                              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


                                 - 2 -
            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


                                - 3 -
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


                                - 4 -
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


                                 - 5 -
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


                                - 6 -
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.


                                 - 7 -
            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


                                - 8 -
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.


                                - 9 -
          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


                              - 10 -
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


                              - 11 -
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


                               - 12 -
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.


                               - 13 -
          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


                              - 14 -
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,


                              - 15 -
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


                              - 16 -
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


                              - 17 -
          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.




                                - 18 -
