Appeal from the Circuit Court of Whiteside County; the Hon.
DAN H. McNEAL, Judge, presiding. Affirmed.
Rehearing denied July 22, 1970.
Defendant Robert Hicks, who pleaded guilty to a burglary charge on February 9, 1968, was placed on three-year probation with the first 60 days to be served in the Whiteside County Jail. The terms of his probation required that he not violate any penal statute or ordinance and that he report to his probation officer monthly. On February 7, 1969, a hearing was held involving a probation violation by defendant. It was shown at that hearing that defendant had violated his probation by a traffic violation and by failing to report to his probation officer as required by the terms of his probation. As a result of such hearing, defendant's probation was continued, but the terms of his probation were modified to require that defendant reside with his parents, and that he be in his place of residence by 11:00 p.m. at night and not leave before 6:00 a.m. Thereafter, on September 2, 1969, defendant was found in contempt of court for leaving the State of Illinois without permission, in violation of one of the terms of his probation. He was placed in the Whiteside County Jail for 30 days as a result, but his probation was continued.
On October 21, 1969, a petition was filed by the Whiteside County probation officer alleging that defendant violated his probation by failing to reside with his parents and obey the curfew hours and by contributing to the delinquency of three minors, two girls (17 years of age), and one boy, age 16. A hearing was held on such petition on October 27, 1969, and following such hearing defendant's probation was terminated and he was sentenced to the Illinois State Penitentiary for a term of not less than one year or not more than seven years on the burglary charge, to which he had pleaded guilty on February 9, 1968.
At the hearing with respect to the probation violation, defendant was represented by an attorney and testimony was submitted by witnesses for both State and defendant. The evidence disclosed that police officers of Whiteside County went to a cottage east of Rock Falls at about 4:00 a.m. on October 15, 1969, on a report that several missing persons were at a party in certain cottages at such location. When the officers approached the cabin they saw no lights and observed no activity. One of the officers knocked on the door of the cottage and when there was no response, the officers shined their flashlights in the windows. Shortly, defendant came to the door and admitted the officers into the cabin. In the bedroom the officers found the two 17-year-old girls and another man. The 16-year-old boy was found standing in the bedroom closet. Defendant and the 16-year-old boy were dressed except for shoes and stockings. The girls were wearing T-shirts and jeans. A brassiere was found on the floor. Empty wine bottles and cough medicine bottles were in the room and on the floor, but no glasses were found and there was no evidence that there was any liquor remaining in the bottles. The officers testified that they did not know if any of the occupants in the cottages had been drinking. The occupants had testified that they had not been drinking.
The cottage was rented by a Terry Herrin, who was not present when the officers arrived. Michael Whiels, the 16-year-old boy, had been gone from home about two weeks. Whiels testified that Terry Herrin had permitted him to stay in the cottage, where he had been for two days. Defendant arrived at the cottage about 2:00 p.m. on the afternoon of October 14, 1969. He stated that he was looking for a job, and since he had no ride back to Rock Falls, he was going to stay in the cabin. Whiels testified that he asked defendant to go home about 5:00 in the afternoon. One of the girls arrived at the cottage about 8:30 in the evening and another arrived the same evening about 10:30. There was no showing that defendant did anything to cause the girls to come to the cabin. At about 11:00 in the evening, defendant asked the girls to go home. They testified they had no way home and since it was cold, they decided to stay all night. The testimony of those who were in the cabin that night showed that the group played cards until about midnight and the girls then went to sleep in the living room and the boys in the bedroom. Around 3:00 in the morning the girls went to the bedroom to get more blankets as they were cold. Since there were no extra blankets, they got into bed with defendant and another man, ostensibly to keep warm.
At the close of the evidence, defendant's attorney moved to dismiss the petition for revocation of probation, which the court denied. The court then stated that probation would be revoked. Attorney for defendant then orally moved that the cause be continued "to have a proper hearing on mitigation and aggravation." The trial court answered, "No, you are proceeding now." Attorney for defendant then answered, "Very well, Your Honor." There was a short statement by the Assistant State's Attorney handling the case in which he suggested that defendant be sentenced from two to five years. The trial judge than asked if there was anything further to offer in aggravation, to which the Assistant State's Attorney replied, "No, Sir." The Court then asked, "Have you anything to offer in mitigation?" The attorney for defendant said, "I don't at this time, Your Honor, care to offer anything further." The court then sentenced the defendant to be imprisoned in the penitentiary not less than one nor more than seven years.
On appeal in this Court, the questions before us involve (a) whether or not the State proved that defendant had violated the terms of his probation, (b) whether the trial judge abused his discretion in revoking the probation of defendant, (c) whether defendant was given the hearing in mitigation, (d) whether the trial judge abused his discretion in not allowing a continuance as requested by defendant's attorney, and (e) whether there was any error in connection with the hearing in mitigation and, incidentally, whether defendant waived the right to present evidence in mitigation.
[1-4] The courts of this State have indicated that the State has the burden of proof of violation of probation by a defendant. In a revocation proceeding defendant is required to be notified of the alleged violation of his probation and be given an opportunity to defend against, and refute the alleged violations. It is also the duty of the court to make a conscientious judicial determination according to accepted and well recognized procedural methods (People v. Dotson, 111 Ill. App.2d 306, 250 N.E.2d 174). In People v. Carroll, 76 Ill. App.2d 9, 221 N.E.2d 528, an issue was being considered as to whether the State had proved a violation of probation. In that case, defendant was out later than 11:00 p.m., in the company of a certain individual, and had beer in his car. All three of these acts were violations of his probation. The court found that the evidence sustained the trial judge's finding that there was a violation of probation. The court stated that a violation of the terms and conditions of probation, when found to have been made by the trial court, should not be disturbed on appeal simply because there is conflicting evidence. Similarly, in the cause before us, it is clear that defendant violated the terms of his probation by not being home at 11:00, as required.
Defendant contends that there was no proof that he contributed to the delinquency of three minors and that, therefore, this could not be held to be a probation violation. Irrespective of whether or not there was such violation involving contributing to the delinquency of minors, there was obviously evidence in the record which showed a violation of the curfew requirement that defendant be home at 11:00 p.m. In People v. Price, 24 Ill. App.2d 364, 164 N.E.2d 528, where defendant was charged with committing the crime of rape while he was on probation following a charge of grand larceny, defendant contended that, since he had never been convicted of the rape charge, he had not violated his probation. The court stated in this connection (at page 379):
"No conclusion other than the one arrived at by the trial court would have been justified upon the evidence found in this record and no authority has been submitted and we have found none which precludes the circuit court in a proceeding of this character from proceeding under the petition to revoke the order admitting this defendant to probation until after the termination of any criminal case growing out of the rape charge against plaintiff in error.
"This is a statutory proceeding. The statute makes no provision for a jury trial. The defendant in this proceeding was not on trial for the crime of rape for which he had been indicted. He was in the court that had previously granted him probation to answer the allegations of the petition which charged he had breached the order admitting him to probation. At the hearing the state was required to prove by a preponderance of the evidence that the defendant had violated the provisions of that order. The trial court found he had and the record fully sustains its judgment."
The circumstance, therefore, that defendant may not have been guilty of contributing to the delinquency of the minors would be no reason for continuing probation as to defendant, since he violated the curfew provision of his probation. The fact that the evidence also showed two minor girls and a minor boy were in the cabin with the defendant, and in fact spent the night in the same cabin and that the girls were in the same bed with defendant and another man at 4:00 in the morning, were facts which were properly directed to the attention of the court.
We had stated in People v. Dwyer, 57 Ill. App.2d 343, 206 N.E.2d 113, that where the vital question in a proceeding for revocation of a defendant's probation is whether he violated the terms of probation by participating in a crime, nothing less than the most convincing proof on the issue of whether defendant participated in such a crime will satisfy the requirements of justice. We did not (and the courts of this State have not) conclude that a revocation of probation could not be predicated upon a curfew violation, even though an ...