Opinion
4-22-0848
10-25-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER A. BRADFORD, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Woodford County No. 19TR946 Honorable Michael L. Stroh Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court. Presiding Justice DeArmond and Justice Zenoff concurred in the judgment.
ORDER
LANNERD JUSTICE
¶ 1 Held: The appellate court affirmed where the record demonstrates defendant's probation remission hearing satisfied due process.
¶ 2 Following a June 2021 bench trial, defendant, Walter A. Bradford, was found guilty of one count of driving while his license was suspended (625 ILCS 5/6-303(a) (West 2018)), a Class A misdemeanor. Defendant was sentenced to, inter alia, 180 days in jail. The trial court stayed defendant's jail sentence pending a remission hearing. Following a September 2022 remission hearing, the court ordered defendant to serve the 180-day sentence. Defendant appeals, arguing the remission hearing did not comply with due process. We affirm.
¶ 3 I. BACKGROUND
¶ 4 After a June 29, 2021, bench trial, defendant was convicted of driving while his license was suspended (625 ILCS 5/6-303(a) (West 2018)). At the beginning of his August 24, 2021, sentencing hearing, defendant advised the trial court he wished to proceed pro se. Following a colloquy with defendant, the court accepted defendant's waiver of his right to counsel. The court then sentenced defendant to 24 months' probation, a $500 fine (plus costs), 300 hours of community service, and 180 days in jail. The court stayed the jail sentence and scheduled a remission hearing for August 16, 2022.
¶ 5 At the remission hearing, a probation officer informed the trial court that probation department staff "verified" defendant's completion of his community service hours. However, the State expressed concern those hours were "fraudulent." In particular, the State pointed to defendant's social media page, which reflected that he was in Rhode Island on the same day he supposedly completed eight hours of community service in Peoria, Illinois. The social media page also indicated defendant was in Massachusetts the following day. The State also noted defendant "all of a sudden [has] a bunch of hours from the beginning of the year that were not previously documented." The court continued the remission hearing to September 6, 2022, to allow the probation department to investigate the issues raised by the State.
¶ 6 The remission hearing continued on September 6, 2022. At the conclusion of the hearing, the trial court expressed its concern over "the veracity of the entirety of the hours." The court recounted how the State presented a posting on defendant's social media account reflecting he was in Rhode Island on a day he was supposedly in Illinois performing community service hours. The court noted defendant requested and received a travel permit, which corroborated the fact he was not in Illinois on the day in question. The court noted the existence of "a lot of red flags" and imposed the 180-day jail sentence.
¶ 7 This appeal followed.
¶ 8 II. ANALYSIS
¶ 9 On appeal, defendant argues the remission hearing did not comply with due process. Specifically, defendant contends (1) he did not receive adequate notice of the issues with his community service hours in advance of the remission hearing and (2) he was not admonished of his right to counsel at the remission hearing.
¶ 10 A. Preliminary Considerations
¶ 111. Forfeiture
¶ 12 The State contends "defendant forfeited this argument by failing to make proper objections at his sentencing hearing and *** not fil[ing] any post-sentencing motion." "To preserve a purported error for consideration by a reviewing court, a defendant must object to the error at trial and raise the error in a posttrial motion. [Citation.] Failure to do either results in forfeiture." People v. Sebby, 2017 IL 119445, ¶ 48, 89 N.E.3d 675. However, at issue here is the propriety of how the remission hearing was conducted. As defendant points out, the State's position "ignores the fact that the claims raised in this appeal arose out of the remission hearing proceedings, which occurred a year after the sentencing hearing." We agree that "[t]he State does not explain how [defendant] was supposed to object at sentencing to procedures that would not occur until a year later at the remission hearing." Accordingly, we reject the State's forfeiture argument.
¶ 13 2. Mootness
¶ 14 The State also argues defendant's appeal is moot because he has already served his 180-day jail sentence. Defendant contends his appeal is not moot because he is still on probation.
¶ 15 Defendant was sentenced to 24 months' probation in August 2021. Defendant filed his amended notice of appeal in September 2022, his opening brief in February 2023, and his reply brief in May 2023. "A case on appeal becomes moot where the issues presented in the trial court no longer exist because events subsequent to the filing of the appeal render it impossible for the reviewing court to grant the complaining party effectual relief." Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 28, 975 N.E.2d 583. Defendant asks this court to "reverse and remand for a new remission hearing that complies with due process." The record on appeal suggests defendant's probation concluded in August 2023. Defendant has already served his 180 days in jail. The imposition of that jail time was the result of the remission hearing. It cannot be undone even if defendant remains on probation and we determine the remission hearing did not comport with due process. This court, therefore, cannot grant defendant "effectual relief." Jackson, 2012 IL 111928, ¶ 28. Accordingly, his appeal is moot. Jackson, 2012 IL 111928, ¶ 28.
¶ 16 However, defendant urges consideration of his appeal through either the collateral consequences exception or the public interest exception to the mootness doctrine. For the following reasons, we find the public interest exception to the mootness doctrine applies in this case.
¶ 17 3. Public Interest Exception
¶ 18 The public interest exception to the mootness doctrine permits review when the interests involved are of the appropriate magnitude or immediacy. In re Shelby R., 2013 IL 114994, ¶ 16, 995 N.E.2d 990. "Application of this exception, which is narrowly construed, requires a clear showing of each of the following criteria: (1) the question presented is of a public nature; (2) an authoritative determination of the question is desirable for the future guidance of public officers; and (3) the question is likely to recur." Shelby R., 2013 IL 114994, ¶ 16.
¶ 19 Defendant argues the issue of due process at a probation remission hearing "is of a public nature, resolution of that question is important and will guide prosecutors [and] defense attorneys *** in how to properly conduct remission hearings, and the question is likely to recur, as remission hearings are not uncommon for defendants placed on probation." We agree. Accordingly, we consider defendant's arguments regarding the alleged due process deficiencies in his probation remission hearing.
¶ 20 B. Applicable Law
¶ 21 In People v. Tipton, 88 Ill.2d 256, 261, 430 N.E.2d 1023, 1026 (1981), the Illinois Supreme Court addressed the question of whether "the procedural protections afforded *** in connection with the [probation] remission hearing comport[ed] with due process." Two defendants were involved. Defendant Tipton's "imprisonment order was unequivocal, and nothing in the probation order even hinted at the possibility of remission." Tipton, 88 Ill.2d at 266. As for defendant Richardson, "the court specified in the original order of probation a definite date upon which [he] was to appear at which the court would consider remission of all or part of the delayed imprisonment." Tipton, 88 Ill.2d at 266. Regarding what would satisfy due process in either situation, the court explained:
"[T]here are in our judgment distinct differences between the legitimate expectations of those facing terms of delayed imprisonment set as unequivocal conditions of probation at the time of sentencing and those *** whose terms of delayed imprisonment are expressly subjected to the results of a remission hearing fixed in the order imposing the imprisonment. The former have no reason to expect remission; the latter have been encouraged to believe that they may escape imprisonment by complying with the other conditions of probation. As to them, legitimate expectations of a hearing *** have been raised under *** due process considerations *** with the right to notice, counsel, and to present relevant evidence." Tipton, 88 Ill.2d at 267-68.
¶ 22 A claim of the denial of due process is reviewed de novo. People v. Bradley, 2017 IL App (4th) 150527, ¶ 13, 85 N.E.3d 591.
¶ 23 C. Notice of the Allegations
¶ 24 Defendant argues he was denied due process where he did not receive "adequate notice of any alleged [probation] violations." Specifically, defendant asserts:
"Even after the court continued the hearing and asked probation to look into the matter, the State never provided written notice of the allegations, let alone filed a petition for revocation of probation. Where [defendant] was never provided written notice of the alleged probation violations, his due process right to notice was violated."
¶ 25 In this case, there was no written notice of the alleged "fraudulent" nature of defendant's completion of the required community service hours provided in advance of the remission hearing. Yet Tipton does not specify the required notice must be in writing. In support of his argument, defendant cites People v. Di Costanzo, 133 Ill.App.3d 768, 479 N.E.2d 433 (1985). However, this case is distinguishable. In Di Costanzo, the Second District found a remission hearing deficient under Tipton where the prosecutor referred to a petition to revoke probation which contained the allegations supporting the denial of remission and there was no indication the defendant or his counsel was ever served with it beforehand. Di Costanzo, 133 Ill.App.3d at 775. Here, by contrast, the State addressed the issue orally at the beginning of the remission hearing. Defendant also cites our decision in People v. Strickland, 211 Ill.App.3d 183, 569 N.E.2d 1202 (1991). As we stated in Strickland, "[w]hen a defendant is going to be incarcerated as a result of proceedings regarding her behavior while on probation, *** such incarceration may be ordered only after a petition to revoke her probation has been filed and a finding in favor of the State based thereon has been made." Strickland, 211 Ill.App.3d at 193-94. Here, however, the hearing at issue was not to revoke defendant's probation. Rather, it was a remission hearing, involving a previously ordered condition of probation, i.e., defendant's 180-day jail term.
¶ 26 Moreover, defendant does not allege "that he was prejudiced by the lack of formal notice, nor do we discern any manner in which his rights were adversely affected." (Internal quotation marks omitted.) People v. McCracken, 159 Ill.2d 463, 468, 639 N.E.2d 1270, 1272 (1994). Indeed, due process does not "require automatic reversal of a defendant's sentence where the defendant has not been prejudiced by the lack of formal notice." McCracken, 159 Ill.2d at 468. The trial court here continued the hearing after the State expressed its concern over defendant's completion of his service hours. This was to afford additional time for investigation before deciding whether to remand defendant to jail. "Thus, *** we do not believe that the absence in the record of an affirmative indication that [defendant] received formal notice of the [allegations] compels reversal." (Internal quotation marks omitted.) McCracken, 159 Ill.2d at 468-69.
¶ 27 In sum, by the September 6, 2022, continued remission hearing, defendant had adequate notice of the allegations against him, knew the nature of those allegations, and had time to respond to them. As such, defendant had notice of the allegations sufficient to satisfy due process.
¶ 28 D. Notice of the Right to Counsel
¶ 29 Defendant argues he was denied due process when he was not admonished of his right to counsel for the remission hearing. Specifically, defendant contends the trial court failed to (1) inform him he had the right to counsel and (2) admonish him pursuant to Illinois Supreme Court Rule 401(a) (eff. July 1, 1984). Defendant acknowledges he waived his right to counsel at the sentencing hearing. However, defendant maintains it was not a valid waiver. Defendant contends the court failed to admonish him as to the minimum sentence at the sentencing hearing. Therefore, defendant's waiver was invalid and did not carry over to the remission hearing. Defendant also notes the sentencing hearing occurred nearly a full year before the remission hearing. Defendant therefore maintains the court should have readmonished him of his right to counsel at the remission hearing.
¶ 30 Under Rule 401(a), a trial court may not allow a defendant to waive his right to counsel without first admonishing him and determining he understands: (1) the nature of the charges; (2) the minimum and maximum sentences, including any penalty he may be subjected to due to prior convictions; and (3) that he has a right to counsel, and if indigent, to have counsel appointed for him. Ill. S.Ct. R. 401(a) (eff. July 1, 1984). "[Substantial compliance with Rule 401(a) is required for an effective waiver of counsel." People v. Campbell, 224 Ill.2d 80, 84, 862 N.E.2d 933, 936 (2006) (citing People v. Haynes, 174 Ill.2d 204, 236, 673 N.E.2d 318, 333 (1996)). "[Substantial compliance will be sufficient to effectuate a valid waiver if the record indicates that the waiver was made knowingly and voluntarily, and the admonishment the defendant received did not prejudice his rights." Haynes, 174 Ill.2d at 236.
¶ 31 While the trial court did not admonish defendant regarding the minimum sentence at his sentencing hearing, it did so on two prior occasions. First, on May 18, 2021, the court informed defendant of the nature of the charge and told him he would be facing a "mandatory minimum sentence here of either 30 days in the Woodford County jail, or 300 hours of community service work, which would be left to the Court's discretion at a sentencing hearing." Defendant stated he understood. Second, on May 24, 2021, the court again informed defendant of the nature of the charge and told him he faced a "mandatory minimum sentence if [he was] convicted, of either 30 days in jail or 300 hours of community service, which would be left to the Court's discretion if there is not an agreed disposition in this case." Defendant again stated he understood. The court engaged in a comprehensive colloquy with defendant at his August 24, 2021, sentencing hearing. Defendant informed the court he would be representing himself. The court confirmed defendant's desire to proceed without an attorney, his understanding of the maximum penalties, and that he was making his decision to waive his right to an attorney of his own free will and without coercion.
¶ 32 Thus, the trial court substantially complied with the requirement to deliver the admonitions prescribed in Rule 401(a) throughout these hearings. Indeed, the record on appeal indicates defendant waived his right to an attorney at the sentencing hearing knowingly and voluntarily. Further, defendant was not prejudiced by not being admonished at the sentencing hearing of the minimum sentence when he was admonished of this twice before. Therefore, defendant's waiver of his right to counsel at his August 24, 2021, sentencing hearing was not invalid.
¶ 33 Finally, defendant contends the waiver of his right to counsel at his sentencing hearing should not have continued to the remission hearing. Defendant argues the passage of nearly a full year between his sentencing hearing and his remission hearing was a change in circumstances requiring readmonishment of his right to counsel at the remission hearing. In support of his contention, defendant cites People v. Simpson, 172 Ill.2d 117, 138, 665 N.E.2d 1228, 1239 (1996), for the proposition a criminal defendant should be readmonished of his right to counsel despite a previous waiver if there has been a significant change in circumstances. "Circumstances requiring readmonishment before sentencing include lengthy delays between trial phases, newly discovered evidence which might require or justify advice of counsel, new charges brought, or a request from defendant." Simpson, 172 Ill.2d at 138. Under the "continuing waiver" rule, "absent significantly changed circumstances or a later request for counsel, an intelligently and knowingly made waiver of counsel applies to all phases of trial." Simpson, 172 Ill.2d at 138.
¶ 34 However, the concerns stated in Simpson requiring readmonishment do not arise under the facts of this case. Here, the trial court admonished defendant of his right to counsel, and defendant waived that right at sentencing. This is not a case where defendant was admonished of his right to counsel at a previous stage where he was not requesting to waive that right, and then, several months later, is expected to rely on that previous admonishment. See People v. Langley, 226 Ill.App.3d 742, 749-50, 589 N.E.2d 824, 830 (1992) ("A defendant cannot be expected to rely only on the admonishments given to him several months earlier-at a point when defendant was not requesting to waive counsel."). Moreover, the record indicates defendant's waiver was knowingly and voluntarily made. Thus, Simpson did not require the court readmonish defendant of his right to counsel at the remission hearing. Because defendant was given adequate notice of his right to counsel and validly waived that right at his sentencing hearing, his waiver continued to the remission hearing without the need for readmonishment.
¶ 35 III. CONCLUSION
¶ 36 For the reasons stated, we affirm the trial court's judgment.
¶ 37 Affirmed.