NO. 4-06-0808 Filed 11/6/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
JERRI M. KENTON, ) No. 04CF2083
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Jerri M. Kenton, age 35, pleaded guilty to unlawful
restraint (720 ILCS 5/10-3 (West 2006)), a Class 4 felony. The
trial court sentenced Kenton to 30 months' probation. The trial
court subsequently granted the State's motion to revoke probation
and resentenced Kenton to 22 months' imprisonment. Kenton
appeals, arguing that the trial court abused its discretion in
sentencing her to prison rather than ordering mental-health
treatment. We affirm.
I. BACKGROUND
A. Underlying Offense
On November 11, 2004, Kenton, who has been suffering
from mental illness for over 20 years, asked her mother, Barbara
Tomscha, for a blank check. Kenton claimed she wanted the check
to buy cigarettes at the convenience store. Tomscha declined.
Kenton refused to take no for an answer and blocked the doorway.
Tomscha looked around the room for a phone and Kenton stated,
"What are you going to do this time, call the FBI on me?" Kenton
then pushed Tomscha to the ground and said, "On your knees,
bitch." Kenton made Tomscha recite The Lord's Prayer. Tomscha
was ultimately able to escape to her car and drive away.
Tomscha reported the incident to the police and told
them that her daughter needed help. Tomscha felt it was unsafe
for Kenton to continue to live with her and worried that if
things escalated any further, Kenton would do something to get
herself into real trouble. Tomscha hoped that the justice system
would somehow be able to control Kenton's treatment. The State
charged Kenton with unlawful restraint, and the court-ordered
psychiatrist, Dr. Lawrence Jeckel, found Kenton fit to stand
trial or to plead. Kenton pleaded guilty and, in the same
hearing, was sentenced to 30 months' probation. The record does
not contain a presentence report. The court also ordered Kenton
to obtain a mental-health and substance-abuse evaluation within
60 days. The court ended the hearing with a final admonishment:
"Ms. Kenton, Dr. Jeckel said there's nothing
wrong with you. I think you're spoiled. You
either do what I've told you to do *** or
[the State] is going to file a petition to
revoke your probation. If [the State] proves
it, I'll send you to prison and they don't
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have counselors in prison. They just have
jailers, and they'll lock you up."
B. Revocation of Probation
On November 12, 2005, Kenton went to a grocery store
parking lot and tried to open the doors of several parked cars.
At one, she reached into a car window and pulled out a beer. As
the owner of the car approached her, Kenton threw the beer on the
ground and attacked him. The owner of the car then ran back
inside the store and reported the incident to customer service.
The manager of the store immediately went outside to assess the
situation. The manager asked Kenton for her version of the
incident. Kenton then attacked the manager. The manager was
able to fend off Kenton's blows and bring her to the ground.
Because he knew that the police had already been called, the
manager then let Kenton get up and run away. Kenton later
reported that she had been drinking vodka immediately prior to
the incident.
The State subsequently filed a petition to revoke
probation, alleging that Kenton violated the terms of her proba-
tion by committing a battery (720 ILCS 5/12-3(a)(2) (West 2004))
in that she knowingly and without legal justification made
physical contact of an insulting or provoking nature. Kenton
admitted said allegation at the revocation hearing.
Kenton presented extensive evidence regarding her
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mental-health history at the revocation hearing. Tomscha, who
has a master's degree from the University of Illinois and who
recently retired after 34 years of teaching, wrote the court a
five-page letter detailing Kenton's mental-health history.
Tomscha stated that Kenton was a delightful child who got
straight "A's," attended music camp at the University of Illi-
nois, and had many friends. Suddenly, at age 14, Kenton began
behaving erratically. Kenton believed that the government was
stealing her thoughts. Kenton's friends became afraid of her.
At age 15, Kenton was arrested for hitting another girl. Kenton
was later diagnosed with schizophrenia and was sent to a state
mental-health facility for one year. Kenton eventually returned
home but her behavior was still erratic. For example, Kenton
attacked Tomscha because she thought the underside of her tongue
looked funny and she thought Tomscha had done something to it.
Kenton dropped out of high school. It took Kenton's doctor, John
Gergen, several years and several different prescription combina-
tions before he was finally able to stabilize Kenton's condition.
Then, from ages 18 to 28, Kenton was fairly productive.
Kenton received $567 per month from social security for her
disability. Kenton took classes at Parkland Community College,
lived away from home in an apartment, handled her own finances,
and made friends. Kenton had a good relationship with her family
during this time, coming home every Friday night for pizza and
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joining her grandmother for lunch every Sunday. It seems as
though the only significant worry during this time period was
that the medication that helped Kenton stabilize her behavior
also caused a profound weight gain.
Unfortunately, after treating Kenton for many years,
Dr. Gergen retired. Kenton began seeing Dr. Luke Yang at the
Mental Health Center (MHC). Dr. Lang thought that Dr. Gergen had
Kenton on too much medication. He changed Kenton's diagnosis
from schizophrenia to bipolar disorder and changed her prescrip-
tion accordingly. Kenton began to fall apart. Kenton stopped
coming home on Friday evenings. Kenton self-medicated with
alcohol and nicotine and developed an addiction. MHC removed
Kenton from her apartment for fear that she would burn it down.
MHC put Kenton up in a hotel of dubious safety. When Tomscha
came to visit, she noticed that Kenton often looked unkempt and
did not have proper clothing. Kenton grew more symptomatic and
paranoid. It was difficult for Tomscha to find a treatment
facility for Kenton that was equipped to treat both severe mental
illness and alcohol dependency. Frustrated with the lack of
living arrangements for Kenton, Tomscha invited Kenton to come
back home.
Kenton lived with Tomscha for approximately two years
prior to the precipitating incident in this case. MHC was not
happy with this arrangement because it thought Kenton would hurt
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Tomscha. Many troubling incidents occurred during this time.
Kenton once suffered from frostbite after going outside without
proper clothing. Kenton went outside because she was afraid the
house was going to burn down after a lightbulb burnt out. Kenton
used a yard rake to destroy a love seat and chair because she was
afraid of the furniture. Kenton kicked a hole in Tomscha's
bedroom door and gave away or lost many household items. Kenton
could not remember what she did with the household items and
thought that maybe Dr. Gergen had them.
Tomscha further reported that Kenton has poor judgment
with her peers. Kenton once accepted a ride from a stranger who
took her out in the country and dumped her. In regard to that
incident, Tomscha stated, "heaven only knows what else happened
to her." Kenton has slept outside in parks and has been mugged
several times. Tomscha is afraid to live with Kenton any longer,
but she does not believe Kenton should be punished. Tomscha
asked the court for help in providing treatment for Kenton.
The presentence report recapped Kenton's behavior
following the commencement of her probation period. On March 29,
2005, Kenton obtained a substance-abuse evaluation from the
Prairie Center, which recommended intensive outpatient treatment.
On June 14, 2005, the Prairie Center discharged Kenton for lack
of participation. On September 2, 2005, the Prairie Center
reassessed Kenton and recommended residential treatment. Kenton
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was scheduled to begin residential treatment on October 5, 2005.
However, for reasons not clear from the record, on October 7,
2005, Kenton was asked to leave the Prairie Center. Kenton
admitted that she used alcohol during her probation period, but
test results were negative for any controlled or illegal sub-
stances.
Also according to the presentence report, Kenton began
seeing a private psychiatrist, Dr. David Kopacz. Dr. Kopacz
treated Kenton from February 11, 2005, to December 9, 2005,
ultimately terminating Kenton's treatment due to several noncom-
pliance issues such as drinking, not taking medication, and
threatening Tomscha. Specifically, Kenton threatened to cut off
Tomscha's arm and leg. Dr. Kopacz thought Kenton's "motivation
for treatment [was] very low." Dr. Kopacz also thought it would
be dangerous for Kenton to continue to live with Tomscha.
Jennifer Crites, who authored the presentence report,
stated that she attempted to contact different residential
agencies to see what criteria an applicant must meet in order to
be placed in a residential facility that provided mental ser-
vices. Crites had a difficult time finding a facility that would
treat both Kenton's mental problems and her substance-abuse
problems. Crites gave Kenton two applications to fill out for a
facility in Brown County, but it seems that Kenton lost both
applications.
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On January 24, 2006, MHC of Champaign County, a
community-based treatment provider, assessed Kenton. Kenton had
been receiving services from MHC for nearly 20 years and had been
either noncompliant or not fully engaged with the services
offered to her by MHC and other community providers. MHC did not
believe that community-based treatment would be effective in
stabilizing Kenton, especially due to her denial for the need of
services. MHC recommended that Kenton receive a forensic psychi-
atric evaluation in order to determine her fitness to stand trial
and to determine what treatment might be necessary to stabilize
her.
Dr. Jeckel performed a second psychiatric evaluation
and determined that Kenton was fit to stand before the court and
was criminally responsible at the time of her offense. However,
Dr. Jeckel stated that Kenton suffered from some sort of chronic
schizophrenic illness, most likely schizoaffective disorder. Dr.
Jeckel noted that Kenton had been diagnosed in the past with
schizophrenia, bipolar affective disorder, borderline personality
disorder, and alcohol abuse. Dr. Jeckel opined that, ideally,
Kenton should be sent to an inpatient treatment center such as
McFarland Mental Health Center where her underlying psychosis
could be adequately treated with "I.M. depot antipsychotic
medication." After Kenton stabilized through inpatient treat-
ment, she could be released for community-based, outpatient
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treatment. Dr. Jeckel thought that it would be very difficult
for a private psychiatrist to handle a patient as complex as
Kenton and thought that Kenton would need a team of treatment
providers, including a psychiatrist, a crisis worker, a case-
worker, and an alcohol-abuse counselor. Even if Kenton were
eventually released into the community, she still would most
likely need periodic hospitalization. Dr. Jeckel further recom-
mended that the probation office, in conjunction with MHC, set up
a plan where failure to comply with court-ordered psychological
treatment would lead to law-enforcement intervention and/or civil
commitment.
In making its sentencing recommendation, the State
opined that "it [was] readily apparent that [Kenton] has had
trouble and difficulty on probation in large part due to un-
treated *** mental illness." The State informed the court that,
in consideration of Kenton's record, being sentenced to the
Department of Corrections (DOC), while always an option in felony
cases, may not be the most appropriate sentence here. The State
conceded that it had "no particular recommendation" for sentenc-
ing but suggested that if the court wanted to retain substantial
interest in the case, it could order a community-based sentence
involving jail time and/or commitment to a facility such as
McFarland. Defense counsel requested another shot at probation
conditioned on a community-based treatment plan.
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The trial court stated that there did not appear to be
a "good solution" to resolve Kenton's case. The court did not
believe it had jurisdiction to order Kenton to be treated at
McFarland because Dr. Jeckel found her to be fit to stand trial
and criminally responsible for her crime. Further, no one filed
a petition for involuntary commitment. Any person 18 years of
age or older may present a petition to the facility director of
the mental-health facility in the county where the respondent
resides or is present as provided in section 3-600 of the Mental
Health and Developmental Disabilities Code (Mental Health Code)
(405 ILCS 5/3-600 (West 2004)). The petition shall comply with
the requirements of section 3-601, including a detailed statement
of the reason for the assertion that the respondent is subject to
involuntary admission, contact information of close relatives
and/or guardians, the petitioner's relationship to the respon-
dent, and contact information of witnesses. 405 ILCS 5/3-601
(West 2004). The petition shall be accompanied by the appropri-
ate certification from authorized personnel. 405 ILCS 5/3-601.1,
3-602 (West 2004). Assuming the petition, examinations, and
certifications are in compliance with the requirements of the
Mental Health Code, the case would proceed to hearing wherein the
respondent could be involuntarily committed. 405 ILCS 5/3-700,
3-701, 3-800, 3-801 (West 2004).
On the other hand, Kenton was virtually nonresponsive
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to community-based treatment, and therefore probation was not an
option. The trial court believed Kenton to be truly dangerous,
"a time bomb waiting to go off." The court considered Kenton's
situation "very sad" and even stated that she was "fall[ing]
through the cracks of the criminal[-]justice system." However,
given the options available to the court, it believed 22 months'
imprisonment in DOC would be the most appropriate sentence. The
trial court denied Kenton's motion to reconsider sentence,
stating that it had "fashioned a sentence that hopefully would
get Kenton motivated to deal with the substance[-]abuse issues
that she has, and also get her back into some form of
mental[-]health treatment." This appeal followed.
II. ANALYSIS
Kenton argues that the trial court abused its discre-
tion when it sentenced Kenton to DOC when Kenton actually needed
mental-health treatment. Specifically, Kenton argues that she
should have received a sentence of probation with the condition
that she receive outpatient mental-health counseling. We dis-
agree.
Generally, a trial court has great discretion to
fashion an appropriate sentence within the statutory limits.
People v. Fern, 189 Ill. 2d 48, 53, 723 N.E.2d 207, 209 (1999).
An abuse of discretion may be found even if the sentence is
within the statutory limitations if the sentence is greatly at
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variance with the purpose and spirit of the law. People v.
Steffens, 131 Ill. App. 3d 141, 152, 475 N.E.2d 606, 615 (1985).
In addition to the statutory factors in aggravation and mitiga-
tion, the trial court should base its decision on the particular
circumstances of each case, including the defendant's credibil-
ity, demeanor, general moral character, mentality, social envi-
ronment, habits, and age. Fern, 189 Ill. 2d at 53, 723 N.E.2d at
209. Because the trial court is in a better position to observe
the witnesses and consider the relevant factors, its sentencing
determination is entitled to great deference. Fern, 189 Ill. 2d
at 53, 723 N.E.2d at 209. We will not substitute our judgment
for that of the trial court simply because we would have weighed
the sentencing factors differently. Fern, 189 Ill. 2d at 53, 723
N.E.2d at 209.
The sentencing range for unlawful restraint, a Class 4
felony, is one to three years' imprisonment. 730 ILCS 5/5-8-
1(a)(7) (West 2004). Probation is a privilege to be employed
when a "'defendant's continued presence in society would not be
threatening and the defendant's rehabilitation would be en-
hanced.'" People v. Neckopulos, 284 Ill. App. 3d 660, 663, 672
N.E.2d 757, 760 (1996), quoting People v. Allegri, 109 Ill. 2d
309, 314, 487 N.E.2d 606, 607 (1985). Here, Kenton was clearly a
threat to the public. The trial court reasonably feared that
Kenton would seriously injure someone. Even those experts who
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advocated inpatient treatment over incarceration did not believe
Kenton was a good candidate to be released on probation for
community-based treatment. Kenton has not cooperated with the
outpatient services offered to her in the past. It is doubtful
that Kenton's rehabilitation would be enhanced by probation or by
any treatment short of commitment at a facility like McFarland.
Kenton cites People v. Carter, 165 Ill. App. 3d 169,
518 N.E.2d 1068 (1988), and People v. Hamelin, 181 Ill. App. 3d
350, 537 N.E.2d 3 (1989), for the proposition that it was error
for the trial court to revoke probation where Kenton had not yet
had the chance to participate in the recommended inpatient
rehabilitation program. In Carter and Hamelin, the trial court
abused its discretion when it revoked the rehabilitative sentence
originally ordered as a condition of probation before the defen-
dant had the opportunity to participate in the relevant rehabili-
tation program. Carter, 165 Ill. App. 3d at 175-76, 518 N.E.2d
at 1071-72; Hamelin, 181 Ill. App. 3d at 354, 537 N.E.2d at 6.
The instant case is distinguishable. Unlike the defendants in
Carter and Hamelin, Kenton was able to begin the outpatient
rehabilitative treatment originally prescribed to her as a
condition of her probation. It was not until more extensive
psychological reports were presented to the trial court at the
revocation proceeding that the recommendation for inpatient
treatment was made.
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The result in this case is unfortunate because all of
the psychological experts seem to agree at this point that the
ideal placement for Kenton would have been inpatient treatment at
a facility like McFarland, rather than DOC. Even the State
recommended such a result. The trial court, it seems, felt it
had its hands tied, believing that it could not order Kenton to
be treated at McFarland because Kenton was fit to stand trial,
was criminally responsible for her crime, and no one had filed a
petition for involuntary commitment pursuant to the Mental Health
Code (405 ILCS 5/3-700, 3-701 (West 2004)).
Typically, a person is subject to involuntary admission
if she has a mental illness and, because of her illness, is
reasonably expected to inflict serious physical harm upon herself
or another in the near future or is unable to provide for her
basic physical needs so as to guard herself from serious harm.
405 ILCS 5/1-119(1), (2) (West 2004) (subsequently amended by
Pub. Act 95-602 (eff. June 1, 2008)). However, "[w]hen a person
is charged with a felony he comes within the authority of the
criminal[-]justice system of the State. If such a person is
subsequently found to be in need of mental treatment, and yet fit
to stand trial, a determination must be made as to whether that
person shall remain under the authority of the criminal[-]justice
system, or, alternatively, be transferred to the jurisdiction of
the mental[-] health[-]system." People v. Zahn, 71 Ill. App. 3d
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585, 589, 390 N.E.2d 93, 96 (1979).
The legislature has addressed the problem of defendants
who may potentially fall under the jurisdiction of both the
criminal-justice system and the mental-health system, stating
that a trial court has jurisdiction under chapter III of the
Mental Health Code, which governs the admission, transfer, and
discharge procedures for the mentally ill, only:
"over [those] persons not charged with a
felony who are subject to involuntary ad-
mission. Inmates of penal institutions
shall not be considered as charged with a
felony within the meaning of this [c]hapter.
Court proceedings under [a]rticle VIII of
this [c]hapter may be instituted as to any
such inmate at any time within 90 days prior
to discharge of such inmate by expiration
of sentence or otherwise, and if such inmate
is found to be subject to involuntary admission,
the order of the court ordering hospitali-
zation or other disposition shall become
effective at the time of discharge of the
inmate from penal custody." (Emphasis added.)
405 ILCS 5/3-100 (West 2004).
See also In re Jill R., 336 Ill. App. 3d 956, 961, 785 N.E.2d 46,
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50 (2003).
There are, however, some unique circumstances where
mentally ill persons charged with a felony may come solely under
the authority of the mental-health system, if only temporarily.
Zahn, 71 Ill. App. 3d at 589, 390 N.E.2d at 96. For instance,
defendants who have been adjudicated unfit to stand trial are, at
least temporarily, removed from the jurisdiction of the criminal-
justice system and may come under the authority of the mental-
health system either as voluntary or involuntary commitments.
Zahn, 71 Ill. App. 3d at 589, 390 N.E.2d at 96. Additionally,
defendants acquitted of felonies by reason of insanity have been
completely removed from the jurisdiction of the corrections
system by virtue of their acquittals. Zahn, 71 Ill. App. 3d at
589, 390 N.E.2d at 96. Even those defendants who have been
adjudicated fit for trial may voluntarily avail themselves to
treatment under the Mental Health Code while out on bond. Zahn,
71 Ill. App. 3d at 589, 390 N.E.2d at 96. Finally, those who are
ultimately convicted of a felony and subsequently transferred
from the penitentiary to the Department of Mental Health are also
temporarily removed from the authority of DOC. Zahn, 71 Ill.
App. 3d at 589, 390 N.E.2d at 96. Presumably, defendants charged
with felonies in all other situations remain under the jurisdic-
tion of the criminal-court system.
The trial court was then without the authority to
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directly order Kenton to obtain inpatient treatment at McFarland.
Under the appropriate circumstances, however, DOC may now trans-
fer Kenton to the Department of Mental Health under section 3-8-5
of the Unified Code of Corrections (730 ILCS 5/3-8-5(a), (c), (d)
(West 2004). Under that section, if DOC determines Kenton to be
a person subject to involuntary admission under section 1-119 of
the Mental Health Code, then Kenton need only consent and she may
be treated at a facility such as McFarland for a period not to
exceed six months. 730 ILCS 5/3-8-5(a) (West 2004). If Kenton
does not consent, and if the commitment exceeds six months, or if
the period of commitment exceeds the length of the Kenton's
sentence, DOC shall file a petition for involuntary commitment in
the trial court. 730 ILCS 5/3-8-5(c) (West 2004). The court may
commit the person to the Department of Mental Health following a
hearing on DOC's petition. 730 ILCS 5/3-8-5(d) (West 2004).
Perhaps if the trial court had sentenced Kenton to
probation, it could have ordered a temporary detention and
examination under section 3-607 of the Mental Health Code,
thereby initiating the process by which Kenton might be involun-
tarily committed in an independent proceeding in another court-
room. See 405 ILCS 5/3-607 (West 2004). Section 3-607 states:
"When, as a result of personal observation
and testimony in open court, any court has
reasonable grounds to believe that a person
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appearing before it is subject to involuntary
admission and in need of immediate hospitali-
zation to protect such person or others from
physical harm, the court may enter an order
for the temporary detention and examination
of such person. *** If a petition and cer-
tificate, as provided in this [a]rticle, are
executed within 24 hours, the person may be
admitted and the provisions of this [a]rticle
shall apply. If no petition or certificate
is executed, the person shall be released."
405 ILCS 5/3-607 (West 2004).
Of course, even if initiating involuntary-commitment procedures
was an option for the trial court, it may not have wanted to take
the chance that Kenton would end up back on the streets sooner
than it would have liked.
III. CONCLUSION
For the aforementioned reasons, we affirm the trial
court's judgment. As part of our judgment, we grant the State
its statutory assessment of $50 against defendant as costs of
this appeal.
Affirmed.
KNECHT and TURNER, JJ., concur.
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