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People v. Jones

OPINION FILED MARCH 31, 1986.

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

v.

TONY RAY JONES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Champaign County; the Hon. Robert J. Steigmann, Judge, presiding.

JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 17, 1986.

An indictment was filed in case No. 84CF1617, in the circuit court of Champaign County on December 13, 1984, charging the defendant in two counts with the offense of theft with a prior theft conviction pursuant to section 16-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 16-1). The offense allegedly occurred on November 23, 1984.

An indictment filed in case No. 85CF72 on January 21, 1985, charged the defendant with burglary and theft with a prior theft conviction pursuant to sections 19-1 and 16-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 19-1, 16-1). These offenses allegedly occurred on January 24, 1985.

On March 4, 1985, the defendant entered a plea of guilty to count I of the indictment in case No. 84CF1617, and count II was dismissed. The cause was scheduled for a sentencing hearing on May 3, 1985.

Cause No. 85CF72 was tried by jury, and on April 11, 1985, the jury returned verdicts of guilty on both the burglary and theft charges. This case was likewise scheduled for a sentencing hearing on May 3, 1985.

On May 3, 1985, the court sentenced the defendant to the Department of Corrections for a term of four years for the offense of burglary, and to a term of three years for the offense of theft with a prior theft conviction in cause No. 85CF72. He was, at the same time, sentenced in cause No. 84CF1617 to a term of three years in the Department of Corrections for the offense of theft with a prior theft conviction. All sentences were to be served concurrently.

The defendant challenges his sentences on appeal, contending that the trial court abused its discretion by questioning the defendant concerning the source of drugs he obtained and regularly used. The court also allegedly abused its discretion by sentencing the defendant to three years' imprisonment in cause No. 84CF1617. The defendant appears to argue that the court erroneously based that sentence upon the fact that he was sentenced to three years for the theft with a prior theft conviction and to four years for burglary in cause No. 85CF72.

The presentence report indicates the following: (1) the defendant had a prior theft conviction and a prior conviction for theft with a prior theft conviction before his involvement in theft in cause No. 84CF1617; (2) that the defendant had been on probation for approximately one month on a theft charge when he committed the offense in cause No. 84CF1617; (3) he was on bond in cause No. 84CF1617 when he committed the offenses in cause No. 85CF72; (4) that he applied to the TASC program for examination concerning eligibility for drug treatment; (5) that TASC determined that defendant was an addict, but after asking for drug treatment the defendant refused to volunteer for treatment; and (6) that defendant told the court service department that prior to his incarceration he was supporting a $100 per day cocaine and heroin addiction.

At the sentencing hearing, the State asked that the defendant be sentenced to the Department of Corrections for four years for burglary and that an appropriate sentence be imposed for the theft with a prior theft conviction.

Counsel for the defendant asked that he be sentenced to intensive probation supervision. Counsel pointed out that the crimes were committed within a short period of time and suggested an assumption that defendant was either trying to get goods that he could sell to support his habit, or food to eat. He pointed out that defendant had spent 99 days in jail and was past the physical withdrawal symptoms and now needed professional counseling to overcome the psychological addiction.

At this point, the trial court asked the defendant if he wanted to speak on the question of the sentence to be imposed. The court pointed out that the defendant did not have to speak if he did not want to.

The defendant stated that as for trying to make intensive probation, "I can definitely make it and I am definitely willing to try and make the program."

At this point, the court inquired about defendant's drug habit, which apparently cost him as much as $100 a day. The defendant replied that this level of drug use existed only during the last year of his four-year habit. ...


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