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People v. Lindsey

May 23, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
JERRY L. LINDSEY, APPELLANT.



The opinion of the court was delivered by: Justice Fitzgerald

UNPUBLISHED

Docket No. 91381-Agenda 14-January 2002.

Defendant, Jerry L. Lindsey, pleaded guilty to the charge of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 1996)) and was placed on sex offender specific intensive probation for a period of four years, and further sentenced to 364 days of work release. Under the terms of his work release, defendant was confined to the Vermilion County Public Safety Building and only released from confinement to perform 200 hours of public service work and attend counseling. Under the terms of his sex offender specific intensive probation, defendant attended counseling at the Prairie Center Health Systems (Prairie Center). He began his treatment in the daytime intensive outpatient group, scheduled to meet between 9 a.m. and noon, Monday through Friday, for a period of five weeks. On December 30, 1999, defendant successfully completed his intensive treatment and was ordered to attend follow-up outpatient treatment. Defendant's outpatient sessions were scheduled to meet each Monday from 10 a.m. until 11:30 a.m., beginning Monday, January 3, 2000.

On January 7, 2000, the State filed a petition to revoke defendant's probation. The petition stated that defendant violated probation by signing out of the county jail 1½ hours before his scheduled counseling session on January 3, 2000, and by signing out of the county jail on January 4, 2000, when counseling was not scheduled. At the hearing to revoke defendant's probation, the State called four witnesses: two Prairie Center counselors, defendant's probation officer, and defendant. LeAnn Chexem, an adult addiction counselor at the Prairie Center, testified that defendant completed the intensive program and was enrolled in the follow-up program, beginning January 3, 2000. A second counselor testified that she did not observe defendant at the Prairie Center until 10 a.m. on January 3, 2000. Defendant's probation officer testified and described the terms of defendant's probation and work release, including the conditions and terms for signing out of the Vermilion County Public Safety Building. When called as an adverse witness, defendant testified about his conduct on January 3 and 4, 2000.

Following the revocation hearing, on February 8, 2000, defendant's probation was revoked, and defendant was resentenced to another four years' intensive probation and 364 days of work release to be served at the Vermilion County Public Safety Building. The trial court denied defendant's motion to reconsider the sentence. The appellate court affirmed the judgment of the trial court (319 Ill. App. 3d 586), and we granted defendant's petition for leave to appeal (see 177 Ill. 2d R. 315).

On appeal to this court, defendant argues that: (1) the State violated his right against self-incrimination, pursuant to article I, section 10, of the Illinois Constitution (Ill. Const. 1970, art. I, §10), by calling him as an adverse witness to testify against himself; (2) the State violated his right to a fundamentally fair probation hearing under the due process clauses of the state and federal constitutions (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §2) by calling him as an adverse witness because it denied his right to confront and cross-examine, denied his right to counsel, and relieved the State of its burden of proof; and (3) the trial court erred by failing to grant him day-for-day credit for presentence custody. For the following reasons, we affirm the judgment of the appellate court, affirming the decision of the trial court.

ANALYSIS

I. The Privilege Against Self-Incrimination

Under article I, section 10, of our state constitution, "No person shall be compelled in a criminal case to give evidence against himself ***." Ill. Const. 1970, art. I, §10. Defendant first argues that a probation revocation proceeding is "criminal" in nature within the meaning of article I, section 10, and, therefore, the protections against self-incrimination apply to probation revocation hearings. Our review of this issue is de novo. People v. Carlson, 185 Ill. 2d 546, 551 (1999).

The United States Supreme Court has resolved a similar issue in the context of the fifth amendment of the federal constitution, which provides, in relevant part, that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const., amend. V. The Court clearly stated that "[p]robation revocation *** is not a stage of a criminal prosecution, but does result in a loss of liberty." Gagnon v. Scarpelli, 411 U.S. 778, 782, 36 L. Ed. 2d 656, 661-62, 93 S. Ct. 1756, 1759-60 (1973). Relying on Gagnon, in Minnesota v. Murphy, 465 U.S. 420, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984), the Court decided the issue of whether the fifth amendment privilege is self-executing when a probationer is questioned by a probation officer about a crime other than the crime for which he was convicted. In Murphy, the defendant admitted to his probation officer that he had committed a rape and murder, and this admission was used against the defendant in the subsequent criminal prosecution. The Court found that the privilege is not self-executing and that the defendant's duty to appear and to answer questions propounded by his probation officer was no different from the duty of an "ordinary witness at a trial or before a grand jury who is subpoenaed, sworn to tell the truth, and obligated to answer on the pain of contempt, unless he invokes the privilege and shows that he faces a realistic threat of self-incrimination." Murphy, 465 U.S. at 427, 79 L. Ed. 2d at 419, 104 S. Ct. at 1142. The Court stated:

"A State may require a probationer to appear and discuss matters that affect his probationary status; such a requirement, without more, does not give rise to a self-executing privilege." Murphy, 465 U.S. at 435, 79 L. Ed. 2d at 424, 104 S. Ct. at 1146.

Further, the Court noted that the privilege is not available where the questions put to the probationer posed only the threat that his probation would be terminated:

"Although a revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding. [Citations.] Just as there is no right to a jury trial before probation may be revoked, neither is the privilege against compelled self-incrimination available to a probationer. It follows that whether or not the answer to a question about a residential requirement is compelled by the threat of revocation, there can be no valid claim of the privilege on the ground that the information sought can be used in revocation proceedings.

Our cases indicate, moreover, that a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding ***." Murphy, 465 U.S. at 435 n.7, 79 L. Ed. 2d at 425 n.7, 104 S. Ct. at 1146 n.7.

This court has followed the reasoning in Murphy to hold that a defendant cannot claim the privilege against self-incrimination merely because his answer to a question might result in a revocation of his probationary status. For example, in People v. Allen, 107 Ill. 2d 91, 104 (1985), aff'd, 478 U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct. 2988 (1986), we held that in a sexually dangerous person proceeding, the defendant was not entitled to refuse to answer a psychiatrist's questions which might incriminate him. In People v. Allegri, 109 Ill. 2d 309, 313-14 (1985), we noted that a probation revocation hearing is not a proceeding at which guilt or innocence is to be determined; rather, it takes place "only after the defendant has already been convicted, sentenced to probation, and then has violated the conditions of the probation."

Furthermore, our appellate court has relied on Murphy and Gagnon to hold that probation revocation proceedings are civil, not criminal, in nature. See People v. Williams, 303 Ill. App. 3d 264 (1999) (probation revocation proceeding is civil); People v. Bell, 296 Ill. App. 3d 146 (1998) (probation revocation proceeding is non-criminal); People v. Neckopulos, 284 Ill. App. 3d 660 (1996) (probation revocation proceeding is not a criminal proceeding); People v. Martin, 226 Ill. App. 3d 753 (1992) (State was not precluded from calling defendant as a witness in proceeding to revoke his probation); People v. Kane, 136 Ill. App. 3d 1030 (1985) (revocation of probation is not a prosecution); People v. Huff, 44 Ill. App. 3d 273 (1976) (probation revocation proceeding is qualitatively different from a criminal trial); but see People v. McNairy, 309 Ill. App. 3d 220 (1999) (probation revocation proceeding is a criminal proceeding that implicates article I, section 10, of the Illinois Constitution).

In this case, the appellate court, relying on Murphy, as well as Bell, Martin, and Neckopoulos, held that the self-incrimination privilege under article I, section 10, is inapplicable to probation revocation proceedings. 319 Ill. App. 3d at 588-91. In so doing, the appellate court recognized that in McNairy, an appellate panel in another district held that under the Illinois Constitution a probation revocation proceeding is a "criminal case" in which a person may not be compelled to give evidence against himself. 319 Ill. App. 3d at 589-90. However, in this case, the appellate court declined to follow McNairy, concluding that the State may call a defendant as an adverse witness to testify at a probation revocation proceeding. 319 Ill. App. 3d at 590.

On appeal to this court, defendant urges us to follow McNairy and reject those appellate court opinions holding that probation revocation proceedings are civil proceedings. Defendant argues that our decisions in People v. Grayson, 58 Ill. 2d 260 (1974), and People v. Peterson, 74 Ill. 2d 478 (1978), warrant a finding that the proceedings are criminal. Both Grayson and Peterson, however, are factually distinguishable from the present situation. In Grayson, the defendant was placed on probation after pleading guilty to armed robbery. Subsequently, he was indicted for another armed robbery and was acquitted of that charge in a bench trial. The State filed a petition to revoke defendant's probation on the first robbery, alleging as the only grounds the commission of the second robbery. In holding that collateral estoppel applied, we acknowledged that there exists a substantial difference between a probation revocation proceeding and a criminal trial. Grayson, 58 Ill. 2d at 264- 65. We noted that proceedings may be civil in form, yet criminal in nature, and concluded that the State could not constitutionally bring defendant before a new court in a probation revocation proceeding and relitigate an issue previously decided in a criminal case in which defendant was acquitted of the underlying charge. Grayson, 58 Ill. 2d at 265. Our holding in Grayson, however, was narrowly tailored to the facts of that case. It involved the specific issue of collateral estoppel and its application in a probation revocation proceeding. Contrary to defendant's argument, we did not suggest that probation revocation proceedings should be considered criminal in nature.

Likewise, in Peterson, we held that collateral estoppel prohibited the State from challenging a finding that the defendant's confession was involuntary at a subsequent probation revocation hearing. Peterson, 74 Ill. 2d at 486. The defendant in Peterson was charged with possession of a hypodermic syringe. While being questioned by police officers, defendant confessed to a burglary of a gas station. At the trial on the underlying criminal charge, the trial court suppressed Peterson's confession to the burglary. Thereafter, the State filed a petition to revoke defendant's probation on the underlying charge and sought to introduce testimony of the confession. We held that an involuntary confession cannot be admitted against a defendant in a probation revocation hearing. Peterson, 74 Ill. 2d at 484. Our holding was premised on due process principles, which we found prohibited the use of a coerced confession at a probation revocation ...


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