People v. Neckopulos

• Decision Date: 23 August 1996
• Docket Number: Nos. 3-95-0425,3-95-0426,s. 3-95-0425
• Parties: , 219 Ill.Dec. 904 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Deborah J. NECKOPULOS, Defendant-Appellant. . Rule 23 Order Filed
• Court: United States Appellate Court of Illinois

Page 757

672 N.E.2d 757

284 Ill.App.3d 660, 219 Ill.Dec. 904

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Deborah J. NECKOPULOS, Defendant-Appellant.

Nos. 3-95-0425, 3-95-0426.

Appellate Court of Illinois,

Third District.

Rule 23 Order Filed Aug. 23, 1996.

Opinion Modified Upon Denial of Rehearing Filed Nov. 8, 1996.

Tracy McGonigle, Office of State Appellate Defender, Ottawa, for Deborah J. Neckopulos.

John X. Breslin Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, Michael Kick, State's Attorney, Kankakee, Rita Kennedy Mertel, States' Attorneys Appellate Prosecutor, Ottawa, for the People.

MODIFIED UPON DENIAL OF REHEARING

Justice SLATER delivered the opinion of the Court:

Deborah Neckopulos was charged with unlawful possession of a controlled substance. 720 ILCS 570/402(c)(West 1994). While on bond for this offense, Neckopulos was charged with another count of unlawful possession of a controlled substance. 720 ILCS 570/402(c)(West 1994). Neckopulos entered negotiated pleas of guilty to both charges in exchange for the State's agreement not to object to her placement in TASC. Neckopulos was sentenced to concurrent 36 month terms of probation conditioned upon her compliance with the TASC program. The State subsequently filed a petition to revoke her probation for failure to co-operate with TASC resulting in her discharge from the program. After a hearing, the trial court revoked Neckopulos' probation and sentenced her to consecutive sentences of one and three years. Neckopulos appeals the order revoking her probation in each case.

Neckopulos raises the following issues on appeal: (1) whether the trial court erred in revoking her probation because evidence presented by the State demonstrated that her failure to attend TASC meetings was not wilful, (2) whether the trial court erred in revoking her probation because evidence presented by the State demonstrated that she did not have a meaningful opportunity to begin drug treatment for her addiction due to her attendance at only two meetings, (3) whether the trial court erred by permitting the State to call her as a witness during the probation revocation hearing in violation of the Criminal Jurisprudence Act (725 ILCS 125/6 (West 1994)) and, (4) whether the trial court violated her fifth amendment privilege against self-incrimination when he compelled her to testify for the State regarding her failure to attend TASC.

At the probation revocation hearing, the court took judicial notice of the fact that Neckopulos was placed on probation conditioned upon her compliance with the TASC program, and that the alleged violation was noncompliance with that condition.

The State called Neckopulos as its sole witness. Neckopulos objected to being called as a witness, invoking her fifth amendment privilege against self-incrimination. The trial court ruled that the privilege was unavailable to her because the hearing did not involve a criminal offense, but rather only a non-criminal allegation of a probation violation. Over Neckopulos' standing objection, the trial court ordered Neckopulos to take the stand.

Neckopulos testified that she had been placed on probation and, as a condition thereof, was obligated to comply with TASC. She also indicated her awareness that the TASC treatment would last 36 months. She stated that she attended Duane Dean Recovery Unit (Duane Dean) as directed by TASC. She was, however, unable to recall either when she visited Duane Dean or the number of those visits. She subsequently stated that she attended on approximately six occasions. She admitted that she stopped attending Duane Dean though she was not directed to do so by TASC.

When again asked by the State whether she was aware that treatment was likely to last for an extended period, Neckopulos responded in the negative and indicated that she had no memory of the State's earlier question concerning the duration of her treatment. Her explanation for this memory failure was that she was an addict whose "brains are not quite right."

She clarified that she was unable to remember the number of times she attended Duane Dean because she was almost constantly high during that time period. She was not aware that she was required to remain in contact with TASC. She explained that she did not report to TASC because she was unable to think when on cocaine. She was not only unaware of the dates of her appointments, she was unaware what day it was. Finally, Neckopulos testified that despite her efforts she has been unsuccessful in both in-patient and out-patient treatment.

The trial court found that by her failure to comply with the TASC mandate to complete a course of treatment at Duane Dean, Neckopulos wilfully failed to comply with the terms of probation. The reason for her failure was that her addiction to cocaine deprived her of the reasoning to comply.

Neckopulos first argues that the revocation of her probation was improper because the evidence presented by the State failed to demonstrate that her probation violation was wilful. Neckopulos' argument assumes that the State must prove that the probationer wilfully conducted herself in violation of the conditions of probation in order for probation revocation to be proper. This underlying assumption is wholly without supporting authority, and simply does not accurately state Illinois law.

Probation is a privilege to be employed when "the defendant's continued presence in society would not be threatening and the defendant's rehabilitation would be enhanced." People v. Allegri, 109 Ill.2d 309, 314, 93 Ill.Dec. 781, 782, 487 N.E.2d 606, 607 (1985). Due to the fact that the purposes of probation may be frustrated by nonculpable acts, revocation of probation need not be based on the wilful conduct of the defendant. People v. Davis, 123 Ill.App.3d 349, 78 Ill.Dec. 705, 462 N.E.2d 824 (1984); Allegri, 109 Ill.2d 309, 93 Ill.Dec. 781, 487 N.E.2d 606. It is apparent from the facts of this case that the purpose of Neckopulos' probation was to enable her to receive treatment for her drug addiction. Her failure to attend this treatment frustrated the purpose of her probation regardless of whether such failure was wilful. As the State was not required to prove that Neckopulos' failure to comply with TASC was wilful, we conclude that any evidence of Neckopulos' incapacity for wilful activity did not render the trial court's revocation of her probation erroneous.

Neckopulos next argues that the trial court's revocation of her probation was erroneous because she had not had a meaningful opportunity to begin drug treatment before TASC terminated her from the program. Like the defendants in People v. Carter, 165 Ill.App.3d 169, 116 Ill.Dec. 247, 518 N.E.2d 1068 (1988) and People v. Hamelin, 181 Ill.App.3d 350, 130 Ill.Dec. 182, 537 N.E.2d 3 (1989), Neckopulos contends that her probation violation occurred before she had a meaningful opportunity to begin treatment and, therefore, revocation of her probation defeated the goals of crime prevention and rehabilitation expressed in the Alcoholism and Other Drug Abuse and Dependency Act (the Drug Abuse Act) (formerly Alcohol and Substance Abuse Act). 20 ILCS 301/1-1 et. seq. (West 1994).

In Carter, the defendant had been ordered to participate in an in-patient TASC treatment program. While the defendant was still tenth on a waiting list for admission into the program, he violated his probation by committing a theft and probation was revoked. The appellate court reversed the order revoking probation, finding that the trial court had improperly used its discretion to frustrate the purposes of the Drug Abuse Act because defendant had never had an opportunity to participate in the program prescribed for him by the court.

Similarly, in Hamelin, the defendant's probation was revoked before he ever had an opportunity to begin treatment. Hamelin was sentenced to a prison term to be followed by a period of probation under the supervision of TASC to treat his drug addiction. There, the trial court revoked defendant's probation because defendant attempted to bring cocaine into prison. The appellate court reversed holding that the defendant should have had the opportunity to begin the therapy that the trial court originally prescribed for him.

The cases relied upon by Neckopulos are clearly distinguishable from the instant case. In both Carter and Hamelin, the defendants committed probation violations related to their drug addictions before having the opportunity to commence the drug treatment prescribed by the court. Neckopulos was not deprived of an opportunity to begin the treatment prescribed by the court. In fact, Neckopulos did begin the treatment. She admitted that after several treatment sessions, she stopped attending treatment though not directed to do so by TASC. The lack of progress in her court-prescribed treatment was not caused by the unavailability of the treatment but rather by her own failure to take advantage of the opportunity presented. We find that the trial court's order revoking Neckopulos' probation did not deprive her of a meaningful opportunity to begin court-ordered treatment.

Neckopulos next contends that she was called as a witness in violation of the Criminal Jurisprudence Act (Act). 725 ILCS 125/6 (West 1994). ¹ She argues that the Act clearly prohibited her from being called by the State in the absence of a request by her to be deemed a competent witness. As she made no such request, the State improperly called her as a witness at the hearing to revoke her probation.

The Act provides, in relevant part, that "[a] defendant in any criminal case or proceeding shall only at his or her own request be deemed a competent witness, and the person's neglect to testify shall not create a presumption against the person, nor shall the court permit a reference or comment to be made to or upon that neglect." 725 ILCS 125/6 (West 1994).

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