People v. Vega

2024 IL App (4th) 221065-U

• Court: Appellate Court of Illinois
• Decided: January 23, 2024
• Docket: 4-22-1065
• Status: Unpublished

Opinion

NOTICE 2024 IL App (4th) 221065-U This Order was filed under FILED NO. 4-22-1065 January 23, 2024 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County TABITHA VEGA, ) No. 19DT113 Defendant-Appellant. ) ) Honorable ) Sarah R. Duffy, ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Presiding Justice Turner and Justice Knecht concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, finding defendant forfeited her claim the circuit court shifted the burden of proof at her revocation hearing, and, alternatively, failed to establish plain error occurred.

¶2 The circuit court sentenced defendant, Tabitha Vega, to 24 months of court

supervision after she pleaded guilty to driving under the influence (625 ILCS 5/11-501(a)(5)

(West 2020)). The State filed petitions to revoke the court supervision under section 5-6-4 of the

Unified Code of Corrections (730 ILCS 5/5-6-4 (West 2022)), which the court granted. It

resentenced defendant to 24 months of conditional discharge and a term of 60 days in county jail,

stayed.

¶3 Defendant appeals, arguing the circuit court improperly shifted the burden of

proof to her by its remarks during the revocation hearing. We affirm. ¶4 I. BACKGROUND

¶5 We begin by noting the record of proceedings consists of two bystander’s

reports—one from the August 11, 2022, hearing on the State’s petition to revoke court

supervision, and one from the October 6, 2022, sentencing hearing. Both reports were prepared

by defendant’s counsel in the circuit court, to which the assistant state’s attorney and the

presiding judge have affixed their signatures.

¶6 On September 9, 2021, defendant pleaded guilty to driving under the influence

and received a sentence of 24 months of court supervision. The circuit court ordered

“[d]efendant shall not possess or consume any substance containing alcohol” and advised

defendant that failure to comply with the supervision order may lead to the revocation of her

supervision.

¶7 From January 5 to June 1, 2022, the State filed six petitions to revoke defendant's

supervision, each citing separate incidents of noncompliance either by confirmed alcohol

consumption or confirmed events of tampering with the device itself. On August 11 and August

19, 2022, defendant appeared in court for an evidentiary hearing on the State’s petitions.

¶8 Justin Hunter had been a Livingston County probation officer for five years.

Hunter testified he supervised defendant’s alcohol monitoring program until October 18, 2021.

During that time the monitoring equipment switched from a Secure Continuous Remote Alcohol

Monitoring (SCRAM) Remote Breath device to a SCRAM Continuous Alcohol Monitoring

device. The provider of the monitoring devices was Total Court Services. Hunter testified

defendant informed him of her medical condition and use of medication containing alcohol.

-2- Defendant told him of using Biofreeze and a hand sanitizer. She provided him with a prescription

bottle but never provided a doctor’s note as he requested.

¶9 Kayla Harder, a Livingston County probation officer for 10 years, supervised

defendant since November of 2021. She testified defendant told her about using Biofreeze in two

incidents of noncompliance and did not respond to her inquiries in March and April 2022.

¶ 10 Joshua Dunkel, a regional manager of Total Court Services with two levels of

SCRAM training, testified that the SCRAM device was placed on defendant’s ankle. It took

readings of defendant’s blood alcohol level and two other readings indicating whether the device

was being worn or obstructed from the skin. After an initial baseline reading, it collected a

sample every 30 minutes from defendant. When the readings show noncompliance by

consumption of alcohol, it produces a noncompliance report. The State introduced five exhibits

of readings showing defendant’s elevated blood alcohol levels, which were admitted, apparently

without objection. Based on his training and experience, Dunkel testified it was his opinion

defendant consumed a substance containing alcohol. He explained how, if defendant spilled

alcohol on her skin in the area of the SCRAM device, there would have been a sudden extremely

high blood alcohol content reading. In addition, he testified the absorption and elimination rate of

isopropyl alcohol in topical medicine is very different from ethyl alcohol that is consumed.

Dunkel admitted the device detects both types of alcohol but does not differentiate between the

two.

¶ 11 Defendant testified she had multiple medical conditions and took prescription

medications. Defendant testified she used two topical medications, Biofreeze and Voltarin, for

pain and to reduce the swelling in her ankles caused by her medication. She used these

medications every day and took a footbath three times a week. She said Biofreeze and Voltarin

-3- contain isopropyl alcohol. Defendant denied consuming alcohol in every instance where the

SCRAM device recorded noncompliance by the consumption of alcohol before she stopped

responding to probation in February 2022. Defendant testified she submitted an aftercare visit

summary to her probation officer in late 2021 or early 2022. Defendant admitted she stopped

answering calls from the probation officer since February 2022.

¶ 12 The circuit court found the State met its burden of proving defendant violated the

terms of her supervision by a preponderance of the evidence. According to the bystander’s

report, “The Court ruled that Mr. Dunkel’s testimony regarding how the SCRAM device worked,

including that topical lotions and creams have different absorption and elimination rates, was not

refuted by Defendant. Further, the Defendant provided no evidence that the lotions and creams

she uses caused the positive test results.”

¶ 13 On October 13, 2022, the circuit court sentenced defendant to 24 months’

conditional discharge, with a 60-day jail sentence stayed. The court further ordered the SCRAM

device removed and existing fines and costs remained in effect. In the motion to reconsider the

sentence, defendant argued the court imposed an excessive sentence and failed to consider

several factors in mitigation. The court denied the motion.

¶ 14 This appeal follows.

¶ 15 II. ANALYSIS

¶ 16 Defendant argues the circuit court improperly shifted the burden of proof and,

therefore, denied her a fair hearing on the State’s petition to revoke. The State responds

defendant forfeited this issue by failing to raise it in her postsentencing motion. In the

alternative, the State argues the court did not improperly shift the burden. We agree with the

State.

-4- ¶ 17 A. Forfeiture

¶ 18 To preserve an issue for appeal, both an objection and a written posttrial motion

raising the issue are required. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130

(1988). “Failure to do either results in forfeiture.” People v. Sebby, 2017 IL 119445, ¶ 48, 89

N.E.3d 675. “When a defendant has forfeited appellate review of an issue, the reviewing court

will consider only plain error.” People v. Thompson, 238 Ill. 2d 598, 611, 939 N.E.2d 403, 412

(2010).

¶ 19 The forfeiture rule must logically be applied to probation and, similarly,

supervision revocation proceedings. People v. Turner, 233 Ill. App. 3d 449, 452, 599 N.E.2d

104, 107 (1992). We find People v. Rathbone, 345 Ill. App. 3d 305, 802 N.E.2d 333 (2003),

illustrative. There, the defendant failed to raise a claim in his postsentencing motion after his

probation was revoked. Rathbone, 345 Ill. App. 3d at 308. This court concluded the forfeiture

rule applied to the defendant’s claim and noted it was precisely the type of claim the forfeiture

rule was intended to bar from review. Rathbone, 345 Ill. App. 3d at 310. The underlying

rationale was the defendant’s failure to raise the issue denied the circuit court the opportunity to

either (1) acknowledge its mistake and correct the sentence or (2) explain how the court did not

improperly sentence the defendant. Rathbone, 345 Ill. App. 3d at 310. This way the reviewing

court is not required to speculate on the basis for the court’s sentence. Rathbone, 345 Ill. App. 3d

at 310. This analysis is equally true here. Had the claim been raised before the circuit court, the

court could have either acknowledged its error and corrected it or explained what was intended

by the comment of which defendant now complains. In fact, it is more critical here, where,

without a transcript, we are left to speculate about what the court said.

-5- ¶ 20 On appeal, defendant argues as if the circuit court said, “the State’s evidence was

not refuted by defendant” and defendant “provided no evidence.” But the bystander’s report,

prepared by defendant’s counsel, does not say that. If defense counsel placed as much weight as

appellate counsel does on the words “was not refuted by Defendant,” and defendant “provided

no evidence,” it is reasonable to conclude he would have put them in quotation marks. Instead,

when read in context, it is just as reasonable to conclude it was a characterization of the import

of the court’s comments—that the State’s evidence was sufficient, and defendant had presented

nothing to detract from the weight of the State’s case. This is not burden-shifting. It is a circuit

court properly weighing the evidence before it and noting the absence of a credible, innocent

explanation, since defendant denied consuming alcohol and relied heavily on what she said were

alcohol-based topical medicines.

¶ 21 Here, defendant did not object contemporaneously at the hearing, nor did

defendant file a motion asking the circuit court to reconsider revocation or include this issue in

her motion to reconsider the sentence. Again, in the bystander’s report, there is no mention of it.

Therefore, we find based on the record available to us, defendant has forfeited the issue of

burden shifting as an issue on appeal. Rathbone, 345 Ill. App. 3d at 309-10. However, forfeiture

is a limitation on the parties, not on the court, and we may exercise our discretion to review

otherwise forfeited issues. People v. Rajner, 2021 IL App (4th) 180505, ¶ 23, 189 N.E.3d 472

(quoting People v. Curry, 2018 IL App (1st) 152616, ¶ 36, 100 N.E.3d 482).

¶ 22 B. Plain Error

¶ 23 Plain error is also a well-established exception to forfeiture. Sebby, 2017 IL

119445, ¶ 48. The reviewing courts find plain error (1) when “a clear or obvious error occurred

and the evidence is so closely balanced that the error alone threatened to tip the scales of justice

-6- against the defendant, regardless of the seriousness of the error” or (2) when “a clear or obvious

error occurred and that error is so serious that it affected the fairness of the defendant's trial and

challenged the integrity of the judicial process, regardless of the closeness of the evidence.”

(Internal quotation marks omitted.) Sebby, 2017 IL 119445, ¶ 48. “The initial analytical step

under either prong of the plain error doctrine is determining whether there was a clear or obvious

error.” Sebby, 2017 IL 119445, ¶ 49.

¶ 24 This court has held, at probation revocation hearings, the State needs to prove a

violation of probation by a preponderance of the evidence. People v. Lindsey, 319 Ill. App. 3d

586, 590, 746 N.E.2d 308, 312 (2001). “[T]he [circuit] court is presumed to know the law and

apply it properly.” People v. Howery, 178 Ill. 2d 1, 32, 687 N.E.2d 836, 851 (1997). “That

presumption, however, may be rebutted when the record contains strong affirmative evidence to

the contrary.” People v. Cameron, 2012 IL App (3d) 110020, ¶ 28, 977 N.E.2d 909. Whether the

court applied the correct legal standard is a question of law, subject to de novo review. Cameron,

2012 IL App (3d) 110020, ¶ 26. Therefore, to determine whether there was a clear or obvious

error, the specific question is whether the record contains strong affirmative evidence that the

court improperly shifted the burden of proof to defendant.

¶ 25 Defendant based her contention of burden shifting on comments cited from the

bystander’s report, as follows: “[t]he Court ruled that Mr. Dunkel’s testimony regarding how the

SCRAM device worked, including that topical lotions and creams have different absorption and

elimination rates, was not refuted by Defendant. Further, the Defendant provided no evidence

that the lotions and creams she uses caused the positive test results.”

¶ 26 People v. Schuit, 2016 IL App (1st) 150312, ¶¶ 113-114, 67 N.E.3d 890, is

analogous here. There, at the bench trial of a shaken baby case, the circuit court commented on

-7- the defense experts’ failure to rule out nonaccidental injury. Schuit, 2016 IL App (1st) 150312,

¶ 114. The court made the comment when it rejected one of the expert’s theories by giving more

weight to the testimony of the doctors who personally examined the victim. Schuit, 2016 IL App

(1st) 150312, ¶ 114. The court’s comments that a defense expert failed to rule out nonaccidental

death was not found to be burden shifting, but instead demonstrative of the court’s careful

weighing of the evidence. Schuit, 2016 IL App (1st) 150312, ¶ 114. The court found the record

was clear. It commented on the defense theories and evidence but knew and properly applied the

burden of proof. Schuit, 2016 IL App (1st) 150312, ¶ 114.

¶ 27 The same is true here. Defendant chose to present the theory that her use of

topical medicine caused the readings in the noncompliance reports. Having done so, the circuit

court is free to, and must, weigh defendant’s evidence against that presented by the State.

Dunkel’s testimony of different absorption rates between alcohol from topical medicine and

consumption rebutted this theory. It is clear from the bystander’s report the court “found that the

State had met their burden by a preponderance of the evidence and that Defendant had violated

the terms of the Order of Supervision.” More importantly, we do not have the words of the court

to rely on. Instead, we have a bystander’s report, which has made no effort to identify the

language of the court as a quote. At best, we have defense counsel’s characterization of the

court’s comments, and now, on appeal, this characterization is argued as a quotation. Without a

transcript or effort by appellate counsel to present the court’s comments verbatim, when taken in

context, even the characterization of the court’s comments supports a conclusion it was properly

weighing the evidence presented by the parties. Further, it is defendant’s burden to provide this

court with an adequate record, and any deficiency in the record is construed against the

-8- defendant. People v. Fernandez, 344 Ill. App. 3d 142, 160, 799 N.E.2d 944, 951 (2003). We

conclude the court’s comments cannot be construed as improper burden shifting.

¶ 28 Because there was no strong affirmative evidence that the circuit court improperly

shifted the burden of proof to defendant, no clear and obvious error occurred. Therefore, we find

no plain error.

¶ 29 III. CONCLUSION

¶ 30 For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 31 Affirmed.

-9-