APPEAL from the Circuit Court of Rock Island County; the Hon.
FREDERICK P. PATTON, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
The defendant, Albert Estes, appeals from an order of the Rock Island County Circuit Court which revoked his probation. The defendant had previously pled guilty to the offense of unlawful use of weapons and had been placed on probation. After the revocation the defendant was sentenced to a term of not less than three nor more than nine years in the penitentiary.
The defendant raises no argument to the effect that the evidence adduced during the revocation hearing failed to support a finding that he violated the terms of his probation; however, he contends that the revocation of his probation should be reversed because the trial judge was predisposed against him by having ordered a presentence report a month before the actual revocation hearing.
The record discloses that a petition to revoke the defendant's probation was filed on November 19, 1975, in which it was alleged that the defendant had committed the offense of theft. A preliminary hearing was held on November 20, 1975, and the trial court entered a finding of probable cause for revocation. A different trial judge then conducted a hearing on December 22, 1975, upon the petition to revoke. The defendant at this hearing testified in his own behalf and following this testimony the defense rested. Immediately thereafter the trial court declared its finding that the defendant had violated his probation and indicated that it would proceed with sentencing after disclosing that a presentence report had been on file for three days. During the sentencing proceedings the probation officer who had prepared the presentence report disclosed that the trial judge had ordered the preparation of such report after the preliminary hearing on the petition to revoke, being approximately one month before the revocation hearing.
The defendant cites a number of Federal and State cases, all of which in one form or another reiterate the most fundamental rule of our legal system, to-wit, "that every defendant has the right to a trial before an unbiased judge." This postulate is one of the paramount pillars in our system of jurisprudence.
• 1, 2 In all the cases cited by the defendant we find situations where the trial judge clearly evidenced bias against the defendant, or had an interest in the case, or was in such a position that human frailties would make it well nigh impossible if not impossible to be free from bias.
We do not believe that such a situation exists in the instant case. In examining the record we find that at no time during the revocation proceedings did the defendant suggest even a hint of prejudice or impropriety on the part of the trial judge. The defendant was at all times represented by counsel, yet there was no motion for substitution of judges, or for a continuance to move for substitution of judges. There was no motion for modification of sentence or a new hearing on the petition to revoke. The presentence report now complained of was on file three days before the revocation hearing, yet no objection to its preparation or filing was ever forthcoming. This court could well conclude that the defendant waived the consideration of the presentence reports as far as this appeal is concerned. (See People v. Amerman (1971), 50 Ill.2d 196, 279 N.E.2d 353; People v. Killebrew (1973), 55 Ill.2d 337, 303 N.E.2d 377.) A defendant cannot be permitted to sit idly by while what he considers to be prejudicial error occurs in the trial court and later raise the issue in an appeal. (See People v. Mills (1968), 40 Ill.2d 4, 237 N.E.2d 697.) We, however, are not inclined to determine the question as to whether the defendant had a trial before an unbiased judge on the waiver or failure to object principles. On the contrary, we prefer to determine from the record whether the defendant did in fact receive a fair trial. From an examination of the record we can only conclude that the defendant was afforded a fair trial on the petition to revoke his probation.
• 3, 4 A probation revocation hearing is qualitatively different from a criminal trial and not every right in a criminal trial is extended to probation hearings. (See People v. Huff (1976), 44 Ill. App.3d 273, 357 N.E.2d 1380; People v. Beard (1974), 59 Ill.2d 220, 319 N.E.2d 745.) A grant of probation is a sentence imposed following a conviction for a criminal offense and a revocation hearing is a review of the original sentence of probation. Unless actual bias is shown we do not deem it harmful for a court to be guided by presentence reports which are in effect a history and summation of the defendant's conduct, even if such reports are prepared prior to the revocation hearing. Such reports serve to protect the interests of the parties involved, to-wit, the defendant and society.
For the reasons set forth the judgment of the Circuit Court of Rock Island County revoking the defendant's probation is affirmed.
Mr. JUSTICE STOUDER, specially concurring:
I agree with the result reached by the majority of the court. However, I do not agree with the majority's view that the conduct of the judge can be sanctioned or approved. The nature of the evidence is such that no useful purpose would be served by considering such conduct reversible error and requiring a new trial.
There can be little doubt but that one of the essential characteristics of our system of justice requires that a question involving a person's freedom should be decided by an impartial and unbiased tribunal. Avoidance of the appearance of bias is just as important as avoidance of actual bias. Whether a judge has actually made up his mind that a defendant is guilty before the evidence is presented or whether he only appears to have done so, are in either case contrary to our concepts of a fair trial. In this ...