Appeal from the Circuit Court of Brown County; the Hon. Dennis
K. Cashman, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
The principal issue in this case is whether the circuit court may properly revoke a sentence of probation conditioned on the defendant's securing inpatient treatment for drug and alcohol dependency problems, for the sole reason that there are no treatment facilities in the State which are willing to accept the defendant for inpatient treatment. We conclude that probation revocation is proper under these circumstances where the principal condition of probation has been frustrated. Accordingly, we affirm.
On June 21, 1983, the defendant was placed on 30 months' probation following a conviction of aggravated battery. On July 18, 1983, the defendant admitted that he violated the terms of his probation in that he committed the offenses of battery and obstruction of a peace officer in the performance of his official duties on June 24, 1983, and June 28, 1983, respectively. His probation was therefore revoked.
Following a hearing held on August 1, 1983, the defendant was, however, sentenced to a new 30-month period of probation. In addition to the usual terms, the probation order also provided that "[t]he defendant shall participate in, cooperate with and complete the program of rehabilitation prescribed by Gateway House, Springfield, Illinois, and * * * defendant's performance shall be monitored through T.A.S.C., Inc., [Treatment Alternatives to Street Crime, Inc.] during his period of probation and T.A.S.C., Inc. shall provide the State's Attorney and Probation Office with regular reports, at least quarterly, of the defendant's performance." The defendant was further ordered to spend the first 120 days of his probation in the Schuyler County jail, subject to vacation of the balance of the 120-day term upon his entering the Gateway House program, and although not a condition of probation, "it [was the] court's considered recommendation that the defendant shall be granted no passes or liberty prior to six months from the commencement of his participation in the Gateway House Program."
On August 25, 1983, the court, on its own motion, after being advised that Gateway had determined that defendant did not qualify for its program of treatment and that defendant had been rejected from the Gateway facility (Kedzie House in Chicago) to which he had been sent, ordered that T.A.S.C., Inc., submit defendant to McFarland Zone Center in Springfield, "for inpatient evaluation and treatment as determined necessary and appropriate as a condition of probation * * *." In a further order dated August 31, 1983, the court stated that it had been advised that defendant "has been determined not serviceable" by both Gateway and McFarland, and on its own motion ordered the defendant to serve the balance of the 120-day sentence previously imposed as a condition of his probation.
On the same day, the State filed a petition for revocation of the defendant's probation, alleging that defendant violated the terms of his probation in that he "failed to participate and cooperate with the rehabilitation prescribed by Gateway House, Springfield, Illinois." A hearing was held on this petition on September 6, 1983. The State's sole witness was Michael S. Straton. Straton stated that he is area coordinator for T.A.S.C., Inc., which services the Eighth Judicial Circuit (which includes Brown County). T.A.S.C. had previously serviced clients for placement in the Gateway House facilities in both Chicago and Springfield. Straton had been involved with the treatment of defendant since May 1983, when defendant was placed at the Western Illinois Council on Alcoholism at Quincy. Eventually, following some evaluations concerning defendant's emotional well-being, he was found to be "no longer appropriate" for the facility and was discharged and returned to Mt. Sterling, his home town. The defendant was subsequently evaluated by the Brown County mental health center and found to be in need of "drug rehabilitation." The center recommended attendance at a program such as Gateway House.
Straton then attempted to obtain defendant's admission to the Gateway House facility in Chicago, known as Kedzie House. When Straton saw defendant following the defendant's rejection from the Kedzie House facility, defendant told Straton that (apparently during the interview process at Kedzie House) he made statements to the effect that "he did have a fear of getting in fights with people, that if he went to Gateway, somebody would say something to him — confront him in a verbal way that would make him angry" and spoke of "his fear that he would harm someone." Straton believed that the above statements were a material factor in defendant's rejection by the Gateway House program.
According to Straton, McFarland Zone Center declined to provide defendant with treatment because he "did not fall within a criteria of a health treatment, but that he needed some type of controlled environment to meet his needs." On the date of the hearing, T.A.S.C. discharged defendant by means of a "mutual discharge," which meant that T.A.S.C. had made unsuccessful efforts to place the defendant in the programs which it felt were attuned to his age, type of treatment required, and criminal history. T.A.S.C. had no alternative "but to say basically that we can no longer provide service for him." Straton responded in the negative to a question of the court as to whether Straton knew of any programs offered in Illinois which, in Straton's professional opinion, would provide services that would meet the defendant's needs. The defendant did not present any evidence.
At the conclusion of the hearing, the court revoked defendant's probation. Following a sentencing hearing held on the same day, the defendant was sentenced to three years' imprisonment.
The defendant was 20 years old at the time of his conviction of the underlying offense of aggravated battery. Prior to committing this offense, the defendant had been convicted of a number of other misdeeds, including battery, reckless driving, theft of property worth more than $150, and disorderly conduct.
• 1 The defendant first asserts that the trial court abused its discretion in revoking his probation because he engaged in no culpable or wilful misconduct during his final term of probation. In support of this assertion, the defendant relies on section 5-6-2(c) of the Unified Code of Corrections, which provides:
"The court may at any time terminate probation or conditional discharge if warranted by the conduct of the offender and the ends of justice * * *." (Ill. Rev. Stat. 1981, ch. 38, par. 1005-6-2(c).)
The defendant's position is premised on the assumption that the above statutory language proscribes the revocation of probation in the absence of a wilful violation of the conditions of probation. This argument, however, fails to take into account the following statutory language relevant to probation revocation, also appearing in the Unified Code of Corrections:
"Probation * * * shall not be revoked for failure to comply with conditions of a sentence or supervision, which imposes financial obligations upon the offender unless such failure is due to his wilful refusal to ...