## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Demsco , 2013 IL App (3d) 120391

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. DENNI S DEMSC O, Def endant- Appellant.

District & N o. Third District Docke t No. 3-12-0391

Rule 23 Order

filed Motion to publ ish allowed Opinion filed May 7, 2013

May 24, 2013 May 24, 2013

Held (Note : This sy ll abus

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court’s ref usal to sentenc e defe ndant to TASC probation was an abuse of discretion, since defe ndant met all of the elig ibilit y require ments for TASC probation and the trial court found that defe ndant was an ideal candidate for TA SC, but still did not impose such a sentenc e; there fore
, the ca use wa s remande d to allow such a se ntence

.

Dec ision Under Review Appea l from the Circuit Court of Wil l County
, No. 10-CF- 1199; the Hon. Richard C. Schoenstedt, Judge , presiding

.

J udg ment Reverse d and re manded.Counsel on

Appea l J oel Murphy (ar gued), of

Chuck Br etz & Associates, P.C., of J oliet, for appellant.

J ames Glasg ow, State’s Attorney
, of J oliet (Ter ry A. Mertel and Dawn D. Duffy (ar gued), both of State’s Attorney s Appellate Prosecutor’ s Offic e, of counse l), for the People.

Panel J USTI CE LYTTON de livered the judgme nt of the cour t, with opinion. Presiding J ustice Wright and J ustice O’B rien concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, Dennis Demsco, p l ea d ed guilty to criminal damag e to proper ty (720 IL CS 5/21-1(1)( a) (West 2010)). The trial court conducte d a sentenc ing heari n g an d imposed a term of 24 mont h s ’ p ro b ation. On appea l, defe ndant argues that the trial court abused its disc re t i o n i n failing to sentenc e him to TASC probation under the Alcoholism and Other Drug Abuse and Depe ndency Act (Ac t) (20 I L CS 301/40-10 (West 2010)). We reve rse and

rema nd for f urther pr ocee dings. ¶ 2 On J une 7, 2010, defe ndant, whil e impaire d, drove his car into his g irlfriend’ s v eh i cl e and pushed it up ag ainst a g ara g e. He then picked up a Red Flyer wag on and broke the windows and si de mi rror s and dented the fe nders of another car parke d near

by

. Def endant

was arr ested and ch ar ged with two counts of criminal damag e to proper ty

. See 720 I L CS 5/21-1(1)( a) ( West 2010). ¶ 3 In September of 2011, defe ndant pleade d guilty to one count i n t h e i n d i ct ment and petitioned for the elec tion of probation with treatment under the Act, commonly ref err ed to

as TASC (Tre atment Al t ern at i ves for Safe Communi ties) probation. At the sentenc ing hearing, the trial court revie wed defe ndant’s criminal history and noted that he had no prior felony arr ests or convictions. The court deter mined that probation would be an appropriate

s en t en ce. The trial court then considere d two TASC repor ts filed in conjunction wi t h defe ndant’s elec tion under the Act. The first repor t stated that the TASC drug evaluator had conducted an assessment on November 16, 2011, and conclude d that defe ndant was “unser vicable” for TASC probation beca use he had succe ssfully completed trea tment prior
to assessment for TASC service s and had not used any drug s since he committed the offe nse. A revised repor

t, submitt ed on J anuar

y 12, 2012, stated that a T AS C s up ervisor had

rea ssessed defe ndant and deter mined that defe ndant was acc eptable for the TASC program. The second repor

t indicated that defe ndant met the criteria fo r al cohol and coca ine depende nce and rec ommended office monitoring at a TASC fac ility beca use defe ndant had alre ady completed substanc e abuse treatment at the New Day Center.

-2-¶ 4 After considering t h e T AS C re p o rt s and other information, the trial court found that

defe ndant had a substance abuse iss ue dating back t o 2010 and was under the influence of alcohol and illicit drug s at the time he committed the crime. The court noted that the revised TASC repor

t s t at ed th at (1) defe ndant was TASC elig ible, (2) defe ndant’s elig ibility was based on his likelihood for reha bilitation through substance abuse t re at m ent, (3) there “appe are d” to be a nexus bet we en h i s ab u se and the crime, and (4) defe ndant met the
program’s criteria for alcohol and coca ine depende nce. The court further noted that “TASC probation should be i mp o s ed in circ umstances wher e this Court believes that TASC probation would most likely be neede d, be succe ssful and, quite fra nkly
, this Court does take into c onsideration not only [defendant’ s] potential problems of abusing substances such as illega l drug s and alcohol, alcohol is not illega l, of course , but it is a substance, but also takes into acc ount his other issues relating to his mental health.” The court then acknow ledg ed that TASC service s h ad b ee n reduced in rec ent year s due to “budg etar y restric tions and limit ations.” ¶ 5 In rea ching its decision, the trial court found that defe ndant was a candidate for TA SC, that he was in need of TASC service s, that he was likely to succe ssfully co mp lete the

s er v i ce s, and that he was doing “ver y , very well since the incident back in 2010.” It al s o found that i n ca rceration was not nece ssary and that defe ndant was a g ood candidate for probation. The court then conclude d that a sentenc e of probation was more appropriate than TASC treatment and se ntence d defe ndant to 24 months’ probation.

¶ 6 ANALYSI S ¶ 7 Def

endant argues that the trial court err ed in denying him TASC probation under the Act beca use the court found that there was a s i gnificant relationship betwee n the offe nse and defe ndant’s substance abuse and that defe ndant posed no serious threat to the public and was likely to be re habilitated through treatment. ¶ 8 A defe ndant who is charg ed with or convicted of a crime and suffe rs from alcoholism or other drug addition may elec t to submit to treatment b y a designated TASC program. 20 I L CS 301/40-10(a) (West 2010). Upon elec tion, the defe ndant must underg o an examination by a designated program, which then repor ts to the trial court. 20 I L CS 301/40-10(b) (West 2010). “I f the court, on the basis of the [TASC ] repor t and other information, finds that such

an individual suffe rs from alcoholism or other drug addiction and is likely to be reha bilitated through treatment, the individual shall be place d on probation and under the supervision of

a designated program ***.” 20 I L CS 301/40-10(b ) (W est 2010). A trial judge may deny
treatment under the Act if he or she finds that (1) no signific ant relationship exis ts betwee n the defe ndant’ s addiction or alcoholism and the crime committed, or (2) the defe ndant’s imprisonment is nece ssary fo r t h e protec tion of the public. 20 I L CS 301/40-10(b) (West 2010). The court must specify
, on the rec ord, the particula r evidenc e, information or rea sons that form the basis of its opinion. 20 I L CS 301/40-10(b) (West 2010). A trial court’s deter mination of a defe ndant’s elig ibilit y for treatment a nd sentenc e under the Act will not be reve rsed absent a showing that the court acte d in an arbitra ry man n er o r abused its discretion. People v . Gernant , 242 I ll. App. 3d 833 (1993).

-3-¶ 9 The p o l i cy o f the Act is to place individuals suffe ring from alcoholism or other drug

addiction on probation and provide reha bilitative service s so that those who abuse drug s may be restore d to g ood health an d become productive members of the community

. 20 I L CS 301/1-5 (West 2010); People v. Clark
, 206 I ll. App. 3d 741 (1990); People v. Hamelin
, 181 I ll. App. 3d 350 (1989). The discretion vested in the court should be exercised with a view toward implementing , rathe r than fr ustrating , the strong leg islative policy disclosed by the

enac tments cre ating the drug addiction reha bilitation program. People v. Robinson
, 12 I ll. App. 3d 291 (1973). Although a trial court is allowed discretion in sentenc ing matters, it still h as an obligation to exercise that discretion responsibly and in a manner that refl ec t s t h e constitutional mandate that all penalties shall be deter mined acc ording to the seriousness of the offe nse, with the objective of restoring the defe ndant to useful citizenship. Clark
, 206 I ll. App. 3d at 745-46. ¶ 10 Her e, the revised TASC repor t indicated that defe ndant was elig ible to participate in the
treatment program. The repor t also noted that there was a nexus betwee n defe ndant’s abuse of alcohol and drug s and his criminal activity and that defe ndant was likely to be reha bilitated through treatment. The trial court found that all the elig ibilit y require ments had been met. It revie wed the TASC repor ts a nd agree d that reha

bilitation service s would most likely be neede d based on defe ndant’s assessed alcohol and drug abuse. The court further
agree d that defe ndant wa s l i k ely to succe ssfully complete the service s. In light of the trial court’s finding s, the languag e of the statute mandates TASC treatment unless the trial court

ma k e s a s pecif

ic deter mination that no signific ant relationship betwee n d e f e n d a nt’ s a d d ic ti o n and the crime or imprisonment is require d to protec t the community

. The trial court made no such finding in this case

. To the contr ary , the court found that defe ndant was an ideal candidate fo r TASC probation and treatment. Thus, the t rial court abused its discretion by denying de fenda

nt treatment unde r the Ac t.

¶ 11 CONCLUSI ON ¶ 12 The judgme nt of the circ uit court of Wil l County is reve rsed and rema nded to allow the trial court to sente nce de fenda nt to a period of T ASC probation.

¶ 13 Reverse d and re manded.

-4-