People v. Cozad

511 N.E.2d 211, 158 Ill. App. 3d 664, 110 Ill. Dec. 376, 1987 Ill. App. LEXIS 2882
CourtAppellate Court of Illinois
DecidedJuly 16, 1987
Docket4-86-0484
StatusPublished
Cited by29 cases

This text of 511 N.E.2d 211 (People v. Cozad) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Cozad, 511 N.E.2d 211, 158 Ill. App. 3d 664, 110 Ill. Dec. 376, 1987 Ill. App. LEXIS 2882 (Ill. Ct. App. 1987).

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

On April 8, 1986, defendant, Terry E. Cozad, pleaded guilty to one count of burglary and was sentenced to three years’ probation. The initial period of probation was to be served with the Champaign County Intensive Probation Service (IPS). His probation was revoked on June 23, 1986, for two curfew violations on June 10 and 11, 1986. He was resentenced to a term of imprisonment for five years. Defendant appeals from the order revoking probation. He contends the revocation and resulting sentence represented an abuse of discretion by the trial judge. He also raises issues relating to reimbursement of attorney fees and due process.

The defendant was arrested on January 9, 1986, and charged with one count of burglary and one count of theft with a prior theft conviction in violation of sections 19 — 1 and 16 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, pars. 19 — 1, 16 — 1). Charges resulted from a January 9 burglary at Van’s Pit Stop in Champaign.

The defendant, at the initial appearance on January 10, asked for a court-appointed attorney and filed an affidavit in support of his request. The affidavit stated defendant was unemployed, had last worked as a dishwasher, and did not expect to be called back to work. He had no other income, lived with his father, owned a necklace worth $40, and possessed $1.30 in cash. He owed $600 in court costs.

In response to the judge’s inquiry at the initial appearance, the defendant told the court he was unemployed, had worked temporarily at his father’s place of employment on and off for about a year, and made $8.50 an hour when he did work. The defendant worked one day in December, for which he was paid about $50, and had not worked during the month of January. Counsel was appointed for the defendant.

The court then informed the defendant it was entering an order requiring defendant to reimburse Champaign County $1,000 for the services of the court-appointed attorney. He stated the total fees or monthly payment amounts could increase or decrease, and the purpose of the order was to get the defendant to begin paying for the court-appointed attorney.

On April 8 defendant waived a jury trial and pleaded guilty to the burglary charge. He was sentenced to three years’ probation, the initial period to be served with the Champaign County Intensive Probation Supervision unit (IPS). He was also ordered to pay court costs. The theft charge was dismissed.

The certificate of IPS probation dated April 8, 1986, provided, inter alia, that defendant must comply with all curfew conditions established in writing, and report as directed in writing by a probation officer. Defendant was also required to attend and participate in counseling and treatment programs as directed. He was ordered to report for public service work should he lack gainful employment. Defendant signed a certificate of service on April 8, 1986, which stated that he fully understood the rules and provisions of his probation.

A 7 p.m. to 7 a.m. curfew was imposed in writing on April 8, 1986. Defendant was ordered to remain at his residence in Champaign during those hours. On May 8, 1986, defendant was directed as an additional condition of probation to seek evaluation and treatment by contacting Prairie Center or L.W.’s Place. He was ordered not to consume or possess any alcoholic beverages. An addendum to the presentencing report indicated that the defendant appeared at L.W.’s Place on May 30, 1986, and was given paperwork to fill out before reporting back to complete the evaluation. Defendant never returned.

At 11:32 p.m. on June 11, 1986, defendant was arrested in Urbana for violation of IPS probation. The State filed a petition to revoke probation on June 12, alleging the defendant violated his curfew on June 10 and 11. At a revocation hearing held on June 23, 1986, Robert Schwieter, supervisor of the Champaign County Intensive Probation unit, identified a standard curfew slip bearing the defendant’s signature dated April 8 indicating that defendant understood his curfew requirements.

Patrick Connolly, a surveillance officer with the Champaign County IPS, testified he conducted a curfew check at defendant’s residence June 10 at 8:58 p.m. Defendant was not present. Connolly returned at 10:22 p.m., but defendant was not at home.

Ted Kramer, an IPS surveillance officer, testified that on June 11 he went to 65 Northwood Drive, Urbana, at 11:32 p.m., and arrested the defendant for violating the IPS conditions. Kramer stated the defendant spoke clearly and walked to the vehicle under his own power with a steady gait.

The defense offered no evidence at the revocation hearing. The trial judge found the allegations of the petition had been proved. A presentence investigation and report were ordered and the judge continued the case for sentencing.

No further evidence was offered at the sentencing hearing. Defense counsel stated defendant’s failure to complete the alcohol counseling was due to his inability to pay a required fee. The judge offered defendant an opportunity to address the court. Defendant admitted the curfew violation, stated it was alcohol related, and said he thought prison would do him more harm than good, since he would have “the same problem” upon his release. The judge addressed the subject of inability to pay:

“THE COURT: Well, first of all, I believe I ought to mention, because it has been alluded to by counsel, the matter of Mr. Cozad not being able to raise the money to pay for the evaluation. If the specific nature of a probation violation was to be the criterion for sentencing or resentencing upon a revocation, I certainly wouldn’t hold it against Mr. Cozad because he was unable to afford the cost of the evaluation. But, the precise nature of the violations of probation are not the criteria for resentencing when a defendant’s probation is revoked. We are looking back to the initial offense for which the defendant was placed on probation in the first instance. And considering the violations only in the general context that the Defendant was unable to abide by the terms of probation generally, and that’s why his probation would be revoked.”

A sentence of five years was imposed. The judge stated, “The public does need protection from Mr. Cozad when he is drinking.” The sentencing order credited the defendant with time served in the Champaign County Correctional Center, but not with any time served on probation. Notice of appeal was filed the same day.

The defendant initially argues revocation was an abuse of discretion since the defendant was an alcoholic, could not afford counseling, and the curfew violation stemmed from the alcohol problem. The State argues the curfew violation is not a financial condition, and the State need not show a wilful refusal to comply. The defense equates imposition of the probation condition ordering evaluation and treatment with imposition of a financial condition. This comparison fails.

Defendant’s reliance on Bearden v. Georgia (1983), 461 U.S.660, 76 L. Ed. 2d 221, 103 S. Ct. 2064, is misplaced.

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Cite This Page — Counsel Stack

Bluebook (online)
511 N.E.2d 211, 158 Ill. App. 3d 664, 110 Ill. Dec. 376, 1987 Ill. App. LEXIS 2882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cozad-illappct-1987.