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07/16/87 the People of the State of v. Terry E. Cozad

July 16, 1987





511 N.E.2d 211, 158 Ill. App. 3d 664, 110 Ill. Dec. 376 1987.IL.997

Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.


JUSTICE KNECHT delivered the opinion of the court. SPITZ, P.J., and LUND, J., concur.


On April 8, 1986, defendant, Terry E. Cozad, pleaded guilty to one count of burglary and was sentenced to three years' probation. The initial period of probation was to be served with the Champaign County Intensive Probation Service . His probation was revoked on June 23, 1986, for two curfew violations on June 10 and 11, 1986. He was resentenced to a term of imprisonment for five years. Defendant appeals from the order revoking probation. He contends the revocation and resulting sentence represented an abuse of discretion by the trial Judge. He also raises issues relating to reimbursement of attorney fees and due process.

The defendant was arrested on January 9, 1986, and charged with one count of burglary and one count of theft with a prior theft conviction in violation of sections 19-1 and 16-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, pars. 19-1, 16-1). Charges resulted from a January 9 burglary at Van's Pit Stop in Champaign.

The defendant, at the initial appearance on January 10, asked for a court-appointed attorney and filed an affidavit in support of his request. The affidavit stated defendant was unemployed, had last worked as a dishwasher, and did not expect to be called back to work. He had no other income, lived with his father, owned a necklace worth $40, and possessed $1.30 in cash. He owed $600 in court costs.

In response to the Judge's inquiry at the initial appearance, the defendant told the court he was unemployed, had worked temporarily at his father's place of employment on and off for about a year, and made $8.50 an hour when he did work. The defendant worked one day in December, for which he was paid about $50, and had not worked during the month of January. Counsel was appointed for the defendant.

The court then informed the defendant it was entering an order requiring defendant to reimburse Champaign County $1,000 for the services of the court-appointed attorney. He stated the total fees or monthly payment amounts could increase or decrease, and the purpose of the order was to get the defendant to begin paying for the court-appointed attorney.

On April 8 defendant waived a jury trial and pleaded guilty to the burglary charge. He was sentenced to three years' probation, the initial period to be served with the Champaign County Intensive Probation Supervision unit . He was also ordered to pay court costs. The theft charge was dismissed.

The certificate of IPS probation dated April 8, 1986, provided, inter alia, that defendant must comply with all curfew conditions established in writing, and report as directed in writing by a probation officer. Defendant was also required to attend and participate in counseling and treatment programs as directed. He was ordered to report for public service work should he lack gainful employment. Defendant signed a certificate of service on April 8, 1986, which stated that he fully understood the rules and provisions of his probation.

A 7 p.m. to 7 a.m. curfew was imposed in writing on April 8, 1986. Defendant was ordered to remain at his residence in Champaign during those hours. On May 8, 1986, defendant was directed as an additional condition of probation to seek evaluation and treatment by contacting Prairie Center or L.W.'s Place. He was ordered not to consume or possess any alcoholic beverages. An addendum to the presentencing report indicated that the defendant appeared at L.W.'s Place on May 30, 1986, and was given paperwork to fill out before reporting back to complete the evaluation. Defendant never returned.

At 11:32 p.m. on June 11, 1986, defendant was arrested in Urbana for violation of IPS probation. The State filed a petition to revoke probation on June 12, alleging the defendant violated his curfew on June 10 and 11. At a revocation hearing held on June 23, 1986, Robert Schwieter, supervisor of the Champaign County Intensive Probation unit, identified a standard curfew slip bearing the defendant's signature dated April 8 indicating that defendant understood his curfew requirements.

Patrick Connolly, a surveillance officer with the Champaign County IPS, testified he conducted a curfew check at defendant's residence June 10 at 8:58 p.m. Defendant was not present. Connolly returned at 10:22 p.m., but defendant was not at home.

Ted Kramer, an IPS surveillance officer, testified that on June 11 he went to 65 Northwood Drive, Urbana, at 11:32 p.m., and arrested the defendant for violating the IPS conditions. Kramer stated the defendant spoke clearly and walked to the vehicle under his own power with a steady gait.

The defense offered no evidence at the revocation hearing. The trial Judge found the allegations of the petition had been proved. A presentence investigation and report were ordered and the Judge continued the case for sentencing.

No further evidence was offered at the sentencing hearing. Defense counsel stated defendant's failure to complete the alcohol counseling was due to his inability to pay a required fee. The Judge offered defendant an opportunity to address the court. Defendant admitted the curfew violation, stated it was alcohol related, and said he thought prison would do him more harm than good, since he ...

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