People v. Allen

2024 IL App (1st) 221680-U

• Court: Appellate Court of Illinois
• Decided: April 10, 2024
• Docket: 1-22-1680
• Status: Unpublished

Opinion

2024 IL App (1st) 221680-U No. 1-22-1680 Order filed April 10, 2024 Third Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 16 CR 4334 ) JAMES ALLEN, ) Honorable ) Charles P. Burns, Defendant-Appellant. ) Judge, presiding.

JUSTICE R. VAN TINE delivered the judgment of the court. Justices Lampkin and D.B. Walker concurred in the judgment.

ORDER

¶1 Held: Where the trial court erred in admonishing defendant regarding his rights at his probation revocation hearing, the court’s judgment is vacated and the cause remanded for new admonishments and further revocation proceedings as necessary.

¶2 Pursuant to a 2016 negotiated guilty plea, defendant James Allen was convicted of burglary

and sentenced to two years’ probation. In 2022, the trial court found defendant in violation of

probation and sentenced him to five years’ imprisonment. On appeal, defendant contends that the No. 1-22-1680

court erred in admonishing him pursuant to Supreme Court Rule 402A (eff. Nov. 1, 2003) during

the probation revocation hearing. For the reasons stated below, we vacate and remand.

¶3 Defendant was charged with burglary committed on or about October 9, 2015. In March

2016, he pled guilty to burglary in exchange for two years’ probation with five days of community

service and $609 in fines and fees.

¶4 During the plea hearing, the court read aloud defendant’s burglary charge and admonished

him that he was waiving the right to a bench or jury trial where the State would have to prove him

guilty beyond a reasonable doubt, he would hear the evidence against him, and could cross-

examine and call witnesses. The court informed him that he could be sentenced to a prison term

of three to seven years, with two years of mandatory supervised release (MSR), and a fine of

$25,000. See 720 ILCS 5/19-1(b) (West 2016); 730 ILCS 5/5-4.5-35(a), 5-4.5-50(b) (West 2016).

¶5 In June 2016, the State filed a petition to revoke defendant’s probation for burglary due to

his alleged commission of domestic battery. In September 2016, defendant stipulated that he

violated probation; in exchange, the court imposed 180 days in jail and recommitment to probation.

The court informed defendant of the alleged probation violation and admonished him there would

be no hearing on the violation and he could receive three to seven years’ imprisonment and a

$25,000 fine. He affirmed that nobody forced him to stipulate and he did so of his own free will.

¶6 In March 2017, the State filed a revocation petition due to defendant’s alleged public

urination and nonpayment of fines and fees. Defendant stipulated to the violation in exchange for

five additional days of community service. The court informed him of the alleged violation and

admonished him there would be no hearing on the violation and he could receive three to seven

-2- No. 1-22-1680

years in prison and a $25,000 fine. He agreed that nobody forced him to stipulate and he did so of

his own free will.

¶7 In May 2017, the State filed a revocation petition due to defendant allegedly not completing

community service and failing to appear for a drug test. Defendant pled guilty and was

recommitted to probation. The court informed him of the alleged violation and admonished him

that he could receive three to seven years in prison with two years’ MSR and a $25,000 fine. The

court also admonished him that he waived the right to a hearing where the State would have to

prove him guilty by a preponderance of the evidence, and where he would hear the evidence

against him and could cross-examine witnesses and present evidence. Defendant affirmed that

nobody forced him to plead guilty and he did so of his own free will.

¶8 In July 2017, the State filed a revocation petition alleging that defendant tested positive for

marijuana. He stipulated to the violation in exchange for 60 days in jail and an extension of

probation to July 2018. The court informed him of the alleged violation and admonished him there

would be no hearing on the violation and he could receive three to seven years in prison and a

$25,000 fine. He agreed that nobody forced him to stipulate and he did so of his own free will.

¶9 In October 2017, the State filed a revocation petition alleging that defendant committed

home invasion and aggravated criminal sexual assault (ACSA) on or about October 29, 2017.

¶ 10 While that petition was pending, the State brought charges of home invasion, ACSA, and

residential burglary against defendant in case numbers 17 CR 16663, 17 CR 16664, and 17 CR

16665. Those cases were consolidated and proceeded to a jury trial in which defendant represented

himself and pled not guilty by reason of insanity. The jury, having been instructed on insanity and

-3- No. 1-22-1680

on findings of guilty but mentally ill, found defendant guilty of home invasion, two counts of

ACSA, and two counts of residential burglary.

¶ 11 Defendant was thereafter represented by counsel, and a behavioral clinical examination

found him fit for sentencing. The examination found he was aware of the charges, familiar with

court personnel and the purpose of legal proceedings, and capable of rationally assisting counsel.

He was sentenced on November 1, 2022, to an aggregate term of 63 years’ imprisonment: 21 years

each for home invasion and two counts of ACSA, to be served consecutively to each other and

concurrently to 12-year sentences for residential burglary. 1 It was undisputed in the sentencing

hearing that defendant’s criminal history consisted of the burglary conviction now at issue and

misdemeanor convictions in 2016 for criminal damage to property and domestic battery.

¶ 12 Immediately following that sentencing hearing, the court held a probation revocation

hearing. Noting that defendant was found guilty beyond a reasonable doubt of the offenses

supporting the revocation of probation “and his probation [violation] would have to be proven by

a preponderance,” counsel agreed to a plea conference (see Ill. S. Ct. R. 402(d) (eff. July 1, 2012))

after consulting defendant. The court recommended five years’ imprisonment concurrent to the

sentences in the other cases, and counsel said defendant would stipulate to the probation violation.

¶ 13 The court told defendant that he received probation in March 2016, which he violated when

he was “convicted of these offenses” for which he had just been sentenced. The court added there

would be no hearing if defendant stipulated to violating probation, and he faced three to seven

years’ imprisonment. Defendant agreed that nobody forced him to stipulate and he did so of his

own free will. The court accepted the stipulation and sentenced him to five years’ imprisonment,

1 That case is being appealed separately. People v. Allen, No. 1-22-1681.

-4- No. 1-22-1680

to be served concurrently to his aggregate 63-year sentence. The court admonished defendant of

his appeal rights. Defense counsel’s oral motion to reconsider sentence, which did not address the

court’s admonishments, was denied.

¶ 14 On appeal, defendant contends that the trial court failed to admonish him of his rights

pursuant to Supreme Court Rule 402A during the 2022 probation revocation hearing. The State

acknowledges that defendant was not properly admonished under Rule 402A during the 2022

hearing, but argues that defendant understood his rights from his previous revocation hearings and

that the court substantially complied with Rule 402A during the earlier admonishments.

¶ 15 Supreme Court Rule 402A provides that in proceedings to revoke probation where the

defendant admits to violating probation or offers to stipulate that the evidence is sufficient to

revoke probation, “there must be substantial compliance with” the requirement that the:

“court shall not accept an admission to a violation, or a stipulation that the evidence is

sufficient to revoke, without first addressing the defendant personally in open court, and

informing the defendant of and determining that the defendant understands the following:

(1) the specific allegations in the petition to revoke probation ***;

(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- No. 1-22-1680

(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, *** 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.” Ill. S. Ct. R. 402A(a) (eff. Nov. 1, 2003).

¶ 16 Rule 402A also requires the court to determine “that the defendant’s admission is voluntary

and not made on the basis of any coercion or promise,” and “that there is a factual basis for the

defendant’s admission or stipulation.” Ill. S. Ct. R. 402A(b), (c) (eff. Nov. 1, 2003).

¶ 17 Substantial compliance with Rule 402A exists when the record taken as a whole, including

earlier proceedings, affirmatively shows that the defendant understood each of the required

admonitions. People v. Bailey, 2021 IL App (1st) 190439, ¶ 27; People v. Dennis, 354 Ill. App. 3d

491, 495-96 (2004). Substantial compliance is determined on the facts of each case, with the focus

being on the time between the admonishment and the admission or stipulation. In re Westley A.F.,

399 Ill. App. 3d 791, 796 (2010); Dennis, 354 Ill. App. 3d at 496. A claim that the circuit court

failed to issue admonishments in substantial compliance with Rule 402A(a) is not subject to

forfeiture. See People v. Curry, 2019 IL App (3d) 160783, ¶ 22. Whether there was substantial

compliance is a legal question reviewed de novo. Bailey, 2021 IL App (1st) 190439, ¶ 27.

¶ 18 After reviewing the record as a whole, we find that the court failed to substantially comply

with Rule 402A where the admonishments in defendant’s 2022 probation revocation hearing did

not fully conform to the rule. The court told defendant of the allegations against him, that there

-6- No. 1-22-1680

would be no hearing if he stipulated to his violation, and that he faced three to seven years’

imprisonment. Counsel stated in defendant’s presence that violation of probation would have to

be proven by a preponderance of the evidence. Ill. S. Ct. R. 402A(a)(1), (4), (6) (eff. Nov. 1, 2003).

However, the court made no mention of defendant’s rights to a hearing with counsel present, to

have counsel appointed if indigent, to cross-examine witnesses, or to present witnesses or other

evidence, nor did it state that his stipulation would waive the right to a hearing with the right to

cross-examine and present witnesses. Ill. S. Ct. R. 402A(a)(2), (3) (5) (eff. Nov. 1, 2003).

¶ 19 The State nevertheless asserts that substantial compliance existed because “the record

reflects that defendant was properly admonished of these same rights no fewer than four times

prior to November 1, 2022.” However, as defendant correctly notes, the court’s earlier probation

revocation admonishments had some of the same flaws as the 2022 admonishments. Specifically,

none of the previous admonishments mentioned the right to counsel for the hearing and to have

counsel appointed if indigent. Only in one of the four prior hearings, in May 2017, did the court

admonish defendant that he had a right to a hearing and that he would be waiving his right to see

and hear the evidence against him, cross-examine witness, present witnesses, and make the State

prove his violation by a preponderance of the evidence. That said, even at that hearing, the court

did not admonish him of one of his rights under Rule 402A: the right to counsel at the revocation

hearing. Given the shortcomings of the earlier admonishments and the approximately five years

between those admonishments and the November 2022 hearing, we cannot conclude that the

record affirmatively shows that defendant understood each of the Rule 402A admonishments when

he stipulated to his violation in November 2022. Stated differently, the court’s admonishments did

not substantially comply with Rule 402A.

-7- No. 1-22-1680

¶ 20 The State cites People v. Pike, 2016 IL App (1st) 122626, ¶ 112, for the proposition that a

failure to fully admonish a defendant nonetheless may constitute substantial compliance where the

defendant was not prejudiced if (1) the absence of a detail from the admonishments did not impede

the defendant from giving a knowing and intelligent waiver, or (2) the defendant possessed a

degree of knowledge or sophistication excusing the lack of admonition. In particular, the State

emphasizes the second prong of the proposition. Defendant notes that Pike concerns a waiver of

the right to counsel and Supreme Court Rule 401 (eff. July 1, 1984) governing such waivers,

arguing Pike’s inapplicability to this case under Rule 402A.

¶ 21 We need not address the applicability of Pike to Rule 402A cases because the record does

not show that defendant possessed a degree of knowledge or sophistication excusing the

incomplete admonitions. The Pike defendant had been extensively admonished of the charges

against him and thus was aware of the nature of those charges when he waived his right to counsel.

Pike, 2016 IL App (1st) 122626, ¶¶ 117-121. By contrast, defendant was never admonished under

Rule 402A of his right to counsel at the revocation hearing, and only once five years earlier was

admonished of some of his Rule 402A rights.

¶ 22 Accordingly, the judgment of the circuit court is vacated and this cause is remanded for

new Rule 402A admonishments and further probation revocation proceedings as necessary. See

Curry, 2019 IL App (3d) 160783, ¶ 23.

¶ 23 Vacated and remanded.

-8-