court that the defendant would not be eligible for a sentence of probation under the provisions of section 5-5-3(c)(2)(G) because he had a prior conviction of a Class 2 felony (burglary) within 10 years of the commission of the present burglary offense. The court then advised the defendant that he was ineligible for probation for the reason the State had advanced. After a recess to allow the defendant to consider his plea and discuss the matter with his counsel and prior to the completion of the plea, the court continued the proceeding for one day to allow defendant to prepare and file a petition to be treated as a drug addict under the Act.
On the following day, July 13, the defendant filed his petition for treatment as an addict in which he alleged that he was an addict and none of the conditions set forth in section 8 of the Act (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.8) precluding eligibility for such treatment applied to him. He requested that the court determine whether he qualified for treatment under the Act before he entered a plea. The court denied this request stating that the defendant had been scheduled for trial the previous Monday, the court continued the matter having been told there would be a plea, and that the defendant should have submitted his petition at an earlier date. Accordingly, the court indicated that it would rule on the petition either after the defendant pleaded guilty or after trial. The court then completed the admonishments under Supreme Court Rule 402 which it had commenced the day before. The defendant admitted that there was no agreement regarding the nature of the sentence on the burglary charge, that the only plea arrangement was that the State would nolle pros the remaining charges, and that no one had promised him what the disposition would be regarding his petition to be treated as an addict. Defendant persisted in his plea of guilty. The court then accepted the plea and found the defendant guilty after determining that a sufficient factual basis existed for the burglary charge. The matter was set for a presentence report and a hearing on the petition for treatment as an addict.
In establishing the factual basis for the defendant's guilty plea, the prosecutor stated that the State's witnesses would testify that the Naperville police department responded to a call which reported the sound of breaking glass in the vicinity of Washington and Jefferson Streets in Naperville, that the police discovered a broken window in the Naperville Pharmacy, which was owned by Daryl Jelinek, and upon entering the establishment found the defendant hiding behind the pharmacy's drug counter. The defendant held a laundry bag containing a Polaroid camera and 117 bottles of various drugs, all of which merchandise was owned by Jelinek, who had not given the defendant permission to enter the building or to remove any merchandise from it. Both the defendant and his attorney agreed that the State's witnesses would so testify if they appeared.
On January 25, 1980, the matter came before the court for a hearing on the defendant's petition for treatment as an addict. The State argued that, since the defendant was ineligible for probation under section 5-5-3(c)(2)(G) of the Code, he was similarly ineligible for treatment under section 10 of the Act. The defendant maintained that he need not first be qualified for probation to be eligible for drug addiction treatment under the Act and, further, that probation as defined and used in the Code carries a different connotation than it does under the Act. After a conference in chambers, the defendant orally asked leave to withdraw his guilty plea, and the State objected. Without ruling thereon, the court then allowed the defendant to introduce testimony as an offer of proof relating to his alleged addiction and his eligibility for treatment under the Act.
George Stovilkovic, an employee of T.A.S.C. (Treatment Alternatives to Street Crime), stated that another employee of his organization, Mr. Edinburg, had examined the defendant on October 23, 1979, and had determined that he was eligible for treatment as a drug addict. He related that he too spoke with the defendant and did not observe any physical signs of addiction, although the defendant did know a lot about drugs and told him that he was presently taking codeine. While he was inclined to believe that the defendant was a drug addict in need of rehabilitation, Stovilkovic was unable to determine positively that the defendant was a drug addict in light of the absence of physical signs of addiction and without having conducted a urinalysis.
The defendant testified that he is married and has been gainfully employed as a carpenter with various construction companies on a continuous basis from about June 1975, when he left college, until the present time. He stated that he used heroin for a six-month period in 1975 and that he attempted to treat his addiction through Dr. Schurz' methadone maintenance program which he attended three times a week from May 1975 to November 1977. He also revealed that he has used cannabis within the last two years, that he has been taking codeine and valium for the past year and one-half to help him sleep, and that he takes 120 milligrams of codeine daily. He has not taken any drugs other than marijuana, valium and codeine within the last two years and is not currently under a doctor's care for any type of physical malady. He stated that he "could be addicted" to codeine. The defendant also admitted that he is currently on probation in Cook County for driving with a revoked license, possession of a controlled substance, and burglary. He further remarked that he was discharged from the United States Army in 1978 for reasons unrelated to the use of drugs and that the physical examination he underwent upon separation from the service revealed no medical problems of a physical nature. In addition, the defendant said that he was taking a barbituate, tuinal, on the day of the burglary at issue and his use of this drug "enticed" him to commit that crime.
Jose Hildago, the defendant's probation officer in Cook County, related that during one of his meetings with the defendant he noticed that Benedetto appeared to be under the influence of a drug due to a redness in his eyes and his nervous condition. During that meeting, the defendant denied he was using heroin but stated that he was on drugs. Hildago testified he did not object to defendant's election for treatment under the Act. (See People v. Phillips (1977), 66 Ill.2d 412, 362 N.E.2d 1037.) After argument by both parties, the court ruled that the above evidence was insufficient to prove that the defendant was a drug addict. The court stated that it was inclined to allow the defendant to withdraw his guilty plea, and, after the State objected, the matter was continued for a hearing to allow the defendant to file a written motion to withdraw his plea.
In a written order entered on March 27, 1980, the court determined that the defendant was ineligible for treatment under either section 9 or section 10 of the Act in light of section 5-5-3(c)(2)(G) of the Code because he had been convicted of a prior burglary, a Class 2 felony, on September 25, 1978, in the circuit court of Cook County, Illinois, in case No. 78-I-20236. The court also found that, after having heard testimony of the witnesses regarding the question of the defendant's alleged addiction, the evidence was insufficient to establish the defendant's addiction.
On March 27, the defendant also asked the court for leave to withdraw the motion which he had filed on February 19, 1980, in which he sought to withdraw his guilty plea. The motion of February 19 to withdraw his guilty plea pursuant to Supreme Court Rule 604(d) (Ill. Rev. Stat. 1979, ch. 110A, par. 604(d)) stated, in effect, that the defendant, upon the advice of counsel, entered his plea of guilty on the assumption that his prior Class 2 felony conviction would not preclude him from electing treatment under the Act if he were otherwise determined to be eligible for treatment as a drug addict. The defendant's affidavit, which was attached to the motion to withdraw, states, in consonance with the motion, that he entered his guilty plea upon the advice of counsel that the court could exercise its discretion to permit him to be treated as a drug addict even though he had a prior Class 2 felony conviction and that he would never have entered a plea of guilty to the offense of burglary if he had known that the court would be precluded from exercising its discretion to treat him as an addict solely on the basis that he had a prior Class 2 felony conviction. The court interpreted the defendant's motion for leave to withdraw his motion to withdraw his guilty plea as a request to reinstate or affirm his guilty plea. Accordingly, the court again gave the defendant the Rule 402 admonishments: advised him of the possible consequences of his plea; stated the maximum and minimum sentences available, expressly informing the defendant in this regard that, as a result of his prior burglary conviction, he was not eligible for probation under the Act and, further, that the least sentence he could expect to receive was a three-year term; and that a sufficient factual basis existed for the burglary charge. The defendant persisted in his plea of guilty, after acknowledging that the minimum sentence that could be imposed upon him was three years imprisonment. The court granted the defendant leave to withdraw his previously filed motion to withdraw his plea, again accepted the defendant's guilty plea, entered a judgment of conviction against him, and ordered an updated presentence report.
On August 7, 1980, the defendant requested leave to resubmit his previous motion to withdraw his plea of guilty, and the court granted the request. At that point, defense counsel stated that he had nothing further to say regarding the motion to withdraw his client's plea. The State remarked that the court had previously informed the defendant that it could not admit him to probation due to his prior Class 2 felony conviction and, consequently, that the defendant was not eligible for drug abuse treatment under the Act, and also that the defendant had persisted in his plea despite his awareness of the above. The court and counsel for both parties then discussed the effect of the recent case of People v. Teschner (1980), 81 Ill.2d 187, 407 N.E.2d 49, which was handed down during the course of proceedings below. The trial court recognized that People v. Teschner held that a defendant is not precluded from being placed in a drug rehabilitation program pursuant to the Act, even though he is incapable of being admitted to probation under section 5-5-3(c)(2)(G) of the Code upon his conviction of a Class 2 felony or greater, where he had been convicted of a Class 2 felony or greater within the previous 10 years. The court below reasoned that even though it had earlier determined, without the benefit of Teschner and contrary to the supreme court's pronouncement therein, that the defendant could not be admitted to a drug rehabilitation program under the Act due to his prior Class 2 felony conviction, the court felt that the defendant here was nevertheless precluded from electing treatment under the Act in spite of Teschner, because the court had previously determined that the defendant was not an addict and hence was not eligible for treatment as such under the Act. Accordingly, the court denied the defendant's motion to withdraw his guilty plea and on August 7, 1980, sentenced him to a three-year prison term on the burglary charge, the minimum term of imprisonment that could be imposed.
On August 29, 1980, the defendant filed a motion for modification of his sentence. At a hearing on October 24, 1980, defendant presented the testimony of Anthony Oliveri, a diagnostic specialist for T.A.S.C. Oliveri testified that he took six urine specimens from the defendant over a two-week period in October 1980, which procedure revealed positive results for morphine and codeine. The defendant came to the T.A.S.C. office at prescheduled times and provided the urine samples on those dates. The State stipulated that the urine specimens showed the presence of codeine and morphine substances. Prior to receiving the results of the urinalysis tests and from his own observation of the defendant and his own experiences as a drug counselor and former drug user, Oliveri concluded that the defendant exhibited no visible signs of drug addiction. However, Oliveri stated that the physical manifestations he would look for are those present when one is experiencing withdrawal. The court was not persuaded that the results of the urine tests alone were sufficient evidence of addiction to cause it to modify or change its previous ruling that the defendant was not a drug addict. In reaching this result, the court stated that the defendant would have "a strong motivation to take some steps to make such a positive showing" in the urine samples. Consequently, the court denied the motion for modification of the sentence.
The defendant first contends on appeal that the court abused its discretion in refusing to grant his motion to withdraw his guilty plea, which plea, he asserts, was based on a misapprehension of law. In this regard, the defendant maintains that he entered his plea of guilty upon the advice of counsel that his prior Class 2 felony conviction of burglary would not preclude him from electing treatment under the Act if he were otherwise determined to be eligible for treatment as a drug addict and that he would not have entered his plea if he had been aware that the court ...