People v. Renner

• Decision Date: 18 May 2001
• Docket Number: No. 5-99-0520.,5-99-0520.
• Citation: 321 Ill. App.3d 1022,748 N.E.2d 1272,255 Ill.Dec. 202
• Parties: The PEOPLE of the State of Illinois, Plaintiff Appellant, v. Jillena L. RENNER, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

748 N.E.2d 1272

321 Ill. App.3d 1022

255 Ill.Dec. 202

The PEOPLE of the State of Illinois, Plaintiff Appellant, v. Jillena L. RENNER, Defendant-Appellee.

No. 5-99-0520.

Appellate Court of Illinois, Fifth District.

May 18, 2001.

Teresa Phillips, State's Attorney, Taylorville; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Sharee S. Langenstein, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, for Appellant.

Gregory B. Grigsby, Grigsby, Swiney, Wilson & Grigsby, Taylorville, for Appellee.

Justice HOPKINS delivered the opinion of the court:

The State appeals from the circuit court's order in limine that excluded from a probation revocation hearing the results of the defendant's urine test by means of a certified laboratory report. The State has filed a certificate of impairment and appeals.

On July 27, 1998, pursuant to negotiations while represented by counsel, Jillena L. Renner (defendant) pleaded guilty to driving while license revoked (625 ILCS 5/6-303(c)(1), (d) (West 1996)) and was sentenced to 24 months' probation. In its order, the circuit court listed the following as incidents of probation:

"19. The defendant shall refrain from having in his or her body the presence of any illicit drug prohibited by the Cannabis Control Act or the Illinois Controlled Substances Act, unless prescribed by a physician, and shall submit samples of his or her blood or urine or both for tests to determine the presence of any illicit drug. The defendant shall submit to any breath, blood[,] or urine test requested by the Probation Officer at his or her own expense. The defendant agrees that any written or printed laboratory result from a Certified laboratory shall be admissible in any proceeding to revoke this order of probation.

20. The defendant shall submit to any urine test requested by his or her Probation Officer at his or her own expense. The defendant agrees that any result of testing at the Probation Office is admissible in any proceeding to revoke this Order of Probation. The defendant acknowledges that the cost incident to drug testing at the Christian County Probation Office is $6.00 per test requested."

On February 4, 1999, the State filed a petition to revoke probation, which alleged that defendant tested positive for THC (cannabis) and cocaine on November 2, 1998, and tested positive for THC in the Christian County probation office on December 3, 1998. On March 23, 1998, an amended petition to revoke probation was filed, which added an allegation that defendant willfully failed to pay fines, costs, and/or probation fees totaling $1,180.

On May 26, 1999, defendant filed a motion in limine, which alleged that the introduction into evidence at the probation revocation hearing of LabCorp's written document purporting to be a confirmation of LabCorp's test results of defendant's urine would be hearsay. The motion further alleged that any purported waiver of the inadmissibility of confirmation would be unconstitutional as a violation of her fundamental due process rights.

At the May 28, 1999, hearing on defendant's motion in limine, defendant argued that evidence of her urine samples was inadmissible because a reliable foundation for the admission of the drug screens into evidence had not been established and the type of confirmation test used on the urine samples are unknown. Defendant also argued that evidence of the results of the urine tests is hearsay. She further argued that the waiver she signed, when she signed the probation order, is unconstitutional because she has a right to confront the witnesses against her and to cross-examine those witnesses (U.S. Const., amend. VI; Ill. Const.1970, art. I, § 8) and because the waiver was not knowingly and voluntarily made and was not made in court. Defendant lastly argued that the waiver shifted the burden of proof from the State to defendant.

The State responded that defendant waived her right to a confirmation test on the positive November 2 urine test and that a witness would testify to the positive screening on November 2. In reference to the December 3, 1998, positive urine test, the prosecutor stated that defendant did ask for a confirmation test, but the State was not statutorily required to provide a confirmation test. The State further argued that the probation officer explained the conditions of probation prior to defendant's signing the waiver and that if defendant did not agree to certain conditions of probation, the State would not enter into plea agreements for probation.

In rebuttal, defendant argued that the court, not the probation officer, has to tell defendant that she is waiving certain rights. Defendant further argued that urine tests done in the probation office by a probation officer and unconfirmed as to reliability are not admissible into evidence.

On July 2, 1999, the court found the laboratory tests to be hearsay and not admissible under the business-records exception to the hearsay rule. The court granted defendant's motion in limine and stated that it would admit the laboratory report if the State could confirm the test result or present other reliable evidence of drug use at the time of the test.

On July 30, 1999, the State filed a notice of appeal.

Section 5-6-3(b)(16) of the Unified Code of Corrections provides:

"(b) The Court may in addition to other reasonable conditions relating to the nature of the offense or the rehabilitation of the defendant as determined for each defendant in the proper discretion of the Court require that the person:

* * *

(16) refrain from having in his or her body the presence of any illicit drug prohibited by the Cannabis Control Act or the Illinois Controlled Substance Act, unless prescribed by a physician, and submit samples of his or her blood or urine or both for tests to determine the presence of any illicit drug." 730 ILCS 5/5-6-3(b)(16) (West 1996).

We begin by noting that unlike a guilty plea, a probation revocation occurs only after there has already been a conviction. People v. Marion, 275 Ill.App.3d 494, 495, 212 Ill.Dec. 117, 656 N.E.2d 440, 441 (1995). Thus, probationers are entitled to fewer procedural safeguards than defendants who have not been convicted at all. Marion, 275 Ill.App.3d at 495, 212 Ill.Dec. 117, 656 N.E.2d at 441; People v. Bell, 296 Ill.App.3d 146, 152, 230 Ill.Dec. 704, 694 N.E.2d 673, 679 (1998). Nevertheless, a probation revocation proceeding must still comply with the minimum requirements of due process. Marion, 275 Ill.App.3d at 495,212 Ill.Dec. 117,656 N.E.2d at 442; People v. Bedenkop, 252 Ill.App.3d 419, 421, 192 Ill.Dec. 163, 625 N.E.2d 123, 125 (1993). In probation revocation proceedings, there must be a conscientious judicial determination of the charge according to accepted and well-recognized procedural methods. Marion, 275 Ill.App.3d at 496,212 Ill.Dec. 117,656 N.E.2d at 442. A probation violation hearing must meet certain due process requirements. People v. Steele, 283 Ill.App.3d 413, 415, 219 Ill.Dec. 79, 670 N.E.2d 757, 758 (1996). Due process is satisfied if the probationer (1) is notified of the proceedings, (2) has the opportunity to: be heard, (3) has the opportunity to present evidence and confront witnesses, and (4) is represented by counsel. Steele, 283 Ill.App.3d at 415, 219 Ill.Dec. 79, 670 N.E.2d at 758-59. In addition to the notice and an opportunity-to-be-heard requirements, a defendant in a probation violation hearing is entitled to (1) a fair determination that the acts upon which the probation violation is predicated actually took place and (2) fairness throughout the duration of the proceedings. Steele, 283 Ill.App.3d at 415, 219 Ill.Dec. 79, 670 N.E.2d at 759.

At a probation revocation hearing, the State has the burden of going forward with the evidence and proving the violation of probation by a preponderance of the evidence, while using only competent evidence. In re N.W., 293 Ill.App.3d 794, 799, 228 Ill.Dec. 157, 688 N.E.2d 855, 858 (1997); Bedenkop, 252 Ill.App.3d at 422, 192 Ill.Dec. 163, 625 N.E.2d at 125. Hearsay evidence is not competent evidence in probation revocation proceedings; therefore, hearsay testimony is not competent to sustain the State's burden of proof, at least not over the defendant's objection. In re N.W., 293 Ill.App.3d at 799, 228 Ill.Dec. 157, 688 N.E.2d at 859; see also People v. Wilson, 44 Ill.App.3d 15, 17, 2 Ill.Dec. 622, 357 N.E.2d 842, 844 (1976). The confrontation clause of the Illinois Constitution (Ill. Const.1970, art. I, § 8) permits hearsay evidence to be admitted against a defendant only where either the evidence falls within a firmly rooted hearsay exception or particularized guarantees of trustworthiness assure the reliability of the evidence. People v. McClanahan, 191 Ill.2d 127, 132, 246 Ill.Dec. 97, 729 N.E.2d 470, 474 (2000); People v. Thomas, 313 Ill.App.3d 998, 1002, 246 Ill.Dec. 593, 730 N.E.2d 618, 622-23 (2000).

There are limits on what conditions a trial court can impose as incidents of probation. See People v. Johnson, 174 Ill.App.3d 812, 124 Ill.Dec. 252, 528 N.E.2d 1360 (1988) (the appellate court vacated an incident of supervision, to which the defendant had agreed prior to being placed on supervision, that the defendant place an advertisement in a local daily newspaper, publishing the defendant's booking picture together with an apology for driving under the influence of alcohol); People v. Dunn, 43 Ill.App.3d 94, 1 Ill.Dec. 855, 356 N.E.2d 1137 (1976) (the appellate court held that the circuit court acted improperly in imposing, as a condition of probation, the requirement that the defendant get a short haircut and maintain his appearance in a manner approved by the probation office). In the case at bar, the probation order imposed a condition not provided by statute. Even if such provision had been provided by statute, this court would find that defendant's right to confront the witnesses against her was...