People v. Stewart

• Decision Date: 04 October 1990
• Docket Number: No. 4-90-0188,4-90-0188
• Citation: 561 N.E.2d 453,203 Ill.App.3d 658,149 Ill.Dec. 175
• Parties: , 149 Ill.Dec. 175 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie B. STEWART, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 453

561 N.E.2d 453

203 Ill.App.3d 658, 149 Ill.Dec. 175

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie B. STEWART, Defendant-Appellant.

No. 4-90-0188.

Appellate Court of Illinois Fourth District.

Oct. 4, 1990.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, Jane Raley, Asst. Defender, for defendant-appellant.

Lawrence R. Fichter, State's Atty., Decatur, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Gwendolyn W. Klingler, Staff Atty., for plaintiff-appellee.

Justice SPITZ delivered the opinion of the court:

After pleading guilty to the offense of unlawful possession of less than 15 grams of a substance containing heroin (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401(c)), defendant Willie B. Stewart was sentenced by the circuit court of Macon County to a term of 18 months' probation conditioned on his successful completion of a drug-treatment program. Because defendant failed to successfully complete the drug-treatment program, a petition to revoke his probation was filed.

The cause was called for a status hearing on January 29, 1990. Defendant was present at that hearing, in person and by counsel, and was admonished that if he failed to appear at the hearing on the petition to revoke probation, set for February 2, 1990, a hearing would be conducted in defendant's absence. Nevertheless, defendant failed to appear at the probation revocation hearing.

At the hearing, defense counsel advised the court that counsel had seen and talked to defendant that morning, in the courthouse, he had indicated to defendant "where we were today and what I thought was going to happen," and he was unaware of the reason for defendant's absence. In addition, Ed Root, an officer of the Decatur police department, testified he observed defendant in the courtroom at 8:25 a.m. and had a conversation with him. In defendant's absence, the hearing was conducted and defendant's probation was revoked.

A sentencing hearing was then scheduled for February 15, 1990. Notice of the date, time, and place of the sentencing hearing was sent by the Macon County circuit clerk's office to defendant's last known address. However, the notice was returned unclaimed. On February 15, 1990, a sentencing hearing was conducted. Again defendant did not appear. As a result of the sentencing hearing, defendant was sentenced to a term of imprisonment of two years.

In this appeal, defendant contends the revocation of his probation should be reversed because he was not provided notice by certified mail of the probation revocation proceeding as is required by section 115-4.1 of the Code of Criminal Procedure of 1963. (Ill.Rev.Stat.1989, ch. 38, par. 115-4.1.) We disagree.

Defendant recognizes that section 115-4.1 applies only when a noncapital felony is involved, and not in cases involving misdemeanors. (People v. Smith (1989), 189 Ill.App.3d 80, 136 Ill.Dec. 387, 544 N.E.2d 1162; People v. Johnston (1987), 160 Ill.App.3d 536, 112 Ill.Dec. 114, 513 N.E.2d 528, appeal denied (1987), 117 Ill.2d 549, 115 Ill.Dec. 405, 517 N.E.2d 1091.) The instant offense is a felony. (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401(c).) Defendant further acknowledges that several recent cases have held section 115-4.1 inapplicable to the probation revocation proceeding which were the subjects of those appeals (People v. Liming (1989), 183 Ill.App.3d 960, 132 Ill.Dec. 308, 539 N.E.2d 871; People v. Klovstad (1988), 168 Ill.App.3d 444, 119 Ill.Dec. 141, 522 N.E.2d 803; People v. Hall (1985), 134 Ill.App.3d 836, 89 Ill.Dec. 644, 480 N.E.2d 1387), but contends the reason the section did not apply in those cases was that the underlying offenses were misdemeanors. Contrary to defendant's assertions, however, the reviewing court in Klovstad did not rely on whether the underlying offense was or was not a misdemeanor and, instead, relied on the following rationale:

"We first address the propriety of the court proceeding in defendant's absence. In People v. Hall (1985), 134 Ill.App.3d 836, 843 [89 Ill.Dec. 644, 480 N.E.2d 1387], we held that probation revocation proceedings may take place in absentia if the defendant has been advised of the hearing date and admonished that the hearing will take place in his absence should he fail to appear. Underlying our decision in Hall was our conclusion that the defendant's voluntary absence constituted a waiver of his right to be present. (134 Ill.App.3d at 842 [89 Ill.Dec. 644, 480 N.E.2d 1387].) Thus, based on...