THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAURIE HERRIN, Defendant-Appellant.
Third District No. 3-06-0924
Third District
September 25, 2008
187 Ill. App. 3d 187
III. CONCLUSION
For the reasons set forth above, we reverse the ruling of the trial court requiring defendant to produce the medical journal articles and the Action Plan. Further, we vacate the order finding defendant in contempt and the accompanying fine. We remand this cause for further proceedings.
No. 2-07-0717, Reversed in part and vacated in part; cause remanded.
No. 2-07-1272, Certified questions answered; cause remanded.
BOWMAN and O‘MALLEY, JJ., concur.
Verlin R. Meinz (argued), of State Appellate Defender‘s Office, of Ottawa, for appellant.
JUSTICE HOLDRIDGE delivered the opinion of the court:
Laurie Herrin was found guilty of simple battery (two counts) and sentenced to 12 months of probation. Her probation was ultimately revoked, and she filed the instant appeal from the circuit court‘s revocation order. She claims that (1) the court lacked jurisdiction to revoke her probation, (2) revocation was improper on the merits, and (3) the court improperly ordered her to pay a public defender fee. We reverse on the first issue.
BACKGROUND
On June 23, 2005, Herrin was charged by information with two counts of domestic battery. She was arrested and released the following day after posting bond. On October 17, 2005, Herrin appeared in court and entered negotiated guilty pleas involving reduction of the charges from domestic battery to simple battery. The court admonished her, accepted the pleas, and sentenced her to 12 months of probation pursuant to the plea agreement. The probation order (entered on October 17, 2005) contained a list of standard conditions with a handwritten notation stating, “All Apply.” As special conditions, the order directed Herrin to pay a $200 fine, a probation fee, and a public defender fee. An “X” was also marked beside the following standard language: “As required by the probation officer, the Defendant shall undergo and pay for, as appropriate: medical, anger control, psychological, psychiatric, drug/alcohol and domestic violence treatment.” This language was supplemented with a handwritten notation that read, “ONLY IF REQUIRED FOLLOWING EVAL.”
On July 6, 2006, a probation officer filed a document in the Tazewell County circuit court styled, “STATEMENT CHARGING VIOLATION OF PROBATION AND PETITION TO REVOKE PROBATION.” Through this document, the probation officer alleged that Herrin “violated the conditions of [her] probation” by failing “to complete substance abuse treatment ordered by probation due to her failure to schedule a substance abuse evaluation and do the recommended treatment.” The document concluded as follows:
“WHEREFORE, your Petitioner prays:
a. That the Court enter an order for a summons to issue to the defendant for appearance before this Court.
b. That on appearance of said defendant before this Court, said defendant be furnished with a copy of this Statement and Petition, and a date be set for a hearing on the above allegations charging a Violation of Probation.
c. That at the conclusion of the hearing the Court enter an order revoking the probation of said defendant and sentence said defendant in accordance with law for the offense of which [she] was heretofore convicted herein.”
The court summoned Herrin and appointed a public defender to represent her during the revocation proceedings. The matter was then continued on three separate dates in 2006: July 24 (by agreement of the parties), August 30 (by agreement of the parties), and October 16 (on the court‘s own motion). A revocation hearing ultimately occurred on November 20, 2006, more than 13 months after the order imposing a 12-month probation term. The probation officer testified that although Herrin attended two drug/alcohol evaluations, he did not “receive anything in regards to her successful completion of any treatment.” Written reports from the evaluations were then discussed on the record, and the parties stipulated to both reports.
According to the report from the first evaluation, performed by Carolyn Sward on August 11, 2006, Herrin admitted to being an alcoholic and receiving medication to cope with alcohol cravings. She also claimed that she did not have time or money for counseling. Sward concluded that Herrin would not benefit from additional drug/alcohol counseling. According to the report from the second evaluation, performed by Pat Schaefer on November 7, 2006, Herrin took medication to prevent alcohol cravings but resisted attending or participating in treatment. Schaefer concluded that Herrin would not benefit from attending Alcoholics Anonymous.
The defense acknowledged that Herrin had not received alcohol treatment. Herrin testified that she previously received a copy of Sward‘s report but did not receive a copy of Schaefer‘s report until the day before the hearing. She read both reports as indicating a probability that treatment would be beneficial, but she did not understand them to formally recommend treatment. She admitted to alcohol problems but denied having resisted treatment.
The court found that Herrin had resisted treatment and that the evaluators did not make treatment recommendations because of her resistance. This scenario, according to the court, was the “indubitable equivalent of *** failure to successfully complete treatment.” The following order was consequently entered:
“MATTER comes on probation hearing. Ct. finds petition proven. D‘s probation extended 1 year. D to submit to random drug/alcohol testing & not consume any alcohol.”
In a subsequent order, the court directed Herrin to pay a public defender fee of $50. She then filed the instant appeal.
Herrin‘s jurisdictional claim raises a question of law subject to de novo review. See In re D.G., 144 Ill. 2d 404 (1991).
Absent tolling of a defendant‘s probation term, a court has no authority to revoke the defendant‘s probation once the original term has expired. People v. Martinez, 150 Ill. App. 3d 516 (1986). Since Herrin‘s revocation hearing did not occur until after the original 12-month probation term expired, the court lacked jurisdiction unless the term was tolled. Tolling is effected by “[p]ersonal service of the petition for violation of probation or the issuance of such warrant, summons or notice.”
In People v. Dinger, 136 Ill. 2d 248 (1990), the Illinois Supreme Court held that a defendant could not petition to revoke her own probation. The court specifically observed that “the Unified Code of Corrections contemplates the revocation of an offender‘s probation only upon the filing by a proper party of a petition charging a violation of a condition of probation.” (Emphasis added.) Dinger, 136 Ill. 2d at 259. Since this observation was dispositive, the court declined to “reach the State‘s [additional] contention that an interpretation allowing anyone other than the State‘s Attorney to file a petition unconstitutionally intrudes on its exclusive discretion in the management of a criminal prosecution.” Dinger, 136 Ill. 2d at 259. The court thus did not address whether a nonattorney other than the defendant (such as a probation officer) can file a pleading that charges a probation violation and seeks revocation.
In People v. Kellems, 373 Ill. App. 3d 1129 (2007), the Illinois Appellate Court, Fourth District, concluded that a probation officer lacks authority to file a petition to revoke a defendant‘s court supervision. We agree with the basic rationale of Kellems and find it responsive to the open question from Dinger in this context. Section 5-6-4(a) of the Unified Code of Corrections (Code) mentions a petition “charging a violation of a [probation] condition” without specifically indicating who is authorized to file the pleading.
Justice Schmidt cites subsections 5-6-4(f) and (i) of the Code in reaching a contrary conclusion on this issue. We respectfully disagree with his interpretation of these provisions. Subsection 5-6-4(f) authorizes “the supervising agency” to move for modification of probation conditions.
Subsection 5-6-4(i) of the Code reads: “Instead of filing a violation of probation, conditional discharge, supervision, or a sentence of county impact incarceration, an agent or employee of the supervising agency with the concurrence of his or her supervisor may serve on the defendant a Notice of Intermediate Sanctions.”
There can be no question that the probation officer‘s pleading in the instant case amounted to law practice. Yet the probation officer lacks a law license. His actions not only constituted the unauthorized practice of law but also usurped the statutory prerogative of the State‘s Attorney.
CONCLUSION
For these reasons, the judgment of the circuit court of Tazewell County entered on November 20, 2006, is reversed.
Reversed.
WRIGHT, J., concurs.
JUSTICE SCHMIDT, specially concurring:
I concur with the majority‘s opinion that defendant‘s probation was improperly terminated. However, I disagree with the majority‘s analysis and, therefore, write separately.
Defendant‘s initial contention is that the trial court lacked authority to act upon the petition to revoke her probation when it entered its November 20, 2006, order. As this contention raises a question of law, we review it de novo. People v. Caballes, 221 Ill. 2d 282, 289, 851 N.E.2d 26, 31 (2006).
Defendant‘s argument is based on the theories and reasoning discussed in People v. Kellems, 373 Ill. App. 3d 1129, 872 N.E.2d 390 (2007). In Kellems, 373 Ill. App. 3d at 1133, the Fourth District held that a probation officer lacks authority to file a petition to revoke probation and, as such, a trial court is without authority to consider such a petition. Id. The court based its reasoning on the power given by the legislature to a probation officer and to a State‘s Attorney‘s office. The court noted that the legislature did not give probation officers the authority to file such a document in the Probation and Probation Officers Act (
The State acknowledges that if we follow Kellems, the trial court lacked authority to rule on the petition and the order extending defendant‘s probation must be dismissed. The State responds, however, by urging us not to follow Kellems and by noting that our supreme court has never specifically addressed this issue. The State notes that in People v. Dinger, 136 Ill. 2d 248, 554 N.E.2d 1376 (1990), the supreme court merely stated that a petition must be filed by a proper party and that a defendant cannot, herself, file a petition to revoke her own probation. Dinger, 136 Ill. 2d at 259. The State notes that the Dinger court did “not reach the State‘s contention that an interpretation allowing anyone other than the State‘s Attorney to file a petition unconstitutionally intrudes on its exclusive discretion in the management of a criminal prosecution.” Dinger, 136 Ill. 2d at 259. Therefore, the State argues, following Kellems would be unwise and unwarranted expansion of the “Dinger doctrine.”
Before explaining my disagreement with the reasoning of the Kellems court, I must first note that the term “petition to revoke” is somewhat of a misnomer. The Unified Code of Corrections (the Code) does not technically allow anyone to file a petition to revoke.
The term of art, “petition to revoke,” is used by many in the criminal justice arena. However, a petition to revoke is actually a petition charging a violation of a condition of probation that simply requests revocation as a consequence of the alleged violation. This distinction is somewhat significant given the Kellems court‘s proclamation that a probation officer lacks “authority to file a petition to revoke defendant‘s supervision.” Kellems, 373 Ill. App. 3d at 1133. While a probation officer may not have authority to file a “petition to revoke,” he or she most certainly has authorization to file a petition charging a violation of a condition of probation.
Section 5-6-4(i) states that “[i]nstead of filing a violation of probation, *** an agent or employee of the supervising agency with the concurrence of his or her supervisor may serve on the defendant a Notice of Intermediate Sanctions.”
Section 5-6-4(f) further supports the conclusion that the legislature intended to give the probation department the authorization to file a petition charging a violation of a condition of probation. Paragraph (f) states that the “conditions of probation *** may be modified by the court on motion of the supervising agency *** after notice and a hearing.”
It is axiomatic to note that our primary goal of statutory interpretation is to ascertain and give effect to the intention of the
I would not address defendant‘s contention that the trial court erred when finding she violated a condition of her probation. As this court has previously stated, “We will not disturb a trial court‘s finding in a proceeding to revoke probation unless it is against the manifest weight of the evidence.” People v. Clark, 313 Ill. App. 3d 957, 959, 731 N.E.2d 432, 435 (2000). A finding is against the manifest weight of the evidence only when a contrary result is clearly evident. Clark, 313 Ill. App. 3d at 960. I would hold that the trial court‘s finding that defendant violated a condition of her probation was against the manifest weight of the evidence and would reverse the trial court‘s order of November 20, 2006, on that basis.
Defendant‘s certificate of conditions of probation stated she shall undergo drug or alcohol treatment “ONLY IF REQUIRED FOLLOWING EVAL[UATION].” Neither of the evaluation reports “required” her to submit to treatment. Moreover, there is nothing in the record to indicate that the probation department sent her any kind of notice demanding she engage in alcohol treatment. The trial court acknowledged that “both of these evaluations indicate that no recommendation [for treatment] was made.” Nevertheless, the trial court found that she violated a condition of her probation because she was “resistant” to treatment. The opposite conclusion was the only option available to the trial court. Neither evaluator demanded or required treatment. The State never required defendant to undergo treatment. Defendant cannot be revoked for failing to do something she was never required to do. The finding that defendant violated the treatment condition of her probation was against the manifest weight of the evidence. For that reason, I concur in the majority‘s judgment.