Appeal from Circuit Court of Vermilion County No. 99CF99 Honorable Thomas J. Fahey, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Steigmann
In May 1999, defendant, Jerry L. Lindsey, pleaded guilty to one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 1998)). In July 1999, the trial court sentenced him to four years' "sex[-]offender specific" intensive probation subject to various conditions, including that he serve 364 days of work release. In February 2000, the trial court granted the State's petition to revoke defendant's probation and subsequently resentenced him to another 4 years' probation and 364 days' work release.
Defendant appeals, arguing that (1) his being forced to testify as a witness for the State at his probation revocation hearing violated (a) his privilege against self-incrimination under the fifth amendment to the United States Constitution and article I, section 10, of the Illinois Constitution (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10), and (b) his due process rights under the fifth amendment to the United States Constitution and article I, section 2, of the Illinois Constitution (U.S. Const., amend. V; Ill. Const. 1970, art. I, §2); and (2) the trial court erred by not granting him "day-for-day" credit for time he served in custody. We affirm.
The State's January 2000 petition to revoke defendant's probation alleged that defendant violated a condition of his probation by signing out of the jail where he was serving his work release on two occasions when he was not authorized to do so. At the January 2000 hearing on that petition, the evidence showed that defendant had been allowed to leave the jail daily to attend sex-offender treatment at the Prairie Center. LeAnn Chexem, a counselor at the Prairie Center, testified that defendant completed the first phase of his treatment on December 30, 1999, and she told defendant that from that point forward (1) he would be attending counseling three days a week instead of five, and (2) his sessions would begin at 10 a.m. rather than 9 a.m.
According to the State's petition, (1) on January 3, 2000, defendant signed out of the jail 1 1/2 hours prior to his scheduled appointment at the Prairie Center, and (2) on January 4, 2000, he signed out of the jail in the morning even though he did not have an appointment at the Prairie Center.
The State called defendant as an adverse witness. Over defense counsel's objection, defendant testified regarding the circumstances of his signing out of the jail on the two dates in question.
The trial court found that defendant had violated the terms of his probation. Following the February 8, 2000, sentencing hearing, the court resentenced defendant as stated with no credit for time previously served on probation. On February 22, 2000, defendant filed a motion to reconsider all findings. In March 2000, the trial court conducted a hearing on defendant's motion and denied it. This appeal followed.
A. Defendant's Privilege Against Self-Incrimination
Defendant first argues that being forced to testify at his probation revocation hearing violated his right not to incriminate himself under the fifth amendment of the United States Constitution and article I, section 10, of the Illinois Constitution (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10). We disagree.
Where no fact or credibility issues are involved, we apply a de novo standard of review. People v. Dilworth, 169 Ill. 2d 195, 201, 661 N.E.2d 310, 314 (1996).
In People v. Martin, 226 Ill. App. 3d 753, 589 N.E.2d 815 (1992), this court addressed whether the defendant's fifth amendment privilege against self-incrimination was violated when the State called him to testify at his probation revocation hearing. Relying on Minnesota v. Murphy, 465 U.S. 420, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984), Allen v. Illinois, 478 U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct. 2988 (1986), People v. Davis, 216 Ill. App. 3d 884, 576 N.E.2d 510 (1991), and Professor LaFave (3 W. LaFave & J. Israel, Criminal Procedure §25.4, at 164 (1984)), we held that a defendant's fifth amendment privilege against self-incrimination was not violated by the State's calling him to testify at his 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." Martin, 226 Ill. App. 3d at 759, 589 N.E.2d at 818.
Defendant now urges us to reconsider Martin in light of the Second District Appellate Court's recent decision in People v. McNairy, 309 Ill. App. 3d 220, 721 N.E.2d 1200 (1999). In that case, the defendant was called to testify as an adverse witness for the State at his probation revocation hearing. McNairy, 309 Ill. App. 3d at 221, 721 N.E.2d at 1201. The defendant argued on appeal that article I, section 10, of the Illinois Constitution confers a privilege against ...