People v. Lindsey

• Decision Date: 20 March 2001
• Docket Number: No. 4-00-0296.,4-00-0296.
• Citation: 319 Ill. App.3d 586,253 Ill.Dec. 860,746 N.E.2d 308
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jerry L. LINDSEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

746 N.E.2d 308

319 Ill. App.3d 586

253 Ill.Dec. 860

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jerry L. LINDSEY, Defendant-Appellant.

No. 4-00-0296.

Appellate Court of Illinois, Fourth District.

March 20, 2001.

Daniel D. Yuhas, Deputy Defender (Court-appointed), Lawrence J. Essig, Asst. Defender, Office of State Appellate Defender, Springfield, for Jerry L. Lindsey.

Frank Young, State's Attorney, Danville, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, Thomas R. Dodegge, Staff Attorney, State's Attorneys Appellate Prosecutor, Springfield, for the People.

Presiding Justice STEIGMANN delivered the opinion of the court:

In May 1999, defendant, Jerry L. Lindsey, pleaded guilty to one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 1998)). In July 1999, the trial court sentenced him to four years' "sex[-]offender specific" intensive probation subject to various conditions, including that he serve 364 days of work release. In February 2000, the trial court granted the State's petition to revoke defendant's probation and subsequently resentenced him to another 4 years' probation and 364 days' work release.

Defendant appeals, arguing that (1) his being forced to testify as a witness for the State at his probation revocation hearing violated (a) his privilege against self-incrimination under the fifth amendment to the United States Constitution and article I, section 10, of the Illinois Constitution (U.S. Const., amend. V; Ill. Const.1970, art. I, § 10), and (b) his due process rights under the fifth amendment to the United States Constitution and article I, section 2, of the Illinois Constitution (U.S. Const., amend. V; Ill. Const.1970, art. I, § 2); and (2) the trial court erred by not granting him "day-for-day" credit for time he served in custody. We affirm.

I. BACKGROUND

The State's January 2000 petition to revoke defendant's probation alleged that defendant violated a condition of his probation by signing out of the jail where he was serving his work release on two occasions when he was not authorized to do so. At the January 2000 hearing on that petition, the evidence showed that defendant had been allowed to leave the jail daily to attend sex-offender treatment at the Prairie Center. LeAnn Chexem, a counselor at the Prairie Center, testified that defendant completed the first phase of his treatment on December 30, 1999, and she told defendant that from that point forward (1) he would be attending counseling three days a week instead of five, and (2) his sessions would begin at 10 a.m. rather than 9 a.m.

According to the State's petition, (1) on January 3, 2000, defendant signed out of the jail 1 1/2 hours prior to his scheduled appointment at the Prairie Center, and (2) on January 4, 2000, he signed out of the jail in the morning even though he did not have an appointment at the Prairie Center.

The State called defendant as an adverse witness. Over defense counsel's objection, defendant testified regarding the circumstances of his signing out of the jail on the two dates in question.

The trial court found that defendant had violated the terms of his probation. Following the February 8, 2000, sentencing hearing, the court resentenced defendant as stated with no credit for time previously served on probation. On February 22, 2000, defendant filed a motion to reconsider all findings. In March 2000, the trial court conducted a hearing on defendant's motion and denied it. This appeal followed.

II. ANALYSIS

A. Defendant's Privilege Against Self-Incrimination

Defendant first argues that being forced to testify at his probation revocation hearing violated his right not to incriminate himself under the fifth amendment of the United States Constitution and article I, section 10, of the Illinois Constitution (U.S. Const., amend. V; Ill. Const.1970, art. I, § 10). We disagree.

Where no fact or credibility issues are involved, we apply a de novo standard of review. People v. Dilworth, 169 Ill.2d 195, 201, 214 Ill.Dec. 456, 661 N.E.2d 310, 314 (1996).

In People v. Martin, 226 Ill.App.3d 753, 168 Ill.Dec. 415, 589 N.E.2d 815 (1992), this court addressed whether the defendant's fifth amendment privilege against self-incrimination was violated when the State called him to testify at his probation revocation hearing. Relying on Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984),Allen v. Illinois, 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986),People v. Davis, 216 Ill.App.3d 884, 159 Ill.Dec. 841, 576 N.E.2d 510 (1991), and Professor LaFave (3 W. LaFave & J. Israel, Criminal Procedure § 25.4, at 164 (1984)), we held that a defendant's fifth amendment privilege against self-incrimination was not violated by the State's calling him to testify at his probation revocation hearing "to elicit testimony which would show that the defendant had violated conditions of his probation but which would not incriminate him in any other proceedings." Martin, 226 Ill. App.3d at 759,168 Ill.Dec. 415,589 N.E.2d at 818.

Defendant now urges us to reconsider Martin in light of the Second District Appellate Court's recent decision in People v. McNairy, 309 Ill.App.3d 220, 242 Ill.Dec. 669, 721 N.E.2d 1200 (1999). In that case, the defendant was called to testify as an adverse witness for the State at his probation revocation hearing. McNairy, 309 Ill. App.3d at 221, 242 Ill.Dec. 669, 721 N.E.2d at 1201. The defendant argued on appeal that article I, section 10, of the Illinois Constitution confers a privilege against self-incrimination that extends to noncriminal probation violations. McNairy, 309 Ill.App.3d at 221, 242 Ill.Dec. 669, 721 N.E.2d at 1201.

The McNairy court acknowledged that the "United States Supreme Court has determined that compelling a probationer to testify as to criminal violations of probation does not offend the privilege against self-incrimination contained in the fifth amendment to the United States Constitution." McNairy, 309 Ill.App.3d at 222, 242 Ill.Dec. 669, 721 N.E.2d at 1201. However, the court went on to hold that "the protections afforded under article I, section 10, of the Illinois Constitution apply to a probation revocation proceeding" and the trial court erred by allowing the State to call the defendant to testify as an adverse witness. McNairy, 309 Ill.App.3d at 223, 242 Ill.Dec. 669, 721 N.E.2d at 1202.

The McNairy court concluded that a probation revocation hearing is a criminal proceeding for purposes of article I, section 10, of the Illinois Constitution. In so concluding, the court considered that a "criminal case" is one in which a person's testimony "might tend to convict him of a criminal offense or subject him to a fine or incarceration." McNairy, 309 Ill.App.3d at 223, 242 Ill.Dec. 669, 721 N.E.2d at 1202. The court held that because (1) a probation revocation hearing can have a profound impact on the life, liberty, and property of the defendant, and (2) after such a hearing the defendant might face additional fines or time in jail or prison, a probation revocation hearing meets the definition of a "criminal case" and more than the "minimum requirements" of due process are required. McNairy, 309 Ill. App.3d at 223, 242 Ill.Dec. 669, 721 N.E.2d at 1202.

We disagree with the McNairy court's conclusion that the privilege against self-incrimination contained in the Illinois Constitution should be interpreted more broadly than that contained in the federal constitution. For the following reasons, we decline to follow McNairy.

Initially, we reject the McNairy court's conclusion that a probation revocation hearing is a criminal proceeding because of the consequences a probationer might face upon its resolution. "`[T]he fact that a proceeding will result in loss of liberty does not ipso facto mean that the proceeding is a "criminal prosecution."'" People v. Allen, 107 Ill.2d 91, 99, 89 Ill. Dec. 847, 481 N.E.2d 690, 694 (1985), quoting Middendorf v. Henry, 425 U.S. 25, 37, 96 S.Ct. 1281, 1289, 47 L.Ed.2d 556, 566 (1976), aff'd, Allen, 478 U.S. at 375,

106 S.Ct. at 2995,

92 L.Ed.2d at 308 (holding that sexually dangerous person proceedings are not criminal).

Moreover, proceedings that occur after the State files a petition to revoke probation are considered noncriminal and the probationer is entitled to fewer procedural rights than he would receive in a criminal trial. People v. Kruszyna, 245 Ill.App.3d 977, 980, 185 Ill.Dec. 878, 615 N.E.2d 748, 751 (1993); People v. Goleash, 311 Ill.App.3d 949, 955, 244 Ill.Dec. 598, 726 N.E.2d 194, 198 (2000). As this court explained in People v. Bell, 296 Ill.App.3d 146, 149, 230 Ill.Dec. 704, 694 N.E.2d 673, 677 (1998), "[a] probation revocation proceeding has not been arbitrarily labeled a noncriminal proceeding. A sentence of probation is a form of agreement between a defendant and the criminal justice system with severe consequences if the agreement is broken." "The relaxed procedural safeguards involved in adjudicating whether a probationer violated a condition of probation do not offend due process because accusing someone of violating a condition of probation is not the equivalent of accusing him of committing a criminal act." Goleash, 311 Ill.App.3d at 956,244 Ill.Dec. 598,726 N.E.2d at 199.

Accordingly, at probation revocation hearings, (1) the State need prove a violation of probation only by a preponderance of the evidence, rather than beyond a reasonable doubt (People v. Williams, 303 Ill.App.3d 264, 268, 236 Ill.Dec. 602, 707 N.E.2d 729, 731 (1999)); (2) the procedural protections that apply to admissions of a violation of probation are less stringent than those for entering a guilty plea in a criminal case (Goleash, 311 Ill.App.3d at 956, 244 Ill.Dec. 598, 726 N.E.2d at 198); (3) evidentiary standards are relaxed (In re V.T. III, 306 Ill.App.3d 817, 819, 239 Ill.Dec. 869, 715 N.E.2d 314, 316 (1999) ("the qualitative difference between a criminal prose...