People v. Ireland

No. 3--04-0422
Filed May 4, 2006
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2006
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 01--CF--480
)
LEONARD IRELAND, ) Honorable
) Kathy Bradshaw-Elliott,
Defendant-Appellant. ) Judge, Presiding.
PRESIDING JUSTICE SCHMIDT delivered the opinion of the court:
Defendant, Leonard Ireland, was convicted of criminal sexual
assault in violation of section 12--13(a)(3) of the Criminal Code
of 1961 (the Code) (720 ILCS 5/12--13(a)(3) (West 2000)) in the
circuit court of Kankakee County. As a result of this
conviction, defendant was sentenced to time served plus four
years' probation. The defendant's probation was ultimately
revoked and it is from that order of revocation that defendant
appeals.
BACKGROUND
On September 19, 2001, a six-count information was filed
against defendant alleging three counts of predatory criminal
sexual assault of a child in violation of section 12--14.1(a)(1)
of the Code and three counts of criminal sexual assault in
violation of section 12--13(a)(3) of the Code. 720 ILCS 5/12--
14.1(a)(1), 12--13(a)(3) (West 2000). Ultimately, the grand jury
of Kankakee County returned a bill of indictment which mirrored
the six counts as detailed in the information. The grand jury
indictment reads as follows:
"COUNT I
(Class X Felony)
The Grand Jury charges:
That on or between May 1, 2000 and August 25,
2000, in the County of Kankakee and State of Illinois,
LEONARD IRELAND, Defendant, committed the offense of
PREDATORY CRIMINAL SEXUAL ASSAULT OF A CHILD, in that
said defendant, being 17 years of age or over, committed
an act of sexual penetration with 'T.I.', a female child,
who was under 13 years of age when the act was committed,
in that said defendant placed his finger in the vagina
of 'T.I.', in violation of Chapter 720, Paragraph 5/12-
14.1(a)(1) of the Illinois Compiled Statutes.
COUNT II
(Class X Felony)
The Grand Jury further charges:
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That on or between May 1, 2000 and August 25
2000, in the County of Kankakee and State of Illinois,
LEONARD IRELAND, Defendant, committed the offense of
PREDATORY CRIMINAL SEXUAL ASSAULT OF A CHILD, in that
said defendant, being 17 years of age or over, committed
an act of sexual penetration with 'T.I.', a female child,
who was under 13 years of age when the act was committed,
in that said defendant placed his penis in the vagina of
'T.I.', in violation of Chapter 720, Paragraph 5/12-
14.1(a)(1) of the Illinois Compiled Statutes.
COUNT III
(Class X Felony)
The Grand Jury further charges:
That on or between May 1, 2000 and August 25, 2000,
in the County of Kankakee and State of Illinois, LEONARD
IRELAND, Defendant, committed the offense of PREDATORY
CRIMINAL SEXUAL ASSAULT OF A CHILD, in that said defendant,
being 17 years of age or over, committed an act of sexual
penetration with 'T.I.', a female child, who was under
13 years of age when the act was committed, in that said
defendant placed his penis in the mouth of 'T.I.', in
violation of Chapter 720, Paragraph 5/12-14.1(a)(1) of
the Illinois Compiled Statutes.
COUNT IV
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(Class I Felony)
The Grand Jury further charges:
That on or between May 1, 2000 and August 26, 2000,
in the County of Kankakee and State of Illinois, LEONARD
IRELAND, Defendant, committed the offense of CRIMINAL
SEXUAL ASSAULT, in that said defendant, the grandfather of
'T.I.', a female child, did knowingly commit an act of
sexual penetration with 'T.I.', who was under 18 years
of age when the act was committed, in that said defendant
did place his finger in the vagina of 'T.I.', in violation
of Chapter 720, Paragraph 5/12-13(a)(3) of the Illinois
Compiled Statutes.
COUNT V
(Class I Felony)
The Grand Jury further charges:
That on or between May 1, 2000 and August 26, 2000,
in the County of Kankakee and State of Illinois, LEONARD
IRELAND, Defendant, committed the offense of CRIMINAL
SEXUAL ASSAULT, in that said defendant, the grandfather
of 'T.I', a female child, did knowingly commit an act
of sexual penetration with 'T.I.', who was under 18
years of age when the act was committed, in that said
defendant did place his penis in the vagina of 'T.I.',
in violation of Chapter 720, Paragraph 5/12-13(a)(3)
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of the Illinois Compiled Statutes.
COUNT VI
(Class I Felony)
The Grand Jury further charges:
That on or between May 1, 2000 and August 26, 2000,
in the County of Kankakee and State of Illinois, LEONARD
IRELAND, Defendant committed the offense of CRIMINAL
SEXUAL ASSAULT, in that said defendant, the grandfather
of 'T.I.', a female child, did knowingly commit an act
of sexual penetration with 'T.I.', who was under 18
years of age when the act was committed, in that said
defendant did place his penis in the mouth of 'T.I.',
in violation of Chapter 720, Paragraph 5/12-13(a)(3)
of the Illinois Compiled Statutes."
At his arraignment on October 19, 2001, defendant pled not
guilty to the charges and demanded a jury trial. However, on
August 2, 2002, pursuant to a plea agreement, and after receiving
the proper admonishments, defendant waived his right to a jury
trial and pled guilty to one count (count IV) of criminal sexual
assault. In exchange for his plea of guilty, the State dismissed
the other five counts against defendant. During the August 2,
2002, hearing, the trial court read count IV to defendant and
asked, "Are you now changing your plea from not-guilty to guilty
as to count IV, a Class I felony?" Defendant answered in the
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affirmative. The trial court also stated during this hearing, "I
just want to make sure [because], as I say often, sex offender
probation is a three page form with many conditions. I want to
make sure you had a chance to read that." Defendant answered, "I
have."
The trial court continued, "Now, if you do not successfully
complete that four years sex offender probation, you could be
resentenced. If the State in fact files a petition to revoke
that probation and proves it -- their burden of proof is
preponderance of the evidence -- then I can resentence you."
After the State proffered its evidence that the victim would
testify defendant placed his penis in her vagina, the court found
that there was a factual basis upon which to accept the plea
agreement and further stated, "And one last time, Mr. Ireland;
you had a chance to look over the sex offender probation form.
And as I said, it's very detailed as to what you have to do. And
you will be on reporting probation for four years, plus go
through counseling and a number of other requirements. Do you
wish to accept this plea agreement?" Defendant then answered,
"Yes, ma'am." Defendant was then sentenced to four years' sex
offender probation and time he already served in the county jail.
On August 12, 2002, defendant signed the three-page order of
probation form discussed by the circuit court. Relevant sections
of that form state as follows:
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"The defendant shall attend and participate
in such counseling treatment programs as may be
directed in writing by a probation officer and
abide by all rules, regulations and directions
of any such program. Failure to participate in
such counseling is a sufficient basis to find a
violation of these conditions.
The defendant shall, at the directions and
discretion of the Kankakee County Probation
Department, submit himself/herself for and
successfully complete a sexual abuse evaluation
as requested by the Kankakee County Probation
Department. The defendant shall also comply with
any recommended treatment provider's rules,
regulations and directions of their program
(including but not limited to polygraph/
plethysmograph testing). Willful failure to comply
with any recommended treatment provider's rules,
regulations and directions is a sufficient basis
to find a violation of these conditions."
On October 30, 2002, the State filed a petition to revoke
defendant's probation. The petition stated that defendant was
granted probation by the court for a period of four years and
that defendant failed to comply with the terms and conditions of
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his probation in that he was unsuccessfully discharged from sex
offender treatment.
At the hearing on the petition to revoke, the State called
Dr. James Simone to provide testimony. Dr. Simone stated that he
is in private practice and has a contract with the County of
Kankakee to run the sex offender treatment program. Dr. Simone
stated as part of that program, defendant was referred to him and
he met with defendant in October of 2002. Dr. Simone stated that
the initial step in the program is a preplacement interview.
During this preplacement interview, Dr. Simone discusses the
logistics of the program with the offender.
Dr. Simone further testified that part of the initial
interview involves the discussion of a "treatment contract," all
the rules, the regulations, expectations for the group, and when
the group will meet, and is "an opportunity for [the offender] to
sign all of this paperwork or to take it home with them and read
it over and bring it back signed."
Dr. Simone was then asked, "Did Mr. Ireland sign any
paperwork?" Dr. Simone stated that defendant did not sign any of
the paperwork associated with the treatment program because "Mr.
Ireland said that he had not -- was not guilty of the offense and
that he wasn't going to participate in treatment." Dr. Simone
stated that he then "explained to him that -- that he was
required to attend the group as part of his probation. That if
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he didn't sign the paperwork or attend the group, that I would
discharge him unsuccessfully and inform his probation officer."
Dr. Simone further testified that to the best of his
recollection, defendant "never" came to the group counseling
sessions.
On cross-examination, Dr. Simone explained that the
paperwork "requires the individual to take responsibility for
their offense." Simone ultimately stated that this means that
the offender "has to admit that he did it." The doctor explained
that the treatment program consists of 20 mandatory assignments.
The first mandatory assignment is the check-in, which requires
"an individual to take responsibility and admission to the
offense."
The only other witness called at the revocation hearing was
the defendant. Defendant admitted that he did not sign the
paperwork as requested by Dr. Simone. Defendant stated that the
reason he did not sign the paperwork was "because of what it
stated that I would have to explain what I did to [the victim],
how I did it and I didn't do it. How can I say what I didn't do.
I didn't do it." At the conclusion of the evidence portion of
the hearing, the court asked defense counsel if defendant was
"reconsidering his participation in the program." Defense
counsel answered that he was not.
Following the conclusion of the evidence portion of the
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hearing, the State argued that it had proved its petition by
putting forth competent evidence that defendant failed to comply
with the terms of his probation. Defense counsel then argued
that, "Granted, he's probably technically in violation of his
probation, but I think you ought to consider at the time also the
nature of the case and the fact that he did report to his other
probation." The trial court then stated, "The State's burden of
proof is by a preponderance of the evidence in this petition and
they certainly met it. They show through Dr. Simone, as well as
the defendant, that he went to meet with Dr. Simone. He refused
to sign the documents. Thereafter, he never entered the group."
Having found that defendant violated the terms of his probation,
the court then revoked defendant's probation.
ANALYSIS
We review a trial court's determination that a defendant
violated the terms of his probation under a manifest weight of
the evidence standard. People v. Williams, 303 Ill. App. 3d 264,
707 N.E.2d 729 (1999); People v. Prusak, 200 Ill. App. 3d 146,
558 N.E.2d 696 (1990).
Defendant's sole contention on appeal is that "the
allegation that [he] violated his probation by being
unsuccessfully discharged from sex offender probation was not
proven by a preponderance of the evidence." We disagree.
When accepting defendant's guilty plea, the trial court went
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to great lengths to ensure that he was aware of the terms of his
probation. One of these terms plainly states that, "The
defendant shall attend and participate in such counseling
treatment programs as may be directed in writing by a probation
officer and abide by all rules, regulations and directions of any
such program." By defendant's own admission, he did not abide by
all rules, regulations and directions of the program as outlined
by Dr. Simone. Clearly, the State proved by a preponderance of
the evidence that defendant violated the terms of his probation.
Defendant claims that People v. Prusak, 200 Ill. App. 3d
146, 558 N.E.2d 696 (1990), and People v. McClellan, 353 Ill.
App. 3d 1027, 820 N.E.2d 578 (2004), support his position that
the State failed to prove he violated the terms of his probation.
Defendant's reliance on these two cases is misplaced.
The glaring difference between Prusak and the case at bar
is, as noted by the Prusak court, "that Prusak did everything
that was required of him in the counseling sessions." Prusak,
200 Ill. App. 3d at 149. Defendant is correct to note that the
appellate court reversed Prusak's revocation, finding that, "The
only thing that Prusak did not do was accept responsibility for
his sexual misconduct." Prusak, 200 Ill. App. 3d at 149-50.
Unlike the defendant here, Prusak did, in fact, attend
therapy for several months, fulfilling that requirement of his
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probation. Prusak, 200 Ill. App. 3d at 148. Prusak also related
"to the group particular incidents of physical contact with his
daughter that Prusak thought his daughter may have misconstrued."
Prusak, 200 Ill. App. 3d at 148. Defendant Ireland made it very
clear to Dr. Simone at the initial interview that he had no
intention of participating in the group counseling sessions.
Again, Dr. Simone testified that defendant stated that he "was
not guilty of the offense and that he wasn't going to participate
in treatment." (Emphasis added.) While the Prusak defendant
maintained his innocence and defendant Ireland refused to admit
his guilt to Dr. Simone, the similarities between the two cases
stop there. This defendant simply refused to participate in the
treatment program.
Assuming it was correctly decided, McClellan is also
distinguishable from this case in that the McClellan court noted
that defendant complied "with all the requirements demanded of
her during her term of probation." (Emphasis in original.)
McClellan, 353 Ill. App. 3d at 1034. Moreover, unlike the
defendant in this case, McClellan participated in 22 years of
counseling and "[t]he parties also agree that the defendant had
attended and participated in all group sessions required and had
demonstrated appropriate effort on homework assignments and
contributed to group discussions." McClellan, 353 Ill. App. 3d
12at 1030-31.
Unlike the McClellan defendant, Leonard Ireland made it
clear that he would not participate in the counseling sessions as
he claimed he had nothing to discuss. Neither Prusak nor
McClellan supports defendant's contentions that the State failed
to prove he violated the terms of his probation by a
preponderance of the evidence.
Had defendant been convicted of any of the Class X felony
counts, he would not have been eligible for probation (730 ILCS
5/5--5--3(c)(2)(C) (West 2000)) and would have faced a minimum
term of incarceration of 6 years and a maximum term of 30 years
(730 ILCS 5/5--8--1(a)(3) (West 2000)). Furthermore, defendant
would have been eligible for "not only" an extended-term sentence
of 30 to 60 years' incarceration (see 730 ILCS 5/5--5--3.2(c), 5-
-8--2(b)(2) (West 2000)), but also for consecutive sentences had
he been convicted of more than one count detailed in the
indictment. 730 ILCS 5/5--8--4(a)(ii) (West 2000). In light of
defendant's age at the time of his plea and the charges filed
against him, he faced the real possibility of spending the rest
of his life in prison. To avoid a trial and the possibility of a
long term of incarceration, defendant pled guilty to one count of
criminal sexual assault of a minor under age 18.
Generally, defendants convicted of criminal sexual assault
are not eligible for probation. 730 ILCS 5/5--5--3(c)(2)(H)
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(West 2000). However, the legislature has enacted what is
commonly referred to as the "family exception" to the general
rule. 730 ILCS 5/5--5--3(e) (West 2000). The family exception
does not mandate probation, but instead states:
"In cases where prosecution for criminal sexual
assault or aggravated criminal sexual abuse under
Section 12-13 or 12-16 of the Criminal Code of 1961
results in conviction of a defendant who was a family
member of the victim at the time of the commission of
the offense, the court shall consider the safety and
welfare of the victim and may impose a sentence of
probation only where:
(1) the court finds (A) or (B) or both are
appropriate:
(A) the defendant is willing to undergo a
court approved counseling program for a minimum
duration of 2 years; or
(B) the defendant is willing to participate
in a court approved plan including but not limited
to the defendant's:
(i) removal from the household;
(ii) restricted contact with the victim;
(iii) continued financial support of the family;
(iv) restitution for harm done to the victim; and
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(v) compliance with any other measures that the
court may deem appropriate; and
***
Probation may be revoked or modified pursuant to
Section 5-6-4; except where the court determines at the
hearing that the defendant violated a condition of his
or her probation restricting contact with the victim or
other family members, *** the court shall revoke the
defendant's probation and impose a term of imprisonment."
730 ILCS 5/5--5--3(e) (West 2000).
The record is crystal clear that defendant entered his plea
of guilty with full knowledge of the consequences (including sex
offender counseling). He then refused the court-approved and
statutorily mandated counseling, claiming he is not guilty of the
offense to which he pled. In an obvious attempt to give
defendant one last chance to avoid prison, the trial judge,
following the conclusion of the evidence at the revocation
hearing, asked whether defendant was reconsidering his decision
not to participate in the counseling. Defense counsel announced
that defendant had not changed his position.
Defendant was charged with sexually penetrating his 11-year-
old granddaughter three different ways. He was willing to admit
his guilt to avoid the risk of conviction on multiple counts, but
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then, as soon as he was granted probation, he denied his guilt
and refused to cooperate in sex offender counseling, frustrating
the very purpose of his probation. In light of the crime to
which defendant pled guilty, participation in sex offender
counseling was a statutory requirement of probation. Defendant
cannot have it both ways. We find that the trial court's
determination that defendant violated the terms of his probation
is supported by the manifest weight of the evidence.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Kankakee County is affirmed.
Affirmed.
LYTTON and O'BRIEN, JJ., concur.
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