People v. Kaminski

• Decision Date: 07 July 1975
• Docket Number: No. 73--134,73--134
• Citation: 332 N.E.2d 182,30 Ill.App.3d 180
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Wayne H. KAMINSKI, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 182

332 N.E.2d 182

30 Ill.App.3d 180

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Wayne H. KAMINSKI, Defendant-Appellant.

No. 73--134.

Appellate Court of Illinois, Second District, First Division.

July 7, 1975.

As Modified on Denial of Rehearing Aug. 8, 1975.

Rehearing Denied Aug. 8, 1975.

Ralph Ruebner, State App. Defender Agency, Deputy App. Defender, Elgin, for defendant-appellant.

Gerry Dondanville, State's Atty., Geneva, Clarence Wittenstrom, Jr., Asst. State's Atty., Elgin, for plaintiff-appellee.

HALLETT, Justice:

On May 4, 1970, the defendant pleaded guilty to burglary (Ill.Rev.Stat.1969, ch. 38, par. 19--1) and theft in excess of $150 (Ill.Rev.Stat.1969, ch. 38, par. 16--1) and was put on probation for 36 months. During this term, he was convicted of the unlawful possession of a hypodermic syringe (Ill.Rev.Stat.1971, ch. 38, par. 22--50) and the theft of less than $150 (Ill.Rev.Stat.1971, ch. 38, par. 16--1). This appeal is from an order on September 15, 1972, revoking defendant's probation on the basis of those two convictions and sentencing him to concurrent terms of from two to five years.

Defendant contends (1) that the original convictions for burglary and theft should be reversed because the trial court failed substantially to comply with the requirements of Supreme Court Rule 402 respecting guilty pleas (Ill.Rev.Stat.1971, ch. 110A, par. 402); (2) that the court denied him due process of law at the probation revocation hearing by failing to admonish him of his rights prior to the State's entry of proof; and (3) that the court erred at the probation revocation hearing when it failed to hold a hearing in aggravation and mitigation prior to pronouncement of sentence. The fourth, fifth and sixth contentions concern defendant's sentence. He maintains that the court erred in that it did not credit him with time successfully served while on probation; that the court erred when it imposed concurrent sentences for crimes arising out of the same conduct and; that the sentence ought to have been no more than that recommended by the State's Attorney (from one to three years concurrent). For reasons which follow, we affirm, but remand the cause to the trial court with directions (1) to credit the defendant with time successfully served while on probation; (2) to vacate the concurrent sentence relating to the theft.

Defendant first contends that his original convictions for burglary and theft should be reversed because the trial court failed substantially to comply with the requirements of Supreme Court Rule 402 relating to guilty pleas. We are without jurisdiction to consider this question.

Ill.Rev.Stat.1969, ch. 110--A, par. 606(b), provides that a defendant has 30 days in which to appeal from a final judgment or from the court's ruling on defendant's application for probation. Under par. 606(c), an additional period of six months is given in which to file notice of appeal provided that defendant can show a reasonable excuse for having failed to file within the 30-day period. In the present case, defendant never filed a notice of appeal from the judgment of conviction. He has appealed only from the order revoking his probation and the resulting sentence. The time limit within which to appeal from the convictions has long since passed. Where there has been no appeal from a judgment of guilty and an order of probation, such cannot be reviewed on appeal from an order revoking probation (People v. Coleman (1973), 13 Ill.App.3d 252, 301 N.E.2d 59). Furthermore, the notice of appeal mentions only the order of revocation. We are, therefore, without jurisdiction to consider this issue.

Defendant next contends that he was denied due process of law because the court failed to adequately advise him of his rights prior to the State's entry of proof at the probation revocation hearing.

A defendant is entitled to 'due process of law' at a probation revocation hearing (Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656), but not all situations calling for procedural safeguards call for the same kinds of procedures (Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484). Only 'minimum requirements' of due process need be applied at a probation revocation hearing (Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484). Thus, in People v. Beard, 59 Ill.2d 220, 319 N.E.2d 745, the court held that the requirements of Supreme Court Rule 402 are not applicable to probation revocation proceedings since they were formulated to 'secure proper entry of guilty pleas' at trial (citing People v. Krantz (1974), 58 Ill.2d 187, 194--195, 317 N.E.2d 559). The only factual issue in Beard was whether the defendant railed to report to his probation officer as he was required to do. Defense counsel stipulated that he did not report because at that time he was in federal detention, subsequently resulting in a conviction for another crime committed while defendant was on probation. The court held that the stipulation did not prejudice the defendant nor deprive him of due process of law. In the present case, there also was no factual dispute since the State proved the violations of probation by offering certified copies of the defendant's two convictions while on probation. Defendant was not called upon to admit or deny anything. Further, he already had been admonished at his trial for burglary and theft respecting the maximum and minimum years to which he could be sentenced and he can hardly legitimately complain now that his probation revocation should be reversed because the judge failed again to admonish him respecting the sentences. We have reviewed the record and conclude that revocation of defendant's probation comported with the 'minimum requirements' of due process of law.

Defendant also contends that he was, upon the revocation of his probation, entitled to a hearing in aggravation and mitigation under former Ill.Rev.Stat.1971, ch. 38, par. 1--7(g), which provided as follows:

'(g) Mitigation and Aggravation. For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.'

Most of the cases cited by defendant for the proposition that such a hearing is 'mandatory following revocation' did not even involve a revocation of probation, but two of them did so hold (People v. Hicks, 3d Dist., 1970 125 Ill.App.2d 48, 259 N.E.2d 846, and People v. Dotson, 5th Dist., 1969, 111 Ill.App.2d 306, 250 N.E.2d 174). We note that the procedure on revocation effective at the time of the revocation was former Ill.Rev.Stat.1971, ch. 38, sec. 117--3(d), which provided that:

'(d) If the court determines that a condition of probation has been violated, the court may alter the conditions of probation or imprison the probationer for a term not to exceed the maximum penalty for the offense of which the probationer was convicted.'

This did not require the trial court to conduct another hearing in aggravation and mitigation at that stage of the proceeding. In People v. Riso (1st Dist., 1970), 129 Ill.App.2d 356, 363, 264 N.E.2d 236, 240, the Appellate Court, First District, stated:

'The arguments pertaining to the absence of a mitigation hearing are without substance. First of all, It is questionable whether such a hearing must be held in a revocation proceeding. The relevant statute only calls for hearing after conviction. Ill.Rev.Stat.1965, ch. 38, par. 1--7(g). Riso had had this hearing following his conviction for burglary and attempt burglary and it resulted in his being placed on probation * * *.' (Emphasis ours)

While this court has found that a hearing in aggravation and mitigation is mandatory following a denial of probation, we have never passed on whether a hearing in aggravation and mitigation is mandatory following revocation of probation. While there are opinions both ways, we agree with the First District that this is questionable.

In any event, in the case at bar, there was, in substance, such a hearing. After revoking the defendant's probation, the court initiated such a hearing by asking 'Anything anyone wants to say about the sentence?' The State then recommenced a sentence and defense counsel then orally moved for a continuance which was denied. Defense counsel responded, 'Very well, your Honor.' Defendant was then given an opportunity to address the court and attempted to excuse the two convictions while on probation by saying that he was not really guilty, notwithstanding that he had pleaded guilty to the charges.

The defendant contends, however, that the court abused its discretion when it denied his motion for a continuance before sentencing. The State maintains, and we agree, that there was no abuse of discretion because denial of such motion is proper where no circumstances requiring a continuance are stated by counsel. In People v. Hicks (1970), 125 Ill.App.2d 48, at pages 57--58, 259 N.E.2d 846, at page 851, in rejecting such a contention, the court, said:

'* * * As we have frequently stated, all motions for continuances are addressed to the discretion of the trial court and considered in light of the diligence shown on the part of the movant. In the case before us, the attorney for defendant made no statement of what he intended to prove in mitigation if the continuance were granted. It is vital that attorneys for defendants make a statement as to what if anything would be presented in mitigation so as to give the trial court the opportunity of determining whether or not a continuance should be granted. In such case, the trial judge could determine why a continuance was necessary. Without such statement it could not be said that the action of ...