People v. Musawwir

2022 IL App (1st) 211546-U

• Court: Appellate Court of Illinois
• Decided: November 23, 2022
• Docket: 1-21-1546
• Status: Unpublished

Opinion

2022 IL App (1st) 211546-U No. 1-21-1546 Order filed November 23, 2022 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. 18 CR 18064 ) MUSTAFA MUSAWWIR, ) Honorable ) Anjana M.J. Hansen, Defendant-Appellant. ) Judge, presiding.

JUSTICE BURKE delivered the judgment of the court. Presiding Justice McBride and Justice Reyes concurred in the judgment.

ORDER

¶1 Held: We dismiss this appeal challenging the revocation of defendant’s probation as moot as defendant has completed his sentence and no exceptions to the mootness doctrine apply. We correct the mittimus to reflect that defendant was convicted of misdemeanor, rather than felony, criminal damage to property.

¶2 Defendant, Mustafa Musawwir, pled guilty to misdemeanor criminal damage to property.

The trial court sentenced him to one year of probation and ordered him to pay $5,666.55 in

restitution to the victim, AT&T. He did not pay restitution, so the trial court revoked his probation No. 1-21-1546

and resentenced him to 60 days in jail, time considered served. On appeal, defendant contends that

(1) the petition to revoke his probation was defective because it did not allege that his failure to

pay restitution was willful, (2) the trial court should not have revoked his probation because the

evidence did not establish that his failure to pay was willful, (3) the trial court did not admonish

him of his right to testify at the revocation hearing and refused to allow him to testify, in violation

of his right to due process, and (4) the trial court’s resentencing order mistakenly reflects a

conviction for felony criminal damage to property rather than the misdemeanor to which he pled

guilty. The State maintains that this appeal is moot and should be dismissed. We agree as

defendant has completed his sentence and no exceptions to the mootness doctrine apply. We

dismiss this appeal as moot, but we order the clerk of the circuit court to correct the mittimus to

reflect that defendant was convicted of misdemeanor criminal damage to property, not a felony.

¶3 I. BACKGROUND

¶4 Defendant was charged with one count of Class 4 felony criminal damage to property (720

ILCS 5/21-1(a)(1) (West 2016)), which alleged that he knowingly and without consent damaged

the windows of an AT&T store in Lincolnwood on December 22, 2017, and that the damage to

the windows was between $500 and $10,000. On March 4, 2020, defendant pled guilty to

misdemeanor criminal damage to property as part of a negotiated plea agreement. 1 The trial court

sentenced him to one year of misdemeanor probation and ordered him to pay $5,666.55 in

restitution by the end of the term of probation.

1 Criminal damage to property is a Class A misdemeanor when the damage to property does not exceed $500. 720 ILCS 5/21-1(d)(1)(B) (West 2016). It is a Class 4 felony when the damage to property exceeds $500 but not $10,000. 720 ILCS 5/21-1(d)(1)(F) (West 2016).

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¶5 On January 26, 2021, approximately one month before the end of defendant’s probation

term, his probation officer filed a petition for violation of probation, alleging that defendant had

not paid any amount of restitution. At a hearing that day, defendant stated that “it might be a while”

before he could pay restitution. On April 30, 2021, defendant’s probation officer informed the

court that the term of probation had elapsed without him paying any restitution. Defendant stated

that he was not working and had no income, but that he wanted to pay restitution and that “it might

be a while.” On June 17, 2021, defense counsel stated that defendant was “indigent” and “has no

income,” and that she was “not sure how he is surviving, but it’s really not a refusal to pay. It’s

simply an inability.”

¶6 The court took defendant into custody in early July 2021 “based on all the representations”

that he had not paid restitution. On July 14, 2021, the court held a revocation hearing. The court

admonished defendant that (1) misdemeanor criminal damage to property carries up to a 364-day

sentence in jail, (2) his probation officer alleged that he failed to pay restitution that was a condition

of his probation, (3) he had a right to a hearing on the violation of probation and the State had to

prove the violation by a preponderance of the evidence, and (4) he had the right to confront and

cross-examine witnesses. Defendant stated that he understood these admonishments. The only

witness at the revocation hearing was Karri Garrity, who testified that she was employed by the

Adult Probation Department. Defendant, whom she identified in court, was sentenced to one year

of misdemeanor probation on the condition that he pay $5,666.55 in restitution. Defendant paid no

restitution, which constituted a violation of his probation.

¶7 The court found a violation and revoked defendant’s probation. The court resentenced

defendant to 60 days in jail, time considered served, because defendant had “spent two months in

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custody on this case prior to the original sentence of probation.” 2 The written resentencing order

indicates that the court sentenced defendant based on Class 4 felony criminal damage to property.

¶8 Defendant filed a pro se notice of appeal that was not perfected, which his counsel

discovered and informed the court of on August 4, 2021. With the court’s leave, defense counsel

filed a motion for a new revocation hearing because defendant had decided that he wanted to

testify. On November 23, 2021, the court denied defendant’s motion, explaining that defendant

was present at the revocation hearing and only indicated that he wanted to testify after the court

revoked his probation. Defendant timely appealed.

¶9 II. ANALYSIS

¶ 10 On appeal, defendant challenges the revocation of his probation. He argues that (1) the

petition for violation was defective because it did not allege that his failure to pay restitution was

willful, (2) the trial court should not have revoked his probation because the evidence did not

establish that his failure to pay restitution was willful, (3) the trial court violated his right to due

process by failing to admonish him of his right to testify at the revocation hearing and by refusing

to allow him to testify, and (4) the trial court’s resentencing order mistakenly reflects a conviction

for felony criminal damage to property when he pled guilty to the misdemeanor version of that

offense. Defendant requests that we either vacate or reverse the trial court’s revocation of his

probation and correct the mittimus to reflect that he was convicted of misdemeanor, rather than

felony, criminal damage to property. The State contends that we should dismiss this appeal as moot

because defendant has completed his 60-day sentence but agrees with defendant that we should

2 From the docket report included in the record on appeal, it appears that defendant was in custody on this case from December 23, 2017, to November 15, 2018, when he was released on bond. He was also in custody for approximately a week prior to the revocation hearing.

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correct the mittimus to reflect that he pled guilty to misdemeanor criminal damage to property, not

the felony version of that offense. Defendant acknowledges that his sentence is complete, but

argues that the collateral consequences, public interest, and repetition exceptions to the mootness

doctrine apply.

¶ 11 A. Mootness

¶ 12 Illinois appellate courts generally do not review moot issues. People v. Henderson, 2011

IL App (1st) 090923, ¶ 9. “A case becomes moot when the issues involved in the trial court have

ceased to exist because intervening events have made it impossible for the reviewing court to

render effectual relief to the complaining party.” People v. Ousley, 235 Ill. 2d 299, 305 (2009).

Generally, when a defendant has served his sentence, a challenge to the severity of that sentence

is moot. People v. Dawson, 2020 IL App (4th) 170872, ¶ 8 (citing People v. Murrell, 60 Ill. 2d

287, 294 (1975)). The parties agree that defendant has served his entire 60-day sentence and has

been released from jail. 3

¶ 13 This case falls into a conflicted area of the mootness doctrine. On the one hand, defendant’s

60-day sentence is complete, but he does not challenge the severity of that sentence. Rather, he

contends that the trial court should not have revoked his probation at all. Because defendant

challenges the revocation of his probation, not the severity of his sentence, it seems that this appeal

is not moot. On the other hand, it is impossible for us to grant defendant effectual relief. We cannot

undo the time that defendant spent in jail. The only relief we could grant defendant would be to

3 The Cook County Sheriff’s website (https://iic.ccsheriff.org/InmateLocator/SearchInmates (last accessed on November 21, 2022)) indicates that defendant is not in custody. We may take judicial notice of this information. People v. Sapp, 2022 IL App (1st) 200436, ¶ 73 n. 3 (not yet released for publication and subject to revision or withdrawal).

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reverse the revocation of his probation, which would return him to probationary status. See People

v. Yackle, 42 Ill. App. 3d 695, 696 (1976) (“Since the scope of review on appeal from revocation

of probation is restricted to issues arising from the revocation proceedings, the maximum relief

here would be the vacation of the order of revocation and sentence and the consequent return of

defendant to probationary status.”). We understand that defendant would prefer to not have a

revocation of probation on his record. But, to put it simply, this case is over, and returning

defendant to probation with the obligation to pay $5,666.55 in restitution cannot realistically be

called effectual relief. So, in that sense, this case is moot.

¶ 14 There is a split of authority regarding mootness in the context of a challenge to the

revocation of probation. In Yackle, the Fifth District found that a defendant’s completion of his

sentence moots any controversy over the revocation of probation because it is impossible for a

reviewing court to grant effectual relief at that point. Id. However, Yackle stands in contrast to

most of the authority of its time. In In Interest of Sturdivant, 44 Ill. App. 3d 410 (1976), the juvenile

defendant raised a due process challenge to the trial court’s use of his admission to violating

probation during the revocation hearing. Sturdivant, 44 Ill. App. 3d at 412. The First District found

that the appeal was not moot, even though the defendant had completed his sentence, because the

improper revocation of his probation could have effects at future sentencing hearings that he might

be involved in. Id. Similarly, in People v. Monick, 51 Ill. App. 3d 783 (1977), the defendant raised

due process challenges to the revocation of his probation. Monick, 51 Ill. App. 3d at 785. By the

time his case reached appeal, he was on parole. Id. The Second District found that “[a]dverse

consequences which may result even if the defendant is not confined prevent mootness since he

may be subject to resentencing.” Id. The Fifth District reached the same conclusion in People v.

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Seymour, 53 Ill. App. 3d 367 (1977), reasoning that “[a]lthough the term has been served, the

results of probation revocation may persist. Subsequent convictions may carry greater penalties;

civil rights may be affected.” Seymour, 53 Ill. App. 3d at 370. In People v. Halterman, 45 Ill. App.

3d 605 (1977), the defendant challenged the revocation of his probation, but he completed his 364-

day sentence during the pendency of his appeal. Halterman, 45 Ill. App. 3d at 608. The Fourth

District found that the case was not moot, explaining that “even though the defendant has served

his sentence *** the fact that the defendant has had his probation revoked might be submitted to

another judge for his consideration in sentencing the defendant if he has the misfortune of again

being convicted of some crime.” Id.

¶ 15 These cases essentially applied the collateral consequences exception to situations that

would otherwise be moot due to the defendants’ completion of their sentences. The collateral

consequences exception allows for appellate review of a moot issue if the defendant has suffered,

or is threatened with, an actual injury that is likely to be redressed by a favorable judicial decision.

In re Alfred H.H., 233 Ill. 2d 345, 361 (2009). Aside from Yackle, the cases of the 1970s concluded

that the collateral consequences exception applied even if a defendant had served his entire

sentence because a defendant’s revoked probation could be used against him at sentencing in future

criminal cases.

¶ 16 The Fourth District recently revisited these cases in Dawson. The Dawson court resolved

the split between Yackle and the other 1970s cases by analogizing to a United States Supreme

Court case, Spencer v. Kemna, 523 U.S. 1 (1998). Dawson, 2020 IL App (4th) 170872, ¶¶ 14-17.

In Spencer, a habeas corpus petitioner sought to invalidate an order revoking his parole even

though he had completed the entire term of imprisonment underlying the parole revocation.

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Spencer, 523 U.S. at 3. Spencer argued that his appeal was not moot because, if he were to be

convicted of another crime in the future, the court could take his parole violation as an aggravating

factor at sentencing. Id. at 15-16. The Supreme Court rejected this argument, reasoning that

sentencing in a hypothetical future criminal case was not a concrete injury. Id. Rather, the potential

adverse use of Spencer’s parole revocation depended on his breaking the law again, getting caught,

and being convicted. Id. The Court explained that Spencer was both able and obligated to prevent

that possibility by following the law in the future. Id. Accordingly, the Court found that Spencer’s

appeal of his parole revocation was moot. Id. Dawson agreed with Spencer’s reasoning and took

“it as a given that [the defendant] will never again find herself in a sentencing hearing. Thus, she

lacks a personal stake in the question of the probation revocation, and this appeal is moot.”

Dawson, 2020 IL App (4th) 170872, ¶ 19 (citing People v. Roberson, 212 Ill. 2d 430, 435 (2004)).

¶ 17 We agree with the reasoning of Dawson and conclude that the facts of this case support a

finding of mootness because the collateral consequences exception does not apply. See Alfred

H.H., 233 Ill. 2d at 362-63 (requiring case-by-case analysis when considering the collateral

consequences exception). Defendant pled guilty to a misdemeanor property crime. He paid none

of the restitution that was a condition of his probation and offered no explanation for failing to do

so aside from simply stating that he could not pay. He did not contest the State’s evidence at the

revocation hearing. Upon revocation, defendant was sentenced to 60 days in jail, time considered

served. So, even before defendant filed this appeal, he had completed the 60-day sentence that

resulted from the revocation of his probation. There is no indication that defendant is facing any

pending criminal charges that the revocation of probation in this case might affect. Even assuming

arguendo that the revocation of his probation was somehow improper, all the collateral

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consequences that defendant’s reply brief identifies are speculative: “in a future criminal case,

[defendant] may be denied probation; receive a longer term of incarceration that he would

otherwise; or have probation terminated more hastily than otherwise, all of which could be based

on the trial court’s finding, however wrongful, that [defendant] violated probation.” 4 (Emphasis

added.). We assume and expect that defendant will not commit another crime. So, the only relief

we could grant defendant would be speculative, not effectual.

¶ 18 We decline to follow Sturdivant, Monick, Seymour, and Halterman because their reasoning

is inconsistent with later authority holding that a threatened injury must be concrete, not

speculative, for the collateral consequences exception to apply. For example, Halterman reasoned

that the defendant’s appeal was not moot because “the fact that defendant has had his probation

revoked might be submitted to another judge for his consideration in sentencing the defendant if

he has the misfortune of again being convicted of some crime.” (Emphasis added.) Id. But, as more

recent cases have explained, what might or could happen in potential future proceedings is too

speculative to bring a case within the collateral consequences exception. See, e.g., In re Rita P.,

2014 IL 115798, ¶ 34; People v. Madison, 2014 IL App (1st) 131950, ¶ 18.

¶ 19 Defendant argues that Dawson was “wrongly decided.” Specifically, defendant contends

that Dawson should not have relied on Spencer because Spencer addressed mootness under the

case-or-controversy requirement of Article III of the United States Constitution, not Illinois law.

However, Dawson contains a lengthy examination of Illinois authority on mootness, and it does

not discuss Article III at all. Dawson, 2020 IL App (4th) 170872, ¶¶ 11-13. Rather, Dawson cites

4 To be clear, we express no opinion as to whether the revocation of defendant’s probation was proper. Because this appeal is moot, we do not reach that issue.

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Spencer to illustrate the difference between a collateral consequence that is a “concrete injury-in-

fact” and one that is speculative. Id. ¶ 17. As explained above, that difference is relevant under

recent Illinois caselaw. In fact, our supreme court has favorably quoted Spencer’s definition of the

collateral consequences exception, including the requirement “ ‘that continuing collateral

consequences *** be either proved or presumed.’ ” (Internal quotation marks omitted.) Alfred

H.H., 233 Ill. 2d at 361 (quoting Spencer, 523 U.S. at 8). There is nothing improper about

Dawson’s citation to Spencer and Dawson was not wrongly decided.

¶ 20 Defendant also contends that Sibron v. New York, 392 U.S. 40 (1968) “passingly

recognized *** that a reviewing court will presume ‘continuing collateral consequences’ from a

criminal conviction.” Sibron did recognize that “a criminal case is moot only if it is shown that

there is no possibility that any collateral legal consequences will be imposed on the basis of the

challenged conviction.” Sibron, 392 U.S. at 57. However, this case does not involve the collateral

consequences of a conviction; it involves the collateral consequences of revoked probation.

Probation revocation proceedings are civil in nature (People v. Lindsey, 199 Ill. 2d 460, 467

(2002)) and do not necessarily carry the same consequences as a criminal conviction. Defendant

does not challenge his conviction for criminal damage to property, which was the product of a

negotiated guilty plea. Sibron, therefore, offers us little guidance.

¶ 21 Defendant’s reliance on In re Sciara, 21 Ill. App. 3d 889 (1974) is misplaced as well. Sciara

is distinguishable because it was a mental health case involving an involuntary commitment that

had already expired, but that was likely to occur again due to the respondent’s chronic mental

health problems. Sciara, 21 Ill. App. 3d at 893-95. Dawson is more analogous because it involved

revocation of probation, so we follow Dawson instead of Sciara. To the extent that involuntary

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commitment cases are instructive, we follow the more recent authority of Rita P., in which our

supreme court explained that “[a]pplication of the collateral consequences exception cannot rest

upon *** a vague, unsupported statement that collateral consequences might plague respondent in

the future.” (Emphasis added.) Rita P., 2014 IL 115798, ¶ 34. Defendant’s collateral consequences

argument is premised entirely on what might happen in future criminal cases that do not yet exist

and that may never exist. Accordingly, this appeal is moot, and the collateral consequences

exception does not apply.

¶ 22 Two exceptions to the mootness doctrine remain, and defendant contends that both apply

in this case. First, the public interest exception allows a reviewing court to consider a moot issue

when the issue is of a public nature, there is a need for an authoritative determination for the future

guidance of public officers, and the issue is likely to recur. People v. Rizzo, 362 Ill. App. 3d 444,

455 (2005). We cannot see how this exception applies in this case. Defendant was ordered to pay

restitution to a private company, AT&T. For more than a year, defendant paid no restitution, so

his probation was revoked. Defendant’s relatively minor property crime against a private business

raises no issue of public interest, and this is a straightforward case that does not require us to issue

guidance for public officers in the future. Moreover, the facts of this case “are specific to

[defendant] and do not involve anyone else; therefore, they are not of a public nature requiring

guidance to be given to public officials dealing with those facts.” See In re James H., 405 Ill. App.

3d 897, 904 (2010). Future revocation hearings will be based on facts specific to the defendants

that they involve.

¶ 23 Defendant essentially argues that this case falls within the public interest exception because

of the need for new caselaw regarding the showing of willfulness that is necessary to support a

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revocation of probation based on failure to pay restitution. We will not resolve the issue that

defendant raises “ ‘merely for the sake of setting a precedent to govern potential future cases.’ ”

Benz v. Department of Children and Family Services, 2015 IL App (1st) 130414, ¶ 35 (quoting In

re Adoption of Walgreen, 186 Ill. 2d 362, 365 (1999)). Doing so would be unnecessary anyway.

As defendant’s reply brief acknowledges, there is both Illinois Supreme Court and First District

authority on this issue. See, e.g., People v. Harder, 59 Ill. 2d 563, 567-68 (1975) (the State must

prove that a defendant’s failure to pay restitution was willful before probation can be revoked);

People v. Smolk, 40 Ill. App. 3d 281, 283 (1976) (same). Accordingly, we find that the public

interest exception to mootness does not apply to this case.

¶ 24 The last exception to mootness applies when the issue on appeal is capable of repetition

but tends to evade review. Alfred H.H., 233 Ill. 2d at 358. To fall within this exception, the

challenged action must be too short in duration to be fully litigated prior to its cessation and a

reasonable expectation must exist that the same party will be subject to the same action again.

People v. Kelly, 397 Ill. App. 3d 232, 249 (2009). Defendant cannot satisfy the second prong. His

argument on this point is as speculative as his argument regarding the collateral consequences

exception. Defendant’s reply brief claims that, in the future, it “is reasonably likely that [he will]

be arrested and charged with low-level offenses, and [is] likely to have difficulty earning wages to

satisfy a condition of probation” such as restitution. Defendant bases this speculation on his lack

of employment history and two arrests for driving under the influence during the pendency of this

case, neither of which resulted in probation or restitution. There is no evidence-based reason for

us to think that defendant will be subject to revocation of probation for failure to pay restitution in

the future. As noted above, we assume and expect that defendant will not commit any crimes that

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result in him being on probation or subject to restitution orders in the future. Accordingly, this case

is moot, and no exception to mootness applies. Therefore, we dismiss this matter. See In re

Marriage of Peters-Farrell, 216 Ill. 2d 287, 293 (2005) (when appeal is moot and no exception to

the mootness doctrine applies, the reviewing court must dismiss the appeal).

¶ 25 B. Mittimus

¶ 26 Finally, the parties agree that we should correct the mittimus to reflect that defendant was

convicted of misdemeanor criminal damage to property rather than the felony version of that

offense. A reviewing court may correct the mittimus at any time. People v. Carlisle, 2015 IL App

(1st) 131144, ¶ 86. The record makes clear that defendant pled guilty in exchange for the State’s

promise to reduce his Class 4 felony criminal damage to property charge to a misdemeanor and to

recommend probation. The court’s oral pronouncement at sentencing reflects that defendant was

convicted of a misdemeanor. However, when the court revoked defendant’s probation and

sentenced him to 60 days in jail, its written order stated that defendant was convicted of a Class 4

felony. The court’s oral pronouncement controls. See Id. ¶ 87. Accordingly, we direct the clerk of

the circuit court to correct the mittimus to reflect that defendant was convicted of misdemeanor

criminal damage to property. See People v. Gordon, 378 Ill. App. 3d 626, 641 (2007); Ill. S. Ct.

R. 615(b)(1) (eff. Jan. 1, 1967).

¶ 27 III. CONCLUSION

¶ 28 For the foregoing reasons, we dismiss this appeal as moot, but correct the mittimus to

reflect that defendant was convicted of misdemeanor criminal damage to property.

¶ 29 Appeal dismissed; mittimus corrected.

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