People v. Dennis

Case Date: 12/20/2004
Court: 4th District Appellate
Docket No: 4-03-1032 Rel

NO. 4-03-1032

IN THE APPELLATE COURT

OF ILLINOIS
   

FOURTH DISTRICT

  

THE PEOPLE OF THE STATE OF ILLINOIS,
                         Plaintiff-Appellee,
                         v.
MICHAEL DENNIS,
                         Defendant-Appellant.
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Appeal from
Circuit Court of
Vermilion County
No. 99CF325

Honorable
Thomas J. Fahey,
Judge Presiding.



JUSTICE APPLETON delivered the opinion of the court:

Instead of requiring the State to prove its petition torevoke probation, defendant, Michael Dennis, admitted one of thealleged violations. On the strength of that admission, the trialcourt granted the petition and resentenced him to imprisonment. He appeals because in the hearing on the petition, the trialcourt failed to give him all the admonitions the supreme courtrequired in People v. Hall, 198 Ill. 2d 173, 181, 760 N.E.2d 971,975 (2001). We find substantial compliance with Hall and,therefore, affirm the judgment.

 

I. BACKGROUND

In October 1999, pursuant to a negotiated plea ofguilty to one count of possession of a controlled substance (720ILCS 570/402(c) (West 1998)), the trial court sentenced defendantto two years' probation. The State filed a petition to revokehis probation on October 26, 2000, and filed a second suchpetition on May 22, 2001. Both times, defendant admitted thepetitions, and both times, after admonishing him on hisconstitutional rights (including his rights to be represented byan attorney and to confront his accusers) and asking him if heunderstood those rights, the court accepted the admissions andresentenced him to 30 months' probation.

On May 28, 2003, the State filed a third petition torevoke probation. On June 13, 2003, the trial court arraigneddefendant on that petition, admonishing him on his rights to berepresented and "to confront or cross-examine every witness[whom] the [S]tate intend[ed] to call against [him,] right[t]here in open court."

On July 15, 2003, in the hearing on the third petition,defense counsel told the trial court:

"MR. McINTIRE: Judge, Mr. Dennis isgoing to admit *** [p]aragraph [3 of thepetition,] which alleges he failed to report[to the probation office] for the months ofNovember and December[] 2002 and February andApril[] 2003. I believe the State willwithdraw the other paragraphs of thepetition. There is no agreement as tosentence.

* * *

THE COURT: *** You understand that youhave the right to require the State to provethese charges?

THE DEFENDANT: Yes, sir, I do.

THE COURT: All right. And if I acceptan agreement today, you would be giving upyour right to require the State to prove whatthe petition says, and [it] won't have topresent any evidence. Do you understandthat?

THE DEFENDANT: Yes, sir.

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THE COURT: All right. Well, thischarge--the underlying offense is a Class [4]felony, so the maximum penalty would be oneto three years in the penitentiary. If thereare certain enhanced--enhancing factorspresent, it would be [3] to [6] years, up to[2 1/2] years on probation, and [a] [1-]yearmandatory supervised release term, up to$25,000 fine. Do you have any question aboutwhat the maximum possible penalty could be?

THE DEFENDANT: No, sir.

THE COURT: I'm told that you want toenter into an agreement today on this? Isthat true?

THE DEFENDANT: Yes, sir.

THE COURT: Is anybody forcing you toenter into this agreement?

THE DEFENDANT: No, sir.

THE COURT: You're doing it freely andvoluntarily?

THE DEFENDANT: Yes, sir.

* * *

THE COURT: All sentencing options areavailable, so you can be evaluated and seewhat might be appropriate. Any otherquestions at this time?

THE DEFENDANT: No, sir.

THE COURT: All right. Well, let's see. Do I need a factual basis on this kind of apetition?

MR. BRINEGAR [(Prosecutor)]: No, [Y]ourHonor.

MR. McINTIRE: I don't know that you do. I think we would agree that for his scheduledappointments in the probation office [in]November and December of 2002 and [in]February and April[] 2003, Mr. Dennis, infact, did not appear ***.

THE COURT: All right. Would you agreewith that, Mr. Dennis?

THE DEFENDANT: Yes, sir, I would.

THE COURT: Do you have anything elseyou'd like to say about that?

THE DEFENDANT: No, sir.

THE COURT: All right. Well, there is afactual basis for the admission. I willaccept the admission as to [p]aragraph [3] ofthe petition to revoke [probation]. Theother allegations will be dismissed."

On October 14, 2003, the trial court sentenceddefendant to 35 months' imprisonment, with credit for 125 days.

This appeal followed.

 

II. ANALYSIS

 

A. Rights to Confrontation and Representation

A defendant can admit a violation of probation insteadof requiring the State to prove it, but before accepting theadmission, the trial court must admonish the defendant and makesure the following propositions are true:

"(1) the defendant understands thespecific allegations in the State's petitionto revoke probation;

(2) the defendant understands that hehas the right to a hearing[,] with defensecounsel present[,] at which the State mustprove the alleged violation, and that he hasthe rights of confrontation andcross-examination at such a hearing;

(3) the defendant's admission isvoluntarily made and not made on the basis ofany coercion or promises, other than anyagreement as to the disposition of his case;

(4) the defendant understands theconsequences of his admission or thesentencing range for the underlying offense;and

(5) a factual basis exists for theadmission." Hall, 198 Ill. 2d at 181, 760N.E.2d at 975.

(Illinois Supreme Court Rule 402A, entitled "Admissions orStipulations in Proceedings to Revoke Probation, ConditionalDischarge[,] or Supervision," went into effect on November 1,2003. Official Reports Advance Sheet No. 23 (November 12, 2003),R. 402A, eff. November 1, 2003. Defendant does not contend thisnew rule has retroactive application.)

In the present case, in the hearing in which defendantadmitted paragraph 3 of the State's third petition to revokeprobation, the trial court failed to admonish him on two of hisrights: (1) his right to have "defense counsel present" in thehearing on the petition to revoke probation and (2) his right tocross-examine witnesses in the hearing. In previous hearings,however, the court admonished defendant on those rights.

The State invites us to consider cases interpretingIllinois Supreme Court Rule 402(a) (177 Ill. 2d R. 402(a)). Rule402 does not apply to proceedings to revoke probation (Hall, 198Ill. 2d at 179, 760 N.E.2d at 974), but the requirements in thatrule and in Hall mostly overlap. Cf. 177 Ill. 2d Rs. 402(a),(b), (c), with Hall, 198 Ill. 2d at 181, 760 N.E.2d at 975. Forexample, both Rule 402(a)(4) (177 Ill. 2d R. 402(a)(4)) and Hall,198 Ill. 2d at 181, 760 N.E.2d at 975, require an admonition onthe right to confront one's accusers. A defendant in aproceeding to revoke probation has fewer, rather than more,procedural rights than a defendant who still awaits trial. Hall,198 Ill. 2d at 177, 760 N.E.2d at 973. The supreme court hasheld that "substantial compliance" with Rule 402(a) satisfies dueprocess. People v. Fuller, 205 Ill. 2d 308, 323, 793 N.E.2d 526,537 (2002). "Substantial compliance" means that although thetrial court did not recite to the defendant, and ask thedefendant if he or she understood, an item listed in Rule 402(a),the record nevertheless affirmatively and specifically shows thatthe defendant in fact understood that item. People v. Walker,109 Ill. 2d 484, 498-99, 488 N.E.2d 529, 535 (1985); People v.Stewart, 101 Ill. 2d 470, 485-86, 463 N.E.2d 677, 685 (1984);People v. Barker, 83 Ill. 2d 319, 329-30, 415 N.E.2d 404, 408-09(1980); People v. Ellis, 59 Ill. 2d 255, 257, 320 N.E.2d 15, 16(1974).

As Hall in effect adopted the same admonition requiredby Rule 402 for admissions at a probation revocation hearing, itwould seem logical that the case law developed under that rule,which requires substantial compliance, would apply to the mandateof Hall and the subsequently adopted Rule 402(a).

If substantial compliance with Rule 402(a) satisfiesdue process and defendants in proceedings to revoke probationhave no more procedural rights than defendants in criminaltrials, it must follow that substantial compliance with Hallwould likewise satisfy due process. Decisions findingsubstantial compliance with Rule 402(a) apply to Hall. Eventhough Rule 402A was enacted too recently to apply to this case,we note it requires only "substantial compliance." OfficialReports Advance Sheet No. 23 (November 12, 2003), R. 402A, eff.November 1, 2003.

The goal is to ensure that defendant understood hisadmission, the rights he was waiving, and the potentialconsequences of his admission. See People v. Louderback, 137Ill. App. 3d 432, 435, 484 N.E.2d 503, 505 (1985). As thedoctrine of substantial compliance recognizes, that goal isachievable by means other than reciting all of the information tothe defendant at the time of the admission. (Literal complianceis preferable, however, because it leaves no room for doubt ordispute.) We may consider the entire record, including therecord of earlier proceedings, to decide whether a defendantunderstood the items listed in Rule 402(a) or in Hall. SeePeople v. Krantz, 58 Ill. 2d 187, 192, 317 N.E.2d 559, 562(1974). "Although the best practice is to give the admonition atthe time of accepting the waiver, the failure to do so is notnecessarily fatal. Each case must be determined on its ownpeculiar circumstances, with the principal focus upon the lengthof time between the waiver *** and the plea." People v. Ray, 130Ill. App. 3d 362, 365, 471 N.E.2d 933, 936 (1984).

We ask whether, realistically, an ordinary person indefendant's position would have understood, from the earlierproceedings, that by admitting paragraph 3 of the third petitionto revoke his probation, he was giving up his right to cross-examine his accusers in an evidentiary hearing in which he wouldbe represented by an attorney. See Krantz, 58 Ill. 2d at 193,317 N.E.2d at 563. The only reasonable answer is yes. The trialcourt admonished him over and over again on those rights, mostrecently a month before the admission at issue in this case. Considering the repetition and recency of the admonitions, wefind substantial compliance with Hall.

 

B. Factual Basis

As defendant points out, the attorneys for both partiesincorrectly told the trial court a factual basis was unnecessary. See Hall, 198 Ill. 2d at 181, 760 N.E.2d at 975. Their faultyadvice caused no harm, however, because defense counsel wentahead and gave a factual basis: he admitted that defendantfailed to report to his probation officer during a four-monthperiod. From that information, the court could have reasonablyconcluded that defendant had violated a condition of probation. "All that is required to appear on the record is a basis fromwhich the judge could reasonably reach the conclusion that thedefendant actually committed the acts *** required to constitutethe offense to which the defendant is pleading guilty." Barker,83 Ill. 2d at 327-28, 415 N.E.2d at 408.

 

III. CONCLUSION

For the foregoing reasons, we affirm the trial court'sjudgment.

Affirmed.

MYERSCOUGH and KNECHT, JJ., concur.