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05/05/87 the People of the State of v. Darnell Hamilton

May 5, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DARNELL HAMILTON, DEFENDANT-APPELLANT

SECTION 21(E) OF THE ACT PROVIDES, IN PART (ILL. RE

v.

STAT. 1985, CH. 111 1/2, PAR. 6321(E)):



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

508 N.E.2d 385, 155 Ill. App. 3d 555, 108 Ill. Dec. 224 1987.IL.586

Appeal from the Circuit Court of Cook County; the Hon. Michael B. Getty, Judge, presiding.

APPELLATE Judges:

JUSTICE HARTMAN delivered the opinion of the court. SCARIANO, P.J., and STAMOS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Defendant appeals his 20-year penitentiary sentence, with three years of mandatory supervised release, resulting from his convictions for residential burglary, theft, and unlawful use of a firearm following a bench trial. He seeks review as to whether: (1) section 21(e) of the Alcoholism and Substance Abuse Act (hereinafter the Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 6321(e)), violates the due process clauses of the United States and Illinois constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2); (2) section 21(e) violates the

separation of powers doctrine (Ill. Const. 1970, art. II, sec. 1); and (3) his sentence is excessive.

On July 29, 1984, at 10:30 p.m., Joseph Mikrut, after loading his car in front of his apartment preparing for a business trip, returned to his apartment and left his car engine running. Upon his return 1 to 1 1/2 minutes later, his auto was missing. Mikrut reported the stolen car to the police. About six hours later, on July 30, 1984, at 4:45 a.m., a police officer observed defendant making a number of trips from an apartment complex, about one block south of Mikrut's apartment, to an illegally parked car, later identified as belonging to Mikrut. When the officer approached the car to write a citation, he noticed television and stereo equipment through the back window. Checking the license plate number, he learned that the car had been stolen and requested assistance. Two officers responded and performed surveillance. One officer saw defendant make three trips out to the car carrying objects. When defendant drove off they followed and arrested him. A television set, radio, and dresser drawers were found on the back seat and a nylon bag containing a loaded .38-caliber revolver, previously stolen from a police officer, was found on the front seat.

When police checked the apartment complex, a wide-open window of a basement apartment was found and the recovered property was identified by the apartment burglary victim and his father.

Defendant was charged by information with residential burglary, unauthorized control of a motor vehicle worth over $300, and possession of a firearm after conviction of a felony. (Ill. Rev. Stat. 1983, ch. 38, pars. 19 - - 3, 16-1(a)(1); Ill. Rev. Stat., 1984 Supp., ch. 38, par. 24 - - 1.1.) On February 1, 1985, following a bench trial, the circuit court found defendant guilty of all charges.

Defendant requested an evaluation by Treatment Alternatives to Street Crimes, Inc. . TASC recommended residential treatment, finding defendant demonstrated a likelihood for rehabilitation, conditioned on consent of defendant's parole officer. The district parole office supervisor did not agree to the treatment. No reasons were given. Defendant was 24 years old and on parole at the time of his arrest. He began using marijuana at age 13 and started using THC and cocaine at age 20. Defense counsel characterized his client as "a man driven by a drug addiction." The presentence investigation report showed that defendant had been convicted of armed robbery in September 1980 and of residential burglary in October 1982, receiving prison sentences each time. He was sentenced as a Class X offender since he had been convicted three times of a Class 2 felony or greater offense. Ill. Rev. Stat. 1983, ch. 38, par. 1005-5-3(c)(7).

During the sentencing hearing, the circuit court stated that the requirement for consent of the parole authority for alternative treatment under the Act prevented him from considering drug rehabilitation treatment and concluded that "society would probably be better served" if defendant were allowed to undergo the TASC drug program. The court sentenced defendant as previously noted. Defendant appeals his sentence. I

Defendant first contends that section 21(e) violates the due process clauses of the Illinois and United States constitutions by giving unlimited discretion to the parole authority, which can act arbitrarily. Defendant asserts that both TASC and the court indicated that drug treatment would be helpful; but such treatment was vetoed without reasons by the parole authority. The State replies that defendant waived this issue and that the clause in question is rationally related to the legislature's purpose to authorize a drug treatment sentencing alternative only to defendants with rehabilitative potential.

"An addict charged with or convicted of a crime is eligible to elect treatment under the supervision of a licensed program designated by the Department instead of prosecution or probation, as the case may be, unless . . . (e) the addict is on probation or parole and the appropriate ...


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