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People v. Braje

OPINION FILED FEBRUARY 19, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MARK BRAJE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County; the Hon. Anthony M. Peccarelli, Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

Defendant, Mark Braje, appeals from two orders of the circuit court of Du Page County which denied his motion to withdraw his guilty plea and vacate his conviction and his motion for a reduced sentence. In his motion to withdraw his guilty plea, defendant alleged that the trial court failed to advise him of his right to elect treatment under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1983, ch. 91 1/2, pars. 120.1 through 120.29) or to order a presentence report. The trial court denied that motion on the basis that another felony was pending and no updated presentence report was needed. Defendant also argues that the trial court erred in denying his motion to reduce his sentence because the sentence imposed was excessive under the circumstances.

Defendant's encounters with the criminal justice system which led to his eventual pleas of guilty on two separate burglary charges and a residential burglary charge, and three concurrent prison sentences of seven years for each of the burglaries and eight years for the residential burglary, entailed proceedings before three different judges of the circuit court of Du Page County. Initially, the State charged defendant with, among other charges, burglary on March 22, 1982 (No. 82 CF 248-01). He pleaded guilty to burglary before Judge Peccarelli on August 9, 1982, and the State nolle prossed the other charges (No. 82 CF 885, 886, 887, 888). On October 28, 1982, defendant filed a motion to elect treatment as an addict. The court directed that defendant contact a specified drug abuse treatment center to determine his eligibility. Apparently, defendant, after contacting a center, withdrew this motion.

On January 27, 1983, defendant was charged with burglary (No. 83 CF 131-01), theft (No. 83 CF 131-02), attempted burglary (No. 83 CF 132-01), attempted burglary (No. 83 CF 132-02), and criminal damage to property (No. 83 CF 132-03). These proceedings were before Judge Helen C. Kinney. Defendant filed a motion to elect treatment on all five of these counts on March 2, 1983. Again, it appears that defendant subsequently withdrew this motion.

On June 15, 1983, defendant was charged by information with residential burglary (No. 83 CF 400-01) and theft under $300 (No. 83 CF 400-02). These proceedings were before Judge Carl F.J. Henninger.

The proceedings before Judges Kinney and Henninger were transferred to Judge Peccarelli for implementation of a plea agreement. On August 31, 1983, defendant pleaded guilty to burglary (No. 83 CF 131-01) and residential burglary (No. 83 CF 400-01). The State nolle prossed all of the other charges pursuant to a plea agreement. The agreement further provided that defendant's probation on a prior proceeding would be terminated unsatisfactorily (No. 81 CF 688). During this hearing, the State outlined the factual basis for the pleas of guilty on the charges previously pending before the other judges. The plea of guilty to burglary involved defendant's remaining in a drug store until it closed, breaking into a drug cabinet, taking a large amount of drugs, and then breaking out of the store. The residential burglary involved defendant's breaking and entering into a residence and taking an item of jewelry. The earlier burglary charge arose from the breaking and entering of a doctor's office and the theft of certain drugs and prescription blanks from a prescription pad.

After accepting defendant's guilty pleas, the court conducted a sentencing hearing. The court referred to the presentence report prepared in the initial burglary proceeding (No. 82 CF 248) and asked whether defendant wished to add anything to that report. The only new information presented consisted of the fact that defendant had been employed for the past two months. The court then asked whether there was any criminal activity other than those matters appearing before him or those set forth in the presentence report. Defendant and the State answered in the negative. The court then sentenced defendant to three concurrent terms of imprisonment, seven years on each of the two burglaries and eight years on the residential burglary.

On September 30, 1983, defendant filed a motion for reduction of his sentence and a motion to withdraw his guilty pleas and vacate his convictions. The motion to withdraw his guilty pleas was subsequently amended on December 23, 1983. Defendant alleged in that motion, inter alia, that the trial court erred in failing to advise him of this right to elect treatment under the Dangerous Drug Abuse Act. He noted that the presentence report indicated a serious drug problem and that since that report was filed on September 16, 1982, significant events occurred of which the court should have been apprised prior to accepting defendant's guilty plea — specifically, that he was addicted to a controlled substance at the time that the residential burglary was committed. He alleged that on March 16, 1983, he was voluntarily admitted to a hospital with the following diagnosis: Alcoholism episodic; drug addiction by history; major depression, recurrent. He was discharged from the hospital with the final discharge diagnosis being: Major depression, recurrent, controlled with medication; alcoholism episodic; drug addiction by history. On April 18, 1983, 10 days after his discharge, defendant was readmitted to the hospital for further treatment and discharged on the next day. The doctor who treated defendant executed an affidavit which was attached to defendant's motion, which, in addition to supporting the allegations in the motion, added that immediately prior to defendant's March 16 admission, he had an extensive cocaine habit and was using cocaine at least five times per week. Defendant further alleged in his motion that an updated presentence report should have been ordered by the court because it would have apprised the court of the relevant facts.

At the January 11, 1984, hearing on defendant's motion to withdraw his guilty pleas, the court found that since other charges were pending against defendant and those charges had been transferred there for the implementation of the plea agreement, defendant was not eligible for treatment under the Dangerous Drug Abuse Act. Further, the court found that no error resulted from the lack of an updated presentence report. Consequently, the court denied defendant's motion.

On February 9, 1984, the court conducted a hearing on defendant's motion to reduce his sentence, and at the conclusion of this hearing denied the motion.

Defendant filed timely notice of appeal from both of these orders on February 10, 1984.

• 1 Defendant argues two bases upon which the trial court should have granted his motion to withdraw his guilty pleas and vacate his convictions. Defendant's second basis, the trial court's failure to order an updated presentence report, will be addressed first.

Section 5-3-1, as amended, of the Unified Code of Corrections requires that the trial court consider a written presentence report before sentencing a defendant unless the defendant and the State agree to the imposition of a specific sentence "provided there is a finding made for the record as to the defendant's history of delinquency or criminality * * *." (Ill. Rev. Stat. 1983, ch. 38, par. 1005-3-1.) Thus, where the State and the defendant agree to a specific sentence, the requirement that the trial court be presented with a presentence report may be waived. (See People v. Youngbey (1980), 82 Ill.2d 556, 561; People v. Casper (1981), 97 Ill. App.3d 787, 790.) However, dispensing with a presentence report requires the trial court to make a finding for the record as to the defendant's history of delinquency or criminality. Defendant argues in the instant case that the trial court made no such finding. However, the record of the sentencing hearing discloses that the court asked whether any criminal activity of defendant other than those cases appearing before it and those which were set forth in the prior presentence report existed. The court received a negative response. This exchange indicates that, although the court did not specifically state its finding, it clearly arrived at such a finding based on the presentence report. Thus the purpose of a presentence report, to insure that the trial judge has all necessary information concerning the defendant before sentencing is imposed, was satisfied under the circumstances. See People v. Coleman (1983), 120 Ill. App.3d 619, 623, aff'd (1985), 105 Ill.2d 290 (an updated presentence report unnecessary after the defendant's probation was revoked where a report was prepared at the original sentencing hearing, that report is relatively current and the defendant is given the opportunity to present any additional information).

• 2 Defendant's other point outlined in his motion to withdraw his guilty pleas involves the Dangerous Drug Abuse Act. Section 8 of that Act provides in pertinent part that "[a]n addict * * * convicted of a crime is eligible to elect treatment under the supervision of a licensed program * * * instead of prosecution or probation, * * * unless * * * (d) other criminal proceedings alleging commission of a felony are pending against the addict, or * * * (f) the addict elected and was admitted to a treatment program on two prior occasions within any consecutive two-year period." (Ill. Rev. Stat. 1983, ch. 91 1/2, par. 120.8.) Sections 9 and 10 of the Act, read together, provide that if a court has "reason to believe" that an individual charged with or convicted of a crime is an addict and the court finds that he is eligible to make the election provided for in section 8, the court shall advise him of the possibility of treatment under the Act. (Ill. Rev. Stat. 1983, ch. 91 1/2, pars. 120.9, 120.10.) Recently, our supreme court found that the purpose of this provision is informational and held that it "requires the trial judge to inform every defendant whom he knows or has reason to believe is an addict of the possibility of treatment under the Act * * *." (People v. Richardson (1984), 104 Ill.2d 8, 17.) The trial court's duty to advise a defendant of this right to elect treatment, however, is triggered only when the prerequisites of section 8 have been satisfied. (People v. Berry (1983), 118 Ill. App.3d 1024, 1025-26.) A circuit court's discretion to offer a ...


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