Appeal from Circuit Court of Vermilion County No. 92CF384 Honorable Thomas J. Fahey, Judge Presiding.
Knecht, Justice Garman, P.j., and Steigmann, J., concur.
The opinion of the court was delivered by: Justice Knecht
On November 8, 1993, defendant, Thereon Bell, pleaded guilty to burglary. Ill. Rev. Stat. 1991, ch. 38, par. 19-1. On December 28, 1993, the trial court sentenced defendant to 30 months' probation, 50 hours of community service, a $25 monthly probation service fee when he was employed, $173 in court costs and $100 public defender's fee.
A petition to revoke defendant's probation was filed on June 18, 1996, alleging defendant failed to pay court costs, probation service fees and the public defender's fee. A hearing was held on the petition to revoke probation on December 6, 1996. Over defendant's objection, the State called defendant as its only witness. Defendant testified he knew he had been ordered to pay costs, probation fees, and a public defender fee but had not done so. The trial court found defendant had violated the terms of his probation and revoked it.
On February 14, 1997, defendant was sentenced to another 30-month term of probation, including 50 days in jail and 50 hours of community service. He was ordered to pay a $10 monthly probation fee in addition to the $25 monthly fee owed from the original term of probation, costs of $173 and a public defender's fee of $100. Defendant appeals, claiming forcing him to testify at the probation revocation hearing violated his fifth amendment privilege against self-incrimination and violated his due process rights to a fundamentally fair hearing; and the trial court erred in assessing a public defender's fee without holding a hearing to determine his ability to pay the fee. We find no violation of defendant's fifth amendment and due process rights but vacate the recoupment order and remand for the purpose of holding a hearing to determine defendant's ability to pay the assessed public defender fees.
There are no factual or credibility issues in this case. It is appropriate to conduct de novo review. People v. Dilworth, 169 Ill. 2d 195, 201, 661 N.E.2d 310, 314 (1996). Defendant acknowledges this court has held calling a defendant as a witness at a probation revocation hearing does not violate the fifth amendment to the United States Constitution providing the testimony elicited would not incriminate the defendant in any other proceeding. People v. Martin, 226 Ill. App. 3d 753, 759, 589 N.E.2d 815, 818 (1992). Defendant requests this court to reconsider its ruling and grant him a new revocation hearing.
A probation revocation proceeding is non-criminal. People v. Neckopulos, 284 Ill. App. 3d 660, 665, 672 N.E.2d 757, 761, (1996), citing Minnesota v. Murphy, 465 U.S. 420, 435-36 n.7, 79 L. Ed. 2d 409, 425 n.7, 104 S. Ct. 1136, 1146-47 n.7 (1984), citing Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973). Section 115-16 of the Code of Criminal Procedure of 1963 (Code) bars the State from calling a defendant as a witness absent a request on the part of the defendant (725 ILCS 5/115-16 (West 1996)). However, there is no barrier against a party to a civil action being called to testify on behalf of the other party. Defendant argues a probation revocation results in significant deprivation of liberty and, therefore, a probationer should not be deprived of the protections provided by the fifth amendment privilege against self-incrimination simply because a probation revocation is non-criminal.
A probation revocation proceeding has not been arbitrarily labeled a non-criminal proceeding. A sentence of probation is a form of agreement between a defendant and the criminal Justice system with severe consequences if the agreement is broken. People v. Brown, 137 Ill. App. 3d 453, 455, 484 N.E.2d 945, 946 (1985). Defendant argues probation revocation proceedings share many characteristics with a criminal trial such as written charges, the right to be heard, the right to confront and cross-examine witnesses and a burden of proof placed on the State. In fact the burden of proof required of the State in proving a violation of probation is only preponderance of the evidence. 730 ILCS 5/5-6-4(c) (West 1996). All of these characteristics, taken together, are no different from those found in civil proceedings. See City of Chicago v. Shell Oil Co., 29 Ill. 2d 136, 140, 193 N.E.2d 759, 761 (1963); Diamond Mortgage Corp. v. Armstrong, 176 Ill. App. 3d 64, 69, 530 N.E.2d 1041, 1044 (1988); Lakeview Trust & Savings Bank v. Estrada, 134 Ill. App. 3d 792, 808, 480 N.E.2d 1312, 1324 (1985).
A defendant in a non-criminal proceeding has no privilege against self-incrimination. Defendant presents no persuasive reason to hold a probation revocation hearing is not a civil proceeding and to overrule our decision in Martin.
Defendant disputes the correctness of our decision in Martin, but also contends this case does not come within the holding of Martin. Defendant argues forcing him to testify he failed to pay the assessed public defender fee forced him to incriminate himself for contempt of court and thus, his testimony would incriminate him in another proceeding, a situation that we held in Martin would be violative of a defendant's fifth amendment right. Martin, 226 Ill. App. 3d at 759, 589 N.E.2d at 818. The precise language used by the court in Martin was:
"[W]e hold that consistent with the fifth amendment to the United States Constitution, the State may call a defendant to testify at a probation revocation hearing to elicit testimony which would show that the defendant had violated conditions of his probation but which would not incriminate him in any other proceedings." (Emphasis added.) Martin, 226 Ill. App. 3d at 759, 589 N.E.2d at 818.
Defendant argues for a generous definition of the term "any" to modify "other proceedings." He notes a defendant who fails to obey an order of the court to reimburse the county for appointed counsel "may be punished for contempt of court." 725 ILCS 5/113-3.1(g) (West 1996). As this statute specifically states it is intended to punish the defendant who fails to pay the assessed public defender fees, defendant contends it refers to criminal contempt and not civil contempt. See Marcisz v. Marcisz, 65 Ill. 2d 206, 209, 357 N.E.2d 477, 479 (1976), quoting People ex rel. Chicago Bar Ass'n v. Barasch, 21 Ill. 2d 407, 409-10, 173 N.E.2d 417, 418-19 (1961). The nonpayment of the fee would constitute an indirect contempt, which is defined as contempt "in which the whole or an essential part of the contemptuous acts occur out of the presence of the court." People v. Javaras, 51 Ill. 2d 296, 300, 281 N.E.2d 670, 672 (1972).
An indirect contempt proceeding is initiated by informing the alleged contemnor of the charges against him by information, notice citation, or rule to show cause. Javaras, 51 Ill. 2d at 300, 281 N.E.2d at 672. A probationer cannot be held in contempt when the only charging instrument filed is a petition to revoke probation. See People v. Boucher, 179 Ill. App. 3d 832, 835-836, 535 N.E.2d 56, 58-59 (1989). Thus, defendant argues a later contempt proceeding must be a proceeding separate from the revocation.
Contempt proceedings, however, while called either civil or criminal, are actually neither. Chicago Bar Ass'n, 21 Ill. 2d at 409, 173 N.E.2d at 418. "Proceedings in the nature of criminal contempt have been defined as those directed to preservation of the dignity and authority of the court ***." Chicago Bar Ass'n, 21 Ill. 2d at 409, 173 N.E.2d at 418. The intent of the court in Martin was not that "other proceedings" refer to a contempt proceeding enforcing a trial court's authority in the case before it but that it refer to other criminal charges. The Martin court discussed Murphy, where the Supreme Court held if questions put to a probationer, relevant to his probationary status, also call for answers that would incriminate him in a pending or later criminal ...