People v. Battershell, 5-89-0701

• Decision Date: 25 March 1991
• Docket Number: No. 5-89-0701,5-89-0701
• Citation: 210 Ill.App.3d 883,569 N.E.2d 308,155 Ill.Dec. 308
• Parties: , 155 Ill.Dec. 308 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry BATTERSHELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 308

569 N.E.2d 308

210 Ill.App.3d 883, 155 Ill.Dec. 308

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry BATTERSHELL, Defendant-Appellant.

No. 5-89-0701.

Appellate Court of Illinois Fifth District.

March 25, 1991.

Brent D. Holmes, Harlan Heller, Ltd., Mattoon, for defendant-appellant.

John C. Anderson, State's Atty., Crawford County Courthouse, Robinson, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Scott A. Manuel, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mount Vernon, for plaintiff-appellee.

Justice CHAPMAN delivered the opinion of the court:

This case originated with the defendant, a lawyer, being charged with the offense of tampering with public records in that he forged the signature of a circuit judge in Crawford County, Illinois, and caused the order to be file-stamped with the file mark of the circuit clerk of that county. Larry Battershell pled guilty to that charge and was sentenced to the maximum amount of probation under the statute, 30 months. In addition to the general terms of probation, Battershell was also ordered to pay a $5,000 fine, to perform 240 hours of public service, and to refrain from engaging "in the practice of law in this state or any other jurisdiction during the term of his probation." The original order of probation was entered on December 30, 1987.

On July 17, 1989, Battershell admitted in response to a petition to revoke his probation that he had violated a condition of his probation by failing to cooperate in attending probation appointments. On September 15, 1989, the trial court modified its original probation order by adding one year of probation to the original 30 months and including a term of incarceration in the Crawford County Jail for a period of 10 consecutive weekends. The order precluding Battershell from practicing law during the period of his probation was obviously extended by the 12-month extension of the probationary period.

Battershell appeals from the court's order of September 15, 1989, which modified the original probation order. Three issues are presented on appeal: (1) whether the court abused its discretion in ordering the defendant to serve weekend time in jail; (2) whether the court abused its discretion in extending the defendant's term of probation by adding 12 months onto the original sentence of probation; and (3) whether the court had the power to order the defendant to refrain from engaging in the practice of law as a condition of his probation.

The first two points will be addressed together since defendant's position is essentially the same on both issues. Defendant contends that probation was not revoked for any egregious violation, but only for failing to keep in touch with the probation department in Indiana. He also argues that this technical violation was understandable since there was some confusion with regard to where the defendant was to report and which department's public service work was to be completed first. Finally, he argues that the trial court was overly concerned with the fact that no part of his fine had been paid and only a small percentage of his public service work completed. Defendant correctly points out that under the terms of the order neither of these conditions had to be fully complied with until the end of the original probationary period.

With regard to the last condition we think the language of People v. Cottrell (1986), 141 Ill.App.3d 364, 95 Ill.Dec. 858, 490 N.E.2d 950, is appropriate:

"Although the defendant was not obligated to pay the entire amount within the first 16 months of his original probation, his lack of any effort during that time was certainly relevant to his character." Cottrell, 141 Ill.App.3d at 368, 95 Ill.Dec. at 860, 490 N.E.2d at 952.

While it appears that the defendant's financial ability to pay the fine and costs was limited during the period involved, there is no satisfactory explanation of his failure to make a more significant inroad into his public service obligation. We find that the court could properly consider this factor. People v. Young (1985), 138 Ill.App.3d 130, 92 Ill.Dec. 632, 485 N.E.2d 443.

In order to reduce the trial court's sentence we must first find a manifest and arbitrary abuse of its discretion. (People v. Shockley (1977), 54 Ill.App.3d 1041, 12 Ill.Dec. 747, 370 N.E.2d 551.) Defendant was originally convicted of a Class 4 felony for which he could have been imprisoned for not less than one year and not more than three years. (Ill.Rev.Stat.1987, ch. 38 par. 1005-8-1(a)(7).) When his probation was revoked, he could have been sentenced to any sentence that would have been appropriate for the original offense. (People v. Horton (1987), 160 Ill.App.3d 513, 112 Ill.Dec. 88, 513 N.E.2d 502.) We find no abuse of discretion in the court's sentence of an additional 12 months of probation or on the sentence of the 10 weekends in jail.

We now turn to the question of the trial court's power to order the defendant to refrain from practicing law as a condition of his probation. Since the term of probation has expired at the time of appeal, we could decline to address this issue on grounds of mootness. However, it is a question of an unusual nature (Wayland v. City of Chicago (1938), 369 Ill. 43, 15 N.E.2d 516), and one of substantial public interest (Partney v. Dallas (1969), 111 Ill.App.2d 261, 250 N.E.2d 166), and we will therefore address it.

Another preliminary matter raised by the State is their claim that this court has no jurisdiction to address this contention. The State contends that this issue is not properly before the court because it is really an attack upon the court's original order of probation rather than an issue arising out of the revocation proceeding only. (See People v. Eisenberg (1982), 109 Ill.App.3d 98, 64 Ill.Dec. 707, 440 N.E.2d 259.) Without engaging in any discussion as to whether or not the first order was void and therefore subject to attack at any time (People v. Perruquet (1989), 181 Ill.App.3d 660, 130 Ill.Dec. 284, 537 N.E.2d 351), or whether we are precluded from considering the issue because of the defendant's failure to file a notice of appeal from the original order (People v. Green (1989), 188 Ill.App.3d 1027, 136 Ill.Dec. 532, 544 N.E.2d 1307), we conclude that the defendant is, at a minimum, entitled to challenge the imposition of the sentence which precludes him from practicing law for the additional 12-month probationary period imposed upon him at the time of the revocation of the original probation.

Turning to the merits of the defendant's position on this point, it is, simply stated, that the supreme court has the exclusive authority to regulate the practice of law in Illinois and, therefore, the circuit court's order requiring the defendant to refrain from engaging in the practice of law during the period of his probation was improper. The defendant cites In re Application of Day (1899), 181 Ill. 73, 54 N.E. 646; In re Nesselson (1979), 76 Ill.2d 135, 28 Ill.Dec. 498, 390 N.E.2d 857; In re Mitan (1987), 119 Ill.2d 229, 116 Ill.Dec. 179, 518 N.E.2d 1000; People ex rel. Brazen v. Finley (1988), 119 Ill.2d 485, 116 Ill.Dec. 683, 519 N.E.2d 898; and In re Jafree (1982), 93 Ill.2d 450, 67 Ill.Dec. 104, 444 N.E.2d 143, in support of his position.

It is true that the above cases contain statements by the supreme court of Illinois which reflect its concern over legislative encroachment upon its ability to regulate the practice of law in Illinois and with piecemeal judicial encroachment upon the same activity. However, the supreme court's zealous protection of its right to regulate the practice of law is not absolute in its preclusion of the involvement of other agencies. In Leonard C. Arnold, Ltd. v. The Northern Trust Co. (1987), 116 Ill.2d 157, 107 Ill.Dec. 224, 506 N.E.2d 1279, the court upheld a circuit court rule which limited contingent fees in minor's personal injury cases to 25% unless the attorney itemized his work and showed that 25% was not a fair compensation.

The lack of exclusivity of the supreme court's power in this area is also reflected in the statutes...