People v. Acevedo

• Decision Date: 27 June 1991
• Docket Number: No. 1-89-1443,1-89-1443
• Citation: 576 N.E.2d 949,216 Ill.App.3d 195,159 Ill.Dec. 1026
• Parties: , 159 Ill.Dec. 1026 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Telesford ACEVEDO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 949

576 N.E.2d 949

216 Ill.App.3d 195, 159 Ill.Dec. 1026

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Telesford ACEVEDO, Defendant-Appellant.

No. 1-89-1443.

Appellate Court of Illinois,

First District, Fourth Division.

June 27, 1991.

Michael J. Pelletier, Deputy Defender, Chicago (Leslie Wallin, Asst. Appellate Defender, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty., Chicago (Renee Goldfarb, Joseph Brent, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice LINN delivered the opinion of the court:

Following a stipulated probation revocation hearing in the circuit court of Cook County, the trial judge revoked the probation of defendant, Telesford Acevedo. The trial court sentenced defendant to a prison term of 7 years on a burglary conviction and a concurrent term of 5 years on a violation of bail bond conviction.

Defendant appeals, contending: (1) the probation revocation hearing deprived him of due process of law, (2) the trial court erred by sentencing him without a new pre-sentence report, and (3) his prison sentence on the violation of bail bond must be vacated.

We affirm in part and vacate in part.

Background

The record contains the following undisputed facts. In October 1980, defendant was charged with burglary and he posted bail. On May 14, 1981, defendant failed to appear in court and also failed to surrender himself within the following 30 days. In June 1982, defendant was indicted for violating his bail bond.

On April 19, 1984, a hearing was held at which defendant was present. The trial judge explained to defendant the nature and subject matter of a pre-trial conference. Defendant then authorized the State, his defense counsel, a representative of the T.A.S.C. (Treatment Alternative to Street Crime) program, and the trial judge to hold a conference. At the close of the conference, defendant and the State entered into a negotiated plea agreement.

The trial judge informed defendant that he must successfully complete the T.A.S.C. program to complete his probation. In other words, his failure to successfully complete the T.A.S.C. program would constitute grounds for revoking probation. The trial judge advised defendant of his rights, such as the right to trial by jury and the right to confront and present witnesses. The trial judge also informed defendant that he could receive a prison sentence of between 3 and 7 years for the burglary charge and a sentence of between 2 and 5 years for the violation of bail bond charge.

Pursuant to the plea agreement, and after the trial judge notified defendant of the consequences of his actions, defendant pled guilty to the charges of burglary and violation of bail bond. After reviewing a pre-sentence report and a T.A.S.C. report, and hearing argument, the trial court found that defendant was a drug addict. Further, defendant committed his past crimes, mostly burglaries and thefts, to support his addiction. The court also found that defendant wished to cure himself of his addiction and that he was eligible for the T.A.S.C. program. The court then sentenced defendant pursuant to the plea agreement. On the burglary conviction, the court sentenced defendant to probation for a term of 4 years. The first 6 months of the probation term would be served in Cook County Jail, followed by long-term residential treatment in the T.A.S.C. program. On the violation of bail bond conviction, the court sentenced defendant to a concurrent probation term of 30 months. The trial judge informed defendant that if he violated probation, he would be sentenced to a prison term of 5 years.

In August 1984, October 1985, and September 1986, the State charged that defendant violated probation. In each case the trial court recommitted defendant to probation.

In October 1987, the State filed the petition for violation of probation from which this appeal arises. The State alleged that defendant failed to report to his probation officer, committed the offense of possessing a hypodermic, and failed to successfully complete the T.A.S.C. program. On January 27, 1988, the trial court held a probation revocation hearing. The trial judge explained to defendant the nature and subject matter of a pre-hearing conference. Defendant then authorized his counsel, his probation officer, the State and the court to hold a conference. The trial judge again specifically advised defendant that if defendant were found guilty of violating his probation, he could be sentenced to a prison term of 3 to 7 years on the burglary conviction and another term of 2 to 5 years on the violation of bail bond conviction; also, the sentences could run consecutively.

Immediately following the pre-hearing conference, the State called defendant's probation officer to testify. However, immediately after the witness was sworn, the following colloquy occurred:

"[Defense counsel]: Excuse me one second, Judge.

(Brief pause.)

Judge, after explaining to Mr. Acevedo once again what's involved with violations--

You want to plead guilty to the violation and take the seven years?

(Brief pause.)

THE COURT: We'll have a hearing. If Mr. Acevedo does not want to agree to the violation of probation, we'll have a hearing. I'm not going to force him into doing anything."

The trial judge then repeated the charges against defendant in the State's petition for violation of probation. The trial judge continued:

"THE COURT: Those are the charges that have been leveled against you in connection with each of these violations of probation.

If you admit to those violations, I would find you in violation of the terms and conditions of your probation and I would sentence you on the residential burglary to seven years; to five years on the violation of bail bond; and, I would have both of them served concurrently. You have heard what the conference results are.

Do you admit to those violations of probation?

THE DEFENDANT: Guess so, yeah.

THE COURT: Let the record indicate that in my opinion Mr. Acevedo has admitted, after being admonished as to the consequences, I find that the defendant has in fact violated the terms and conditions of his probation by failing to report and that's the basis for it."

Turning to the sentence, the court heard argument in aggravation and mitigation. The trial judge considered the existing pre-sentence report sufficient and, therefore, did not order a new pre-sentence investigation. In addition to the argument of defense counsel, the trial judge afforded defendant the opportunity to make a statement. At the close of the hearing, the trial judge sentenced defendant to a prison term of 7 years on the burglary conviction and a concurrent term of 5 years on the violation of bail bond conviction. Defendant appeals.

Opinion

I

Defendant first claims that the probation revocation hearing denied him due process of law.

A.

As its initial response, the State argues that defendant waived this issue for review by failing to object at the hearing or in a post-hearing motion. (People v. Enoch (1988), 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 271, 522 N.E.2d 1124, 1130.) However Supreme Court Rule 615(a) provides an exception to the waiver rule where there has been "plain error." (134 Ill.2d R. 615(a).) Under this rule, we may elect to consider errors that have not been properly preserved for review where those errors affect substantial rights. People v. Brantley (1976), 43 Ill.App.3d 616, 617-18, 2 Ill.Dec. 128, 130, 357 N.E.2d 105, 107.

In the case at bar, defendant alleges due process deprivations that affect his fundamental right to liberty. This court, as a result, has elected to review such alleged errors under Rule 615(a). 134 Ill.2d R. 615(a); People v. Cox (1990), 197 Ill.App.3d 239, 241, 143 Ill.Dec. 425, 427, 554 N.E.2d 360, 362.

B.

Of course, a probationer is entitled to due process of law at a probation revocation hearing. However, it is well established that only "minimum requirements" of due process need be applied at a probation revocation hearing. (People v. Beard (1974), 59 Ill.2d 220, 225, 319 N.E.2d 745, 747; People v. Kaminski (1975), 30 Ill.App.3d 180, 182, 332 N.E.2d 182, 184.) This rule is based on the qualitative difference between a criminal prosecution and the revocation of probation. Guilt or innocence is not determined at a probation revocation hearing. Rather, the proceeding takes place only after the probationer has already been convicted, sentenced to probation, and then is charged with violating the conditions of his probation. Cox, 197 Ill.App.3d at 243, 143 Ill.Dec. at 428, 554 N.E.2d at 363, citing People v. Allegri (1985), 109 Ill.2d 309, 313, 93 Ill.Dec. 781, 782, 487 N.E.2d 606, 607.

Defendant contends that due process required the trial court, at a minimum, to establish a factual basis for his violation of probation, to admonish him of his right to a hearing, and to determine that his admission was not the result of promises or coercion. We disagree. These due process safeguards are required by Supreme Court Rule 402 when a criminal defendant pleads guilty at trial. (134 Ill.2d R. 402.) However, Rule 402 requirements were formulated to ensure the entry of proper guilty pleas at trial. Since a probation revocation qualitatively differs from a criminal conviction, Rule 402 does not apply to probation revocation hearings. Beard, 59 Ill.2d at 226-27, 319 N.E.2d at 748; Cox, 197 Ill.App.3d at 243, 143 Ill.Dec. at 428, 554 N.E.2d at 363.

Due process at a probation revocation hearing does require that the probationer have notice of the alleged violations; and that revocation follows a hearing at which the probationer had an opportunity to be heard, present evidence, confront witnesses, and be represented by counsel. These requirements all boil down to fairness. In other words, "due process requires a fair determination that the acts which formed the basis of the revocation petition did occur and that fairness be accorded a...