APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
522 N.E.2d 819, 168 Ill. App. 3d 588, 119 Ill. Dec. 157 1988.IL.579
Appeal from the Circuit Court of Peoria County; the Hon. Calvin R. Stone, Judge, presiding.
JUSTICE WOMBACHER delivered the opinion of the court. SCOTT AND BARRY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER
The defendant, David Adams, appeals from his sentences imposed on probation revocation. We affirm.
The defendant pleaded guilty to two counts of unlawful delivery of a controlled substance containing cocaine. One count was for delivery of less than 10 grams and one count was for delivery of more than 10 and less than 30 grams. (Ill. Rev. Stat. 1983, ch. 56 1/2, pars. 1401(b)(2), (c) (respectively).) Pursuant to plea negotiations, he was initially sentenced to fines plus four years' probation with 15 months' concurrent periodic imprisonment on each charge. Thereafter, his sentence was modified to include 2 months and 26 days jail in lieu of the remaining periodic imprisonment.
Approximately two months after the defendant's jail release in April of 1986, the State filed a petition to revoke probation alleging that the defendant had kicked and stabbed Karen Petrakis, his cohabiting girlfriend. The defendant admitted to the State's amended petition to revoke. That petition alleged that during his probation, the defendant was convicted of aggravated battery.
Following a hearing, the court revoked the defendant's probation and imposed concurrent sentences of 4 1/2 years' and 5 1/2 years' imprisonment on the respective delivery counts. The defendant brought this appeal, seeking a remand for resentencing. He argues that the court improperly considered in aggravation the harm caused by the delivery of controlled substances, as that factor is implicit in the offense; he also argues that his sentence was excessive as the court failed to consider his recently increased potential for rehabilitation.
The court's comments before pronouncing sentence included the following.
"The offenses for which the defendant is now being sentenced are both offenses of unlawful delivery of a controlled substance. Those offenses are not violent offenses in the sense that they would cause harm by way of some instrument or method such as a battery would, or some harming in that, to that extent.
The Court would, of course, note that the delivery of a controlled substance shows an indication that, or is an offense which the defendant should realize is not going to do anybody any good. Providing controlled substances to someone means that either you are sustaining them on the habit or practice of using illegal drugs; or perhaps you are starting them on the habit, either starting or sustaining a habit. And, of course, we know of the great harm that comes as a result of illegal drugs. It's not harm in the sense of beating someone up -- sometimes both physical and mental harm, and the consequences are just as great. And I think that would have had to have been contemplated by the defendant."
Referring to those comments, the defendant argues, with reliance on People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, that the sentencing court improperly considered the harm caused by the delivery of controlled substances when the legislature had considered that factor, which was implicit in the crime, in setting penalties for the offenses.
In Conover and related cases, courts have held that a factor necessarily implicit in an offense should not be used as an aggravating factor at sentencing. However, Conover and the related cases, with their Discussions of improper ...