Opinion
NO. 4-10-0664
01-16-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN A. TAPP, Defendant-Appellant.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from
Circuit Court of
Sangamon County
No. 97CF401
Honorable
Peter C. Cavanagh,
Judge Presiding.
JUSTICE TURNER delivered the judgment of the court.
Justices Appleton and Knecht concurred in the judgment.
ORDER
¶ 1 Held: Where the revocation of defendant's conditional discharge under the Sexually Dangerous Persons Act was a civil proceeding, the trial court did not err in admitting, without additional information, defendant's sentencing order that showed his guilty plea to and conviction of indecent solicitation of a child in Du Page County. ¶ 2 In September 1997, the Sangamon County circuit court found defendant, Brian A. Tapp, was a sexually dangerous person under section 1.01 of the Sexually Dangerous Persons Act (Act) (725 ILCS 205/1.01 (West 1996)) and committed him to the custody of the Department of Corrections (DOC). In August 2002, the court entered an order, providing for defendant's conditional release. In October 2007, the State filed a petition to revoke defendant's conditional release, which the court granted on June 15, 2010. ¶ 3 Defendant appeals the revocation of his conditional discharge, contending the trial court erred by admitting his September 2009 Du Page County "criminal sentence order" (hereinafter Du Page County order). This court originally dismissed defendant's appeal for lack of jurisdiction. People v. Tapp, 2012 IL App (4th) 100664, 976 N.E.2d 23. However, in denying leave to appeal, the Illinois Supreme Court exercised its supervisory authority, vacating our dismissal and ordering us to decide the case on the merits. People v. Tapp, 2012 IL 114105, 975 N.E.2d 616 (nonprecedential supervisory order on denial of petition for leave to appeal). We do so and affirm the trial court's revocation of defendant's conditional release.
¶ 4 I. BACKGROUND
¶ 5 In May 1997, the State charged defendant by information with two counts of predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 1996)) for his alleged actions between June 1 and August 25, 1996, and on January 26, 1997. That same month, the State filed a petition to proceed under the Act and asking to have defendant evaluated by two qualified psychiatrists to determine if defendant was a sexually dangerous person. The trial court ordered such evaluations. After the completion of the evaluations, the State filed a petition to have defendant declared a sexually dangerous person under the Act, noting both psychiatrists had found defendant was a sexually dangerous person. In September 1997, defendant stipulated to the contents of the two psychiatric evaluations, and the court found defendant was a sexually dangerous person. The court entered an order, appointing the director of DOC as defendant's guardian and committed defendant to his custody. ¶ 6 In February 2002, defendant filed a pro se application to show recovery under section 9 of the Act (725 ILCS 205/9 (West 2000)). After an August 2002 hearing, the trial court entered an order for defendant's conditional discharge pursuant to section 10 of the Act (725 ILCS 205/10 (West 2002)). The order placed numerous conditions on defendant's discharge, including the requirement defendant had to live in a residential center until the center determined he could live independently. The order also required defendant to obey parole rules and regulations and all laws. He also could not be alone with children or young adolescents without the consent and/or supervision of treatment personnel. In April 2007, defendant's wife gave birth to a child. In June 2007, the court approved an agreed order, under which defendant could reside in a home with his wife, infant child, and father under certain conditions referred to as a protection plan. The protection plan provided, inter alia, defendant could not be alone with his child. ¶ 7 In October 2007, the State filed a petition to revoke defendant's conditional discharge, asserting (1) defendant failed to attend a scheduled counseling session on October 17, 2007; (2) later that same day, defendant's parole agent discovered defendant had removed his tracker and was not at his residence; and (3) defendant sexually assaulted or abused a 16-year-old girl in July 2007 while he worked at her family's residence. ¶ 8 On June 15, 2010, the trial court held a hearing on the petition to revoke. The State argued defendant had violated his conditional release by committing a new offense and presented a copy of the Du Page County order for defendant's indecent-solicitation-of-a-child conviction (720 ILCS 5/11-6(a), (c)(3) (West 2006)). The Du Page County order showed defendant pleaded guilty to the charge on June 3, 2009, and the court sentenced him to 24 months' probation. People v. Tapp, No. 07-CF-2979 (Cir. Ct. Du Page Co.). Defense counsel objected, noting the document lacked the following: "the Information or the Indictment, the showing of a return of Indictment or the waiver, and then that type of information with respect to a plea and a waiver of a Jury and so forth." The State responded it believed the Du Page County order would be sufficient and noted defendant had indicated he was going to admit the petition. Defense counsel stated he too had not anticipated a formal hearing on this matter. The court indicated it was willing to continue the matter, and the parties noted they wanted to examine the relevant case law first. A discussion off the record then took place. When the hearing went back on the record, the court admitted the criminal sentence order over defendant's objection and noted the order's contents. ¶ 9 Defendant also testified at the hearing and admitted pleading guilty to indecent solicitation of a child but stated he pleaded guilty under the belief his conditional discharge would be reinstated if he cooperated with law enforcement. When the State questioned defendant about what occurred in July 2007, defendant denied committing the specific acts the State mentioned. During closing arguments, the State asserted it had proved defendant violated his conditional release by committing a new offense. Defense counsel argued that, while a conviction would generally constitute a violation, this case was unique as defendant had been assisting law enforcement and, due to conversations with his Du Page County attorney, defendant did not expect to have his conditional discharge revoked as a result of his guilty plea to the Du Page County charge. Additionally, defense counsel raised concerns about defendant's safety in a DOC facility. After hearing all the evidence and the parties' arguments, the court entered an order revoking defendant's conditional discharge. The written order noted defendant's conditional discharge order required him not to be alone with a child and not to violate any criminal statutes and found defendant violated his conditional discharge in July 2007 by committing the offense of indecent solicitation of a child. The order cited defendant's guilty plea in the Du Page County case. ¶ 10 As stated, defendant appealed the revocation, and this court originally dismissed the appeal due to lack of jurisdiction. People v. Tapp, 2012 IL App (4th) 100664, 976 N.E.2d 23. In denying leave to appeal, the Illinois Supreme Court exercised its supervisory authority, vacating our dismissal and ordering us to decide the case on the merits. People v. Tapp, 2012 IL 114105, 975 N.E.2d 616 (nonprecedential supervisory order on denial of petition for leave to appeal). We now do so.
¶ 11 II. ANALYSIS
¶ 12 Here, defendant asserts the trial court erred by admitting his Du Page County order because the State failed to present (1) evidence showing the guilty plea in that case was knowing and voluntary and (2) information regarding the charge or the conduct alleged in that case. The State asserts the Du Page County order was properly admitted.
¶ 13 A. Standard of Review
¶ 14 Defendant asserts the de novo standard of review should apply here because neither the facts nor the witness's credibility is disputed in this case. See People v. Anthony, 198 Ill. 2d 194, 201, 761 N.E.2d 1188, 1191 (2001). The State disagrees, arguing the manifest-weight-of-the-evidence standard applies because the trial court made a finding by a preponderance of the evidence. Best v. Best, 223 Ill. 2d 342, 348-49, 860 N.E.2d 240, 244 (2006). However, defendant's arguments on appeal challenge the trial court's admission of the Du Page County order and neither party cites cases addressing the standard of review for questions of admissibility of evidence in revocation-of-conditional-discharge proceedings. Generally, in cases under the Act, this court will not disturb a trial court's evidentiary ruling absent an abuse of discretion. In re Detention of Kish, 395 Ill. App. 3d 546, 553, 916 N.E.2d 595, 600 (2009). However, this court has applied the de novo standard where the relevant facts are undisputed and the trial court made its decision solely on its interpretation of case law. See Petre v. Kucich, 331 Ill. App. 3d 935, 941, 771 N.E.2d 1084, 1089 (2002). ¶ 15 In this case, the record is not exactly clear on what basis the trial court overruled defendant's objection to the admission of the Du Page County order. Defense counsel objected to the order's admission, arguing case law required more than just a certified copy of the conviction. The State responded it believed the certified copy was sufficient and asked defense counsel to supply the court with the case name. Defense counsel agreed to look into it. The court then ordered the discussion off the record. When the court went back on the record, it highlighted the sentencing order's contents and admitted the order over defendant's objection. Since the sentencing order's contents are undisputed and the court seemed to rely on that information and possibly case law in admitting the document, we will apply the de novo standard of review.
¶ 16 B. Admissibility of the Du Page Sentencing Order
¶ 17 1. Forfeiture
¶ 18 Since our supreme court has instructed us to begin our review of a case by determining whether any issues have been forfeited (see People v. Smith, 228 Ill. 2d 95, 106, 885 N.E.2d 1053, 1059 (2008)), we first address the State's forfeiture argument as to defendant's contention the order was inadmissible because the State failed to present evidence showing defendant's plea was knowing and voluntary. "As a general rule in civil cases, the failure to specifically and timely object waives the objection for purposes of review." In re Detention of Traynoff, 358 Ill. App. 3d 430, 441, 831 N.E.2d 709, 720 (2005). Moreover, a party may not raise arguments for the first time on appeal. Hansen v. Baxter Healthcare Corp., 198 Ill. 2d 420, 429, 764 N.E.2d 35, 41 (2002). In objecting to the admission of the Du Page County order, defense counsel raised the argument the certified copy alone was insufficient and argued the State needed to also present the following: "the Information or the Indictment, the showing of a return of Indictment or the waiver, and then that type of information with respect to a plea and a waiver of a Jury and so forth." Defendant raised no other reason for objecting to the admission of the Du Page County order. The State asserts defendant forfeited his knowing-and-voluntary argument by failing to raise it in the trial court. We note defendant did not file a reply brief and thus did not respond to the State's forfeiture argument. Accordingly, we find defendant has forfeited his argument that the State had to present evidence his guilty plea was knowing and voluntary due to his failure to raise it in the trial court.
¶ 19 2. Sufficiency of the Du Page County Order
¶ 20 Defendant contends the Du Page County order was inadmissible by itself because the State had to also present the indictment and underlying facts relevant and material to the matters at issue in the revocation proceedings. The State disagrees and notes defendant admitted he pleaded guilty in the Du Page County case. ¶ 21 Section 9(e) of the Act (725 ILCS 205/9(e) (West 2006)) provides that, "[i]n the event the person violates any of the conditions of such [release] order, the court shall revoke such conditional release and recommit the person pursuant to Section 5-6-4 of the Unified Code of Corrections under the terms of the original commitment." Section 5-6-4 of the Unified Code of Corrections (730 ILCS 5/5-6-4 (West 2006)) concerns violations, modifications, or revocations of (1) probation; (2) conditional discharge; (3) supervision; or (4) impact incarceration. Kish, 395 Ill. App. 3d at 553, 916 N.E.2d at 600. "[P]robation revocation proceedings are civil rather than criminal proceedings." Kish, 395 Ill. App. 3d at 553, 916 N.E.2d at 600. Accordingly, conditional release revocations are civil proceedings. Kish, 395 Ill. App. 3d at 554, 916 N.E.2d at 601. ¶ 22 In support of his argument, defendant only cites People v. Williams, 188 Ill. 2d 365, 369-70, 721 N.E.2d 539, 543 (1999), which sets forth the admissibility requirements of prior guilty pleas in subsequent criminal cases. In Williams, the supreme court stated " '[i]t is generally held that a voluntary plea of guilty on a prior trial or hearing, even for another offense, where the plea in effect admits certain facts which are relevant and material on the present trial, is admissible.' " Williams, 188 Ill. 2d at 369-70, 721 N.E.2d at 543 (quoting 23 C.J.S. Criminal Law § 883, at 92-93 (1989)). However, as stated, the revocation of a conditional release under the Act is a civil proceeding, not a criminal one. See Kish, 395 Ill. App. 3d at 554, 916 N.E.2d at 601. ¶ 23 In civil cases, Illinois law has long held the use of a guilty plea itself is admissible as an admission against interest in a subsequent civil case. Spircoff v. Stranski, 301 Ill. App. 3d 10, 15, 703 N.E.2d 431, 435 (1998); Smith v. Andrews, 54 Ill. App. 2d 51, 57-58, 203 N.E.2d 160, 163-64 (1964). We recognize that, in some situations, the admissibility of the conviction arising from the guilty plea and the admissibility of the guilty plea are separate matters. See Thurmond v. Monroe, 159 Ill. 2d 240, 245-46, 636 N.E.2d 544, 547 (1994) (holding traffic convictions are inadmissible in later civil proceedings as proof of the facts that act as a basis for the conviction but noting it was not addressing the admissibility of a guilty plea); Wright v. Stokes, 167 Ill. App. 3d 887, 891-92, 522 N.E.2d 308, 311 (1988) (finding a guilty plea is proper evidence against a defendant in a civil proceeding arising from the same incident where the underlying charge was dismissed after the defendant successfully completed supervision; Ill. R. Evid. 803(22) (eff. Apr. 26, 2012) (limiting the hearsay exception for previous convictions to crimes "punishable by death or imprisonment in excess of one year")). However, none of those situations are present here. Moreover, we note that, while the court in Andrews, 54 Ill. App. 2d at 57-58, 203 N.E.2d at 163-64, distinguished between a conviction resulting from a guilty plea and one resulting from a trial on the merits, later Illinois cases that consider the admissibility of previous convictions have not drawn a distinction between the two types of convictions. Smith v. Sheahan, 959 F. Supp. 841, 844 (N.D. Ill. 1997). ¶ 24 The Du Page County order states defendant pleaded guilty to the offense of indecent solicitation of a child, a Class 3 felony (720 ILCS 5/11-6(a), (c)(3) (West 2006)), and contested his sentence. People v. Tapp, No. 07-CF-2979 (Cir. Ct. Du Page Co.). The Du Page County circuit court found defendant guilty, sentenced him to 24 months' probation with numerous conditions, and entered the conviction. Accordingly, the document was sufficient to show both defendant's guilty plea to the offense and his conviction of the offense. Defendant's plea and conviction were relevant to show defendant failed to comply with Illinois law in violation of his conditional release. Accordingly, we find the trial court did not err in admitting the Du Page County sentencing order. ¶ 25 Last, we note that, contrary to defendant's assertion, the Du Page County order was not the sole evidence of defendant's conditional-release violation. Defendant testified at the hearing and admitted that, on June 3, 2009, he pleaded guilty to indecent solicitation of a child in Du Page County for something that happened in 2007. He also testified about a discussion he had with his attorney in Du Page County. From that discussion, he believed that, if he pleaded guilty to indecent solicitation "that more than likely [his] conditional release would be reinstated as long as [he] continued **** working with law enforcement." Such testimony was sufficient for the trial court to find defendant had committed the crime that was the basis for the guilty plea during the time he was on probation. See People v. King, 24 Ill. App. 3d 686, 689, 321 N.E.2d 407, 410 (1974). Thus, to the extent defendant challenges the sufficiency of the State's evidence on appeal, we find the State's evidence was sufficient to prove by a preponderance of the evidence defendant violated his conditional release. See Kish, 395 Ill. App. 3d at 555, 916 N.E.2d at 601 (holding the State's burden of proof in revocation-of-conditional-discharge proceeding is preponderance of the evidence).
¶ 26 III. CONCLUSION
¶ 27 For the reasons stated, we affirm the Sangamon County circuit court's judgment. ¶ 28 Affirmed.