People v. Yantis

• Decision Date: 10 July 1984
• Docket Number: No. 4-83-0737,4-83-0737
• Citation: 81 Ill.Dec. 17,466 N.E.2d 603,125 Ill.App.3d 767
• Parties: , 81 Ill.Dec. 17 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harold YANTIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 603

466 N.E.2d 603

125 Ill.App.3d 767, 81 Ill.Dec. 17

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harold YANTIS, Defendant-Appellant.

No. 4-83-0737.

Appellate Court of Illinois Fourth District.

July 10, 1984.

Daniel D. Yuhas, Deputy State Appellate Defender, Jonathan Haile, Asst. State Appellate Defender, Springfield, for defendant-appellant.

Chris E. Freese, State's Atty., Sullivan, Robert J. Biderman, Deputy Director, David E. Mannchen, Staff Atty., State's Attys. Appellate Service Com'n, Springfield, for plaintiff-appellee.

WEBBER, Justice:

On February 10, 1982, pursuant to a plea agreement, defendant pleaded guilty in the circuit court of Moultrie County to the offense of deceptive practices in violation of section 17-1(B)(d) of the Criminal Code of 1961 (Ill.Rev.Stat.1981, ch. 38, par. 17-1(B)(d)). He was sentenced to a 6-month period of probation conditioned upon payment of restitution, court costs, and a fine which, together, totaled over $800.

On August 3, 1982, the State filed a petition to extend probation alleging that defendant had not complied with the monetary conditions of his probation. The circuit court subsequently extended the defendant's probation for a period of 1 year and reaffirmed the original monetary conditions.

On August 9, 1983, the State filed a petition to revoke probation, again alleging that defendant had failed to pay any restitution, costs or fine as required by the court's initial order. The defendant filed an affidavit claiming indigency, and the court appointed the public defender to represent him. A hearing on the petition to revoke probation was scheduled for October 17, 1983. On that date defendant's counsel presented her oral motion to withdraw as counsel because of lack of communication with the defendant. The court denied counsel's motion and continued the hearing on the petition to revoke until October 24, 1983.

At the hearing the State requested the court to take judicial notice of defendant's file, which showed that no payments had been made. The State then called the defendant as its only witness. Defendant testified that, since February 1982, he had worked nine and one-half months for a detective agency, three weeks at a stone quarry, and four weeks for a truck company. He also collected unemployment compensation over the course of several months. In August 1982 he filed for bankruptcy and paid an attorney $250 to represent him in the proceedings. Defendant testified that this $250 was part of $2,500 he had received one month earlier as his share of a divorce settlement. He further testified that he was presently living with a woman who paid for all of their living expenses because he had no available money and no employment. He acknowledged that he had not made any payments pursuant to the court's probation order. On the basis of this testimony, the trial court ruled that the defendant had violated the terms of his probation in that he wilfully failed to pay the restitution, costs, and fine.

The court sentenced defendant to a further 1-year period of probation on the condition that he serve 60 days in the county jail. The court also reaffirmed its original probation condition that required defendant to pay restitution, fine and all current costs. Defendant filed his timely notice of appeal on October 31, 1983.

On appeal defendant raises two arguments: (1) that the trial court had a duty to admonish him concerning his fifth amendment right against self-incrimination, and (2) that his counsel was ineffective in allowing him to testify as the State's sole witness when only his testimony demonstrated a wilful failure to pay.

A preliminary inquiry must be made as to whether the fifth amendment privilege exists at a probation revocation hearing. Our research has revealed no direct Illinois authority on the point. In People v. Roberson (1964), 30 Ill.2d 168, 195 N.E.2d 722, the defendant was called to testify by his own counsel at a bench trial. On appeal he claimed that the trial court should have admonished him as to his right of silence. The supreme court indicated that a different result might ensue if the defendant had appeared pro se, but held that the defendant's voluntary testimony at the request of his own counsel waived any constitutional privilege, saying:

"In the defendant's brief, it is conceded that no case has been found in which it had been held that a defendant represented by counsel must be advised by the court of his right to refuse to testify." 30 Ill.2d 168, 170, 195 N.E.2d 722, 723. We find two implications in this decision: (1) the undoubted existence of the privilege at trial, and more significantly (2) that the control of the privilege in the case of a represented defendant, that is, whether to assert or to waive, is in the hands of counsel, not of the trial court.

More recent Federal authority indicates that the privilege exists at the penalty phase of a criminal proceeding. In Estelle v. Smith (1981), 451 U.S. 454, 462-63, 101 S.Ct. 1866, 1873, 68 L.Ed.2d 359, 369, the Supreme Court said:

"We can discern no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment privilege is concerned. Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees. [Citations.] Any effort by the State to compel respondent to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment."

The evidence in Estelle was that of a psychiatrist to whom the defendant had spoken. It is thus even more removed than the direct evidence of the defendant himself in the instant case.

We are persuaded that the fifth amendment privilege against self-incrimination exists at revocation of probation hearings. We are further persuaded that defense counsel must control both the assertion and the waiver of the privilege, even though the privilege is personal to the defendant. A good example of the proper procedure is found in People v. Hartley (1974), 22 Ill.App.3d 108, 109, 317 N.E.2d 57, 58, where the court said:

"The colloquy of record shows that out of the presence of the jury Holman's counsel requested that the court advise of the privilege against self-incrimination. He then asserted the claim of privilege."

In sum, we are of the opinion that there is no duty on a trial court to admonish a defendant of his privilege when he is represented by counsel. The case is obviously different when the defendant appears pro se. (Roberson.) An example of the latter situation appears in People v. Slaten (1972), 5 Ill.App.3d 405, 283 N.E.2d 12, where the defendant dismissed his appointed counsel and voluntarily took the stand after the State's evidence had been completed. The appellate court held that it would have been "the better practice" for the trial court to admonish the defendant, but found no error when the substance of defendant's testimony was, " 'I ain't sayin' nothin'." 5 Ill.App.3d 405, 409, 283 N.E.2d 12, 15.

We turn next to the question whether counsel in the instant case fulfilled her duty. We think not.

Section 5-6-4(d) of the Unified Code of Corrections (Ill.Rev.Stat.1983, ch. 38, par. 1005-6-4(d)) provides that probation will not be revoked because of a defendant's failure to comply with financial obligations imposed by the sentence "unless such failure is due to his wilful refusal to pay." It is incumbent upon the State to prove that a defendant failed to comply with the financial conditions of the probation and that such failure was wilful. (People v. Harder (1975), 59 Ill.2d 563, 322 N.E.2d 470; People v. Nowman (1980), 87 Ill.App.3d 42, 42 Ill.Dec. 600, 409 N.E.2d 95.) In the present case the State met this burden by requesting the court to take judicial notice of the clerk's file which showed the nonpayment and by eliciting testimony from the defendant which showed that he had the ability to make the payments.

The record is barren of any effort by defense counsel to interpose any kind of defense or objection to the defendant's testimony. Certainly nonpayment could be established by judicial notice of the court records, but the crucial element, wilfulness, was established out of the defendant's own mouth. It is comparable to the State's calling the defendant at a homicide trial and asking, "Did you shoot X?". All parties appeared to treat the matter as a civil proceeding where the opposite party may be called under section 2-1102 of the Code of Civil Procedure. (Ill.Rev.Stat.1983, ch. 110, par. 2-1102.) We are unaware of any authority which holds that civil rules apply to probation revocation proceedings, except for the lesser burden of proof. (Ill.Rev.Stat.1983, ch. 38, par. 1005-6-4(c).) The proceeding is still criminal and the defendant cannot be called to testify against himself. Estelle.

In Illinois the competency of counsel is tested by two elements: (1) whether counsel's actions produced substantial prejudice to the defendant, and (2) whether the result of the hearing would have been different without incompetent action. People v. Greer (1980), 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203.

Although the record is silent as to counsel's motivations in this case, the State argues that allowing the defendant to testify was a tactical decision and as such should not be subject to criticism. However, we can perceive no tactical advantage for the defendant. It is apparent that without his testimony no proof of wilfulness existed. Whether the State could have produced other such evidence is purely speculative. We must take the record as we find it, and it reveals no rationale on the part of defense counsel for allowing the testimony and further reveals no effort on the part of the State to obtain, or the ability to obtain, other evidence of wilfulness.

Also, it cannot be gainsaid that defendant...