People v. Pennacchio

573 N.E.2d 297, 214 Ill. App. 3d 195, 157 Ill. Dec. 879, 1991 Ill. App. LEXIS 909
CourtAppellate Court of Illinois
DecidedMay 30, 1991
DocketNo. 2—90—0419
StatusPublished
Cited by2 cases

This text of 573 N.E.2d 297 (People v. Pennacchio) 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. Pennacchio, 573 N.E.2d 297, 214 Ill. App. 3d 195, 157 Ill. Dec. 879, 1991 Ill. App. LEXIS 909 (Ill. Ct. App. 1991).

Opinion

JUSTICE DUNN

delivered the opinion of the court:

Defendant, Anthony Pennacchio, appeals from the imposition of six months’ periodic imprisonment after admitting to a violation of his court supervision. The defendant argues that he was not properly admonished pursuant to Supreme Court Rule 402(a) before admitting to the violation (134 Ill. 2d R. 402(a)). He claims that, because he was not properly admonished, the waiver of his right to a hearing on the State’s petition to revoke supervision was not a knowing, intelligent or voluntary waiver. In addition, the defendant claims his admission was not voluntary because it was based on an unfulfilled promise. The defendant also asserts his sentence is excessive. We agree in part.

The defendant was convicted of battery on June 1, 1988. He was sentenced to two years’ court supervision to terminate June 1, 1990. On December 3, 1988, the defendant was arrested for reckless homicide in Iroquois County. On March 1, 1989, the Du Page County State’s Attorney’s office filed a petition to revoke the defendant’s court supervision.

The defendant reached a plea-bargain agreement with the Iroquois County State’s Attorney’s office on the reckless homicide charge. Under the agreement, the defendant would be sentenced to: (1) 30 months’ probation; (2) 50 hours of community service work; and (3) a fine of $500. Before the defendant entered his plea to the reckless homicide charge, the defendant’s attorney met with the Du Page County State’s Attorney’s office on the petition to revoke supervision. An agreement was reached whereby the Du Page County State’s Attorney’s office would agree to an unsatisfactory termination of court supervision if the defendant would admit to the violation of his supervision and also plead guilty to the reckless homicide pursuant to the plea agreement reached with the Iroquois County State’s Attorney’s office.

The defendant pleaded guilty to the reckless homicide charge in Iroquois County on December 15, 1989. He was sentenced pursuant to the plea agreement. On January 8, 1990, the defendant appeared in the circuit court of Du Page County on the petition to revoke his court supervision.

The assistant State’s Attorney did not inform the court of the full terms of the plea agreement reached between the parties. The trial judge stated that he was not bound by the agreement reached between the parties. He then asked the defendant if he intended to admit the allegations contained in the petition to revoke his court supervision. When the defendant responded in the affirmative, the court asked him if he understood that by admitting the violation of the terms of the court supervision he waived his right to a hearing and that all that remained was for the court to decide the penalty to be imposed. Again, the defendant responded that he understood. The court then asked the defendant if he was freely and voluntarily admitting that he violated the terms of his court supervision. The defendant answered in the affirmative.

The judge sentenced the defendant to six months’ periodic imprisonment. The defendant filed motions to vacate and to reconsider the sentence. After a hearing on the matter, the court denied both motions. Defendant timely appeals.

Defendant’s first argument on appeal is that he was not properly admonished pursuant to Supreme Court Rule 402 prior to admitting to the petition to revoke his court supervision. Defendant asserts the trial court was required to explain the nature of the charge against the defendant, the minimum and maximum sentence prescribed by law, that he had a right to plead not guilty, and that if he pleaded guilty he would waive the right to a trial by jury and the right to confront the witnesses against him pursuant to Rule 402.

Supreme Court Rule 402 governs pleas of guilty. Although we were unable to find any cases directly on point dealing with the applicability of Rule 402 to supervision revocation proceedings, we find the cases dealing with the rule’s applicability to probation revocation hearings persuasive.

The Unified Code of Corrections provides that a court may, upon a plea of guilty or a finding of guilt, defer the imposition of a sentence and enter an order for supervision. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—1(c).) Conditions are imposed by the court for the term of supervision. Upon the successful completion of the term, an order dismissing the charges against the defendant may be entered. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—1—21.) If the conditions are not fulfilled, the court has the option of continuing the supervision, modifying the supervision, or revoking the supervision and resentencing the defendant pursuant to the original charge. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—6—4(e) through (h).) A proceeding to revoke court supervision is similar to a probation revocation proceeding in that it is not a criminal adjudication. (People v. Butler (1985), 137 Ill. App. 3d 704, 712.) The defendant has already been found guilty of the crime at an early stage in the proceedings.

Rule 402 was formulated to secure proper entry of guilty pleas. (People v. Beard (1974), 59 Ill. 2d 220, 226; People v. Krantz (1974), 58 Ill. 2d 187, 194-95.) In People v. Beard (59 Ill. 2d 220), our supreme court held the provisions of Rule 402 are not strictly applicable to probation revocation proceedings. The court stated that due process does not require all Rule 402 admonitions be given in a probation revocation proceeding because the admission of a probation violation is significantly different in nature and effect from what is involved in a plea of guilty to an original charge. People v. Beard, 59 Ill. 2d at 226-27; see also People v. Cox (1990), 197 Ill. App. 3d 239, 243.

We find the same differences in nature and effect are present when the admission pertains to a violation of court supervision. In a supervision revocation proceeding, the defendant’s guilt has been determined in a prior proceeding. He is not pleading guilty to the offense with which he is charged. Although the defendant ultimately may be incarcerated as a result of the revocation of court supervision, there is a qualitative difference between a criminal conviction and the revocation of supervision. (See People v. Beard, 59 Ill. 2d at 226.) Accordingly, we hold the provisions of Rule 402 are not strictly applicable to supervision revocation proceedings.

However, despite the qualitative difference between a criminal conviction and the revocation of supervision, basic due process rights still must be accorded. The United States Supreme Court has set forth the minimum due process rights to be accorded to a probationer in probation revocation proceedings in Gagnon v. Scarpelli (1973), 411 U.S. 778, 789, 36 L. Ed. 2d 656, 665-66, 93 S. Ct. 1756, 1763. Under Gagnon, a probationer is afforded only “minimum” due process rights. The court recognized that a probationer has already been convicted of the crime resulting in probation and is entitled to fewer procedural safeguards than one who has not been convicted at all. Gagnon, 411 U.S. at 789, 36 L. Ed. 2d at 665-66, 93 S. Ct. at 1763; People v. DeWitt (1979), 78 Ill. 2d 82, 85.

In DeWitt, the court held that due process entitles a probationer

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Bluebook (online)
573 N.E.2d 297, 214 Ill. App. 3d 195, 157 Ill. Dec. 879, 1991 Ill. App. LEXIS 909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-pennacchio-illappct-1991.