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08/23/96 PEOPLE STATE ILLINOIS v. DEBORAH J.

August 23, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DEBORAH J. NECKOPULOS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court, of the 21st Judicial Circuit, Kankakee County, Illinois, No. 93--CF--552 and 94--CF--372. Honorable John Michela, Judge, Presiding.

Released for Publication December 13, 1996. As Modified on Denial of Rehearing November 8, 1996.

Present - Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice. Justice Slater delivered the opinion of the Court: McCUSKEY, J., concurring. Justice Lytton, specially concurring.

The opinion of the court was delivered by: Slater

MODIFIED UPON DENIAL OF REHEARING

The Honorable Justice SLATER delivered the opinion of the Court:

Deborah Neckopulos was charged with unlawful possession of a controlled substance. 720 ILCS 570/402(c) (West 1994). While on bond for this offense, Neckopulos was charged with another count of unlawful possession of a controlled substance. 720 ILCS 570/402(c) (West 1994). Neckopulos entered negotiated pleas of guilty to both charges in exchange for the State's agreement not to object to her placement in TASC. Neckopulos was sentenced to concurrent 36 month terms of probation conditioned upon her compliance with the TASC program. The State subsequently filed a petition to revoke her probation for failure to co-operate with TASC resulting in her discharge from the program. After a hearing, the trial court revoked Neckopulos' probation and sentenced her to consecutive sentences of one and three years. Neckopulos appeals the order revoking her probation in each case.

Neckopulos raises the following issues on appeal: (1) whether the trial court erred in revoking her probation because evidence presented by the State demonstrated that her failure to attend TASC meetings was not wilful, (2) whether the trial court erred in revoking her probation because evidence presented by the State demonstrated that she did not have a meaningful opportunity to begin drug treatment for her addiction due to her attendance at only two meetings, (3) whether the trial court erred by permitting the State to call her as a witness during the probation revocation hearing in violation of the Criminal Jurisprudence Act (725 ILCS 125/6 (West 1994)) and, (4) whether the trial court violated her fifth amendment privilege against self-incrimination when he compelled her to testify for the State regarding her failure to attend TASC.

At the probation revocation hearing, the court took judicial notice of the fact that Neckopulos was placed on probation conditioned upon her compliance with the TASC program, and that the alleged violation was noncompliance with that condition.

The State called Neckopulos as its sole witness. Neckopulos objected to being called as a witness, invoking her fifth amendment privilege against self-incrimination. The trial court ruled that the privilege was unavailable to her because the hearing did not involve a criminal offense, but rather only a non-criminal allegation of a probation violation. Over Neckopulos' standing objection, the trial court ordered Neckopulos to take the stand.

Neckopulos testified that she had been placed on probation and, as a condition thereof, was obligated to comply with TASC. She also indicated her awareness that the TASC treatment would last 36 months. She stated that she attended Duane Dean Recovery Unit (Duane Dean) as directed by TASC. She was, however, unable to recall either when she visited Duane Dean or the number of those visits. She subsequently stated that she attended on approximately six occasions. She admitted that she stopped attending Duane Dean though she was not directed to do so by TASC.

When again asked by the State whether she was aware that treatment was likely to last for an extended period, Neckopulos responded in the negative and indicated that she had no memory of the State's earlier question concerning the duration of her treatment. Her explanation for this memory failure was that she was an addict whose "brains are not quite right."

She clarified that she was unable to remember the number of times she attended Duane Dean because she was almost constantly high during that time period. She was not aware that she was required to remain in contact with TASC. She explained that she did not report to TASC because she was unable to think when on cocaine. She was not only unaware of the dates of her appointments, she was unaware what day it was. Finally, Neckopulos testified that despite her efforts she has been unsuccessful in both in-patient and out-patient treatment.

The trial court found that by her failure to comply with the TASC mandate to complete a course of treatment at Duane Dean, Neckopulos wilfully failed to comply with the terms of probation. The reason for her failure was that her addiction to cocaine deprived her of the reasoning to comply.

Neckopulos first argues that the revocation of her probation was improper because the evidence presented by the State failed to demonstrate that her probation violation was wilful. Neckopulos' argument assumes that the State must prove that the probationer wilfully conducted herself in violation of the conditions of probation in order for probation revocation to be proper. This underlying ...


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