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03/03/94 PEOPLE STATE ILLINOIS v. RUSSELL GAZELLE

March 3, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RUSSELL GAZELLE, DEFENDANT-APPELLANT.



Appeal from Circuit Court of McLean County. No. 90CF89. Honorable W. Charles Witte, Judge Presiding.

Petition for Leave to Appeal Allowed June 2, 1994.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, J., Honorable Robert W. Cook, J.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

The sole issue presented by this appeal is whether the trial court can impose a consecutive sentence upon a defendant who admitted to a petition to revoke his probation when the court did not admonish him at the time of his admission of the possibility of a consecutive sentence. We hold that the court may not impose consecutive sentences under these circumstances.

I. BACKGROUND

In June 1990, defendant, Russell Gazelle, pled guilty to burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19-1(a)), and the trial court sentenced him to 42 months of probation subject to certain conditions. In September 1991, the State filed a petition to revoke defendant's probation. In June 1992, the State filed a supplemental petition to revoke. In August 1992, defendant admitted to the allegations in the supplemental petition, and the State dismissed the initial petition. In November 1992, the court conducted a sentencing hearing, revoked defendant's probation, sentenced him to five years in prison, and ordered that sentence to be served consecutively to a five-year sentence previously imposed in an unrelated Piatt County case.

II. ANALYSIS

With one exception, defendant concedes that the trial court correctly admonished him during the August 1992 hearing when he admitted to the allegations contained in the petition to revoke probation. The exception arises because the court did not inform defendant that as a result of his admission, the court could impose consecutive sentences. Instead, as defendant points out, the court told him that if he admitted to the State's petition, he could "be sentenced to the Illinois State Penitentiary for the original burglary in this case for a term of not less than three nor more than seven years." Thus, defendant argues that the court erred by sentencing him in effect to 10 years in prison--5 years upon the revocation of his probation to be served consecutively to the 5-year sentence imposed in Piatt County. Defendant asserts that this 10-year prison sentence exceeds by three years the maximum sentence the court had informed him it could impose.

The State responds as follows:

"While it may be the better practice to fully admonish a defendant of the potential penalties, including consecutive sentences, before accepting an admission to violating probation, 'minimum' due process safeguards are just that--the minimum protections due a convicted defendant who has been placed on probation. These basic procedural safeguards were observed here."

In support of this argument, the State cites the decision of the Second District Appellate Court in People v. Hoyt (1984), 129 Ill. App. 3d 331, 336-37, 472 N.E.2d 568, 571-72, 84 Ill. Dec. 608, and a decision of the Arizona Supreme Court in State v. Allie (1985), 147 Ariz. 320, 330, 710 P.2d 430, 440. The Hoyt court wrote that "an admonition on the possibility of the imposition of a consecutive sentence is not required by Illinois statute or the Supreme Court Rules to be given to a probationer prior to the receipt of an admission to allegations in a petition to revoke probation" even though the defendant in fact received consecutive sentences. ( Hoyt, 129 Ill. App. 3d at 337, 472 N.E.2d at 572.) Allie took the same position. We respectfully disagree with these decisions and decline to follow them.

In People v. Pier (1972), 51 Ill. 2d 96, 99-100, 281 N.E.2d 289, 291, the Supreme Court of Illinois addressed probation revocation proceedings as follows:

"The consequences of a determination that the probation order has been violated are so serious that the appellate courts have surrounded the defendant at a revocation hearing with many of the same due-process safeguards that are accorded to a defendant [at] a trial to determine his guilt. [Citations.] Since the results of a probation revocation may be a deprivation of liberty and, consequently, as serious as the original determination of guilt, we agree with the holdings of these cases that due process of law requires that a defendant charged with having violated his probation be entitled to a conscientious judicial determination of the charge according to accepted and well[-]recognized procedural methods. * * * Justice demands that he also be entitled to the protection of the same due-process ...


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