People v. Tolliver
| Decision Date | 23 November 2021 |
| Docket Number | 1-19-0129 |
| Citation | 2021 IL App (1st) 190129,192 N.E.3d 117,455 Ill.Dec. 700 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael TOLLIVER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Douglas R. Hoff, and Brett C. Zeeb, of State Appellate Defender's Office, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Jessica R. Ball, Assistant State's Attorneys, of counsel), for the People.
¶ 1 Following guilty pleas to two charges of aggravated battery in a public place (case Nos. 13-CR-10271 and 13-CR-10272) and one charge of unlawful restraint (case No. 13-CR-10273), defendant-appellant, Michael Tolliver, was sentenced to 18 months’ adult probation, the term of which was set to expire on August 17, 2015. On May 27, 2015, the State sought and was granted leave to file what would be its third petition for violation of probation (VOP). On August 19, 2015, defendant appeared in court, without counsel. Following the August court proceeding, the trial court, without determining whether defendant violated conditions of his probation, extended the term.
¶ 2 On April 23, 2016, the court made probable cause findings for new charges against defendant for unlawful use of a weapon by a felon and aggravated battery with discharge of a firearm. The State was thereafter granted leave to file a new petition for VOP. In June 2018, defendant entered into a negotiated plea to the unlawful use of a weapon by a felon and aggravated battery with discharge of a firearm charges and was sentenced to 12 years’ imprisonment (case No. 16-CR-7125). Later, on June 20, 2018, defendant pleaded guilty to the probation violation. Pursuant to the plea agreement, the trial court sentenced defendant to two years in prison in case No. 13-CR-10271, five years in prison in case No. 13-CR-10272, and three years in prison in case No. 13-CR-10273. All three sentences ran consecutive to defendant's 12-year sentence in case No. 16-CR-7125.
¶ 3 For the reasons that follow, we reverse the trial court's revocation judgment for VOP in case Nos. 13-CR-10271, 13-CR-10272, and 13-CR-10273 and vacate the sentences entered thereon.
¶ 5 In 2013, defendant, who was then 17 years old, was charged in three separate cases, two for aggravated battery in a public place (case Nos. 13-CR-10271 and 13-CR-10272) and one for unlawful restraint (case No. 13-CR-10273). On February 18, 2014, defendant entered an agreed plea of guilty on all three charges in exchange for a sentence of 18 months’ adult probation. The terms of probation included completion of 120 hours of community service, completion of requirements for either a high school diploma or GED, payment of $684 in court costs and fines, and $180 in probation fees. Defendant was required to satisfy the conditions of his probation by August 17, 2015.
¶ 6 Over the course of the next several months, the State sought leave to file petitions for VOP. The first petition was filed on June 14, 2014, entered and continued and, on July 16, 2014, taken off call. The second petition was filed on August 13, 2014, entered, and continued and, on September 17, 2014, withdrawn by the State.
¶ 7 On May 27, 2015, the State sought leave to file a third petition for VOP. The petition alleged that defendant had completed 52 out of the 120 hours of community service and had not paid all of his fines. During the proceeding, the trial judge inquired of defendant as follows: "You have probation on three robberies?" The State responded in the affirmative and requested leave to file "probation on all three."1 The court made no determination that defendant had violated any of the conditions of his probation. Nevertheless, the court granted the State leave to file the petition and remanded defendant to the custody of the Cook County sheriff, without bail.
¶ 8 On June 10, 2015, the next court date, defense counsel appeared in court and argued that defendant's probation was not set to terminate until August 2015 and that he could complete his remaining community service hours when released from custody. The court again made no determination that defendant had violated any of the conditions of his probation. The court released defendant on a $20,000 I-bond and "entered and continued" the VOP to July 22, 2015.2
¶ 9 On July 22, 2015, defendant appeared in court. At that time, his probation officer informed the court that defendant had received his high school diploma, was continuing his community service, had completed 76 out of the 120 hours of community service, and had paid some money toward his fees. The court made no determination that defendant had violated any of the conditions of his probation, but nonetheless, "entered and continued" the State's May 2015 petition for VOP to August 19, 2015.
¶ 10 On August 19, 2015, two days after his probation term had expired, defendant was present in court. Also present were Assistant State's Attorney Frank Lamas and the probation officer. Defendant was not represented by counsel at this proceeding. The following colloquy occurred:
¶ 11 On September 23, 2015, defendant returned to court. Additionally present in the courtroom were Assistant State's Attorney Lamas, and Assistant Public Defender Anthony Plaid on behalf of defendant. During this proceeding, the following colloquy occurred:
¶ 12 The case was then paused and later recalled. Upon recall, the following colloquy occurred:
¶ 13 At the November court date, the probation officer advised the court that the case was up for status on defendant's "education program" and that he was enrolled for orientation at Greater West Town and would start the program in January 2016. The court responded, "[y]ou're still on probation." A next court date was scheduled for December 9, 2015, at which time, the following colloquy occurred:
To continue reading
Request your trial