People v. Butcher

• Decision Date: 08 May 1997
• Docket Number: No. 4-96-0230,4-96-0230
• Parties: , 223 Ill.Dec. 487 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William M. BUTCHER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1260

679 N.E.2d 1260

288 Ill.App.3d 120, 223 Ill.Dec. 487

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William M. BUTCHER, Defendant-Appellant.

No. 4-96-0230.

Appellate Court of Illinois,

Fourth District.

May 8, 1997.

Daniel D. Yuhas, Deputy Defender, Duane E. Schuster (argued), Assistant Defender Office of State Appellate Defender, Springfield, for William M. Butcher.

Patrick W. Kelley, State's Attorney, Norbert J. Goetten, Director State's Attorneys Appellate Prosecutor, Robert J. Biderman, Deputy Director, State's Attorneys Appellate Prosecutor, Allan F. Lolie, Jr. (argued), Staff Attorney, State's Attorneys Appellate Prosecutor, Springfield, for the People.

Justice GREEN delivered the opinion of the court:

This case concerns the admonitions a circuit court must give a defendant before accepting an admission by the defendant that the allegations of a petition seeking to revoke the probation previously granted that defendant are true. We are also concerned with defendants raising the issue of error in that regard for the first time on appeal. We recognize that the admonitions need not be as extensive as those required under Supreme Court Rule 402(a) (134 Ill.2d R. 402(a)) upon acceptance of a plea of guilty. See People v. Beard, 59 Ill.2d 220, 226-27, 319 N.E.2d 745, 748 (1974). However, under the circumstances shown by the record here, we conclude that the admonitions were insufficient to provide due process, and the issue was properly raised for the first time on appeal.

On February 10, 1995, defendant, William Butcher, entered a plea of guilty in the circuit court of Sangamon County to the offense of felony theft (720 ILCS 5/16-1(a)(2) (West 1994)). On April 7, 1995, that court sentenced defendant to 30 months' probation. After one petition to revoke probation was withdrawn, a second petition to revoke was filed on January 31, 1996. After a hearing on March 8, 1996, where defendant admitted the allegations of the second petition, the circuit court revoked the probation and on March 22, 1996, sentenced defendant to four years' imprisonment with credit for time served. Defendant has appealed. We reverse and remand with directions to permit defendant to withdraw his admission of grounds to revoke.

The problem presented here arises from the proceedings on March 8, 1996. At that time, defense counsel informed the circuit court that defendant was going to admit the allegations of the second petition and "we have an agreement as far as the sentence to propose to the Court." The court responded, "[w]hat is that?" Defense counsel then explained that defendant would be sentenced to two years' imprisonment with credit for time served. The court then proceeded as follows:

"THE COURT: All right. The Court will accept--Well, before I do that, Mr. Butcher, do you understand you have a right to a hearing on the issue of whether or not you violated your probation?

A. [Defendant]: Yes, sir.

THE COURT: And you understand that the People would have the burden of proving by a preponderance of the evidence that you in fact violated your probation?

A. Yes, sir.

THE COURT: You are willing to waive that right?

A. Yes, I am."

The court then stated it would "accept that admission" but would "not accept the proposed negotiation of the parties" and set the matter for sentencing. The court likely concluded the agreement between the State and the defendant was that upon defendant's admission of the probation violation, the State would recommend to the trial court the sentence be two years. However, the language used was ambiguous as to whether defendant was being promised a two-year sentence if he admitted the probation violation. We hold that under these circumstances the trial court was under a duty to inquire as to what was the nature of the promise by the State.

Both the Supreme Court of Illinois and this court have protected defendants subject to petitions to revoke probation from promises the State made to obtain admissions of conduct that are grounds for revocation. In People v. Pier, 51 Ill.2d 96, 99-100, 281 N.E.2d 289, 291 (1972), the court held that if such a defendant admits a violation of probation "in reliance upon an unfulfilled promise by the State's Attorney," such an admission is "not voluntary." In Beard (59 Ill.2d at 223-25, 319 N.E.2d at 746-47), that court receded from the broad language of Pier and indicated Pier should not be considered beyond the factual situation it presented. However, in upholding an order revoking a probation, the Beard court pointed out that no contention was made that such a prosecution promise to the defendant had not been fulfilled. The Beard court also recognized that due process requires some admonition before admission of probation violations can be considered.

In People v. Followell, 165 Ill.App.3d 28, 31, 116 Ill.Dec. 84, 85-86, 518 N.E.2d 706, 707-08 (1987), this court reversed an order revoking a defendant's probation after the defendant had admitted the allegations of the petition to revoke. Our ruling was based upon the failure of the trial court to properly admonish the defendant. We agreed that under Beard not all Rule 402(a) admonitions were required but held that a required admonition was to inquire whether the admission of the misconduct charged was based upon a promise. In People v. Foehrer, 197 Ill.App.3d 754, 757-58, 144 Ill.Dec. 161, 163, 555 N.E.2d 58, 60 (1990), this court upheld a revocation of probation based upon the defendant's admission, even though the trial court's admonitions did not include inquiring as to whether any promises had been made to the defendant. Nevertheless, we noted there that no contention was made of any promises having been made to the defendant. Here, the likelihood of a misunderstanding as to whether the defendant was being promised a two-year sentence was patent on the face of the record. Proper admonishment could easily have avoided any misunderstanding.

Further confusion occurred at sentencing. Nothing was said there about any agreement that defendant would receive only a two-year sentence, but the prosecutor did state that the prosecution was "still" asking that the sentence be for only two years. After the court imposed sentence, it explained to the defendant that he had a right to appeal that would require him to move to vacate his admission, and if that motion was denied, he would then have 30 days to appeal the order denying that motion. The court then asked defendant if he understood his right to appeal and defendant responded "[n]ot really." We are unaware of any case requiring a defendant who has admitted violating his probation to file a motion to vacate or withdraw his admission before he can appeal the order revoking the probation.

The court then asked defendant if he wanted to appeal, and defense counsel questioned whether the court was sentencing defendant to four years' imprisonment despite the agreement the defendant had with the prosecution in regard to two years. The court stated that was so. Defense counsel stated they did want to appeal and the court ordered the filing of a notice of appeal, despite the admonition given that the filing of a motion to withdraw the admission of a probation violation and obtaining a ruling on that request would be a condition of a valid appeal.

The State does not request that the appeal be dismissed because of the lack of an appealable order due to the failure of the defendant to move to withdraw his admission. Rather, the State calls attention to People v. Gazelle, 165 Ill.2d 93, 208 Ill.Dec. 325, 649 N.E.2d 381 (1995), where the Supreme Court of Illinois upheld the revocation of a defendant's probation based on the defendant's admission of the grounds, even though in accepting the admission the circuit court had given an inaccurate admonition as to whether the defendant was subject to consecutive sentences. The supreme court reasoned that violation of that defendant's probation was shown by the record of the commission of other offenses and sending the matter back to allow withdrawal of the admission of violation would be a waste of time because the violation could be proved and the sentence would be the same. Gazelle, 165 Ill.2d at 95, 208 Ill.Dec. at 326, 649 N.E.2d at 382.

Here, as no evidence was presented, we cannot say that the violation of the probation was proved as a matter of record and that defendant would receive the same sentence on remand although that may be the case. We are concerned with the fact that the issue of improper admonition was never raised in the circuit court. Defense counsel could have moved to withdraw the admission in the trial court and put on evidence to show that defendant was misled by the discussion of an agreement and thought he would receive only two years' imprisonment if he admitted the allegations of the petition to revoke probation. However, neither in Beard, Followell, nor Foehrer was any mention made of the defendant having raised the issue of improper admonishment in the trial court. Moreover, in cases where pleas of guilty have been set aside because of inadequate admonishments, failure to raise the issue in the trial court has not waived the issue for appeal. People v. Davis, 145 Ill.2d 240, 250, 164 Ill.Dec. 151, 156, 582 N.E.2d 714, 719 (1991); see also People v. Sutherland, 128 Ill.App.3d 415, 417-18, 83 Ill.Dec. 790, 793, 470 N.E.2d 1210, 1213 (1984).

Accordingly, we conclude that (1) the issue of inadequate admonishment is properly before us, and (2) the circuit judge could have and should have explained to the defendant that he had no assurance in receiving only a two-year sentence and that failure was reversible error. As indicated, we reverse the order revoking probation and remand with directions to the circuit court of Sangamon County for a rehearing on the petition to revoke probation.

Reversed and remanded with directions.

KNECHT, J., concurs.

STEIGMANN, P.J., ...