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03/23/95 PEOPLE STATE ILLINOIS v. RUSSELL GAZELLE

March 23, 1995

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



The Honorable Justice Heiple delivered the opinion of the court: Justice Nickels, concurring: Justices Freeman and McMORROW join in this concurrence.

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

The defendant, Russell Gazelle, pled guilty to burglary in McLean County in June 1990 and was placed on probation for 42 months. One of the conditions of defendant's probation was that defendant not violate a criminal statute in any jurisdiction. In March of 1992, he was convicted of nine counts of burglary and nine counts of theft in Piatt County and sentenced to five years in the penitentiary on those charges. Thereafter, in June of 1992, a supplemental petition was filed in McLean County to revoke the McLean County probation. The petition was premised on the Piatt County convictions. Attached to the petition was a copy of the records from Piatt County relative to the defendant's conviction and sentence there.

At the hearing on the petition to revoke defendant's probation, defendant was admonished by the judge that he could be sentenced to the penitentiary for the McLean County burglary for a term of not less than three or more than seven years. The defendant indicated that he understood and then admitted to the allegations of the petition. A sentencing hearing was held and the defendant was sentenced to a penitentiary term of five years to be served consecutively to the Piatt County sentence.

On appeal, the defendant objected to the sentence. He claimed that he was misinformed by the judge. He understood the judge's explanation to mean that he could receive a maximum of seven years in prison but not two five-year consecutive sentences, which would be, in effect, 10 years. The appellate court agreed with the defendant. (259 Ill. App. 3d 462.) It held that in order to protect a defendant's due process rights, a trial court must inform the defendant of the possibility of consecutive sentences before the defendant admits to the allegations in a petition to revoke probation. The appellate court reversed the trial court's order revoking the defendant's probation and remanded the cause for a new revocation hearing. We reverse and reinstate the defendant's sentence.

We acknowledge that the explanation given by the trial judge in the probation revocation proceedings may have misled the defendant as to his sentencing exposure. The defendant may have reasoned that, with a five-year sentence already imposed in Piatt County, the longest sentence he could have received from the McLean County proceedings would be an additional two years. However, the defendant's possible confusion is immaterial to the outcome of this case. His admission to the Piatt County convictions in the McLean County revocation proceedings added nothing. Whether the defendant denied the petition, stood mute, or admitted the allegations, the outcome would not have changed. He was on probation for burglary. He had a subsequent conviction for burglary in another county. His probation was violated by that subsequent burglary and he had no defense to the petition to revoke his probation. We can and do take judicial notice of the defendant's convictions in both McLean and Piatt Counties which are part of the record in this case. Reversal and remand of the McLean County probation revocation proceedings for a new revocation hearing would change nothing and would be a waste of judicial time and manpower.

Accordingly, the judgment of the appellate court is reversed. The judgment of the circuit court of McLean County is affirmed.

Appellate court reversed; circuit court affirmed.

The Honorable Justice NICKELS, concurring:

I write separately to address the issue presented for review: whether due process requires a trial court to admonish a probationer of the possibility of consecutive sentences prior to the probationer's admitting facts contained in a petition to revoke probation. I disagree with the majority that this issue need not be addressed because defendant's plea "added nothing" to the proceeding. (Slip op. at 2.) The fourteenth amendment provides: "nor shall any State deprive any person of life, liberty, or property, without due process of law." (U.S. Const., amend. XIV.) The revocation of probation may deprive a probationer of his liberty. Thus, probation may only be revoked, even where evidence is overwhelming against the probationer, where due process of law has been afforded. However, because I believe that due process did not require that defendant be warned of the possibility of consecutive sentences and that defendant did in fact receive all the due process protections to which he was entitled, I concur in the majority's holding reversing the appellate court.

Analysis

The United States Supreme Court has noted that a probationer is entitled to certain due process rights upon revocation of probation. ( Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756.) This court has noted that under Gagnon such rights include the right:

"to written notice of the alleged violation, to disclosure of the evidence against him, to be heard in person and to present testimonial and documentary evidence, to confront and cross-examine adverse witnesses, to be judged by a neutral and detached hearing body, to receive a written statement by the fact finders stating the evidence relied on and the reason for revocation, and, in some instances, to receive assistance of counsel." ( People v. DeWitt (1979), 78 Ill. 2d 82, 85.)

These due process procedures insure that the probationer's "liberty is not unjustifiably taken away." Gagnon, 411 U.S. at 785, 36 ...


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