People v. Curtin

2022 IL App (4th) 210636-U

• Court: Appellate Court of Illinois
• Decided: June 13, 2022
• Docket: 4-21-0636
• Status: Unpublished

Opinion

NOTICE This Order was filed under FILED 2022 IL App (4th) 210636-U June 13, 2022 Supreme Court Rule 23 and is Carla Bender not precedent except in the NO. 4-21-0636 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Woodford County TIMOTHY J. CURTIN, ) No. 12CF56 Defendant-Appellant. ) ) Honorable ) Charles M. Feeney III, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Justices Turner and Harris concurred in the judgment.

ORDER ¶1 Held: Because no reasonable argument could be made in support of this appeal, the appellate court grants a motion by the Office of the State Appellate Defender to withdraw from representing defendant.

¶2 Defendant, Timothy J. Curtin, appeals from a judgment in which the circuit court

of Woodford County revoked his probation and sentenced him to two and a half years’

imprisonment for unlawful possession of a controlled substance (720 ILCS 570/402(c) (West

2012)). (In some parts of the record, such as in the information and in the superseding indictment,

defendant’s last name is spelled “Curtain.” In other parts of the record, such as in his amended

notice of appeal, his last name is spelled “Curtin.” In an affidavit of assets and liabilities, which,

presumably, defendant personally filled out, his last name is spelled as “Curtin.” Like the appellate

brief, then, we will adopt the spelling given apparently by defendant’s own hand, “Curtin”—

although we note that, on its website, the Illinois Department of Corrections uses the spelling “Curtain,” as in “Timothy J. Curtain.”) The Office of the State Appellate Defender (hereinafter,

“appellate counsel”) moves for permission to withdraw from representing defendant in this appeal,

because appellate counsel sees no reasonable argument to make in support of this appeal. We

notified defendant of his right to respond, by a certain date, to appellate counsel’s motion and

supporting memorandum. Defendant has not done so. We agree with appellate counsel’s

assessment of the merits of this appeal. Accordingly, we grant appellate counsel’s motion to

withdraw, and we affirm the judgment.

¶3 I. BACKGROUND

¶4 On September 5, 2012, defendant pleaded guilty to one count of unlawful

possession of a controlled substance, which the indictment, amended by interlineation, identified

as flouromethcathinone. See 720 ILCS 570/204(f)(4), 402(c) (West 2012).

¶5 On October 24, 2012, the circuit court sentenced defendant to 30 months of

probation through the Treatment Alternative for Safe Communities (TASC) program. See 20 ILCS

301/40-5 (West 2012). He did not appeal that final judgment. See People v. Lopez, 129 Ill. App.

3d 488, 491 (1984) (observing that “[t]he final judgment in a criminal case is the sentence”).

¶6 Subsequently, there were three probation revocation proceedings, all of which were

resolved by defendant’s admissions to most of the allegations in the State’s petitions.

¶7 On May 13, 2016, defendant admitted three of the allegations the State made in its

first petition to revoke his probation. Those three allegations were as follows. First, he changed his

address without notifying his probation officer, and, consequently, his whereabouts were

unknown. Second, during the period of January 1 to April 3, 2013, he consumed cannabis. Third,

he failed to show up for drug and alcohol treatment.

-2- ¶8 On May 13, 2016, in the resentencing hearing, defense counsel requested another

sentence of probation. In support of that request, he pointed out defendant’s limited criminal

history, his past military service, and his diagnoses of post-traumatic stress disorder, anxiety,

depression, and attention-deficit/hyperactivity disorder. Defense counsel also noted that defendant

had never received any substance abuse counseling. The circuit court sentenced defendant to 30

months of probation; confinement in the county jail for 120 days, with credit for 50 days; and 100

hours of public service work. Also, the court ordered him to refrain from alcohol and drugs, to stay

out of bars, to complete any recommended treatment, and to maintain employment. Defendant did

not appeal from that final judgment. See 730 ILCS 5/5-6-4(g) (West 2016) (providing that “[a]

judgment revoking *** probation *** is a final appealable order”).

¶9 On June 15, 2018, defendant admitted some of the allegations the State made in its

second petition to revoke probation. Specifically, he admitted he had failed to (1) report to the

probation officer during the period of August to December 2017 and (2) undergo drug testing

during that period.

¶ 10 On July 19, 2018, in the resentencing hearing, defendant confided that he was a

drug addict. He admitted using crack cocaine the previous week. He testified that twice, in 2016,

he completed outpatient treatment. He explained that his failure to report to the probation office

was due to his being homeless. Nevertheless, he assured the circuit court that his housing was now

more stable, that he had been working for a month, and that he was motivated by his three children

to obtain inpatient treatment. Warning defendant that, if he violated his probation again, he would

go to prison, the court sentenced him to 30 months of probation, with 120 days of credit, and 100

hours of public service. Again, the court prohibited him from using alcohol or drugs or from going

into bars. Also, the court ordered him to submit to drug-testing at least twice a month, obtain a

-3- drug and alcohol evaluation within 60 days, complete any recommended treatment within a year,

and maintain employment. Defendant did not appeal.

¶ 11 On November 2, 2020, the State filed a third petition to revoke defendant’s

probation. According to this third petition, defendant had violated his probation in four ways.

¶ 12 First, according to the petition, he had violated a directive of the probation office

to report there on October 28, 2020. Paragraph 2 of the probation order that the circuit court entered

on July 19, 2018, provided, “Defendant shall report, in person, to the Woodford County Probation

Department immediately, and at any other time, place or manner as directed by the Probation

Department.”

¶ 13 Second, the State alleged that, on or about March 18, 2019, April 14, 2019, and

June 8, 2020, defendant consumed cocaine. Paragraph 11 of the probation order forbade him to

“possess, take, or become under the influence of any unlawful or unprescribed drug or substance.”

¶ 14 Third, the State alleged that, on or about March 18 and April 14, 2019, defendant

consumed cannabis.

¶ 15 Fourth, the State alleged that defendant had failed to complete the required 100

hours of public service. Paragraph 10 of the probation order required him to “perform 100 hours

of public service” within one year.

¶ 16 On November 30, 2020, defendant appeared without an attorney. The circuit court

recited to him the four allegations in the State’s third petition to revoke probation. Defendant

answered yes when the court asked him if he understood the allegations. The court then explained

to him that if any of the four allegations were proven by a preponderance of the evidence, he could

be resentenced on the charge of unlawful possession of a controlled substance, a Class 4 felony

punishable by up to three years of imprisonment and a maximum fine of $25,000. Also, the court

-4- informed him, he would have to serve one year of mandatory supervised release upon being

released from prison. Alternatively, the court added, he could be sentenced to probation or

conditional discharge, including jail time, fines, and conditions such as abstaining from drugs and

alcohol. The court asked him if he understood the range of penalties. He answered yes. Next, the

court informed defendant that he had the right to an attorney and that if he could not afford an

attorney, the court would appoint an attorney for him, “and that would be without cost to you,

potentially.” The court asked defendant if he understood. He answered he did. The court asked

him, “Do you wish to apply for the services of the public defense attorney, hire your own attorney,

or represent yourself?” Defendant answered he would hire an attorney.

¶ 17 After some delays, defendant retained an attorney. On February 18, 2021, he

appeared with his attorney. The prosecutor informed the circuit court that, by his understanding,

defendant wished to admit the first three allegations of the third petition to revoke probation. If

defendant admitted the first three allegations, the prosecutor said, the State would dismiss the

fourth allegation. Defense counsel confirmed the prosecutor’s understanding.

¶ 18 The circuit court admonished defendant regarding his proposed admissions to the

three allegations, imparting to him all the information in Illinois Supreme Court Rule 402A(a)(1),

(2), (3), (4), and (6) (eff. Nov. 1, 2003). As for Illinois Supreme Court Rule 402A(a)(5) (eff. Nov.

1, 2003), the court told him:

“But if you admit these allegations, there won’t be a hearing of any kind, so

by admitting these allegations you give up your right to a hearing, you give up your

right to confront the witnesses against you. Do you understand this?

Defendant affirmatively stated he understood.

-5- ¶ 19 After ascertaining from defendant that no one had induced him, by any threats or

promises, to admit the three allegations (other than the State’s promise to dismiss the fourth

allegation), the circuit court heard a factual basis. The court then found a knowing and voluntary

admission by defendant of the first three allegations of the State’s third petition to revoke

probation. On the State’s motion, the court dismissed the remaining, fourth allegation. The court

ordered a presentence investigation.

¶ 20 On July 8, 2021, the circuit court held a resentencing hearing, in which the court

sentenced defendant to imprisonment for two and a half years, to be followed by a year of

mandatory supervised release. According to the website of the Illinois Department of Corrections,

defendant is now on mandatory supervised release, from which he will be discharged in January

2023—assuming, as seems likely, that he is the “Timothy J. Curtain” listed in the “Individuals in

Custody” database. See People v. Ware, 2014 IL App (1st) 120485, ¶ 29 (holding that the appellate

court may take judicial notice of information on the official website of the Illinois Department of

Corrections).

¶ 21 On October 28, 2021, the circuit court denied a motion by defendant to reduce his

sentence.

¶ 22 According to defendant’s amended notice of appeal, which we granted him

permission to file, he appeals from the circuit court’s order of October 28, 2021.

¶ 23 II. ANALYSIS

¶ 24 We agree with appellate counsel that no reasonable challenge can be made against

the judgment of October 24, 2012, the judgment of May 13, 2016, or the judgment of July 19,

2018. We would lack jurisdiction to entertain any such challenges. See People v. Tolbert, 2021 IL

App (1st) 181654, ¶ 8 (holding that, “[u]nless a notice of appeal is properly filed, a reviewing court

-6- has no jurisdiction”); Ill. S. Ct. R. 606(b) (eff. Mar. 12, 2021) (providing that “the notice of appeal

must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment

appealed from or if a motion directed against the judgment is timely filed, within 30 days after the

entry of the order disposing of the motion”). “When no direct appeal is taken from an order of

probation and the time for appeal has expired, a reviewing court is precluded from reviewing the

propriety of that order in an appeal from a subsequent revocation of that probation, unless the

underlying judgment of conviction is void.” (Internal quotation marks omitted.) People v. Gregory,

379 Ill. App. 3d 414, 418 (2008). As appellate counsel explains, a judgment is void only “where

the judgment was entered by a court that lacked personal or subject-matter jurisdiction” or “where

the judgment was based on a statute that is facially unconstitutional and void ab initio.” People v.

Price, 2016 IL 118613, ¶ 31. No reasonable argument could be made that the judgments of October

24, 2012; May 13, 2016; and July 19, 2018, are void.

¶ 25 Therefore, the only orders that the amended notice of appeal brings before us are

(1) the cited order of October 28, 2021, in which the circuit court denied defendant’s motion to

reduce his sentence and (2) any preliminary order that was “a step in the

procedural progression leading” to the order of October 28, 2021. People v. Jones, 207 Ill. 2d 122,

138 (2003); see also People v. Baldwin, 2020 IL App (1st) 160496, ¶ 31; People v. Garcia, 2015

IL App (1st) 131180, ¶ 68. Essentially, then, we have jurisdiction to review the hearing of February

18, 2021, in which defendant admitted the first three allegations of the third petition (because

without that revocation proceeding, there would have been no motion to reduce the new sentence

and no corresponding denial from which defendant appeals in his amended notice of appeal).

Additionally, we have jurisdiction to review the length of the prison sentence because, although

defendant has been released from prison and is on mandatory supervised release, the length of the

-7- prison sentence might affect how long he could be reimprisoned for violating the conditions of

mandatory supervised release. See People v. Jackson, 199 Ill. 2d 286, 294 (2002).

¶ 26 We agree with appellate counsel that no reasonable challenge could be made to the

two-and-a-half-year prison sentence. A sentence that falls within the statutory range is reversible

only for an abuse of discretion. See People v. Coleman, 166 Ill. 2d 247, 258 (1995). The offense

to which defendant pleaded guilty, unlawful possession of a controlled substance, was a Class 4

felony (720 ILCS 570/402(c) (West 2012)), punishable by imprisonment for not less than one year

and not more than three years (730 ILCS 5/5-4.5-45(a) (West 2012)). Defendant received a prison

sentence within that range. Because defendant’s repeated violations of probation arguably showed

a lack of rehabilitative potential (see People v. Witte, 317 Ill. App. 3d 959, 963 (2000)), it would

be untenable to characterize 2 1/2 years of imprisonment as an abuse of discretion.

¶ 27 We turn, then, to the third revocation hearing. We raise a potential issue with the

admonitions in that hearing. Illinois Supreme Court Rule 402A(a)(5) (eff. Nov. 1, 2003) provides

as follows:

“(a) Admonitions to Defendant. The court shall not accept an admission to

a violation, *** without first addressing the defendant personally in open court, and

informing the defendant of and determining that the defendant understands the

following:

***

(5) that by admitting to a violation, *** there will not be a hearing

on the petition to revoke probation, *** so that by admitting to a violation,

*** the defendant waives the right to a hearing and the right to confront and

-8- cross-examine adverse witnesses, and the right to present witnesses and

evidence in his or her behalf.” (Emphases added.)

¶ 28 Now let us compare the transcript of February 18, 2021, to that requirement in Rule

402A(a)(5). The circuit court admonished defendant, “But if you admit these allegations, there

won’t be a hearing of any kind, so by admitting these allegations you give up your right to a

hearing, you give up your right to confront the witnesses against you.” Thus, the court admonished

defendant that, by admitting to the allegations in the third petition to revoke his probation, he

would give up (1) his right to a hearing and (2) his right to confront adverse witnesses. The court,

however, did not admonish him that, additionally, he would give up “the right to ***

cross-examine adverse witnesses” and “the right to present witnesses and evidence in his ***

behalf.” Id.

¶ 29 Rule 402A(a), however, requires only “substantial compliance” (Ill. S. Ct. R.

402A(a) (eff. Nov. 1, 2003)), which case law defines as “an affirmative showing in the record that

the defendant understood each of the required admonitions.” (Internal quotation marks omitted.)

People v. Bailey, 2021 IL App (1st) 190439, ¶ 27. In other words, the question is “whether,

realistically, an ordinary person in defendant’s position would have understood, from the earlier

proceedings, that by admitting [allegations in] the third petition to revoke his probation, he was

giving up his right to cross-examine his accusers” and to present witnesses and evidence in his

behalf. People v. Dennis, 354 Ill. App. 3d 491, 496 (2004). Because no witnesses were

cross-examined, and no evidence was presented, after defendant’s admissions in the first and

second revocation proceedings, it would be reasonable to infer his understanding that neither

would those activities take place if he admitted allegations in the third petition to revoke his

probation. Therefore, we accept appellate counsel’s conclusion that there was substantial

-9- compliance with Rule 402A(a)(5) (Ill. S. Ct. R. 402A(a)(5) (eff. Nov. 1, 2003)). See Ill. S. Ct. R.

402A(a) (eff. Nov. 1, 2003).

¶ 30 III. CONCLUSION

¶ 31 For the reasons stated, we grant appellate counsel’s motion to withdraw, and we

affirm the circuit court’s judgment.

¶ 32 Affirmed.

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