Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Pike County, the Hon. Thomas L. Brownfield, Judge, presiding.
The Honorable Justice McMORROW delivered the opinion of the court. Justice Miller, concurring in part and dissenting in part. Chief Justice Heiple joins in this partial concurrence and partial dissent. Justice Bilandic, also concurring in part and dissenting in part. Chief Justice Heiple joins in this partial concurrence and partial dissent.
The opinion of the court was delivered by: Mcmorrow
The Honorable Justice McMORROW delivered the opinion of the court:
The sole question presented for our review in the instant case is whether section 5-6-3(b) of the Unified Code of Corrections (Code) (730 ILCS 5/5-6-3(b) (West 1994)) authorizes a trial court to order, as a condition of probation, that the defendant post a large sign at all entrances to his family farm which reads "Warning! A violent felon lives here. Enter at your own risk!" The appellate court affirmed the trial court's imposition of this condition (277 Ill. App. 3d 784, 661 N.E.2d 526, 214 Ill. Dec. 672), and defendant appealed (134 Ill. 2d R. 612). We reverse, and hold that the trial court exceeded the scope of its sentencing authority because posting a sign of this type is not a reasonable condition of probation under section 5-6-3(b) of the Code. Therefore, we vacate the order of the circuit court in part.
Following a jury trial, the defendant, Glenn Meyer, was convicted of aggravated battery of Gary Mason. The trial testimony showed that on February 25, 1995, Gary Mason visited the defendant's farm in order to return some vehicle parts that he purchased from the defendant. Mason and the defendant began to quarrel over whether the parts were functioning properly. During the argument the defendant swung one of the parts at Mason, striking him in the nose and eye, causing several injuries.
At the defendant's sentencing hearing, evidence was presented in aggravation and mitigation. On behalf of the State, Tim Belford testified that in September 1986, he went to the defendant's farm in order to collect monies for two insufficient fund checks issued by defendant to Belford's employer, the First National Bank of Pittsfield. Belford stated that the defendant eventually gave him the money, but then kicked him and ordered him off of the farm. Belford acknowledged that a jury acquitted the defendant of aggravated battery charges stemming from this incident.
Next, Harry Dyel testified that in May of 1990, he went to the defendant's farm on behalf of his employer, Shelter Insurance Company, in order to investigate a claim filed by the defendant. Dyel testified that the defendant became hostile because he was annoyed by the company's failure to process his claim promptly. Dyel stated that after he attempted to comply with the defendant's demands for payment, the defendant pushed him down and kicked him several times, causing injuries to his torso, arms, face and head. The defendant was convicted of the aggravated battery of Dyel. Finally, Gary Mason, the victim in the present case, testified regarding the defendant's actions on February 25, 1995.
Several witnesses testified in mitigation. Kenwood Foster testified that he is a licensed clinical social worker who operates a private counselling service. The defendant began seeing Foster in the fall of 1991. Foster testified that doctors at several different clinics have diagnosed the defendant as having "major depressive disorder" or clinical depression. Foster further stated that he believes that the defendant may also suffer from a condition similar to a type of post-traumatic stress disorder. He indicated that the defendant has been taking prescription medication known as Zoloft, to control his illness.
Foster further testified that certain stresses, such as a perceived threat to the defendant or his family, could trigger a change in the defendant's behavior. Foster acknowledged that the defendant may perceive certain behavior as threatening, even if the average individual would not feel threatened under similar circumstances.
Friends of the defendant, Gregg Smith, David Gratton and Bruce Lightle, also testified. All three described the defendant's good character and reputation within the community.
Mary Meyer, the defendant's wife of 36 years, testified that the defendant's elderly mother relies on the defendant, her only child, for care and assistance. Mrs. Meyer stated that she teaches high school, and has always relied on the defendant to manage the farm. She indicated that her family would suffer great hardship if the defendant were incarcerated. Mrs. Meyer also testified regarding the defendant's prolonged psychological illness and his efforts to control his sickness with medication.
In addition to the testimony of the witnesses, 20 letters were submitted by individuals from throughout the defendant's community. These letters chronicle examples of the defendant's generosity and willingness to assist friends and neighbors in need. The letters contain many descriptions of the defendant's good character and reputation.
Additionally, the presentence investigation report contains a detailed description of the defendant's mental health history. Several psychological evaluations of the defendant, dating from 1989, show that he suffers from major depressive disorder and possibly an additional psychological malady.
Upon evaluating all of the evidence in mitigation and aggravation, the trial court sentenced the defendant to 30 months' probation. The court considered the defendant's family members and the adverse impact that incarceration would have upon them. The court stated that it considered that the defendant was 62 years old, his mother's age and ill-health, and Mary Meyer's need to have the defendant care for the farm, in deciding to sentence the defendant to probation instead of prison.
The court conditioned defendant's probation on the following: (1) payment of $9,615.95 in restitution, (2) payment of a $7,500 fine, (3) payment of a $25 monthly probation services fee, (4) psychological psychiatric evaluation and treatment, (5) one-year home confinement and (6) the placement of a "violent felon" warning sign at each entrance to the defendant's property for the duration of the probation period. With respect to the sign requirement, the court stated that it believed that "maybe [the sign] will protect society." The court's supplemental order regarding the sign provides:
"As a condition of probation defendant shall erect and maintain at each entrance of his property a 4' X 8' sign with clearly readable lettering at least 8" in height reading: 'Warning! A Violent Felon lives ...