APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
537 N.E.2d 3, 181 Ill. App. 3d 350, 130 Ill. Dec. 182 1989.IL.434
Appeal from the Circuit Court of Lake County; the Hon. John R. Goshgarian, Judge, presiding.
JUSTICE McLAREN delivered the opinion of the court. LINDBERG and WOODWARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN
Defendant, Shane Hamelin, appeals from the order of the circuit court of Lake County revoking his probation and sentencing him to five concurrent terms of imprisonment ranging from three to eight years. Defendant's motions to reconsider the sentences were denied, and this appeal followed. We reverse.
On March 9, 1987, defendant pleaded guilty to one count of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3), and three counts of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-1). A continuance was granted so that defendant could be evaluated for possible drug addiction pursuant to the Alcoholism and Substance Abuse Act (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 6301 et seq.). Defendant was interviewed and a report was issued by Treatment Alternatives to Street Crimes indicating that defendant was a drug addict. The report further indicated that substance-abuse treatment would increase the likelihood that defendant could be rehabilitated.
On May 26, 1987, a sentencing hearing was held. Defendant testified that he was a regular user of alcohol, marijuana, and cocaine. He indicated that he used the proceeds of the burglaries to pay for his drug addiction. Defendant also indicated that he used marijuana and cocaine while the burglary charges were pending against him.
The presentence report indicated that defendant was 18 years old on the date of sentencing and that he had two prior traffic convictions and an ordinance violation. The trial court sentenced defendant to four concurrent six-month terms of imprisonment in the Lake County jail and to four concurrent four-year terms of probation under the supervision of TASC. Defendant was then sent to the Lake County jail to begin serving his sentence.
Upon entering the jail, defendant was asked to remove his clothing so that he could be searched. Defendant then advised Officer Herb Hunter that defendant had a small amount of cocaine with him, which he voluntarily gave to Officer Hunter. Defendant was subsequently charged with two new offenses, namely the unlawful possession of cocaine (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401) and the bringing of contraband into a non-State penal institution (Ill. Rev. Stat. 1985, ch. 38, par. 31A-1). The State also filed a petition to revoke defendant's probation based on the new charges filed against him.
On July 7, 1987, defendant pleaded guilty to the unlawful possession of cocaine in return for a nolle prosequi on the charge of bringing contraband into jail. Updated presentence reports were prepared, and defendant was again found acceptable for the TASC program.
On July 29, 1987, another sentencing hearing was held for defendant. At the hearing, deputy sheriff Michael Blazincic testified that defendant told Blazincic that defendant obtained the cocaine the night before the original sentencing hearing to take into the jail in the event that incarceration would be imposed. Defendant disputed Blazincic's testimony, stating:
"I would also like to say that I am sorry, that I do have a drug problem, and I know it was stupid to bring drugs with me into court, but I didn't realize I was going to jail that day. I do have a drug problem and would like to, you know, get a chance to get help and get on with my life."
John Mizner, an area representative for TASC, also testified at the sentencing hearing. It was Mizner's opinion that defendant was still a drug addict and was still a likely candidate for successful rehabilitation. This opinion was formulated even with the knowledge that defendant ...