Appeal from the Circuit Court of Lake County; the Hon. Fred A.
Geiger, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, Calvin Butler, was charged by separate informations in the circuit court of Lake County with the offenses of theft of property valued at over $300 (Ill. Rev. Stat. 1983, ch. 38, par. 16-1(a)(1)) and residential burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-3). The defendant entered pleas of guilty and was placed on concurrent 30-months' probation on each charge. Pursuant to the plea negotiations, the residential burglary charge was reduced to burglary, and a misdemeanor theft charge was nolle prossed.
Inter alia, as conditions of probation on the theft conviction, the defendant was to perform 100 hours of public service and make restitution to the victim of the offense. On the burglary conviction, he was to perform 150 hours of public service, with credit against that time to be given for time spent working, if he was able to obtain full-time employment of at least 20 hours per week. A restitution hearing was held on June 4, but the victim failed to appear and the court set the restitution at zero.
A petition to revoke defendant's probation for failure to perform his public service requirement was filed and after a hearing, the probation sentences imposed on both convictions were revoked. Defendant received concurrent sentences of two years for theft and four years for burglary.
The defendant moved to reconsider the revocation of probation, alleging that he had been told by his probation supervisor to report to the YWCA; that he failed to report; he was given another assignment to report to the Lake County courthouse where he completed four hours of public service work; he then requested he be placed at another work site; he began full-time employment on June 2, and was gainfully employed at all times between June 3 and June 29; he should receive credit for 20 days' work while fully employed; and he completed a total of 156 hours of public service.
The trial court agreed to give the defendant full credit for his employment against the 150-hour public service requirement on the burglary conviction, and vacated the revocation and sentence imposed for that offense, thus reinstating defendant's 30-month probation. The court refused to vacate the revocation of probation on the theft offense. It agreed, however, to vacate the two-year sentence imposed pending an updated presentence report and hearing as mandated in People v. Coleman (1983), 120 Ill. App.3d 619. See also People v. Harris (1985), 105 Ill.2d 290.
The sentencing hearing was held several days later and in mitigation, the defendant presented testimony from Rev. Alan Gibbons, who had employed the defendant to do landscaping work, and from the defendant's parents. The testimony from those witnesses indicated that the amount of time worked by the defendant which could be substantiated would be considerably less than the 156 hours previously alleged in his motion to reconsider. The hearing was continued for further recommendation from the probation department regarding the defendant's suitability for intensive probation. Since the defendant's probation on the theft charge had been revoked, the court allowed the State to file a motion for reconsideration of the matter of restitution to the victim. The court additionally directed the parties to reach an agreement on how many hours of outside employment credit should be applied against the defendant's 150-hour public service requirement in connection with his probation for burglary.
At the continuation of the hearing, the parties agreed 40 hours of credit should be applied against the 150-hour public service requirement. The State then indicated there were some misdemeanor charges pending against the defendant, and that a second petition to revoke his burglary probation was filed.
The sentencing for theft then proceeded, and the victim of the offense testified his out-of-pocket expenses were $1,259.81. The probation department reported it could supervise the defendant under its intensive probation program. After hearing argument, the court sentenced the defendant to four years in the Department of Corrections.
A second petition to revoke the defendant's sentence of probation imposed for burglary charged the defendant with one count of battery, two counts of obstructing a peace officer, and one count of criminal damage to property. The offenses charged arose during an incident which occurred on June 12, when police officers attempted to arrest the defendant following an argument between him and another man.
At the hearing, the court heard testimony from two police officers, and the court found all counts proved except the criminal damage to property count. Accordingly, the defendant's probation was revoked, and a seven-year sentence in the Department of Corrections was imposed following a sentencing hearing. Defendant appeals from both revocations and sentences and these matters have been consolidated for consideration by this court.
The issues presented for review are as follows, concerning the theft conviction: (1) whether the terms and conditions of the defendant's probation were too vague and ambiguous to inform him of his obligations, thereby negating any possible finding of violation of same; (2) whether the trial judge improperly assumed the role of prosecutor by questioning witnesses at the sentencing hearing; and (3) whether the defendant was deprived of the effective assistance of counsel. Concerning the burglary conviction, the issues are: (1) whether the defendant was deprived of the effective assistance of counsel for failing to seek a substitution of judges for cause at the second revocation hearing; and (2) whether the seven-year sentence is excessive.
Defendant first contends the terms of his theft probation as explained orally by the court were too vague and ambiguous to inform him of his obligations and, therefore, the resulting revocation cannot stand. The State asserts in response that the terms of the defendant's probation were clear and the revocation order must stand where the evidence supports the court's finding that the defendant wilfully violated them.
Defendant acknowledges that the State need only prove a violation of the terms of probation by a preponderance of the evidence (People v. Salamon (1984), 126 Ill. App.3d 1066), but contends that fundamental precepts of due process were violated when his probation was revoked based upon his failure to comply with a condition "so vague as to be impossible to understand, let alone obey."
The defendant points out there were differences in the conditions of probation as reflected in the court's two oral statements, its written probation order, and its statement concerning its reason for revocation. The defendant further asserts that in none of the various statements was there imposed a "time frame" as to the public service condition, although the written order showed that the public service "is to be completed at the date and time as determined by the Adult Probation Department." Defendant asserts that these differences and the lack of a time frame made the terms unclear, that he could not consciously have decided not to comply with them and, therefore, the court erred in finding that a wilful violation occurred.
The court's first statement concerning the conditions of probation was made when the terms of the plea agreement were explained to the court. The parties had suggested 100 hours public service as a condition for each offense. The court countered with 250 hours, 100 on the theft, 150 on the burglary, stating:
"In addition, in the event he obtains full time employment, he will receive credit against, provided he is working full time, for each hour he works he will receive credit against the 150 hours on [the burglary], for 75 hours, and on [theft], he will receive credit for 75 hours. So, he will still have to do 100 hours, if he gets full time employment, but if you get full time employment, the time you are working will be charged up to the 150 hours against your work. All right, do you understand that negotiation?
THE DEFENDANT: Yes, sir."
The court thereupon conditionally accepted the negotiated plea, and set the matter over pending a presentence report.
The conditions of probation were later clarified at the sentencing hearing.
"THE COURT: All right, I will accept the negotiations, as tendered to the court on [the burglary], sentence the defendant to 30 months probation, 150 hours public service. I had agreed to give him credit against that.
MISS ALEXANDER [Defense attorney]: If he had a job. He is not employed at this point.
MR. BARTELS [Prosecutor]: The terms of the negotiations were that the defendant will perform 100 hours public service, regardless of whether he is employed or unemployed. There is an additional 150 hours of public service that the defendant is to to get credit for if he is employed full time.
THE COURT: All right, in other words, he is to do All right, let me back up. On [the theft], I am accepting the plea to theft. On that charge he is to perform, as to that charge, 100 hours public service. He is to pay restitution to Richard Stanfell [the victim], in an amount which will be determined Monday, June 4, at a hearing on restitution. * * * As to [the burglary], he will be sentenced to 30 months probation, and 150 hours public service, against which he will be given credit for any time he works in gainful employment, provided that that gainful employment is more than 20 hours per week. Until such time as he obtains gainful employment, ...