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05/08/97 PEOPLE STATE ILLINOIS v. WILLIAM M.

May 8, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
WILLIAM M. BUTCHER, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County. No. 94CF569. Honorable Thomas R. Appleton, Judge Presiding.

As Corrected September 23, 1997.

Honorable Frederick S. Green, J., Honorable James A. Knecht, J. - Concur, Honorable Robert J. Steigmann, P.j. - Special Concurrence. Justice Green delivered the opinion of the court.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

This case concerns the admonitions a circuit court must give a defendant before accepting an admission by the defendant that the allegations of a petition seeking to revoke the probation previously granted that defendant are true. We are also concerned with defendants raising the issue of error in that regard for the first time on appeal. We recognize that the admonitions need not be as extensive as those required under Supreme Court Rule 402(a) (134 Ill. 2d R. 402(a)) upon acceptance of a plea of guilty. See People v. Beard, 59 Ill. 2d 220, 226-27, 319 N.E.2d 745, 748 (1974). However, under the circumstances shown by the record here, we conclude that the admonitions were insufficient to provide due process, and the issue was properly raised for the first time on appeal.

On February 10, 1995, defendant, William Butcher, entered a plea of guilty in the circuit court of Sangamon County to the offense of felony theft (720 ILCS 5/16-1(a)(2) (West 1994)). On April 7, 1995, that court sentenced defendant to 30 months' probation. After one petition to revoke probation was withdrawn, a second petition to revoke was filed on January 31, 1996. After a hearing on March 8, 1996, where defendant admitted the allegations of the second petition, the circuit court revoked the probation and on March 22, 1996, sentenced defendant to four years' imprisonment with credit for time served. Defendant has appealed. We reverse and remand with directions to permit defendant to withdraw his admission of grounds to revoke.

The problem presented here arises from the proceedings on March 8, 1996. At that time, defense counsel informed the circuit court that defendant was going to admit the allegations of the second petition and "we have an agreement as far as the sentence to propose to the Court." The court responded, "what is that?" Defense counsel then explained that defendant would be sentenced to two years' imprisonment with credit for time served. The court then proceeded as follows:

"THE COURT: All right. The Court will accept -- Well, before I do that, Mr. Butcher, do you understand you have a right to a hearing on the issue of whether or not you violated your probation?

A. [Defendant]: Yes, sir.

THE COURT: And you understand that the People would have the burden of proving by a preponderance of the evidence that you in fact violated your probation?

A. Yes, sir.

THE COURT: You are willing to waive that right?

A. Yes, I am."

The court then stated it would "accept that admission" but would "not accept the proposed negotiation of the parties" and set the matter for sentencing. The court likely concluded the agreement between the State and the defendant was that upon defendant's admission of the probation violation, the State would recommend to the trial court the sentence be two years. However, the language used was ambiguous as to whether defendant was being promised a two-year sentence if he admitted the probation violation. We hold that under these circumstances the trial court was under a duty to inquire as to what was the nature of the promise by the State.

Both the Supreme Court of Illinois and this court have protected defendants subject to petitions to revoke probation from promises the State made to obtain admissions of conduct that are grounds for revocation. In People v. Pier, 51 Ill. 2d 96, 99-100, 281 N.E.2d 289, 291 (1972), the court held that if such a defendant admits a violation of probation "in reliance upon an unfulfilled promise by the State's Attorney," such an admission is "not voluntary." In Beard (59 Ill. 2d at 223-25, 319 N.E.2d at 746-47), that court receded from the broad language of Pier and indicated Pier should not be considered beyond the factual situation it presented. However, in upholding an order revoking a probation, the Beard court pointed out that no contention was made that such a ...


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