Appeal from the Circuit Court of Moultrie County; the Hon.
Worthy B. Kranz, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
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 six-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 one 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 9 1/2 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 one-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, 68 L.Ed.2d 359, 369, 101 S.Ct. 1866, 1873, the United States 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.
• 1 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 ...