Opinion
4-22-1097
12-12-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL L. SPIRES, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Morgan County No. 17CF171 Honorable Christopher E. Reif, Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court. Justices Harris and Zenoff concurred in the judgment.
ORDER
DOHERTY JUSTICE
¶ 1 Held: The trial court failed to substantially comply with Illinois Supreme Court Rule 402A (eff. Nov. 1, 2003) when accepting defendant's admission to a probation violation.
¶ 2 In 2018, defendant Michael L. Spires pleaded guilty to one count of aggravated domestic battery and was sentenced to four years' probation. In 2021, the State filed a petition to revoke his probation, alleging he had violated three conditions of his probation. Defendant admitted the allegations in the petition and was sentenced to seven years' imprisonment, the maximum allowed for the underlying offense. On appeal, he argues that the trial court (1) failed to substantially comply with Illinois Supreme Court Rule 402A (eff. Nov. 1, 2003) and (2) abused its discretion at sentencing by failing to properly address the mitigating factor that his imprisonment would pose a hardship to his two sons. For the following reasons, we reverse the judgment revoking defendant's probation and remand for further proceedings.
¶ 3 I. BACKGROUND
¶ 4 In September 2017, defendant attacked his girlfriend Ann Harris for three hours, repeatedly suffocating her until she almost lost consciousness, including by stuffing a plastic shopping bag in her throat. Defendant was charged in Morgan County case No. 17-CF-171 with one count of aggravated domestic battery by strangulation (720 ILCS 5/12-3.3(a-5) (West 2016)), a Class 2 felony, and one count of domestic battery (id. § 12-3.2(a)(1)), a Class A misdemeanor. In January 2018, pursuant to a negotiated plea agreement, defendant pleaded guilty to the felony count and the State dismissed the misdemeanor count. In accordance with the parties' joint recommendation, the trial court sentenced defendant to four years' probation. Defendant did not move to withdraw his plea or reconsider his sentence, and he did not appeal.
¶ 5 In May 2021, defendant allegedly struck Harris with his truck. The State charged defendant in Morgan County case No. 21-CF-90 with one count of domestic battery, a Class 4 felony due to his prior conviction for aggravated domestic battery. 720 ILCS 5/12-3.2(a)(1), (b) (West 2020). If convicted, defendant faced one to six years in the Illinois Department of Corrections. 730 ILCS 5/5-4.5-45(a) (West 2020). Under the truth-in-sentencing law, he could receive no more than one day of sentence credit for each day served, meaning at least 50% of his sentence would have to be served. Id. § 3-6-3(a)(2.1).
¶ 6 The State simultaneously filed a petition to revoke defendant's probation in case No. 17-CF-171, alleging he had violated the conditions of his probation by failing to report to the probation department as directed, failing to successfully complete a domestic violence prevention class, and contacting Harris in the course of committing the alleged domestic battery. If defendant's probation were revoked, he would face three to seven years in the Illinois Department of Corrections. See id. § 5-4.5-35(a). Under the truth-in-sentencing law, he could receive no more than 4.5 days of sentence credit for each month served, meaning at least 85% of his sentence would have to be served. Id. § 3-6-3(a)(2)(vii).
¶ 7 The trial court scheduled a combined bench trial and probation revocation hearing in November 2021. Instead of going through with the hearing, defendant admitted the allegations in the petition to revoke his probation. The following is a transcript of the entire proceeding:
"THE COURT: People of the State of Illinois vs. Michael Spires, 2017-CF-171, 21-CF-90. Present in court for the People State's Attorney Noll. Defendant appears in court in person and with counsel, Attorney Piper. This matter's called for a bench trial in 21-CF-90 and a Petition to Revoke in 17-CF-171. Mr. Piper.
MR. PIPER: Your Honor, it's my understanding in the matter set for the hearing on the Petition to Revoke probation today the defendant will be admitting that Petition, asking that it be set for sentencing hearing in February of next year.
The domestic battery case, which is still on a pretrial status, we'd ask to have set at the same time as the sentencing in the PTR case.
THE COURT: [Defendant], is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: Do you admit or deny that you violated your probation as outlined in the Petition to Revoke?
THE DEFENDANT: I admit.
THE COURT: Court'll accept the admission, request the probation department to prepare a presentence investigation, set that matter for sentencing February 1st at 10:30, continue 21-CF-90 for a status at that time.
You'll need to take a copy of this form we're going to give you directly to our probation department."
¶ 8 Defendant's presentence investigation report indicated that he had full custody of his two sons, then aged 14 and 15. Defendant told the investigating officer," 'All I know is I want to stay out of prison, I have my two kids and would rather not be in prison.[']" Defendant also submitted a written statement asking the trial court to reinstate his probation.
¶ 9 At the sentencing hearing on February 15, 2022, the State sought a sentence of four years' imprisonment. Defendant sought another term of probation or the statutory minimum of three years' imprisonment. Defendant addressed the court personally, saying, "I have my two boys. And I really would appreciate not having to be in prison while they are, you know, growing up without me being there."
¶ 10 When pronouncing its sentence, the trial court stated the following:
"THE COURT: This is an offense where he-I don't even know how to say what he did to this victim for three hours. Suffocated her by holding his hands over her mouth and nose, and just prior to her passing out would let her take a breath and then start the process all over again. When you tell me about your two boys, that's what I think of. Why do I want to send a message to those two boys that that behavior's appropriate? Grab a Wal-Mart bag, sack, and stuff it in her throat until she almost loses consciousness. And you were given an opportunity at
probation, and then you come in here today and do nothing but blame everyone else.
The sentence will be seven years in the Illinois Department of Corrections, followed by one year mandatory supervised release. All original fines and costs re-imposed. If you wish to appeal, you need to file a motion to withdraw your plea within 30 days of today's date."
¶ 11 On the State's motion, the trial court dismissed case No. 21-CF-90. The record does not disclose whether the State's motion and recommendation of four years' imprisonment resulted from an agreement with defendant, although the court later referred to the dismissal as "part of the admission." Whether or not an agreement existed between the State and defendant, however, the admission was clearly "open" in that the court did not find itself bound by the State's recommended sentence.
¶ 12 In March 2022, defendant filed a pro se motion with the trial court, saying, "I *** would like to with drawl [ sic ] my guilty plea [and] reopen my case for another trial to get a reduced sentence. I feel as though I got to[o] much time [and] at only 85%." The court set a status hearing in May 2022 "for counsel to discuss with defendant his rights and to determine if he is wishing to appeal or to attempt to withdraw his admission to the petition to revoke." Defendant filed a second pro se motion in April 2022. He alleged in the motion and an attached affidavit that he had been offered a plea deal of three years at 50% while awaiting trial, and if he had known he could get seven years at 85%, he would have accepted the offer. According to defendant, "his plea was not made with the full knowledge of the consequences."
¶ 13 After several continuances resulting in part from a substitution of defendant's counsel, the trial court held the planned status hearing in December 2022. Defendant explained that he wanted to appeal his sentence and did not want to file a motion to withdraw his admission, so the court requested the circuit clerk file a notice of appeal. On defendant's motion, the supreme court directed this court to treat the notice of appeal as a properly perfected appeal from the February 15, 2022, judgment revoking defendant's probation. Spires v. Justices of the Appellate Court, Fourth District, No. 129530 (Ill. Apr. 10, 2023) (supervisory order).
¶ 14 II. ANALYSIS
¶ 15 On appeal, defendant argues that the trial court failed to substantially comply with Illinois Supreme Court Rule 402A (eff. Nov. 1, 2003) and asks this court to reverse the trial court's judgment revoking his probation and remand the case with directions to allow him to withdraw his admission to the petition to revoke his probation and for further probation revocation proceedings, as necessary.
¶ 16 A. Forfeiture
¶ 17 The State argues that defendant forfeited this argument by failing to raise it in a postsentencing motion before the trial court, and defendant concedes he did not mention Rule 402A in his two pro se motions. However, a judgment revoking a defendant's probation is a final appealable order, even when it is based on a defendant's admission. 730 ILCS 5/5-6-4(g) (West 2022); see Ill. S.Ct. R. 604(b) (eff. July 1, 2017). Although a defendant is permitted to move to withdraw an admission before the trial court, such a motion is not a prerequisite to an appeal. People v. Harris, 392 Ill.App.3d 503, 506-07 (2009) (citing People v. Tufte, 165 Ill.2d 66, 78 (1995)). Furthermore, Rule 604(b), which governs appeals from judgments revoking probation, does not require a postsentencing motion to preserve issues for appeal, unlike Rule 604(d), which governs appeals from judgments entered on pleas of guilty. See People v. Hayes, 2022 IL App (2d) 210014, ¶¶ 19-20 (noting that Rule 604(d) does not apply to appeals from judgments revoking probation). As such, we may consider alleged admonishment errors on direct appeal that could have been raised in a motion to withdraw an admission, even if a motion might have been more efficient. People v. Butcher, 288 Ill.App.3d 120, 123 (1997); see Tufte, 165 Ill.2d at 78.
¶ 18 The State further argues that we should nevertheless decline to consider defendant's argument because he "expressly disavowed any intention to withdraw his admissions" at the December 2022 hearing. The State appears to be invoking the invited error doctrine, under which "a party forfeits his right to complain of an error where to do so would be inconsistent with the position [he took] in an earlier court proceeding." Givens v. City of Chicago, 2023 IL 127837, ¶ 77. Here, the only position defendant took at the hearing was to inform the trial court that he wanted to appeal the judgment revoking his probation rather than seek relief from the trial court. We note again that defendant was not required to procure a postsentencing ruling from the trial court to appeal or preserve issues for appeal, nor was he under any obligation to inform the trial court why he chose to appeal, so this is not a situation where defendant "procured a ruling from the court in accordance with his view" and therefore must be "bound by the trial court's action." Id. At most, defendant incorrectly stated what relief he would seek from this court, but that does not mean he invited the alleged errors or forfeited his right to complain of them on appeal. Cf. General Motors Corp. v. Pappas, 242 Ill.2d 163, 178 (2011) (noting that a failure to include an issue in an appellate docketing statement does not result in forfeiture of the issue).
¶ 19 B. History of Rule 402A
¶ 20 The United States Constitution guarantees that a person cannot be deprived of liberty without due process of law. U.S. Const., amend. XIV, § 1; accord Ill. Const. 1970, art. I, § 2. A probation revocation results in a serious deprivation of liberty, so the proceeding must satisfy procedural due process "to insure that [the defendant's] liberty is not unjustifiably taken away." Gagnon v. Scarpelli, 411 U.S. 778, 785 (1973). Because the touchstone of due process is fundamental fairness (id. at 790), "[the] defendant in a probation violation hearing is entitled to (1) a fair determination that the acts upon which the probation violation is predicated actually took place, and (2) fairness throughout the duration of the proceeding." People v. Steele, 283 Ill.App.3d 413, 415 (1996).
¶ 21 In addition to fundamental fairness, the defendant is entitled to" 'the minimum requirements of due process.'" Gagnon, 411 U.S. at 786. These safeguards include:
"(1) written notice of the claimed probation violation; (2) disclosure of the evidence against the defendant; (3) the opportunity to be heard in person and present testimonial and documentary evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a neutral arbiter; and (6) a written statement of the evidence relied upon and the reason for revoking probation." People v.Hall, 198 Ill.2d 173, 177-78 (2001).
¶ 22 The defendant is also entitled to the assistance of counsel. People v. Pier, 51 Ill.2d 96, 100 (1972) (citing Mempa v. Rhay, 389 U.S. 128 (1967)). These safeguards ensure the defendant receives "a conscientious judicial determination of the [alleged probation violation] according to accepted and well recognized procedural methods." Hall, 198 Ill.2d at 178 (quoting Pier, 51 Ill.2d at 100); see 730 ILCS 5/5-6-4(c) (West 2022) (explicitly guaranteeing that the evidence of an alleged probation violation "shall be presented in open court with the right of confrontation, cross-examination, and representation by counsel").
¶ 23 The defendant may waive his constitutional right to a probation revocation hearing with these procedural safeguards by admitting to a probation violation. See Boddie v. Connecticut, 401 U.S. 371, 378-79 (1971) (noting that a "hearing required by due process is subject to waiver").
A waiver is" 'an intentional relinquishment or abandonment of a known right or privilege.'" Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Thus, for the defendant's admission to be an effective waiver of his right to a hearing, due process requires the admission to be both voluntary and knowing. See id. The United States Supreme Court has described these requirements as follows:
"First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986).
¶ 24 Moreover, due process requires that the record affirmatively show the voluntary and knowing nature of the waiver; "[p]resuming waiver from a silent record is impermissible." Boykin, 395 U.S. at 242 (quoting Carnley v. Cochran, 369 U.S. 506, 516 (1962)). This is so even though "a probation revocation proceeding is a civil proceeding" (People v. Lindsey, 199 Ill.2d 460, 467 (2002)), because in the civil as well as the criminal area," '[courts] do not presume acquiescence in the loss of fundamental rights'" (Fuentes v. Shevin, 407 U.S. 67, 94 n.31 (1972) (quoting Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292, 307 (1937))). The necessary showing can be satisfied by the defendant's answers to questioning in open court because "[s]olemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977).
¶ 25 In Hall, the supreme court set forth a framework for trial courts to ensure that admissions to probation violations are affirmatively shown to be voluntary and knowing, as required by due process. Hall, 198 Ill.2d at 181. Rule 402A was adopted to follow the supreme court's mandate in Hall. Ill. S.Ct. R. 402A, Committee Comments (adopted Oct. 20, 2003).
¶ 26 C. Substantial Compliance With Rule 402A
¶ 27 Rule 402A establishes several requirements that the trial court must satisfy before accepting the defendant's admission to a probation violation. By its own terms, Rule 402A requires only substantial compliance, and substantial compliance is sufficient to satisfy due process. People v. Dennis, 354 Ill.App.3d 491, 496 (2004). The trial court's compliance with Rule 402A is a legal question that we consider de novo. People v. Ellis, 375 Ill.App.3d 1041, 1046 (2007).
¶ 28 1. Rule 402A(a)
¶ 29 Rule 402A(a) requires the trial court to address the defendant personally in open court to inform him of the following and ensure he understands them:
"(1) the specific allegations in the petition to revoke probation, conditional discharge or supervision;
(2) that the defendant has the right to a hearing with defense counsel present, and the right to appointed counsel if the defendant is indigent and the underlying offense is punishable by imprisonment;
(3) that at the hearing, the defendant has the right to confront and cross-examine adverse witnesses and to present witnesses and evidence in his or her behalf;
(4) that at the hearing, the State must prove the alleged violation by a preponderance of the evidence;
(5) that by admitting to a violation, or by stipulating that the evidence is sufficient to revoke, there will not be a hearing on the petition to revoke probation,
conditional discharge or supervision, so that by admitting to a violation, or by stipulating that the evidence is sufficient to revoke, the defendant waives the right to a hearing and the right to confront and cross-examine adverse witnesses, and the right to present witnesses and evidence in his or her behalf; and
(6) the sentencing range for the underlying offense for which the defendant is on probation, conditional discharge or supervision." Ill. S.Ct. R. 402A(a) (eff. Nov. 1, 2003).
The goal of Rule 402A(a) is to ensure that the defendant's admission is knowing, meaning he "understood his admission, the rights he was waiving, and the potential consequences of his admission." Dennis, 354 Ill.App.3d at 496.
¶ 30 We will find substantial compliance with Rule 402A(a) when, "although the trial court did not recite to the defendant, and ask the defendant if he *** understood, an item listed in [Rule 402A(a)], the record nevertheless affirmatively and specifically shows that the defendant in fact understood that item." Id. at 495. This inquiry is objective; we ask what "an ordinary person in [the] defendant's position would have understood" at the time the admission was accepted, based on the record of earlier proceedings. Id. at 496. We consider each case based on its specific facts, with our principal focus on the length of time between any earlier admonishments and the trial court's acceptance of the admission. Id. However, deficient admonishments "cannot be overcome by the court's later remarks or explanations." People v. Bassette, 391 Ill.App.3d 453, 458 (2009).
¶ 31 Here, defendant argues that the trial court failed to admonish him in substantial compliance with Rule 402A(a). Although the State argues that the court substantially complied with Rule 402A(a)(6) regarding defendant's potential sentence, the State concedes that defendant "was never admonished as to the right to cross-examine or present witnesses at a hearing or as to the right to an attorney." See Ill. S.Ct. R. 402A(a)(2)-(3) (eff Nov. 1, 2003). Even under the State's preferred view of the facts, then, the court "did not advise the defendant of his right to a probation revocation hearing or the specifics of such a hearing," just as in Hall, 198 Ill.2d at 182. Although the State argues that the court's failure to substantially comply with Rule 402A(a) is not reversible error, the supreme court reversed in Hall, so we are constrained to reach the same result here. See id.
¶ 32 2. Rule 402A(b)
¶ 33 Rule 402A(b) requires the trial court to question the defendant personally in open court to "determine whether any coercion or promises, apart from an agreement as to the disposition of the defendant's case, were used to obtain the admission," and to "confirm the terms of the agreement, or that there is no agreement." Ill. S.Ct. R. 402A(b) (eff. Nov. 1, 2003). The goal of Rule 402A(b) is to ensure that the defendant's admission is voluntary. See Hall, 198 Ill.2d at 181; see also People v. Peterson, 74 Ill.2d 478, 485-86 (1978) (holding that coerced testimony and its fruits cannot form the basis for revoking probation).
¶ 34 We will find substantial compliance with Rule 402A(b) if the record affirmatively shows that the defendant's admission did not result from any coercion or promises and that he either understood the terms of the agreement he had with the State or understood that he had no agreement with the State. See People v. Bailey, 2021 IL App (1st) 190439, ¶¶ 31-32 (reversing for lack of substantial compliance with Rule 402A(b) when the record failed to show that the defendant understood that his agreement with the State entailed a two-year period of mandatory supervised release); see also People v. Followell, 165 Ill.App.3d 28, 31 (1987) (reversing when the record failed to show "whether [the defendant's] desire to admit was based on promises made to him by the State or by his own attorney, or upon *** coercion").
¶ 35 Here, defendant argues that the trial court failed to ensure that his admission was not the result of coercion or promises. We agree. Although the bar for such a showing is quite low, the court failed to elicit even a pro forma assurance that the admission was voluntarily entered. Moreover, the State's decision to dismiss the companion case as "part of the admission" was unexplained and may have resulted from an undisclosed agreement with defendant. Accordingly, we find that the court failed to substantially comply with Rule 402A(b).
¶ 36 D. Sentencing
¶ 37 Defendant also argues that the trial court abused its discretion at sentencing by failing to properly address the mitigating factor that his imprisonment would pose a hardship to his two sons. See 730 ILCS 5/5-5-3.1(a)(18) (West 2022). However, given our resolution of defendant's Rule 402A argument, he is entitled to a new probation revocation hearing on remand and, if necessary, a new sentencing hearing where the trial court can address all relevant mitigating factors. Because his challenge to his original sentence is now moot, we decline to reach this issue. Barth v. Reagan, 139 Ill.2d 399, 419 (1990) ("Courts of review *** ordinarily will not consider issues *** where the result will not be affected regardless of how the issues are decided.").
¶ 38 III. CONCLUSION
¶ 39 For the reasons stated, we reverse the trial court's judgment revoking defendant's probation and remand with directions to allow defendant to withdraw his admission and for further probation revocation proceedings, as necessary.
¶ 40 Reversed and remanded with directions.