People v. Hammond

• Decision Date: 01 December 2011
• Docket Number: Nos. 110044,110705.,s. 110044
• Citation: 2011 IL 110044,355 Ill.Dec. 1,959 N.E.2d 29
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Casey HAMMOND et al., Appellees.The People of the State of Illinois, Appellee, v. Fermin Alberty, Appellant.
• Court: Illinois Supreme Court

2011 IL 110044

355 Ill.Dec. 1

959 N.E.2d 29

The PEOPLE of the State of Illinois, Appellant,

v.Casey HAMMOND et al., Appellees.The People of the State of Illinois, Appellee,

v.Fermin Alberty, Appellant.

Nos. 110044

110705.

Supreme Court of Illinois.

Dec. 1, 2011.

Lisa Madigan, Attorney General, of Springfield, and Thomas J. Brown, State's Attorney, of Pontiac (Michael A. Scodro, Solicitor General, and Michael M. Glick and Karl R. Triebel, Assistant Attorneys General, of Chicago, and Patrick Delfino, Robert J. Biderman and Charles F. Mansfield, of the Office of the State's Attorneys Appellate Prosecutor, of Springfield, of counsel), for the People.

Michael J. Pelletier, State Appellate Defender, Karen Munoz, Deputy Defender, and Catherine K. Hart, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and Rachel M. Kindstrand, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins and Mari R. Hatzenbuehler, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice KARMEIER delivered the judgment of the court, with opinion.

[355 Ill.Dec. 5] ¶ 1 In this consolidated appeal, defendant Fermin Alberty, in a case coming to this court from Cook County (Cir.Ct. No. 05–CR–77509), argues that a probation officer lacks the authority to file a petition seeking revocation of probation; the State, in three cases originating in Livingston County (Cir.Ct.Nos.05–CF–289, 06–CF–50, 07–CF–134), argues that a construction of section 5–6–4(i) of the Unified Code of Corrections (Code) ( 730 ILCS 5/5–6–4(i) (West 2006)) that does not afford the circuit court or the State's Attorney veto power over the decision of a probation officer to offer a probationer intermediate sanctions for a qualifying probation violation is unconstitutional in that it contravenes the separation of powers clause of the Illinois Constitution (Ill. Const.1970, art. II, § 1).

¶ 2 The Appellate Court, First District, rejected Alberty's argument that the probation officers in his case “lacked the authority to file the petitions alleging a violation of probation (VOP) and seeking revocation of probation.” Alberty, No. 1–08–1149 (unpublished order under Supreme Court Rule 23). In the Livingston County cases, the Appellate Court, Fourth District, with one justice specially concurring, rejected the State's argument that “section 5–6–4(i) violates the doctrine of separation of powers (Ill. Const.1970, art. II, § 1) by unduly infringing on the executive branch or, more specifically, the State's Attorneys in their function of prosecuting violations of probation.” Hammond, 397 Ill.App.3d 342, 343, 339 Ill.Dec. 64, 925 N.E.2d 1185. We affirm the judgments of the appellate court.

¶ 3 PRINCIPAL STATUTES INVOLVED

¶ 4 Statutes bearing upon the first issue presented will be discussed in the course of our analysis hereafter. With respect to the second issue, we set forth here the principal statutes involved in order to facilitate a better understanding of proceedings and arguments in the circuit court.

¶ 5 Section 5–6–1 of the Code provides in pertinent part that “[t]he Chief Judge of each circuit shall adopt a system of structured, intermediate sanctions for violations of the terms and conditions of a sentence of probation, conditional discharge or disposition of supervision.” 730 ILCS 5/5–6–1 (West 2006). Section 5–6–4(i) of the Code provides:

“Instead of filing a violation of probation * * * an agent or employee of the supervising agency with the concurrence of his or her supervisor may serve on the defendant a Notice of Intermediate Sanctions. The Notice shall contain the technical violation or violations involved, the date or dates of the violation or violations, and the intermediate sanctions to be imposed. Upon receipt of the Notice, the defendant shall immediately accept or reject the intermediate sanctions. If the sanctions are accepted, they shall be imposed immediately. If the intermediate sanctions are rejected or the defendant does not respond to the Notice, a violation of probation * * * shall be immediately filed with the court. The State's Attorney and the sentencing court shall be notified of the Notice of Sanctions. Upon successful completion of the intermediate sanctions, a court may not revoke probation * * * for the same violation. A notice of intermediate sanctions may not be issued for any violation of probation * * * which could warrant an additional, separate felony charge. The intermediate sanctions shall include a term of home detention as provided in Article 8A of Chapter V of this Code for multiple or repeat violations of the terms and conditions of a sentence of probation, conditional discharge, or supervision.” 730 ILCS 5/5–6–4(i) (West 2006).

We note that the Eleventh Judicial Circuit, which includes Livingston County, adopted a system of structured, intermediate sanctions, pursuant to the mandate of section 5–6–1 of the Code (see generally 11th Judicial Cir. Ct. R. 210 (Aug. 1, 2006)), that established a procedural preference for sanctions over revocation proceedings where qualifying violations are concerned.

¶ 6 BACKGROUND

¶ 7 (Issue No. 1)

¶ 8 The case presenting the first issue comes to this court from Cook County where defendant Fermin Alberty had his probation revoked in a proceeding initiated on April 18, 2007, when a probation officer filed a “petition for violation of probation and warrant.” The petition alleged that defendant had violated a condition of his probation in that he had failed to report for intensive probation on three occasions. The petition requested that the court “determine whether or not the probation shall be revoked and if so, what new sentence and modifications shall be imposed, if any.” A supplemental petition for violation of probation was filed on November 8, 2007, alleging that defendant had committed additional violations insofar as he had failed to report on two dates and had failed to attend outpatient drug meetings on three dates.

¶ 9 Following a hearing on December 12, 2007, the circuit court found defendant guilty of violating his probation. The court concluded that the State had proved defendant had violated his probation by not reporting on three separate occasions. Defendant was subsequently sentenced to five years' imprisonment.

¶ 10 On appeal, defendant contended that the order revoking his probation should be reversed because the probation officers lacked the authority to file the petitions at issue. The Appellate Court, First District, held otherwise, following its prior decision in People v. Keller, 399 Ill.App.3d 654, 339 Ill.Dec. 415, 926 N.E.2d 890 (2010), and rejecting defendant's reliance upon People v. Herrin, 385 Ill.App.3d 187, 324 Ill.Dec. 360, 895 N.E.2d 1075 (2008), and People v. Kellems, 373 Ill.App.3d 1129, 313 Ill.Dec. 407, 872 N.E.2d 390 (2007), which held, respectively, only the State's Attorney, and not a probation officer, has the authority to file a petition to revoke probation or supervision.

¶ 11 (Issue No. 2)

¶ 12 The three cases presenting the second issue come to this court from Livingston County, where defendants Casey Hammond and Christopher Gaither were serving sentences of probation for drug offenses, and Kelly Donahue was serving a sentence of probation for unlawful use of a credit card number, when the State's Attorney filed petitions to revoke probation. Each defendant's probation order contained, as a condition of probation, a provision subjecting the defendant to “the Administrative Sanctions Program” adopted by the Eleventh Judicial Circuit.

¶ 13 The petition in Gaither's case, filed by the State's Attorney on May 23, 2007, at the request of the probation department, alleged that Gaither had violated his probation by entering a bar on May 11, 2007, and consuming alcohol.

¶ 14 On June 29, 2007, defendant appeared before Judge Jennifer Bauknecht on the petition to revoke. After advising defendant of his rights and inquiring into his circumstances for purposes of representation, the court addressed Erick Mund, the probation officer who had filed the report of probation that led to the filing of the petition to revoke, asking: “[W]as this not eligible for administrative sanction?” Mund represented that “the State got the report; and they were going to file.” The court again asked: “Isn't there an administrative sanction supposed to be imposed pursuant to law?” The attending assistant State's Attorney, Carey Luckman, interjected: “Whether that law is law.” The following colloquy then ensued:

“THE COURT: It's a rule. Eleventh Circuit. So I'm following it.

MR. LUCKMAN: I understand it. There may come a test of that at some point. I'm trying to get across the State's Attorney's view.

THE COURT: I understand the State's Attorney's position very well. He's discussed it with me. If I've got a court order that requires administrative sanction on this, I would start there, which is where we normally start with these. Is it on a basic conditions? How does that work?

MR. MUND: Administrative sanction eligibility is on the basic conditions. Yes. So he would have been eligible. However, before that was offered, the State had gone forward with the PTR [petition to revoke].

* * *

MR. LUCKMAN: Actually there was a recommendation or a request that the petition be filed if I'm not mistaken which predates the petition.”

Subsequent questioning revealed—and the report of probation confirms—that Mund had requested the filing of a petition to revoke, though the extent to which that recommendation was affected by communication with the State's Attorney's office was never clarified. Under inquiry by the court, Mund admitted the alleged violation was defen...