People v. Davis
| Decision Date | 25 July 1991 |
| Docket Number | No. 2-89-0684,2-89-0684 |
| Citation | 159 Ill.Dec. 841,576 N.E.2d 510,216 Ill.App.3d 884 |
| Parties | , 159 Ill.Dec. 841 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Leonia DAVIS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
G. Joseph Weller, Deputy Defender, Paul J. Glaser, Office of State Appellate Defender, Elgin, for Leonia Davis.
James E. Ryan, DuPage County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Terrence R. Lyons, Chicago, for People.
Defendant, Leonia Davis, pleaded guilty to the charge of State benefits fraud (Ill.Rev.Stat.1985, ch. 38, par. 17-6(a)) and was sentenced by the circuit court of Du Page County to a two-year term of probation conditioned on, inter alia, payment of restitution in the amount of $22,800. The circuit court subsequently granted the State's petition to revoke defendant's probation for failure to pay restitution. A new sentence of 30 months' probation, including a 30-day jail sentence and a restitution order as conditions thereof, was imposed.
Defendant raises two issues on appeal: (1) whether the trial court erred in revoking defendant's probation based on its finding that defendant willfully failed to pay restitution; and (2) whether the court erred in sentencing defendant to 30 days in jail and reinstating the same restitution order.
Defendant was charged in an amended indictment with the offense of State benefits fraud in that, between January 1, 1983, and May 31, 1986, she received benefits from the Du Page County Housing Authority by misrepresenting her name, social security numbers and that her only source of income was public aid when, in fact, she was employed under the name Carol Simpson and was using different social security numbers at her employment. She was also charged with theft based on the same conduct for the period between October 15, 1981, and December 31, 1982.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to the instant offense on May 4, 1987, and the State recommended a sentence of two years' probation conditioned upon defendant serving 30 weekends in jail, serving 100 hours of community service, and paying $22,800 in restitution. The restitution was to be paid in the following manner: $200 per month the first year, beginning May 1987; $300 per month the second year; $400 per month the third year; and $500 per month the fourth and fifth years. The State also agreed to nol-pros the theft charge. The trial court imposed the agreed-upon sentence.
On September 29, 1988, a petition to revoke defendant's probation was filed alleging that defendant willfully failed to pay $21,980 in restitution.
A hearing on the State's petition to revoke probation was conducted on May 5, 1989. Nancy Pauling, a probation officer with the Du Page County Probation Department, testified that defendant, who had been employed on a part-time basis from May 1987 to October 1987, had completed eight hours of public service. Defendant made four payments of $200 for a total of $800. Since that time, defendant paid an additional $38, with the last payment of $3 being received in May 1989. Defendant also paid all of her work release fees.
Pauling stated that defendant had not been employed since October 1987. Defendant had some type of blood problem associated with her pregnancy and was hospitalized for the birth of her child in July 1988. Defendant had not informed Pauling of any medical problems which prevented her from being employed after the birth of the baby. After the baby was born, defendant's husband had not maintained full-time employment and took jobs as a truck driver when he could. Pauling did not know how much money defendant's husband was making during this period of time.
Pauling testified that defendant had three children, two of whom, including the baby, currently live with her. Defendant was not living with her husband at the time of the hearing. Defendant had been evicted from her apartment because she was unable to pay rent and, since April 1989, was living with her sister in Bolingbrook. Pauling was not aware of whether defendant's husband provided financial support of the baby.
Pauling had not asked defendant to provide her with information or documentation regarding her efforts to obtain employment. Defendant told her that she had "not been able to make payments, due to having a small child" and that "it would cost her approximately $90 a week to provide day care for the child and for her to find work there would not be much surplus of money between the two." Pauling stated that defendant had not been able to leave the baby with relatives because defendant had no transportation. The sister with whom defendant lives is employed.
Pauling further testified that she did not know how defendant maintained financial support of herself, that she did not know what defendant's financial assets were and that defendant did not own an automobile. To her knowledge, defendant had not had any funds available to pay the restitution after defendant stopped working.
Following this testimony, defense counsel requested a finding in defendant's favor, arguing that the State had not met its burden of showing that defendant had the ability to pay and willfully failed to pay the restitution. The State argued that there was no medical reason why defendant could not be employed except for a short period of time around July 1988 and that defendant was required to take some initiative in becoming employed. The court then noted that the testimony regarding defendant's difficulties in obtaining employment was "all very vague." It determined, however, that it was "inferable" that there was a willful refusal to pay and concluded that the noncompliance was willful, stating, "[t]he facts here are such there is nothing to indicate she doesn't have the ability to obtain employment and work." The court later stated:
"I am not minimizing the fact that being a mother is a job, but I think we all know there are lots of women who have children, and they are out there working as soon as they are up and around on their feet, and making some arrangements to get out and work."
The court then denied defendant's motion for a directed finding.
Defendant presented no evidence. Finding that defendant willfully failed and refused to pay restitution and that she failed to complete the public service requirement, the circuit court revoked defendant's probation.
Thereafter, defendant submitted a written statement to be considered by the circuit court at her sentencing hearing. Defendant stated that she had found public service work on her own and stated that she was presently looking for employment. Medical records were also submitted to the court which stated that defendant's pregnancy was complicated by a low platelet count, that defendant's baby was delivered by cesarian section, and that defendant was in the hospital from July 11 to July 15, 1988.
At the sentencing hearing, the State stipulated that defendant had completed the public service requirement. A letter is included in the record which states that defendant served 92 hours at Du Page Township between May 15, 1989, and June 8, 1989. The letter also stated that defendant was a very good worker. Defendant addressed the court, stating that she never intended not to pay the restitution; she just was not able to pay it. She stated that, when she tried to find a job, she was not able to find one that would allow her to work, pay child care and have enough to survive on. She was seeking help through the displaced homemakers' program to improve her job skills.
The circuit court sentenced defendant to a term of 30 days in the Du Page County jail and a term of 30 months' probation with credit of 15 months and 23 days for time she served on probation prior to the filing of the petition to revoke probation. The court also ordered that the remaining restitution be paid within a five-year period and stated that it would request that the probation department monitor defendant's improvement in the work field and adjust the restitution payments accordingly. This appeal followed. Pursuant to defendant's motion in this court, we stayed imposition of defendant's jail sentence upon the posting of a $1,000 personal recognizance bond.
On appeal, defendant concedes that she did not make the required restitution payments. Instead, she contends that the State failed to meet its burden of proving that her failure to comply with the financial conditions of her sentence was willful.
Section 5-6-4(d) of the Unified Code of Corrections (Code) provides, in pertinent part, as follows:
"Probation * * * shall not be revoked for failure to comply with conditions of a sentence or supervision, which imposes financial conditions upon the offender unless such failure is due to his willful refusal to pay." Ill.Rev.Stat.1989, ch. 38, par. 1005-6-4(d).
Section 5-5-6(h) of the Code is also instructive and provides:
(Ill.Rev.Stat.1989, ch. 38, par. 1005-5-6(h).)
This section is applicable to restitution which is required as a condition of probation. People v. Whitfield (1986), 146 Ill.App.3d 322, 327, 99 Ill.Dec. 882, 496 N.E.2d 743.
In a probation revocation proceeding, the State must establish, by a...
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