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05/13/94 PEOPLE STATE ILLINOIS v. CHARLES GILKEY

May 13, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CHARLES GILKEY, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN A. WASILEWSKI, JUDGE PRESIDING.

Rehearing Denied June 29, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Murray, McNULTY, Cousins, Jr.

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

Defendant Charles Gilkey (Gilkey) was found guilty of violating his order of probation and was sentenced to 14 years' incarceration with the Illinois Department of Corrections. He appeals his conviction and sentence raising four issues: (1) whether his waiver of the right to counsel (Gilkey represented himself pro se at the revocation hearing) was valid; (2) whether the trial court abused its discretion in revoking his probation; (3) whether his sentence is improper; and (4) whether the credit allotted to him for time served was incorrectly calculated. The facts of the case are recounted below:

On July 17, 1990, Gilkey entered a plea of guilty to the charge of burglary and was sentenced to five years' probation. The order of probation included the requirement that Gilkey submit to long-term inpatient care for his admitted addiction to heroin, cocaine and alcohol. The order indicated that Gilkey was to be committed immediately to Hines Veterans Administration Hospital so that he could commence his inpatient treatment and that he subsequently be committed to North Chicago Veterans Administration Hospital for long-term in-patient treatment.

The record indicates that Gilkey successfully completed the treatment program offered at Hines, which is a short-term program lasting only 21 or 28 days. However, for reasons unknown, he did not enter the long-term in-patient treatment program at North Chicago V.A. Hospital upon his release from Hines. Instead, Gilkey returned to his addiction and life of crime to support it. Five months later, on December 20, 1990, he was arrested and taken into custody, charged with committing a burglary on December 19, 1990. Thereafter, on March 11, 1991, the State filed a petition charging Gilkey with violating probation. The petition alleged the following:

(1) that on August 14, 1990, Gilkey was arrested and charged with the offense of retail theft, that the case was continued until October 5, 1990, at which time hefailed to appear before the court and a $5,000 bond forfeiture warrant was issued,

(2) that on November 16, 1990, Gilkey was arrested and charged with the offense of possession of a stolen motor vehicle, that the case was continued until November 28, 1990, at which time he failed to appear before the court and a $2,000 bond forfeiture warrant was issued,

(3) that Gilkey was refused admittance for drug treatment through the V.A. Hospitals and that attempts to place him in alternative drug programs were unsuccessful due to Gilkey's failure to keep scheduled appointments,

(4) that Gilkey failed to report to the Adult Probation Department as ordered by the court, his last report to probation being November 15, 1990.

On September 20, 1991, Gilkey appeared in court on the charge of violation of probation. He informed the court that he wished to represent himself and proceed without the assistance of counsel. Gilkey was fully admonished as to the charges he was facing, the entire realm of possible penalties and the rights he possessed under the law. After Gilkey was admonished and he remained steadfast in his desire to represent himself, the court agreed that Gilkey could proceed pro se, although the court appointed the public defender as standby counsel to be available to assist Gilkey if necessary. The court then granted Gilkey a continuance until October 28, 1991, to prepare for the violation of probation hearing.

The half-sheet indicates that on October 28, 1991, the State indicated that it would elect to proceed on paragraph 2 of the violation of probation petition, but that nothing more took place. After one other continuance, Gilkey appeared before the court on December 12, 1991, at which time the State filed a supplemental petition for violation of probation, alleging the burglary that Gilkey was charged with committing on December 19, 1990. The State also indicated at this time that it would be changing its election and would proceed on the violation of probation based on the allegation in the supplemental petition. The court allowed the State to file the supplemental petition, over Gilkey's objection. The court also noted that the underlying burglary charge alleged in the supplemental petition was a pending case before Judge Manion and that Gilkey had answered ready in that case and was demanding trial. Therefore, there appeared no reason why they should not be able to proceed on the violation of probation hearing charging the same underlying offense. Nevertheless, the court granted Gilkey's request for another continuance to prepare to respond to the violation of probation alleged in the supplemental petition.

The violation of probation hearing was finally held on January 21, 1992. The State presented evidence which indicated that Gilkey committed the offense of burglary on December 19, 1990, and the court found that the State had proven, not only by a preponderanceof the evidence but beyond a reasonable doubt, that Gilkey had violated the terms of his probation by ...


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