People v. Austin

• Decision Date: 05 July 1983
• Docket Number: No. 81-884,81-884
• Citation: 116 Ill.App.3d 95,71 Ill.Dec. 625,451 N.E.2d 593
• Parties: , 71 Ill.Dec. 625 PEOPLE of the State Illinois, Plaintiff-Appellee, v. Carol E. AUSTIN, a/k/a Carol Parker, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 593

451 N.E.2d 593

116 Ill.App.3d 95, 71 Ill.Dec. 625

PEOPLE of the State Illinois, Plaintiff-Appellee, v. Carol E. AUSTIN, a/k/a Carol Parker, Defendant-Appellant.

No. 81-884.

Appellate Court of Illinois Second District.

July 5, 1983.

G. Joseph Weller, Deputy State Appellate Defender, John R. Wimmer, Asst. State Appellate Defender, Elgin, for defendant-appellant.

Daniel D. Doyle, State's Atty., Rockford, Phyllis J. Perko, William L. Browers, Elgin, for plaintiff-appellee.

LINDBERG, Justice:

Defendant, Carol E. Austin, a/k/a Carol E. Parker, was convicted of retail theft (Ill.Rev.Stat.1981, ch. 38, par. 16A-3(a)), and was sentenced to a one-year term of probation commencing December 16, 1980. Thereafter, the circuit court found pursuant to the State's petition, that defendant had breached certain conditions of her probation, in that she committed a subsequent offense of retail theft (Ill.Rev.Stat.1981, ch. 38, par. 16A-3(c)), and had failed to report as scheduled to her probation officer. Defendant's probation was revoked, and defendant was sentenced to serve a term of 120 days' imprisonment in the county jail. Defendant appealed.

On May 13, 1980, a preliminary hearing was held concerning four separate charges, including the present retail theft charge, which were then pending against the defendant. Mr. Craig Peterson, of the Winnebago County Public Defender's Office, was appointed to represent defendant on the present charge at the May 13 preliminary hearing.

During the May 13 hearing, one of the four charges against defendant was dismissed on the State's motion. A trial date was set on the remaining charges and defendant was placed on a $3,000 recognizance bond. The record does not reflect whether attorney Craig Peterson took part in further activities below as counsel for defendant. However, it is clear that the State's May 29, 1981, petition to revoke defendant's probation was heard and determined by the Honorable K. Craig Peterson, a judge of the Circuit Court in Winnebago County. On appeal, defendant has moved the court to take judicial notice that the Honorable K. Craig Peterson was the same person who appeared on defendant's behalf at the May 13, 1981, preliminary hearing. The State filed objections to the defendant's motion, and this court entered an order on February 1, 1983, which ordered the defendant's motion and objections thereto to be taken with the case.

The facts adduced at the probation revocation hearing can briefly be set forth. An employee of the Farm & Fleet store in Rockford, Illinois, was asked to intercept defendant and her companion as they left the store, and inquire regarding a pair of wire snips. As the parties walked to the shelf where defendant allegedly placed the snips, the employee observed defendant remove a pair of wire snips from her purse, and hand them to the store manager. The wire snips in question was ordinarily displayed for sale on a rack within the store.

Both the defendant and her companion testified for the defense. Both witnesses testified that defendant found the wire snips on the shelf where she had previously laid them. Defendant denied that she had placed the snips in her purse.

The State also adduced evidence that defendant had failed to keep many scheduled appointments with her probation officer. Defendant attempted to explain her numerous failures to appear before that officer, as attributable to alleged problems with her mail delivery, as well as personal illness.

The circuit court found that the State had proved both counts of its petition to revoke defendant's probation by a preponderance of the evidence. Thereafter, an order terminating defendant's probation was entered.

A resentencing hearing was held September 22, 1981, during which defendant was sentenced to 120 days in jail. Defendant was not personally present at that hearing, due to her pregnancy. Neither was a court reporter present during that hearing.

After several continuances, a hearing was held November 6, 1981, during which the court granted defendant's motion to stay issuance of the mittimus pending appeal. Then, the circuit court invited the parties to reiterate their positions respecting defendant's sentence, so that defendant could be personally apprised of the reasons for her sentence, and also so that the positions of the parties and the court regarding the sentence could be "transcribed for appeal". The circuit court reiterated in detail its reasons for imposing jail time on the defendant, and it was obvious from the court's comments that it intended that defendant actually serve her 120-day sentence in jail. However, the record is devoid of a written order, or express oral comment of the circuit court, which would deny defendant sentence credit for the time she spent on probation. In fact, there is no indication in the record that the subject of credit for time served on probation was ever raised by any of the parties or the court. If such credit is extended, defendant will serve no time in jail as a result of the circuit court's 120-day sentence, as the period between her admission to probation, December 16, 1980, and the filing of the State's petition to revoke her probation, May 29, 1981, exceeded 120 days.

We note two further facts which are material to defendant's appellate contentions. First defendant moved for a directed finding at the close of the State's proofs below, on the ground that the State failed to prove that defendant committed the offense charged (Ill.Rev.Stat.1981, ch. 38, par. 16A-3(c)). The substance of this challenge to the State's proofs is repeated in the defendant's appellate brief. Second, defendant filed timely notice of appeal on October 6, 1981, exactly 30 days before the parties and the court restated their respective positions regarding defendant's sentence at the November 6, 1981, hearing.

Defendant's Motion to Take Judicial Notice

We take judicial notice of the fact that public defender Craig Peterson was the same Honorable K. Craig Peterson who, as a judge of the circuit court of Winnebago County, presided over the probation revocation hearing held below. (III Martindale-Hubbell Law Directory 333 (113th ed. 1981).) A court is presumed to know its officers, and all public officials in civil affairs within its jurisdiction. (City of Rockford v. Mower (1913), 259 Ill. 604, 609, 102 N.E. 1032; Thompson v. Haskell (1859), 21 Ill. 215, 216; 1 Illinois Evidence Manual 51 (2d ed. 1979).) Not only may this court notice the Honorable K. Craig Peterson's position on the bench within the bounds of the Second Judicial District (People v McCullough (1940), 305 Ill.App. 269, 271-72, 27 N.E.2d 473, 475), but the court may also notice the judge's former civil office as a public defender (City of Rockford v. Mower (1913), 259 Ill. 604, 609, 102 N.E. 1032), or his status as a member of the bar and officer of the court (Ferris v. Commercial National Bank (1895), 158 Ill. 237, 241, 41 N.E. 1118).

The State is incorrect in its assertion that the record contains an insufficient basis upon which judicial notice of the identity of the Honorable K. Craig Peterson can be taken. Nor was defendant required to support her motion with affidavits pursuant to Supreme Court Rule 361(a) (91 Ill.2d R. 361(a)). The circuit court judge's participation in this case is clearly established in the record, and this court does not require further information submitted by way of affidavit, to properly notice the identity of a court officer. Defendant's motion is allowed, and the State's objection thereto is overruled.

New Probation Revocation Hearing

Illinois Supreme Court Rule 67(c) provides:

"A judge shall not participate in any case in which he has previously acted as counsel. He cannot rid himself of this responsibility by consent of counsel or the parties to the case." (87 Ill.2d R. 67(c).)

Defendant, in reliance on Supreme Court Rule 67(c) contends that the circuit court committed reversible error when it failed to recognize its prior representation of defendant on the instant charges, and consequently, failed to recuse itself from this case on its own motion. Defendant accurately notes that the circuit judge "acted as counsel" for defendant, for purposes of Supreme Court Rule 67(c), when the judge, who was then a public defender, appeared on defendant's behalf at the May 13, 1980, preliminary hearing in this cause. (See People v. Burnett (1979), 73 Ill.App.3d 750, 754, 29 Ill.Dec. 678, 681, 392 N.E.2d 235, 238 (construed plain meaning of phrase "acted as counsel" found in Supreme Court Rule 67(c).) Defendant's bond and trial date on the underlying retail theft charge was set at the May 13, 1980, hearing. It is possible, and indeed likely that defendant had additional discussions with public defender Peterson relating to the instant charges, following the May 13, 1980, hearing. Thus, it is clear from the record that the provisions of Supreme Court Rule 67(c) were applicable to this case. An attorney/client relationship had formed between defendant and public defender Peterson. Furthermore, that relationship was established vis-a-vis the instant charges, because a probation revocation hearing is merely a review of the original sentence of probation granted upon the underlying substantive criminal charge. (See People v. Estes (1977), 46 Ill.App.3d 339, 341, 4 Ill.Dec. 790, 791-92, 360 N.E.2d 1165, 1166-67.) Consequently, defendant's probation revocation hearing should have been conducted before another judge. The issue on appeal is whether Judge Peterson's failure to recuse himself sua sponte pursuant to Supreme Court Rule 67(c), necessitates that the judgment entered by Judge Peterson must be vacated, and defendant accorded a new probation revocation hearing.

The State, in support of the judgment below, suggests that Supreme Court Rule 67(c) does not extend a private right to criminal defendants, but rather, speaks solely to the ethical...