Appeal from Circuit Court of McLean County No. 95CF107 Honorable John B. Huschen, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
In July 1995, defendant, Joseph J. Goleash, Jr., pleaded guilty to deceptive practices (720 ILCS 5/17-1 (West 1994)) and received a probationary sentence. In December 1998, the State filed a petition to revoke defendant's probation, alleging that he violated a criminal statute by driving a car while his license was revoked (DWR) (625 ILCS 5/6-303 (West Supp. 1997)). Defendant admitted that he had done so, and the trial court scheduled a resentencing hearing for March 1999. At that hearing, the court discharged defendant's probation but found him guilty of indirect criminal contempt and sentenced him to 120 days in jail for contempt.
Defendant appeals, arguing that (1) he did not violate the conditions of his probation because DWR is not a "criminal" offense and (2) the trial court erred by convicting and sentencing him for indirect criminal contempt when (a) the only charging instrument against him was the State's petition to revoke probation and (b) he did not receive proper admonitions under Supreme Court Rule 402(a) (177 Ill. 2d R. 402(a)) when he admitted his DWR. We affirm in part and reverse in part.
After defendant pleaded guilty in July 1995 to deceptive practices, the trial court sentenced him to 24 months' probation, to begin when his prison sentences from an unrelated case ended. As a condition of his probation, he was not to violate "any criminal statute of any jurisdiction" (see 730 ILCS 5/5-6-3(a)(1) (West Supp. 1995)). In November 1995, defendant began serving his probationary sentence.
In September 1997, while still on probation, defendant was arrested for driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a) (West Supp. 1997)). In November 1997, the State filed a petition to revoke defendant's probation. In February 1998, the trial court found defendant in violation of a condition of his probation and later extended his probation until January 1999.
In October 1998, defendant committed the offense of DWR (625 ILCS 5/6-303 (West Supp. 1997)). In December 1998, the State filed a second petition to revoke defendant's probation based upon the October 1998 offense. The State's petition concludes as follows:
"WHEREFORE, [p]petitioner pray[s] that the probation of the defendant *** be revoked and that defendant be sentenced under the original judgment of the [c]court, or in the alternative for such other relief as the [c]court may deem just, including but not limited to the defendant being found in contempt of this court for wilfully violating the [c]court's probation order and the defendant being sentenced for such contempt."
In February 1999, defendant appeared for an arraignment on the State's petition and, through counsel, defendant offered to stipulate that he had committed the DWR. However, defendant contended that DWR was not a "criminal" offense and, therefore, not a violation of the conditions of his probation. The court then engaged in the following colloquy with defendant:
"THE COURT: *** You understand, [defendant], you are not required to admit those two [sic] allegations?
DEFENDANT: I do, your honor.
THE COURT: You understand you can require the State prove those allegations, and the burden of proof is proof by the preponderance of the evidence.
THE COURT: You understand that if you admit the allegations [and] the [c]court finds that this indeed was a violation of your probation, you would be resentenced on the charge of deceptive practices ***?
DEFENDANT: *** It is my understanding that I will be able to have a hearing, and mitigating and aggravating ...