*1 the section 72 and Post-Conviction Act denying Hearing relief is affirmed. reversed;
Appellate circuit court affirmed. JUSTICE GOLDENHERSH took no in the con- part sideration or decision of this case.
(No. 61000 . THE PEOPLE OF THE STATE ILLINOIS, OF Appel-
lee, ALLEGRI, v. ANITA Appellant. 20, 1985.
Opinion December filed *2 MILLER, J., part. took no GOLDENHERSH, JJ., dissenting.
WARD and Yuhas, Daniel D. Defender, Deputy and D. Jeffrey Foust, Assistant Defender, the Office of the State Ap- Defender, pellate of Springfield, for appellant. F.
Neil Hartigan, General, of Attorney Springfield (Jill Wine-Banks, General, Solicitor and Mark L. Rotert L. Sally Dilgart, General, Assistant Attorneys Chicago, counsel), for the People.
JUSTICE SIMON delivered the opinion court: The defendant, Anita Allegri, entered a negotiated plea in the circuit guilty court of to the Champaign County offense of unlawful restraint (Ill. 1981, Rev. 38, Stat. ch. par. 3(a)). She was charged with unlawfully attempting 10 — to take a child his two-year-old from father. The sentence was 30 months’ probation conditioned her upon in periodic in the carceration county correctional as a work-re facility lease In addition, her prisoner. probation required her to refrain from violating State any laws and to on a report regular basis for psychological counseling.
Six months later the charged State her with a proba tion violation and to sought revoke her The probation. evidence demonstrated that the defendant had unlaw restrained a fully 13-year-old in violation of boy the crim inal (Ill. 38, code Rev. Stat. ch. and, par. 3(a)) 10— as a infraction, result of that a condition of her proba-
tion had been violated. Rev. Stat. (Ill.
Her defense was that she was insane adjudged and could not be to 2(a)) ch. par. 6 — she was unable to have violated her because that Psychiatric testimony control herself. established The the defendant suffered from paranoid schizophrenia. State finding trial made a that the had specific if evidence, to rebut and that the defense failed in a probation-revocation proceed was available insanity the would ing, prevail. defendant ruled, however, The that in a probation- trial court was not defense proceeding The appealed, available defendant probationer. the trial court’s ruling and the court affirmed appellate al 1041). Ill. We (127 App. with one judge dissenting (94 leave to appeal lowed the defendant’s petition Thus, we are called upon 2d R. 315(a)). question defense answer is whether is an available which this question proceeding, court has never considered. is ap- defense argues for the here basis underlying pro- because
propriate She revocation is a violation of the criminal code. bation the criminal code is silent as whether suggests in a revocation proceeding, the defense available the defense should therefore be because applied it. did not exclude legislature specifically unsound, statutory argument Not defendant’s only that we ignore legisla- her would require but position tive behind purpose us to construe section
The issue presented requires of 1961. It provides: of the Criminal Code —2(a) 6 *4 (a) criminally responsible A is not “Insanity, person conduct, of as a result if at the time of such for conduct ca- defect, substantial or mental he lacks mental disease conduct his criminality to appreciate either pacity or to his of law.” requirements conform conduct 1981, (Ill. 38, par. 2(a).) Rev. Stat. ch. 6 — To intent, determine first look to the legislative plain we as in the of section meaning statute found words 138, (See, (1983), v. 94 Ill. 2(a). e.g., People Boykin 6 — 141; Sutherland, 2A sec. 48 Statutory Construction ed. 1984).) Examination this statute reveals that legislature did not address whether the directly defense probation-revocation applied proceedings. use of the words and “criminal “criminally responsible” conduct,” of his ity indicates that the though, legislature was concerned with the of an of conviction possibility fense in the absence of criminal intent. this lan While is conclusive, not it guage suggest does that the General intent was Assembly’s defense should apply only proceedings guilt innocence is to be A not, determined. probation-revocation hearing however, such a proceeding. (Gagnon Scarpelli v. 778,
411 U.S. 36 L. Ed. 2d 93 S. It 1756.) Ct. takes place after only defendant has been con already victed, sentenced to and then probation, has violated the conditions of the section 5—2—4 of the
Similarly, Unified of Corrections Code (Il Rev. Stat. par. ch. 2—4), l. 1005 — which sets forth the procedure for treating defendants who are found not guilty reason of insanity, also sup ports conclusion that defense is not available proceedings. requires hearing to determine whether a defendant acquitted by reason of insanity should be committed to a involuntarily mental But, health because facility. the defendant in a probation- revocation proceeding found already been guilty rather than commitment of to a acquitted, mental health reason facility by of his has no acquittal relevance to such a This is true proceeding. especially because a not one proceeding
314 of a defendant. which leads to or conviction acquittal a de did not exclude legislature explicitly While in pro fense based on a of is inconsistent with the purpose this defense ceeding, a of judgment Probation is form probation revocation. (People ex rel. has found guilty. after the defendant been Barrett v. Bardens 511, 517.) The (1946), appel 394 a as privi court characterized properly probation late continued is when defendant’s lege. employed and the threatening in would not be presence society (See, e.g., rehabilitation would be enhanced. defendant’s v. Estelle Knight v. People Molz 183, 188; 415 Ill. (1953), A violation of 963, 964.) proba Cir. 501 F.2d 1974), to the court is the defendant a demonstrates tion outside threat and that his continued society presence of unwarranted. is jail real issue had no on the bearing
The defense whether which was hearing, defendant’s at society a presence presents continued the defendant’s restrained a unlawfully the defendant danger. When which her continued child, the threat she demonstrated threat no less real be- for That society. freedom poses her from crimi- would excuse cause defendant’s nal responsibility. a to re for court required is not culpability
Personal v. Davis (People a sentence of voke ac failure be (defendant’s App. 123 Ill. justified program and alcohol-treatment drug- cepted section 5 — 6— This is illustrated by revocation).) point Corrections, provides Code the Unified 2(c) probation time terminate any the “court at may conduct of the if warranted discharge conditional Rev. Stat. (Ill. ends of justice.” offender and the choice of 6—2(c).) legislature’s ch. par. 1005 — question the key suggests “conduct” strongly word acts whether the objective proceeding in a revocation revocation, not whether he is require Indeed, legally responsible such acts. the statute a no that such be of criminal requirement conduct even nature, let alone As the criminally culpable. appellate noted, defense, if a properly as “insanity applied the trial court would have no to mod statutory authority or revoke even the defendant’s ify probation though actions establish violation of clearly *6 1041, 1044. frustration of Ill. its 127 3d purposes.” App. has, Defendant also impli contends that this court by cation, of use of the affirmative defense of approved self-defense in probation-revocation proceedings. (People v. 66 2d In Cooper (1977), 509.) Cooper, this court re versed an court’s appellate but did not evidentiary ruling consider the specifically court’s of the appellate approval use of self-defense at a probation-revocation proceeding. of Regardless the correctness of the court deci appellate issue, sion on that it does not a meaningful anal provide to the ogy defendant’s situation.
Self-defense so that action provides justification, otherwise society seeks to becomes prevent permis sible under the circumstances. on the other Insanity, hand, an excuse for the individual’s It does behavior. not turn conduct, behavior into unacceptable permissible but excuses the from only individual criminal punishment having for violated a statute. Because conduct ex penal cused on the of basis is no more nor desirable, criminal, less conduct, than inexcusable section 5 — 2—4 requires involuntary admission into a mental health facil for those ity insane, defendants who are declared while acquittal reason of self-defense allows the im accused Therefore, mediate freedom. whether or not self-defense is applicable in a probation-revocation an is proceeding, here, sue we do not decide it has no bearing appli on cability defense in that of type proceeding. Other States and the Federal courts have considered
316 revo in the context of or problem probation parole cations, we our research reveals that conclusion (See, e.g., Stein reach is accord with their decisions. Police 449; Knight v. Court berg F.2d (6th 1979), Cir. 610 v. Estelle Pierce v. State 963; F.2d (5th 1974), Cir. 501 & Health Services Department Social 97 Wash. (1982), ex v. Lyons Depart State rel. 552, 1382; 2d 646 P.2d Health ment & Social Services 105 2d (1981), Wis. v. Breaux People 868; Cal. 146, (1980), 312 N.W.2d 101 State v. O'Meal 468, 653; (1977), 3d 161 Cal. App. Rptr. v. State Trumbly 307, 116 249; (Alaska Ariz. 569 P.2d v. Estelle Knight In 707.) 1974), 515 P.2d Cir. 1973), 501 F.2d the Federal example, appellate for the fifth circuit examined Texas law a case involv does not differ ing (which significantly parole (See Gagnon from revocation for our purposes. v. Scarpelli 36 L. Ed. U.S.
S. The court 1756).) Ct. noted: act, has committed the the at- parolee physical
“[I]f failed reintegrate obviously him into tempt society failure apparent ***. Whether the act which made the no concern the revoca- culpable punishable was *7 to Its is punish. not sit concern tion which does authority, has obeyed, not whether it whether the law has been (501 964.) F.2d been culpably broken.” enacted the Assembly probation We our General believe the reasons and intended the same provision same procedure apply. con- which would we note the dilemma
Additionally, the appel- we to reverse sentencing front a were judge In seems appropriate court. cases where probation late com- risk that the defendant will but there exists some the period, offense during probationary mit an excusable sentencing to between the the would have choose judge incarceration to defendant an unnecessary period uncor- the made an having at risk granting find error. can no rectable We reason to saddle trial just with such Hobson’s judges choice.
Finally, the State contends that the to defendant’s right due not does that the process require defense be made to a applicable We need hearing. not directly address this as the argument, defendant has failed this in argue particular issue has court and instead chosen to on the rely solely statutory language.
It is critical to note that in the refusing recognize insanity defense a revocation is proceeding, not criminal on imposing the defendant for punishment her present excusable conduct. The punishment criminal from past results conduct was not excused by insanity and for which been duly con- victed. We therefore hold that the circuit and appellate courts found that the properly defense does not apply probation revocation proceedings.
Judgment affirmed. JUSTICE MILLER took no in the part consideration or decision of this case. WARD,
JUSTICE dissenting: I cannot accept majority’s holding that insane per sons cannot their plead at disability probation-revoca tion are hearing and subject punishment, though they were not for the mentally responsible conduct that State says violated their is questioned not that such could have persons pleaded insanity could not have been found if guilty existed when the criminal charges were In brought. the event of later developing disability and conduct terms of violating pro bation view is majority’s probationer’s “con tinued presence outside of jail (109 unwarranted.” 2d at 314.) The on I majority’s conclusion founded what consider to be the construction the General strange *8 in section 2(a) Criminal Code
Assembly, 6— intended that the defense of would apply only which of the accused proceedings guilt trial at the was me It obvious to that the General be determined. appears a de- in the statute Assembly, enacting making fense, to insure fairness with the persons intended toward mental disease or mental defect. is inconceiv- specified fairness that the General intended Assembly able not extended to all handicapped persons pro- would be was and to those which ceedings especially punishment the State. sought by too, that the real issue at the majority says, pro-
The the hearing was whether defendant’s bation-revocation I con- danger. a presence society presented continued here is whether this question sider that important hearing the denial to woman court should approve who, of mental could not claimed, deficiency it is because for which the or control conduct understand adequately punishment. seeks her State a decision To its cites position majority support held that whether the conduct violated of no was concern culpable terms of concern is whether terms of probation that the only I share. That is a view cannot have been observed. not, it need on stating that concludes majority waiver, whether the question address ground of the insanity recognition to due right process requires I hearing. believe defense in a probation-revocation of con and also the question of due question process cruel and unusual punish against stitutional protection here were and that both protections ments are involved 752 F.2d. Wainwright Ford v. 1985), Cir. ignored. L. Ed. 2d _, granted cert. 474 U.S. 552,106 S. 566. Ct. in this dissent. joins GOLDENHERSH
JUSTICE