People v. Gilkey, 1-92-1150

• Decision Date: 13 May 1994
• Docket Number: No. 1-92-1150,1-92-1150
• Citation: 263 Ill.App.3d 706,635 N.E.2d 712
• Parties: , 200 Ill.Dec. 373 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles GILKEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 712

635 N.E.2d 712

263 Ill.App.3d 706, 200 Ill.Dec. 373

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles GILKEY, Defendant-Appellant.

No. 1-92-1150.

Appellate Court of Illinois,

First District,

Fifth Division.

May 13, 1994.

Rehearing Denied June 29, 1994.

Michael J. Pelletier, Deputy Defender, Karen Daniel, Asst. Appellate Defender, for defendant-appellant.

Jack O'Malley, State's Atty., County of Cook, Renee Goldfarb, Kevin Sweeney, Asst. State's Attys., of counsel, for plaintiff-appellee.

MURRAY, Presiding Justice.

Defendant Charles Gilkey (Gilkey) was found guilty of violating his order of probation and was sentenced to 14 years' incarceration with the Illinois Department of Corrections. He appeals his conviction and sentence raising four issues: (1) whether his waiver of the right to counsel (Gilkey represented himself pro se at the revocation hearing) was valid; (2) whether the trial court abused its discretion in revoking his probation; (3) whether his sentence is improper; and (4) whether the credit allotted to him for time served was incorrectly calculated. The facts of the case are recounted below:

On July 17, 1990, Gilkey entered a plea of guilty to the charge of burglary and was sentenced to five years' probation. The order of probation included the requirement that Gilkey submit to long-term inpatient care for his admitted addiction to heroin, cocaine and alcohol. The order indicated that Gilkey was to be committed immediately to Hines Veterans Administration Hospital so that he could commence his inpatient treatment and that he subsequently be committed to North Chicago Veterans Administration Hospital for long-term in-patient treatment.

The record indicates that Gilkey successfully completed the treatment program offered at Hines, which is a short-term program lasting only 21 or 28 days. However, for reasons unknown, he did not enter the long-term in-patient treatment program at North Chicago V.A. Hospital upon his release from Hines. Instead, Gilkey returned to his addiction and life of crime to support it. Five months later, on December 20, 1990, he was arrested and taken into custody, charged with committing a burglary on December 19, 1990. Thereafter, on March 11, 1991, the State filed a petition charging Gilkey with violating probation. The petition alleged the following:

(1) that on August 14, 1990, Gilkey was arrested and charged with the offense of retail theft, that the case was continued until October 5, 1990, at which time he failed to appear before the court and a $5,000 bond forfeiture warrant was issued,

(2) that on November 16, 1990, Gilkey was arrested and charged with the offense of possession of a stolen motor vehicle, that the case was continued until November 28, 1990, at which time he failed to appear before the court and a $2,000 bond forfeiture warrant was issued,

(3) that Gilkey was refused admittance for drug treatment through the V.A. Hospitals and that attempts to place him in alternative drug programs were unsuccessful due to Gilkey's failure to keep scheduled appointments,

(4) that Gilkey failed to report to the Adult Probation Department as ordered by the court, his last report to probation being November 15, 1990.

On September 20, 1991, Gilkey appeared in court on the charge of violation of probation. He informed the court that he wished to represent himself and proceed without the assistance of counsel. Gilkey was fully admonished as to the charges he was facing, the entire realm of possible penalties and the rights he possessed under the law. After Gilkey was admonished and he remained steadfast in his desire to represent himself, the court agreed that Gilkey could proceed pro se, although the court appointed the public defender as standby counsel to be available to assist Gilkey if necessary. The court then granted Gilkey a continuance until October 28, 1991, to prepare for the violation of probation hearing.

The half-sheet indicates that on October 28, 1991, the State indicated that it would elect to proceed on paragraph 2 of the violation of probation petition, but that nothing more took place. After one other continuance, Gilkey appeared before the court on December 12, 1991, at which time the State filed a supplemental petition for violation of probation, alleging the burglary that Gilkey was charged with committing on December 19, 1990. The State also indicated at this time that it would be changing its election and would proceed on the violation of probation based on the allegation in the supplemental petition. The court allowed the State to file the supplemental petition, over Gilkey's objection. The court also noted that the underlying burglary charge alleged in the supplemental petition was a pending case before Judge Manion and that Gilkey had answered ready in that case and was demanding trial. Therefore, there appeared no reason why they should not be able to proceed on the violation of probation hearing charging the same underlying offense. Nevertheless, the court granted Gilkey's request for another continuance to prepare to respond to the violation of probation alleged in the supplemental petition.

The violation of probation hearing was finally held on January 21, 1992. The State presented evidence which indicated that Gilkey committed the offense of burglary on December 19, 1990, and the court found that the State had proven, not only by a preponderance of the evidence but beyond a reasonable doubt, that Gilkey had violated the terms of his probation by committing this burglary. The court revoked Gilkey's probation and set the matter for sentencing.

On March 9, 1992, Gilkey's probation was revoked and he was sentenced to an extended term of 14 years' imprisonment in the Illinois Department of Corrections. He was given credit for 457 days time served.

In his first issue on appeal, Gilkey claims that he should be given a new revocation hearing because his waiver of counsel was invalid. This claim of error is based upon the fact that, after he waived counsel and decided to proceed pro se, the State filed a supplemental petition which added a new allegation of violation and it was this new allegation that the State later elected to use to prove Gilkey's violation of probation. Because the supplemental petition was filed three months after Gilkey waived the assistance of counsel, his waiver of counsel was made prior to the time that he was admonished regarding the nature of the alleged violation relied upon by the State to prove its case and which the court ultimately relied upon to revoke his probation. Due to this circumstance, Gilkey now contends that his waiver of counsel was not knowing and understanding.

Gilkey correctly recites the guidelines that a court must follow before permitting a probationer to waive counsel. The trial court must address the probationer in open court and determine whether he understands: (1) the purpose of the revocation proceeding and the nature of the violation of the condition of probation upon which it is based; (2) the minimum and maximum sentences that may be applied; and (3) the rights to which he is entitled, including the right to confrontation, cross-examination and representation by counsel. (Ill.Rev.Stat.1991, ch. 110A, par. 401(a); People v. Baker (1983), 94 Ill.2d 129, 133, 68 Ill.Dec. 125, 445 N.E.2d 769; People v. Barker (1975), 62 Ill.2d 57, 59, 338 N.E.2d 385.) Gilkey does not deny that these guidelines were adhered to and admits that he was adequately admonished on September 20, 1991, regarding the charge of violation of probation with respect to the specific allegations contained in the original petition, the range of penalties to which he would be subject if found in violation of probation and his rights under the law. His sole contention is that his waiver was invalidated because, subsequent to his waiver of counsel, the State amended the violation petition to include the December 19, 1990, burglary offense which was later used to substantiate the charge of violation of probation. We disagree.

First of all, we note that Gilkey failed to include this claim of error in his motion for rehearing. When a defendant claims error on appeal but has failed to include that error in a post-hearing motion for reconsideration, this court may deem the matter waived. (People v. Enoch (1988), 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124.) We shall not discard this issue on the basis of waiver, however, because we choose to address the merits of the argument.

We further note that there is case law which states that when a defendant renounces counsel and elects to stand alone, but receives the "technical assistance" of counsel, there is no waiver of counsel and Rule 401(a) admonishments need not be given. (See People v. Timmons (1992), 233 Ill.App.3d 591, 174 Ill.Dec. 616, 599 N.E.2d 162; People v. Bliey (1992), 232 Ill.App.3d 606, 173 Ill.Dec. 856, 597 N.E.2d 830; People v. Smith (1985), 133 Ill.App.3d 574, 88 Ill.Dec. 689, 479 N.E.2d 24.) In this case the trial court required the public defender to remain in the courtroom and continue as "stand-by counsel." Thus, there is a basis for finding that Gilkey did not waive counsel in the strictest sense and that full admonishment was not required.

In response to this matter, Gilkey argues that because the record in this case does not reflect that he actually consulted stand-by counsel, the cases cited above are distinguishable. (See People v. Derra (1981), 92 Ill.App.3d 1106, 48 Ill.Dec. 415, 416 N.E.2d 688; People v. Brown (1980), 80 Ill.App.3d 616, 35 Ill.Dec. 846, 399 N.E.2d 1374.) We do not believe that the record must affirmatively demonstrate that the pro se defendant sought the advice of counsel during proceedings or that stand-by counsel actually participated in the proceedings before it can be said that the defendant received assistance of counsel. Nevertheless, it is unnecessary to decide here the issue...