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07/09/87 the People of the State of v. Gary D. Clark

July 9, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GARY D. CLARK, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

510 N.E.2d 1256, 157 Ill. App. 3d 371, 110 Ill. Dec. 225 1987.IL.976

Appeal from the Circuit Court of Ogle County; the Hon. Alan W. Cargerman, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, Gary D. Clark, appeals the order of the circuit court of Ogle County revoking his probation. He claims that his waiver of counsel at the probation revocation hearing was not voluntary because the court failed to properly admonish him as to the nature and purpose of the hearing and because defendant was under the mistaken impression that he could not be resentenced on the original offenses.

Defendant initially pleaded guilty to two separate offenses of driving under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501) and was sentenced to concurrent one-year terms of probation. On March 20, 1986, the State's Attorney filed a petition to revoke probation, alleging that defendant failed to complete his public service work and alcohol counseling. At a hearing on April 4, 1986, defendant waived the right to counsel and admitted the violations. The court subsequently sentenced him to concurrent terms of 364 days' periodic imprisonment and fined him an additional $750 on the second DUI conviction. Defendant then retained an attorney and filed a motion to withdraw his admissions. This motion was denied, and defendant appeals.

On appeal defendant claims, essentially, that he did not appreciate the importance of the probation revocation proceeding. Since he had committed no new crime, he did not think he could be resentenced on the underlying offenses and believed that he would receive only a light sentence for violating the conditions of probation. This impression had been reinforced by his boss, Keith Simmons, who advised defendant to plead guilty. Thus, defendant argues that he made his decision to waive counsel at the revocation hearing based on a mistake of law, and that the trial court's admonitions were legally insufficient to apprise him of the nature and purpose of the proceedings. If counsel had been present, defendant claims he might have been able to present certain mitigating evidence which was available.

A defendant has the right to counsel at a probation revocation hearing. (Ill. Rev. Stat. 1985, ch. 38, par. 1005-6-4(c).) The defendant can waive this right, but such waiver must be knowingly and understandingly made. (People v. Voight (1977), 52 Ill. App. 3d 832, 836, 368 N.E.2d 165.) A defendant at a probation revocation hearing is entitled to some due process protections, but since such a defendant already stands convicted of the underlying offense, only "minimum" due process protections are required. (Gagnon v. Scarpelli (1973), 411 U.S. 778, 782, 36 L. Ed. 2d 656, 661-62, 93 S. Ct. 1756, 1759-60; People v. Beard (1974), 59 Ill. 2d 220, 225, 319 N.E.2d 745, cert. denied (1975), 421 U.S. 992, 44 L. Ed. 2d 483, 95 S. Ct. 1999.) Accordingly, the supreme court has held that explicit admonishment in conformity with Supreme Court Rule 401(a) (103 Ill. 2d R. 401(a)) in probation revocation proceedings is not required. (People v. Barker (1975), 62 Ill. 2d 57, 59, 338 N.E.2d 385.) The Barker court set up guidelines for admonishing a probation revocation defendant who has expressed a desire to proceed without counsel:

"The circuit court should not permit the offender to waive counsel unless it determines, by addressing him in open court, that the offender understands: (1) the purpose of the revocation proceeding and the nature of the violation of the condition of probation upon which it is based; (2) that he has the right of confrontation, cross-examination and representation by counsel and that if he is indigent he has the right to appointed counsel; (3) the minimum and maximum sentence which may be imposed if the probation is revoked." 62 Ill. 2d 57, 59, 338 N.E.2d 385.

Defendant argues that the admonishments given by the trial court do not comport with the requirements of Barker. Defendant's argument that the court explicitly mentioned only three of the seven "requirements" of Barker misses the mark. The supreme court in Barker rejected strict compliance with Rule 401(a). We do not think the court intended thereby to create a new set of magic words applicable only to probation revocation proceedings. Had it wanted to do so, it could simply have insisted on strict compliance with Rule 401. See People v. Voight (1977), 52 Ill. App. 3d 832, 838, 368 N.E.2d 165.

We think the admonishments given in the instant case adequately comply with Barker. At the beginning of the April 4 hearing, the following colloquy occurred:

"THE COURT: [You're] on probation, Gary, for two separate drunk drivings. And let's see what the State's Attorney's petitions to revoke your probations is [ sic ] based on, that you failed to do your alcohol remedial program and failed to do your public service work in each case.

If this petition is granted and your probations are revoked, you'll receive up to a year in jail, fines of up to $1,000.00 or both in both cases. But you are entitled to a hearing at which they would have to prove these matters, you're entitled to be ...


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