People v. Herrin

No. 3-06-0924
Filed September 25, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit
) Tazewell County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 05-CM-870
)
LAURIE HERRIN, ) Honorable
) Richard D. McCoy
Defendant-Appellant. ) Judge, Presiding
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.
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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
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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 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.
ANALYSIS
Herrin's jurisdictional claim raises a question of law subject to de novo review. See In re
D.G., 144 Ill. 2d 404 (1991).
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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." 730 ILCS 5/5-6-4(a) (West 2006). Of course such notice is not
operative, however, unless the underlying pleading is valid. The underlying pleading in the
instant case is the probation officer's "STATEMENT CHARGING VIOLATION OF
PROBATION AND PETITION TO REVOKE PROBATION." We conclude that this pleading
was invalid ab initio because the probation officer lacked authority to file it.
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 non-attorney other than the defendant (such as a probation officer) can file a
pleading that charges a probation violation and seeks revocation.
5
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. 730 ILCS 5/5-6-4(a) (West
2006). Such indication is unnecessary because the legislature has elsewhere declared, "The duty
of each State's attorney shall be: To commence and prosecute all actions *** civil and criminal,
in the circuit court for his county, in which the people of the State or county may be concerned."
(Emphasis added.) 55 ILCS 5/3-9005(a)(1) (West 2006). Based on the plain meaning of this
language, and a lack of any specific statutory exception applicable in the probation context, we
conclude that a probation officer cannot file a pleading that charges a probation violation and
seeks revocation. Such action constitutes the unauthorized practice of law and usurps the State's
attorney's prerogative.
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. 730 ILCS 5/5-6-4(f) (West 2006). However, such a general grant of institutional
pleading authority does not answer the specific question of who can file the pleading in court.
Prior to July 31, 1996, subsection 5-6-4(f) explicitly stated that probation conditions could be
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modified "on motion of the probation officer." See 730 ILCS 5/5-6-4(f) (West 1994). However,
this language was stricken by amendment through Public Act 89-587 (Pub. Act 89-587, eff. July
31, 1996). Probation officers have thus been removed from the pleading equation. Now the
statutory language merely conveys a general grant of pleading authority to the supervising
agency, which by virtue of its institutional nature cannot proceed pro se. When exercising its
authority under subsection 5-6-4(f), therefore, the agency must proceed like other institutional
parties that plead in court--through counsel.1 More importantly, this discussion only
encompasses motions to modify probation conditions. Authority to move for modification does
not encompass authority to petition for revocation. See Dinger, 136 Ill. 2d 248.
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." 730 ILCS 5/5-6-4(i) (West 2006). This
1
Otherwise, by comparison, the State could send a secretary, paralegal, or other non-
attorney to appear in court and plead a violation of supervision or conditional discharge. See 730
ILCS 5/5-6-4.1(a) (West 2006) (authorizing “the State” to make an “oral or written motion”
charging a violation of supervision or conditional discharge). This, of course, would constitute
the unauthorized practice of law. Prosecution by the State’s attorney was not specifically
mentioned here because it was a foregone conclusion, not because non-attorneys were being
authorized to plead in court.
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provision could have been worded, "Instead of the State's attorney filing a violation of probation
***," but such wording was unnecessary for the reasons explained above. The State's attorney's
role as prosecutor of such actions is a foregone conclusion (see 55 ILCS 5/3-9005(a)(1) (West
2006)) and thus does not need to be reiterated every time a statute mentions filings to initiate the
proceedings. Moreover, it is inconsequential that subsection 5-6-4(i) authorizes "an agent or
employee of the supervising agency" to serve a probationer with a Notice of Intermediate
Sanctions because unlike pleading in court, such service does not constitute the practice of law.
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.
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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, 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. Kellems, 373 Ill. App. 3d at 1133.
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 (730 ILCS 110/12 (West
2004)). Kellems, 373 Ill. App. 3d at 1131.
The Kellems court then noted that the legislature gave, in
section 3--9005 of the Counties Code (55 ILCS 5/3--9005(a)(1)
(West 1992)), the authority to commence "and prosecute all
actions, suits, indictments[,] and prosecutions, civil and
criminal, in the circuit court for his county, in which the
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people of the State or county may be concerned." Kellems, 373
Ill. App. 3d at 1132. Given that this power was conferred upon
the State's Attorney, and the fact that such authority had not
been granted to probation officers, the Kellems court held that a
court lacks "authority to consider" a petition to revoke filed by
a probation officer. Kellems, 373 Ill. App. 3d at 1133.
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
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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. 730 ILCS 5/5--6--1 et seq. (West 2006).
Section 5--6--4 of the Code sets forth the applicable procedures
to inform the court of an alleged violation of a condition of
probation. 730 ILCS 5/5--6--4 (West 2006). Nowhere in this
section, however, is a "petition to revoke" mentioned.
Technically, a "petition *** charging a violation of a condition"
may be filed with the court. 730 ILCS 5/5--6--4(a) (West 2006).
Once the petition charging a violation of a condition is filed,
the court may: (1) order the issuance of a notice to the offender
to be present by the county probation department or such other
agency designated by the court to handle probation matters; (2)
order a summons to the offender to be present for a hearing; or
(3) order a warrant for the offender's arrest if there is a
danger the offender will flee or cause serious harm to others.
730 ILCS 5/5--6--4(a) (1) through (3) (West 2006). Personal
service of either the notice, summons, or warrant tolls the
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period of probation. 730 ILCS 5/5--6--4(a) (West 2006). The
Code continues by stating that the court "shall conduct a hearing
of the alleged violation." 730 ILCS 5/5--6--4(b) (West 2006).
At the hearing, the "State has the burden of going forward with
the evidence and proving the violation by the preponderance of
the evidence." 730 ILCS 5/5--6--4(c) (West 2006). Following the
hearing, if the court finds a condition of probation was violated
then it has many options, one of which is to revoke probation
altogether and "impose any other sentence that was available
under section 5--5--3 of [the] Code or section 11-501 of the
Illinois Vehicle Code at the time of initial sentencing." 730
ILCS 5/5--6--4(e) (West 2006).
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
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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."
730 ILCS 5/5--6--4(i) (West 2006). The legislature therefore
empowered the probation department to serve defendant a notice of
intermediate sanctions "instead of filing a violation of
probation." This language clearly evinces the legislative intent
to provide a probation department with the option of filing a
petition charging a violation of probation (petition to revoke)
with the court or, instead, filing 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."
730 ILCS 5/5--6--4(f) (West 2006). I can think of no rational
reason why the legislature would allow a "supervising agency" to
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make a motion to modify probationary conditions in one breath,
and deny the same agency the ability to file a petition charging
a violation of a condition in another.
It is axiomatic to note that our primary goal of statutory
interpretation is to ascertain and give effect to the intention
of the legislature. People v. Bailey, 375 Ill. App. 3d 1055, 874
N.E.2d 940 (2007). Therefore, I respectfully disagree with the
majority's analysis and would find that probation officer Daymon
Aeilts, with the concurrence of his supervisor, was authorized to
file the statement charging violation of probation. The State,
through the Tazewell County State's Attorney's office, then chose
to prosecute the matter to conclusion.
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.
People v. Clark, 313 Ill. App. 3d at 960. I would hold that the
trial court's finding that defendant violated a condition of her
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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.
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