No. 3--01--0350

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

The defendant, Jack Kimble, pled guilty to residentialburglary (720 ILCS 5/19--3 (West 2000)) and was sentenced to sixyears in the Department of Corrections. On appeal, he claims that(1) his request for Treatment Alternatives to Street Crime (TASC)probation was erroneously denied; and (2) the trial court reliedupon an improper aggravating factor at sentencing. We affirm.

Prior to entering his plea of guilty, the defendant filed apetition with the court to elect TASC treatment. A TASC evaluationwas received by the court indicating that the defendant wasineligible for the program based on his prior probation violationin New Jersey for a prior conviction. The defendant requestedleave for a judicial determination. The court agreed with the TASCevaluator and found the defendant ineligible due to his priorfelony conviction.

The defendant subsequently entered a plea of guilty andstipulated to the factual basis for the charge. The evidencepresented by the State alleged that on August 30, 2000, thedefendant and Jerry Muzik used a crowbar to forcibly enter the homeof Kenneth Rewers, a Cook County Sheriff's police commander. Rewers' daughter returned home, noticed the door was damaged andsuspected that intruders were inside. She immediately telephonedher father. Rewers arrived and entered the home. He found thedefendant and Muzik hiding in the front closet. He held the twomen at gunpoint until Will County officers arrived. The defendantadmitted that he went to the residence with the intent to commitburglary and that he was prepared to use the crowbar as a weapon. The court found that sufficient evidence existed and accepted thedefendant's plea of guilty.

At the sentencing hearing, the State presented the defendant'svideotaped confession. In it, the defendant admitted that Muziktold him to take the crowbar and stand at the front door. Ifanyone entered, the defendant was to strike the person on the headwith the tool. In closing, the State asked the court to considerseveral aggravating factors in imposing a sentence. The Stateargued that (1) the defendant caused or threatened serious harm byusing the crowbar as a potential weapon; (2) he had a history ofcriminal activity; (3) he was on probation at the time of theoffense; and (4) a significant sentence was necessary to deterothers from committing the crime. Although the trial judge foundthat these factors applied to the defendant, he was unsure whether"the use of [the] prybar makes any sense because these guys ran andhid in the closet as soon as they saw the homeowner coming up thedriveway." The court sentenced the defendant to six years inprison. The defendant's motion to reduce the sentence was denied.

The defendant first argues that the trial court erred indenying his request for TASC probation.

When an addict or alcoholic is charged with or convicted of acrime, he may elect TASC probation as an alternative treatmentunless, inter alia: (1) the person has been convicted ofresidential burglary and was previously convicted of one or morefelonies; or (2) the person is on probation and the probationofficer does not consent. 20 ILCS 301/40--5(5),(7) (West 2000). It is well settled that when reviewing a trial court's ruling thequestion before us is the correctness of the court's decision, notthe court's reasoning. People v. Nash, 173 Ill. 2d 423, 672 N.E.2d1166 (1996).

Here, the record shows that the defendant was on probation inNew Jersey at the time he committed the present offense. Nothingin the record indicates that the New Jersey probation officerconsented to TASC probation. A petition to revoke probation hadbeen filed. Further, the defendant's probation officer hadinformed the presentencing investigator that the defendant did notrequest permission to relocate and had not been in contact with hisprobation department for months. Consequently, the defendantfailed to demonstrate that he was eligible for the alternativetreatment.

Even if the New Jersey probation department had consented tothe program, the presentencing investigation report indicates thatthe defendant had been previously convicted of at least one felonyoffense. In Illinois, a person who obtains control over stolenproperty is guilty of theft. 720 ILCS 5/16--1(a)(4) (West 2000). Any person convicted of theft of property of any value who has beenpreviously convicted of any type of theft is guilty of a Class 4felony. 720 ILCS 5/16--1(b)(2) (West 2000). In the instant case,the defendant was placed on probation for theft and receivingstolen property in New Jersey on February 18, 2000. Four monthslater, he was convicted of criminal possession of stolen propertyin New York. Under the laws of our state, the defendant's New Yorkconviction would have been classified as a felony. This priorfelony coupled with the defendant's present conviction forresidential burglary would have made him ineligible for TASCprobation under subsection 5 of the TASC statutory provision (20ILCS 301/40--5(5) (West 2000)). Thus, the trial court did not errin denying the defendant's alternative treatment request.

The defendant maintains that because he requested TASCprobation before he was convicted of residential burglary ratherthan after, the exclusion listed in subsection 5 of the statutewould not apply. Although the defendant did request treatmentprior to the entry of judgment, the statute clearly provides thatsuch treatment cannot be granted until the defendant is convictedof the offense. 20 ILCS 301/40--10(b) (West 2000). Thus, thetrial court could not have applied TASC probation as an alternativeto incarceration for the present defendant until after hisconviction for residential burglary had been entered. At thatpoint, the defendant's prior felony barred his eligibility for TASCtreatment.

The defendant also claims that the trial court abused itsdiscretion when it imposed a six-year sentence based on seriousbodily harm, citing People v. Allen, 97 Ill. App. 3d 38, 422N.E.2d 254 (1981). In Allen, the defendant broke into a businessat 4 a.m. In sentencing the defendant, the trial court ruled thatthe defendant's conduct of "ducking in and out" of a window createdthe threat of serious harm. It applied the aggravating factor atsentencing and order the defendant to serve a term of five years inprison. The reviewing court held that in sentencing a defendantconvicted of residential burglary, the aggravating factor ofserious harm could only be applied if the risk of harm was greaterthan that inherent in almost all burglaries. The court remandedthe cause for resentencing, noting that the case "[was] not likethat in which the burglar engages in combat with the police, entersan occupied dwelling or other building, or has a confrontation withpersons while in the building." Allen, 97 Ill. App. 3d at 40, 422N.E.2d at 255.

By contrast, the defendant in this case broke into a dwellingusing a crowbar and was prepared to use the tool as a weapon. Asentence will not be overturned unless the trial court abused itsdiscretion. People v. Streit, 142 Ill. 2d 13, 566 N.E.2d 1351(1991). While the defendant and Muzik were found hiding in acloset by the homeowner, the potential for serious harm stillexisted. Any consideration of the threat of serious harm insentencing the defendant was within the trial court's discretion.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

HOLDRIDGE and HOMER, JJ., concur.