People v. Herrin

• Decision Date: 25 September 2008
• Docket Number: No. 3-06-0924.,3-06-0924.
• Citation: 895 N.E.2d 1075,385 Ill. App. 3d 187
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Laurie HERRIN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

895 N.E.2d 1075

385 Ill. App. 3d 187

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Laurie HERRIN, Defendant-Appellant.

No. 3-06-0924.

Appellate Court of Illinois, Third District.

September 25, 2008.

Verlin R. Meinz (Court-appointed), Office of the State Appellate Defender (argued), Ottawa, for Laurie Herrin.

Terry A. Mertel, Deputy Director, Robert M. Hansen (argued), State's Attorneys Appellate Prosecutor, Ottawa, Stewart Umholtz, State's Attorney, Pekin, for the People.

Justice HOLDRIDGE, delivered the opinion of the court:

Laurie Herrin was found guilty of simple battery (two counts) and sentenced to 12 months of probation. Her probation was ultimately revoked, and she filed the instant appeal from the circuit court's revocation order. She claims that (1) the court lacked jurisdiction to revoke her probation, (2) revocation was improper on the merits, and (3) the court improperly ordered her to pay a public defender fee. We reverse on the first issue.

BACKGROUND

On June 23, 2005, Herrin was charged by information with two counts of domestic battery. She was arrested and released the following day after posting bond. On October 17, 2005, Herrin appeared in court and entered negotiated guilty pleas involving reduction of the charges from domestic battery to simple battery. The court admonished her, accepted the pleas, and sentenced her to 12 months of probation pursuant to the plea agreement. The probation order (entered on October 17, 2005) contained a list of standard conditions with a handwritten notation stating, "All Apply." As special conditions, the order directed Herrin to pay a $200 fine, a probation fee, and a public defender fee. An "X" was also marked beside the following standard language: "As required by the probation officer, the Defendant shall undergo and pay for, as appropriate: medical, anger control, psychological, psychiatric, drug/alcohol and domestic violence treatment." This language was supplemented with a handwritten notation that read, "ONLY IF REQUIRED FOLLOWING EVAL."

On July 6, 2006, a probation officer filed a document in the Tazewell County circuit court styled, "STATEMENT CHARGING VIOLATION OF PROBATION AND PETITION TO REVOKE PROBATION." Through this document, the probation officer alleged that Herrin "violated the conditions of [her] probation" by failing "to complete substance abuse treatment ordered by probation due to her failure to schedule a substance abuse evaluation and do the recommended treatment." The document concluded as follows:

"WHEREFORE, your Petitioner prays:

a. That the Court enter an order for a summons to issue to the defendant for appearance before this Court.

b. That on appearance of said defendant before this Court, said defendant be furnished with a copy of this Statement and Petition, and a date be set for a hearing on the above allegations charging a Violation of Probation.

c. That at the conclusion of the hearing the Court enter an order revoking the probation of said defendant and sentence said defendant in accordance with law for the offense of which [she] was heretofore convicted herein."

The court summoned Herrin and appointed a public defender to represent her during the revocation proceedings. The matter was then continued on three separate dates in 2006: July 24 (by agreement of the parties), August 30 (by agreement of the parties), and October 16 (on the court's own motion). A revocation hearing ultimately occurred on November 20, 2006, more than 13 months after the order imposing a 12-month probation term. The probation officer testified that although Herrin attended two drug/alcohol evaluations, he did not "receive anything in regards to her successful completion of any treatment." Written reports from the evaluations were then discussed on the record, and the parties stipulated to both reports.

According to the report from the first evaluation, performed by Carolyn Sward on August 11, 2006, Herrin admitted to being an alcoholic and receiving medication to cope with alcohol cravings. She also claimed that she did not have time or money for counseling. Sward concluded that Herrin would not benefit from additional drug/alcohol counseling. According to the report from the second evaluation, performed by Pat Schaefer on November 7, 2006, Herrin took medication to prevent alcohol cravings but resisted attending or participating in treatment. Schaefer concluded that Herrin would benefit from attending Alcoholics Anonymous.

The defense acknowledged that Herrin had not received alcohol treatment. Herrin testified that she previously received a copy of Sward's report but did not receive a copy of Schaefer's report until the day before the hearing. She read both reports as indicating a probability that treatment would be beneficial, but she did not understand them to formally recommend treatment. She admitted to alcohol problems but denied having resisted treatment.

The court found that Herrin had resisted treatment, and that the evaluators did not make treatment recommendations because of her resistance. This scenario, according to the court, was the "indubitable equivalent of * * * failure to successfully complete treatment." The following order was consequently entered:

"MATTER comes on probation hearing. Ct. finds petition proven. D's probation extended 1 year. D to submit to random drug/alcohol testing & not consume any alcohol."

In a subsequent order, the court directed Herrin to pay a public defender fee of $50. She then filed the instant appeal.

ANALYSIS

Herrin's jurisdictional claim raises a question of law subject to de novo review. See In re D.G., 144 Ill.2d 404, 163 Ill.Dec. 494, 581 N.E.2d 648 (1991).

Absent tolling of a defendant's probation term, a court has no authority to revoke the defendant's probation once the original term has expired. People v. Martinez, 150 Ill.App.3d 516, 103 Ill.Dec. 686, 501 N.E.2d 1003 (1986). Since Herrin's revocation hearing did not occur until after the original 12-month probation term expired, the court lacked jurisdiction unless the term was tolled. Tolling is effected by "[p]ersonal service of the petition for violation of probation or the issuance of such warrant, summons or notice." 730 ILCS 5/5-6-4(a) (West 2006). Of course such notice is not operative, however, unless the underlying pleading is valid. The underlying pleading in the instant case is the probation officer's "STATEMENT CHARGING VIOLATION OF PROBATION AND PETITION TO REVOKE PROBATION." We conclude that this pleading was invalid ab initio because the probation officer lacked authority to file it.

In People v. Dinger, 136 Ill.2d 248, 144 Ill.Dec. 88, 554 N.E.2d 1376 (1990), the Illinois Supreme Court held that a defendant could not petition to revoke her own probation. The court specifically observed that "the Unified Code of Corrections contemplates the revocation of an offender's probation only upon the filing by a proper party of a petition charging a violation of a condition of probation." (Emphasis added.) Dinger, 136 Ill.2d at 259, 144 Ill.Dec. 88, 554 N.E.2d 1376. Since this observation was dispositive, the court declined to "reach the State's [additional] contention that an interpretation allowing anyone other than the State's Attorney to file a petition unconstitutionally intrudes on its exclusive discretion in the management of a criminal prosecution." Dinger, 136 Ill.2d at 259, 144 Ill.Dec. 88, 554 N.E.2d 1376. The court thus did not address whether a non-attorney other than the defendant (such as a probation officer) can file a pleading that charges a probation violation and seeks revocation.

In People v. Kellems, 373 Ill.App.3d 1129, 313 Ill.Dec. 407, 872 N.E.2d 390 (2007), the Illinois Appellate Court, Fourth District, concluded that a probation officer lacks authority to file a petition to revoke a defendant's court supervision. We agree with the basic rationale of Kellems and find it responsive to the open question from Dinger in this context. Section 5-6-4(a) of the Unified Code of Corrections (Code) mentions a petition "charging a violation of a [probation] condition" without specifically indicating who is authorized to file the pleading. 730 ILCS 5/5-6-4(a) (West 2006). Such indication is unnecessary because the legislature has elsewhere declared, "The duty of each State's attorney shall be: To commence and prosecute all actions * * * civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned." (Emphasis added.) 55 ILCS 5/3-9005(a)(1) (West 2006). Based on the plain meaning of this language, and a lack of any specific statutory exception applicable in the probation context, we conclude that a probation officer cannot file a pleading that charges a probation violation and seeks revocation. Such action constitutes the unauthorized practice of law and usurps the State's attorney's prerogative.

Justice Schmidt cites subsections 5-6-4(f) and (i) of the Code in reaching a contrary conclusion on this issue. We respectfully disagree with his interpretation of these provisions. Subsection 5-6-4(f) authorizes "the supervising agency" to move for modification of probation conditions. 730 ILCS 5/5-6-4(f) (West 2006). However, such a general grant of institutional pleading authority does not answer the specific question of who can file the pleading in court. Prior to July 31, 1996, subsection 5-6-4(f) explicitly stated that probation conditions could be modified "on motion of the probation officer." See 730 ILCS 5/5-6-4(f) (West 1994). However, this language was stricken by amendment through Public Act 89-587 (Pub. Act 89-587, eff. July 31, 1996). Probation officers have thus been removed from the pleading equation. Now the statutory language merely conveys a general grant of pleading authority to the supervising agency, which by virtue of its institutional nature cannot proceed pro se. When exercising its authority under ...