People v. Konwent

405 Ill.App.3d 794

939 N.E.2d 1018

345 Ill.Dec. 838

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Matthew J. KONWENT, Defendant–Appellant.

No. 2–09–0389.

Appellate Court of Illinois, Second District.

Nov. 23, 2010.

Thomas A. Lilien, Deputy Defender, R. Christopher White (Court–appointed), Office of the State Appellate Defender, Elgin, for Matthew J. Konwent.Joseph E. Birkett, DuPage County State's Attorney, Lisa Anne Hoffman, Assistant State's Attorney, Wheaton, Lawrence M. Bauer, Deputy Director, Marshall M. Stevens, Sally A. Swiss, State's Attorneys Appellate Prosecutor, Elgin, for the People.Justice O'MALLEY delivered the opinion of the court:

[345 Ill.Dec. 839 , 405 Ill.App.3d 794] Defendant, Matthew J. Konwent, appeals a judgment revoking his probation and re sentencing him to six years' imprisonment for burglary (720 ILCS 5/19–1(a) (West 2008)). On appeal, he contends that the State failed to prove that he violated a condition of his probation. We affirm.

In 2008, defendant pleaded guilty to burglary and was sentenced to 24 months' probation with 180 days' periodic imprisonment. On January 17, 2009, the State petitioned to revoke his probation, alleging that he “left Serenity House,” a halfway house, “against advice.” On January 26, 2009, the trial court held a hearing at which defendant was the sole witness.

On direct examination by the State, defendant testified as follows. On September 3, 2008, he was sentenced to Treatment Alternatives for Criminal Justice Clients probation (TASC probation) (see 20 ILCS 301/40–10 (West 2008)). As he understood at the time, one condition of his probation was to complete inpatient treatment followed by time in a halfway house. Defendant completed inpatient treatment. On or about December 1, 2008, he entered Serenity House for a 90–day term. At the time, he was told that he would need permission to leave the building.

Defendant testified that, on December 30, 2008, he was living at Serenity House, working during the day on weekdays and returning each evening. The rules required him to be back by 6 p.m. However, on December 30, 2008, he did not return at all. Defendant returned a few days later to retrieve his belongings, but he never came back to complete his treatment. Therefore, he did not complete the 90–day halfway house residency required by his TASC probation.

On cross-examination by his attorney, defendant testified as follows. On December 30, 2008, he was in Chicago, helping a friend deliver wholesale gym shoes.

[345 Ill.Dec. 840 , 939 N.E.2d 1020]

Sometime before 6 p.m., he realized that he was not going to get back to Serenity House on time. Most of the staff members were not there, so defendant called a “senior resident,” Mike Z., and explained that he was running late but that he intended to return to Serenity House sometime between 6 and 7 p.m.

Defendant's attorney then asked him, “And even though you told Mike, you know, I want to come back after 6:00, please let me in; Mike told you you couldn't come back after 6:00?” The State objected, based on hearsay, and the trial court sustained the objection. Defendant then testified that, when he returned a few days later to pick up his belongings, he spoke to Mike Z. Later, he learned that he would have to wait 14 days to go through the process for readmission to Serenity House.

Defendant testified on redirect examination that, on December 30, 2008, he did not return to Serenity House at 6 p.m., 7 p.m., or any other time. On re-cross-examination, he testified that, at some point after December 30, 2008, he called his TASC officer and his probation officer several times to inform them of his situation.

After arguments, the judge ruled for the State, explaining:

“Well, to argue that the State proved he was tardy, they didn't prove he was tardy. He never went back. It's not like he showed up at 6:30 or 7:00 o'clock and pounded on the door and they didn't let him in. And the testimony is that he sat down with the TASC people at intake, they explained the rules and regulations to him, they told him he had to be there for 90 days. He knew that he had to be back by 6 p.m. On December 30 he didn't go back, and he's never been back. So I find that [the State has] proved by a preponderance of the evidence that he violated his probation as alleged in the petition.”

After a hearing, the trial court sentenced defendant as noted. He timely appealed.

On appeal, defendant contends that, under People v. Brechon, 151 Ill.App.3d 1040, 105 Ill.Dec. 31, 503 N.E.2d 871 (1987), the State did not prove that he violated the conditions of his probation, as his sole infraction—missing a curfew—was not willful and did not frustrate an essential purpose of his probation. The State responds that, under People v. Jones, 377 Ill.App.3d 506, 315 Ill.Dec. 942, 878 N.E.2d 168 (2007), willfulness is not an element of a probation violation, and defendant's curfew violation, whatever the extenuating circumstances, supported the judgment. For the reasons that follow, (1) we ultimately agree with the State that the trial court properly found that defendant violated his probation; but (2) we find both Brechon and Jones unsatisfactory in important respects.

We note first that the State had the burden to prove by a preponderance of the evidence that defendant violated a condition of his probation. 730 ILCS 5/5–6–4(c) (West 2008); People v. Colon, 225 Ill.2d 125, 156–57, 310 Ill.Dec. 396, 866 N.E.2d 207 (2007). The trial court's finding that the State met its burden must be affirmed unless it is against the manifest weight of the evidence. Colon, 225 Ill.2d at 158, 310 Ill.Dec. 396, 866 N.E.2d 207.

In Brechon, the trial court revoked the defendant's probation, finding that he had violated a condition forbidding him to leave the state without the trial court's permission. Per Army orders, the defendant had gone to Minnesota to attend an Army reserve camp. At the probation-revocation hearing, he testified that, before leaving, he told his probation officer and his counselor

[345 Ill.Dec. 841 , 939 N.E.2d 1021]

that he intended to attend the camp. The probation officer could not recall whether the defendant had so informed her, but the counselor corroborated the defendant's account of the meeting. Apparently, neither the probation officer nor the counselor told him that he could not go. The defendant testified that he thought that, by telling the probation officer that he intended to leave the state, he complied with the conditions of his probation. Brechon, 151 Ill.App.3d at 1040–42, 105 Ill.Dec. 31, 503 N.E.2d 871.

This court “[r]eversed and vacated” ( Brechon, 151 Ill.App.3d at 1042, 105 Ill.Dec. 31, 503 N.E.2d 871), explaining:

“Based on the record, the trial court stated that he [ sic ] believed the defendant had wilfully violated the conditions of his probation. This finding is not supported by a preponderance of the evidence * * *. * * * Here, defendant's counselor and defendant both testified that defendant had discussed his impending trip. Moreover, defendant's probation officer could not deny that he also discussed it with her. We conclude the findings of the trial court are contrary to the manifest weight of the evidence.” (Emphasis added.) Brechon, 151 Ill.App.3d at 1042, 105 Ill.Dec. 31, 503 N.E.2d 871.

This court's explanation implies that the State had to prove not merely a violation, but a willful violation. However, the applicable probation-revocation statute did not impose any requirement of willfulness. See Ill.Rev.Stat.1983, ch. 38, par. 1005–6–4. As important, we did not discuss or even cite People v. Allegri, 109 Ill.2d 309, 93 Ill.Dec. 781, 487 N.E.2d 606 (1985), in which the supreme court ruled that “[p]ersonal culpability is not required for a court to revoke a sentence of probation.” Allegri, 109 Ill.2d at 314, 93 Ill.Dec. 781, 487 N.E.2d 606 (holding that insanity is not a defense to a claim of probation violation). The Allegri court explained that probation is a privilege that may be revoked when the defendant's acts, culpable or otherwise, require revocation to serve the “ ‘ends of justice’ ” ( Allegri, 109 Ill.2d at 314, 93 Ill.Dec. 781, 487 N.E.2d 606, quoting Ill.Rev.Stat.1981, ch. 38, par. 1005–6–2(c)), such as protecting society. Allegri, 109 Ill.2d at 314, 93 Ill.Dec. 781, 487 N.E.2d 606. Moreover, the court noted, “the statute has no requirement that such conduct even be of a criminal nature, let alone criminally culpable.” Allegri, 109 Ill.2d at 315, 93 Ill.Dec. 781, 487 N.E.2d 606.

For its holding, Allegri cited People v. Davis, 123 Ill.App.3d 349, 78 Ill.Dec. 705, 462 N.E.2d 824 (1984), in which the defendant's TASC probation required him to obtain inpatient substance-abuse treatment. The trial court revoked his probation after he was rejected by a treatment facility and was denied treatment elsewhere. On appeal, the defendant argued that the judgment was erroneous because his violation was not willful. The appellate court disagreed. The court observed that the defendant's probation had been revoked under section 5–6–2(c) of the Unified Code of Corrections (Code) ( Ill.Rev.Stat.1981, ch. 38, par. 1005–6–2(c)), which contained no willfulness requirement. By contrast, section 5–6–4(d) of the Code (Ill.Rev.Stat.1981, ch. 38, par. 1005–6–4(d)) specifically stated that probation may not be revoked for failure to comply with a condition that imposes a financial obligation upon the offender unless the failure was due to a willful refusal to pay. The court reasoned that to read a willfulness requirement into section 5–6–2(c) would render section 5–6–4(d) “ superfluous and unnecessary.” Davis, 123 Ill.App.3d at 352–53, 78 Ill.Dec. 705, 462 N.E.2d 824.

Brechon took no note of Allegri (or Davis), and, insofar as it implies that willfulness

[345 Ill.Dec. 842 , 939 N.E.2d 1022]

is an element of any probation violation, it is unsound. We believe that Brechon, if sound at all, should be...