dissenting:
When imposing a sentence, a trial court needs — and deserves — the most complete information possible about the defendant. Certainly, that information includes all evidence regarding a defendant’s rehabilitative potential. And when, as in this case,, the defendant cites his drug usage as a contributing factor to his criminality, the court cannot accurately assess his rehabilitative potential without gauging the likelihood that the defendant will refrain from drug use in the future. Because the majority decision deprives the trial court of this critical information, and does so without any compelling reasons, I respectfully dissent.
This court has long held that a trial court may question a defendant at sentencing regarding the source of his drugs and consider as a sentencing factor the defendant’s refusal to give details regarding that source. In People v. Jones, 142 Ill. App. 3d 51, 491 N.E.2d 515 (1986), the defendant was before the trial court for sentencing on multiple burglary and theft convictions. The defendant’s PSI indicated that he was addicted to cocaine and heroin. Defense counsel asked the court to- sentence the defendant to intensive probation supervision so that he could get counseling. Jones, 142 Ill. App. 3d at 53, 491 N.E.2d at 517. In response to a question from the court, the defendant said that he had been using drugs two or three times each day during the last year. The court then asked the defendant from whom he obtained the drugs. The defendant tried to evade the question but ultimately said, “ ‘if I was to tell who I got, bought [my] drugs from and they found out about it, they would more likely try to kill me, and I am pretty sure of it.’ ” Jones, 142 Ill. App. 3d at 54, 491 N.E.2d at 517. The court then sentenced the defendant to four years in prison. Jones, 142 Ill. App. 3d at 55, 491 N.E.2d at 518. On these facts, this court wrote, in pertinent part, as follows:
“The defendant requested intensive probation supervision, and the court had a duty to determine the likelihood of success of such program in deciding whether such a program should be used for the defendant. The availability and source of defendant’s drugs is of paramount importance in considering the probability of success of this program with defendant. If drugs were readily available, the likelihood of success would be remote. The court’s inquiry was, therefore, quite legitimate.” Jones, 142 Ill. App. 3d at 55, 491 N.E.2d at 518.
In Iseminger, 202 Ill. App. 3d at 597, 560 N.E.2d at 454-55, this court noted that a trial court at sentencing may search everywhere within reasonable bounds for facts that tend to aggravate or mitigate the offense. We thus reaffirmed that the trial court may appropriately question the defendant at sentencing regarding the source of his drugs. Iseminger, 202 Ill. App. 3d at 599-600, 560 N.E.2d at 456. In so doing, we stated, in pertinent part, as follows:
“A sentencing judge faced with a defendant who blames his criminal behavior on drug abuse, but who does not reveal the sources of those drugs, may properly view the defendant’s rehabilitative potential with skepticism. Under these circumstances, the sentencing judge might well have considerable difficulty finding either of the following mitigating factors to be present: the defendant’s criminal conduct was the result of circumstances unlikely to recur, or the character and attitudes of the defendant indicate that he is unlikely to commit another crime.” Iseminger, 202 Ill. App. 3d at 601, 560 N.E.2d at 457.
In Anderson, 284 Ill. App. 3d at 716, 672 N.E.2d at 1320, we held that trial courts should
“require defendants who plead guilty (or who have admittedly pursued the equivalent of a guilty plea, as here) and are seeking a reduced sentence because of ‘acceptance of responsibility’ to fully accept that responsibility by revealing everything regarding their use of — or trafficking in — narcotics.” (Emphases in original.)
We further held that “a defendant has no right to refuse to answer the trial court’s questions at the sentencing hearing except — perhaps— when fifth amendment concerns are legitimately implicated.” (Emphases in original.) Anderson, 284 Ill. App. 3d at 716, 672 N.E.2d at 1320; see also Olson, 241 Ill. App. 3d at 491, 608 N.E.2d at 916 (“We reject defendant’s argument that the court’s questioning [about his drug use] was an abuse of discretion. In the absence of a claim of the privilege against self-incrimination, a trial judge may properly make inquiries of a defendant at a sentencing hearing, irrespective of whether defendant testifies or exercises his right of allocution”).
At the sentencing hearing in this case, defendant told the trial court that one of the reasons he committed the burglary was because of his drug problem. Defense counsel specifically asked the court to sentence defendant to probation and order drug treatment because “the problem here is marijuana addiction.” Thus, the court was faced with a defendant who blamed his criminal behavior on his drug use and asked the court to impose probation rather than sentence him to prison. The court then properly questioned defendant, who neither objected nor asserted his fifth amendment right, regarding the source of his drugs. When defendant refused to reveal his dealer’s identity, the court appropriately considered defendant’s refusal to reveal his drug source as it reflected upon his rehabilitative potential.
The majority concludes that the United States Supreme Court’s decision in Mitchell requires us to abandon this court’s long-standing position. I disagree. In that case, the Supreme Court held that a defendant retains the privilege against compelled self-incrimination through the sentencing phase of a criminal trial. The Mitchell Court also held, in pertinent part, as follows:
“The Government retains the burden of proving facts relevant to the crime at the sentencing phase and cannot enlist the defendant in this process at the expense of the self-incrimination privilege. Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility[, factors considered under the United States Sentencing Guidelines,] is a separate question. It is not before us, and we express no view on it.” (Emphases added.) Mitchell, 526 U.S. at 330, 143 L. Ed. 2d at 438-39, 119 S. Ct. at 1316.
The Mitchell Court thus expressly (1) limited its holding by prohibiting the sentencing court’s use of a defendant’s silence against him “in determining the facts of the offense at the sentencing hearing”; and (2) refused to decide whether a defendant’s silence at sentencing “bears upon the determination of a lack of remorse, or upon acceptance of responsibility for the purposes of the downward adjustment” to the defendant’s sentence. Mitchell, 526 U.S. at 330, 143 L. Ed. 2d at 438-39, 119 S. Ct. at 1316. Thus, the Supreme Court simply did not determine the extent to which a court may consider a defendant’s silence as it pertains to sentencing factors, such as lack of remorse, rehabilitative potential, acceptance of responsibility, or willingness to comply with probation conditions.
As a final matter, it is important to note what this case does not involve. This case does not present the following issues:
(1) If a trial court questions a defendant at sentencing on the source of his drugs, is the defendant’s privilege against self-incrimination self-executing? Defendant does not argue that the trial court’s questioning of him at sentencing comes within an exception to the general rule that a witness must timely invoke the fifth amendment privilege to enjoy its protections, and we thus do not have the benefit of the parties’ briefs and arguments on this issue.
(2) If a defendant asserts his fifth amendment privilege during sentencing, is it then appropriate for the trial court to consider the defendant’s silence as a factor in determining whether the defendant is a suitable candidate for probation? As earlier noted, defendant did not assert his fifth amendment privilege at sentencing.
Simply put, this case is no different from Jones or the cases cited by the majority, in which this court upheld the trial court’s authority to question a defendant at sentencing regarding his drug source. Issues arising under the fifth amendment require a nuanced assessment. See, for example, McKune v. Lile, 536 U.S. 24, 41, 153 L. Ed. 2d 47, 62, 122 S. Ct. 2017, 2028 (2002) (adverse consequences faced by a state inmate for exercising his fifth amendment privilege and refusing to make admissions required for participation in a sexual abuse treatment program were not so severe as to amount to compelled self-incrimination); People v. Lindsey, 199 Ill. 2d 460, 771 N.E.2d 399 (2002) (probationer’s testimony at his probation revocation hearing was not a violation of his privilege against self-incrimination under the state constitution where he did not face a realistic threat that his answers would incriminate him in any further proceeding); People v. Allen, 107 Ill. 2d 91, 104, 481 N.E.2d 690, 696 (1985) (in a sexually-dangerous-person proceeding, the defendant was not entitled to refuse to answer a psychiatrist’s questions that might incriminate him). Accordingly, because these issues are not now before us (and, indeed, have not arisen over the last 17 years since this court’s decision in Jones), we should leave their resolution for another day.