2023 IL App (4th) 230205-U
Ill. App. Ct.2023Background
- In Aug. 2021 John Hebert pleaded guilty to aggravated battery of a peace officer and was sentenced to 30 months probation and 180 days jail (as part of a plea agreement). Conditions included random drug/alcohol testing and SCRAM monitoring.
- Bauer, Hebert’s probation officer, scheduled drug testing and routinely contacted Hebert by phone; Bauer testified Hebert had submitted to testing "five or six" times but missed a scheduled meeting on Sept. 28, 2021 and then failed to appear for a mandatory drug test on Sept. 30, 2021 after Bauer left a voicemail directing him to report.
- The SCRAM monitor was removed on Sept. 1, 2021 after Bauer (mistakenly believing it was voluntary) agreed to Hebert’s request; Hebert later admitted relapse to alcohol after removal.
- The State filed a petition to revoke probation; at the revocation hearing the State proved only the Sept. 30 missed drug test (it conceded proof of other alleged violations was lacking). The court found a probation violation and noted Hebert’s prolonged noncontact with probation.
- At resentencing the court revoked probation and imposed five years in prison (with mandatory supervised release), observing Hebert’s lengthy criminal history and that probation previously had failed.
- On appeal Hebert argued (1) insufficient evidence that he received adequate notice of the Sept. 30 test and (2) plain error from the trial court’s remark that he had not complied "with a single term of probation." The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to prove probation violation (Sept. 30 missed drug test) | State: Bauer’s testimony and past reliable phone contacts made it more likely than not Hebert was told to report; preponderance standard met. | Hebert: Only notice was a voicemail; Bauer didn’t testify to details (number/time) or that voicemail was his regular method, so State failed to show reasonable notice. | Affirmed: Evidence sufficient by preponderance; court could infer Bauer used established phone method and notice was reasonable. |
| Plain-error challenge to sentencing remark that Hebert "was not complying with a single term of probation" | State: No clear or obvious error; court’s remark reasonably referred to sustained noncompliance during the long period of noncontact, not literal total noncompliance. | Hebert: Remark misstated the record (he had complied with some terms) and violated due process; he preserved plain-error review. | Affirmed: No clear or obvious error shown; statement reasonably read as referring to the long stretch of noncompliance, so forfeiture stands and plain error application denied. |
Key Cases Cited
- People v. Brown, 229 Ill. 2d 374 (discusses preponderance standard for probation revocation)
- People v. Urdiales, 225 Ill. 2d 354 (defining evidentiary standards and burdens)
- Bazydlo v. Volant, 164 Ill. 2d 207 (judgment against manifest weight standard explained)
- People v. Bonney, 251 Ill. App. 3d 921 (trial court may draw reasonable inferences at revocation hearings)
- People v. Lindsey, 319 Ill. App. 3d 586 (probation violation need not include criminal mens rea; nonculpable violations suffice)
- People v. Colon, 225 Ill. 2d 125 (appellate review of revocation findings and manifest-weight review)