People v. Malone, 75--331

• Court: United States Appellate Court of Illinois
• Citation: 41 Ill.App.3d 914,354 N.E.2d 911
• Docket Number: No. 75--331,75--331
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Otha Charles MALONE, Defendant-Appellant.
• Decision Date: 13 September 1976

Page 911

354 N.E.2d 911 41 Ill.App.3d 914 PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Otha Charles MALONE, Defendant-Appellant. No. 75--331. Appellate Court of Illinois, Second District, First Division. Sept. 13, 1976.

Page 912

[41 Ill.App.3d 915] Ralph Ruebner, State Appellate Defender Agency, Peter B. Nolte, Elgin, for defendant-appellant.

Gerry L. Dondanville, State's Atty., Geneva, Phyllis J. Perko and Martin P. Moltz, Ill. State's Attys. Assn., Elgin, for plaintiff-appellee.

GUILD, Presiding Justice.

This is the third appeal involving this defendant. In the first appeal, People v. Malone (1974), 18 Ill.App.3d 397, 309 N.E.2d 325, this court reversed the revocation of probation of the defendant and remanded for the reason that testimony resulting in his revocation of probation was based upon hearsay. Attention is directed to the facts in that case. Suffice to say, defendant was originally convicted of aggravated incest with his step-daughter, placed on probation and, with the court's permission, moved to the state of Mississippi. It was alleged in that case the defendant had sexually molested his own 11 year old daughter and as a result he was incarcerated. He escaped from jail but was captured and returned to Kane County where his probation was revoked upon the basis of his alleged incestuous conduct. In People v. Malone (1976), 38 Ill.App.3d 157, 347 N.E.2d 862, we considered the post-conviction hearing of the defendant who contended that the aggravated incest statute was unconstitutional. On the authority of People v. Grammer (1976), 62 Ill.2d 393, 342 N.E.2d 371, the judgment of the trial court dismissing the petition was affirmed.

As indicated above, the revocation proceedings were reversed and remanded to the trial court and the mandate was filed in the Circuit Court of Kane County on October 31, 1974. On November 8, 1974, the defendant filed a motion for substitution of judge pursuant to chapter 38, section 114--5(a) of Illinois Revised Statutes, 1973. On November 19, 1974 the State's Attorney of Kane County filed a second petition to revoke the defendant's probation, alleging that the defendant had escaped from the lawful custody of Tishimingo County, Mississippi on November 29, 1971. On December 3, 1974, defendant filed an additional motion for substitution of judge, pursuant to Illinois Revised Statutes, 1973, chapter 38, paragraph 114--5(c). On December 10, 1974, a hearing was held on both motions for substitution of judge and both motions were denied by the trial court, who was the same judge who had originally revoked defendant's probation. On December 20, 1974, a hearing was [41 Ill.App.3d 916] held on the second petition to revoke probation. At that time the defendant filed a motion to dismiss the second petition alleging that the proceeding was a violation of due process because the basis for the revocation of probation had occurred almost three years prior to the petition for revocation. The court, following arguments, denied this motion. The State then offered no proof as to the alleged incestuous conduct of the defendant in Mississippi and the original petition for revocation of probation on that basis was dismissed. In support of the petition for revocation based upon defendant's escape from jail, the State offered into evidence a deposition of the Sheriff of Tishimingo County taken on December 10,

Page 913

1974, which was admitted over objection. Based upon this deposition, the probation of the defendant was again revoked.

In this appeal defendant has raised four issues. One, that the trial court erred in summarily denying defendant's motion for substitution of judge for cause; two, that the court erred in denying defendant's motion to dismiss the second petition to revoke probation based upon the escape of the defendant where the State waived almost three years to charge the commission of the escape as a basis for revocation; three, that the trial court erred in admitting the evidence deposition over defendant's objection; and four, that the sentence imposed upon the defendant is improper under the pertinent provisions of the Unified Code of Corrections.

Considering the first contention of the defendant, that the court erred in denying defendant's motion for substitution of judge, the defendant has relied upon the provisions of section 114--5 of chapter 38 (Ill.Rev.Stat.1973, ch. 38, 114--5(a) or (c).) Defendant concedes that this statute refers only to substitution of judge at trial. In support of this contention defendant has cited People v. Wilson (1967), 37 Ill.2d 617, 230 N.E.2d 194. In Wilson the Supreme Court held that, under the facts of that case, the defendant was in fact entitled to a change of venue for a post-conviction hearing. The court pointed out that a post-conviction hearing is the review of an existing judgment, is civil in character and is primarily to review and determine the existence of alleged deprivation of constitutional rights. The court further stated:

'In the present case defendant alleges certain In camera conversations between his attorney and the trial judge which may be material to a determination of his rights. It would seem that either the trial judge would be a material witness to these proceedings, or would have knowledge Dehors the record of...