People v. McGill ( 2022 )

2022 IL App (5th) 200017-UNOTICE
NOTICE
Decision filed 09/12/22. The
This order was filed under
text of this decision may be NO. 5-20-0017
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Wayne County.
)
v. ) No. 16-CF-90
)
BARNABUS McGILL, ) Honorable
) Michael J. Molt,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE BOIE delivered the judgment of the court.
Justices Welch and Wharton concurred in the judgment.
ORDER
¶1 Held: Where the State’s witness personally observed defendant violate a criminal statute,
the circuit court properly revoked defendant’s probation regardless of whether other
violations were established through hearsay; no bona fide doubt existed of
defendant’s fitness to participate in the proceedings. As any arguments to the
contrary would lack merit, we grant defendant’s appointed counsel on appeal
leave to withdraw and affirm the judgment of the circuit court.
¶2 Defendant, Barnabus McGill, appeals the circuit court’s order revoking his probation.
Defendant’s appointed attorney on appeal, the Office of the State Appellate Defender (OSAD),
has concluded that this appeal lacks merit. Accordingly, OSAD has filed a motion to withdraw as
counsel for the defendant (see Anders v. California, 386 U.S. 738 (1967)) along with a brief in
support of the motion. OSAD has provided defendant with a copy of its Anders motion and brief.
This court has provided him with ample opportunity to respond, but defendant has not done so.
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Having read OSAD’s Anders motion and brief, and having examined the record on appeal, we
agree that this appeal lacks merit. There is no potential ground for appeal. Accordingly, we grant
OSAD leave to withdraw and affirm the circuit court’s judgment.
¶3 BACKGROUND
¶4 Defendant pleaded guilty to participating in methamphetamine production (720 ILCS
646/15(a)(2)(A) (West 2016)). Per agreement, defendant would participate in the Teen Challenge
Program and, if he completed it, additional charges would be dropped. If defendant failed to
complete the program, the State agreed to a 10-year cap on any future sentence.
¶5 Defendant failed to complete the program. When the case was called for sentencing, the
circuit court agreed to allow defendant to attend a rehabilitation program. If he completed that
program and a long-term treatment program, the court would sentence him to probation and
dismiss the remaining charges. Defendant completed the program, and the court sentenced him to
18 months’ probation.
¶6 The State petitioned to revoke defendant’s probation. The petition alleged that defendant
tested positive for THC three times during 2019 and committed the offense of defrauding a drug
test (720 ILCS 5/17-57(a)(4) (West 2018)).
¶7 At a hearing on the petition, probation officer Ryan Ruble testified that in October 2019,
at the request of probation officer Jennifer Vaughan, he observed defendant’s drug test. He handed
defendant a plastic cup and accompanied him to the men’s room. As defendant urinated, he
attempted to block Ruble’s vision with the cup. Due to defendant’s unusual behavior, Ruble
ordered him to lower his pants. He did so quickly and said, “see, I don’t have anything.” The circuit
court overruled a defense hearsay objection.
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¶8 Ruble had defendant lower his pants a second time and discovered a plastic bottle taped to
the inside of his underwear. Ruble then asked defendant whether he had brought in the white bottle
in his pants, with the intent to falsify a urine test and defendant said yes. The circuit court overruled
a defense hearsay objection. Ruble had defendant arrested for attempting to defraud a drug test.
¶9 Ruble testified that defendant had used marijuana in April 2019. During an office visit,
defendant admitted using marijuana and signed an admission to that effect. Ruble knew this from
seeing Vaughan’s report, which was kept in the regular course of business. In July 2019, defendant
verbally admitted to Vaughan that he had used marijuana. The circuit court overruled repeated
defense objections to this line of testimony. Defense counsel argued that the probation documents
were not business records because they were prepared in anticipation of litigation and that the
admission of the documents without Vaughan’s testimony violated his right to confront witnesses.
The court found that the records were not prepared in anticipation of litigation because it was
equally likely that they could show compliance with probation.
¶ 10 The circuit court found that defendant had violated his probation and sentenced him to 10
years’ imprisonment. Defendant timely appealed.
¶ 11 ANALYSIS
¶ 12 OSAD suggests three possible issues that defendant could raise but concludes that none
has even arguable merit. We agree.
¶ 13 The first potential issue is whether the circuit court erred by overruling the defense
objections to Vaughan’s records. Admission of probation department records generally comports
with the “minimum requirements” of due process available to defendants in probation revocation
proceedings. In re V.T., 306 Ill. App. 3d 817, 819-20 (1999); cf. In re N.W., 293 Ill. App. 3d 794,
798 (1997) (records from youth facility improperly admitted at probation revocation where witness
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did not have personal knowledge of the source of the reports, the events described therein, or how
the facility kept its records). Given Ruble’s testimony about the source of the reports, the circuit
court did not err in admitting them as business records. Moreover, business records are generally
admissible under the confrontation clause. People v. Coleman, 2014 IL App (5th) 110274, ¶ 150.
¶ 14 In any event, though, Ruble testified that he personally witnessed defendant commit a
criminal violation by attempting to defraud a drug test and defendant admitted as much. This alone
was enough for the circuit court to revoke defendant’s probation without reference to the other
violations documented by Vaughan. Moreover, the trial court properly admitted defendant’s own
statement admitting guilt. See Ill. R. Evid. 801(d)(2) (eff. Oct. 15, 2015).
¶ 15 The second issue is whether the circuit court properly found that defendant violated his
probation. The State must prove a violation of probation by a preponderance of the evidence.
People v. Colon, 225 Ill. 2d 125, 156-57 (2007) (citing 730 ILCS 5/5-6-4(c) (West 2002)). One
condition of probation is that a person on probation “ ‘not violate any criminal statute of any
jurisdiction.’ ” Id. (quoting 730 ILCS 5/5-6-3(a)(1) (West 2002)). Here, as noted, Ruble’s
testimony established that defendant committed the offense of attempting to defraud a drug test.
¶ 16 The final potential issue is whether defendant was fit to participate in the proceeding. At
one point, the trial court noted that defendant was gesturing and making guttural sounds. Defense
counsel stated that defendant had a medical appointment the following day to assess his condition.
However, counsel expressed no doubt about defendant’s fitness for the proceeding. He noted that
defendant answered questions appropriately and was able to assist in his defense. The court then
resumed the proceeding.
¶ 17 The due process clause forbids conviction of a defendant who is unfit to stand trial. People
v. McCallister, 193 Ill. 2d 63, 110 (2000). A defendant is unfit to stand trial if he cannot understand
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the nature and purpose of the proceedings against him or assist in his defense. People v. Olsson,
2012 IL App (2d) 110856, ¶ 2. Accordingly, a court should order a fitness hearing when there is a
bona fide doubt about a defendant’s fitness. See generally People v. Hanson, 212 Ill. 2d 212, 216-
18 (2004). Here, although defendant was apparently suffering from some type of psychological
disorder that caused a minor disruption in the proceedings, no one expressed a bona fide doubt
about defendant’s fitness to participate in them. Thus, the court did not err by resuming the
proceedings without conducting a fitness examination.
¶ 18 CONCLUSION
¶ 19 For the foregoing reasons, we grant OSAD’s Anders motion and affirm the circuit court’s
judgment.
¶ 20 Motion granted; judgment affirmed.
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