Appeal from the Circuit Court of Cook County; the Hon. James
J. Heyda, Judge, presiding.
JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Ronald Konrad (defendant) was charged with burglary by an information filed October 13, 1981. On May 10, 1982, upon his plea of guilty, he was sentenced to probation for five years in conjunction with his entry to a drug abuse program referred to as T.A.S.C. (Treatment Alternatives to Street Crimes). On September 15, 1982, a petition was filed alleging violation of probation by the defendant in that he failed to complete his treatment through the T.A.S.C. Drug Abuse Program. After a number of hearings, defendant again appeared before the court on December 10, 1982. The court sentenced defendant to an extended term of eight years. Defendant appeals.
Defendant concedes he left the T.A.S.C. Drug Abuse Program and thereby violated his probation. However, defendant urges his sentence to an extended term was improper because his original probation sentence contained a finding which precluded an extended-term sentence.
During the hearing of May 10, 1982, the trial court was most thorough and careful in acceptance of the plea of guilty to burglary. The court explained each step in the proceedings to defendant with fine detail. The defendant was able to take advantage of the opportunity of the T.A.S.C. program by virtue of the statutory authority contained in the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 91 1/2, par. 120.1 et seq.), which is itself a part of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 91 1/2, par. 1-100 et seq.).
There are two pertinent portions of the Dangerous Drug Abuse Act. Section 9 provides for admitting the defendant to treatment without a finding of guilty and "with the consent of the State's Attorney" continuing "the pending criminal proceeding against him * * * without final disposition" to be dismissed if the treatment has been satisfactorily completed. Ill. Rev. Stat. 1981, ch. 91 1/2, par. 120.9.
Section 10 provides, for a defendant to be placed on probation provided that he elects to submit to treatment and is accepted for treatment by a properly "licensed program designated by the Commission" such as T.A.S.C. Under this section the defendant may be placed on probation and admitted to the treatment in conjunction with probation. The Act then expressly provides (Ill. Rev. Stat. 1981, ch. 91 1/2, par. 120.10):
"Failure of an individual placed on probation and under the supervision of a licensed program designated by the Commission to observe the requirements set down by a licensed program designated by the Commission shall be considered a probation violation. Such failure shall be reported by a licensed program designated by the Commission to the probation officer in charge of the individual and treated in accordance with probation regulations."
The difference between these two sections of the statute (Ill. Rev. Stat. 1981, ch. 91 1/2, pars. 120.9, 120.10) is apparent and certain. It is equally certain, and the trial court stressed and repeated the point, that defendant was being placed on probation and his probation was contingent upon his completion of the T.A.S.C. program. The court carefully and expressly told the defendant:
"If you don't complete the program you will be brought before me on a violation of probation for sentencing."
The defendant, who spoke clearly and well, immediately responded:
"MR. KONRAD: I understand, sir."
The court also expressly told the defendant he was subject to the possibility of an extended sentence in the event he violated his probation. It is well to observe that at the time of this sentence defendant was already on parole for an unrelated criminal act. He was not a stranger to court proceedings. The defendant pleaded guilty with a clear understanding of his problem and the nature of his plea. The assistant State's Attorney expressly stated that his office was opposed to allowance of probation.
On September 15, 1982, a petition was filed which alleged defendant had violated a condition of probation in that he had left the program against the advice of the T.A.S.C. staff. Appended to the petition is a sworn letter advising the probation department that defendant decided he no longer wished to remain in treatment and he left the program on September 5, 1982, against the advice of the staff. In due course a warrant issued and defendant was brought before the trial court.
Defendant was represented by his own counsel. The attorney argued to the court at some length that the defendant was improperly sentenced by the trial court under section 10, and that he should have been sentenced under section 9 of the Dangerous Drug Abuse Act. (Ill. Rev. Stat. 1981, ch. 91 1/2, pars. 120.9, 120.10.) As has already been shown, this contention has no merit. Since the assistant State's Attorney refused to consent to continuation of the proceedings to permit ...