NO. 5-02-0593

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the 

							)  Circuit Court of

     Plaintiff-Appellant,				)  Marion County.

							)

v.							)  No. 94-CF-156

							)  

DAVID W. BREDEMEIER,			)  Honorable

							)  William J. Becker,

     Defendant-Appellee.				)  Judge, presiding.

________________________________________________________________________

	JUSTICE HOPKINS delivered the opinion of the court:

	The plaintiff, the State of Illinois, appeals from the trial court's dismissal of its petition

to revoke probation, which had been filed against the defendant, David W. Bredemeier.  On

appeal, the State argues that the trial court erred in holding that a six-year delay in

prosecuting its petition to revoke probation was "presumptively prejudicial" and in

dismissing its petition to revoke probation.  We affirm.  

	FACTS

	Following a jury trial in Marion County, Illinois, the defendant was convicted of

unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 1994)).  On

February 10, 1995, the court sentenced the defendant to 30 months' probation.

	On May 17, 1996, the defendant was convicted of attempted burglary in Gibson

County, Indiana, and was sentenced to eight years' incarceration, with two years suspended

to probation.  On May 30, 1996, the Marion County, Illinois, State's Attorney filed a petition

to revoke probation, based upon the 1996 Indiana conviction.  The court issued a warrant for

the defendant's arrest on June 27, 1996, which the defendant acknowledged he received, apparently while he was incarcerated in Indiana.  

	On July 24, 1998, the defendant sent to the Marion County courthouse a letter

requesting a certified copy of the docket sheet regarding the petition to revoke probation. 

He stated that he needed this document for evidence when he filed his motion for a speedy

trial.  The defendant further stated:

	"Please also provide me with the trial rules of your court as I do not have access to

such documents in the Indiana Department of Corrections.  Also, if there has been a

lawyer appointed to represent me in this cause of action, please send the name and

address of such, as he/she may be able to get the information that I am now

requesting."

	On April 7, 1999, the defendant filed a pro se "Motion for Relief from Judgment."  On August 11, 2000, the defendant sent to the circuit clerk a letter asking that counsel be

appointed to represent him in the proceedings on the petition to revoke probation.  On

September 29, 2000, the defendant sent another letter to the circuit clerk and again asked that

counsel be appointed to represent him in proceedings on the petition to revoke probation. 

On October 16, 2000, the defendant sent the judge a letter, which stated, in pertinent part: 

		"I have been trying since 1996 to get a probation matter resolved.  I have

requested that an attorney be appointed to represent me in this matter to know [sic] avail.  Three weeks ago, I wrote the court asking that a[n] attorney be appointed to

assist me and I have not heard anything.  The State of Illinois filed a Petition for

Revocation against me in July of 1996.  I have been incarcerated in the Indiana

Department of Corrections for almost (5) five years.  I have approximately (27)

twenty[-]seven months remaining on my Indiana sentence.  

	* * *

		Also, be advised that all my fines have been paid in full, [and] I have requested a fast and speedy [trial] to this matter since it affects my elgibility [sic] to be classified as a level one, et Trusty Status [sic] etc."

	On December 4, 2000, the defendant sent a letter to the court, which stated: 

	"I recently recieved [sic] correspondence from the Clerk of the Court indicating that the court could not take action on my Probation revocation until I complete my

Indiana sentence.

		Sir, Indiana DOC officials have informed me that if the Illinois Court sends a

Transport Order, it would be honored."

All the documents the defendant sent to the court indicated a return address in the Indiana

Department of Corrections.  

	On June 28, 2002, the defendant appeared in court pro se, at which time the trial court appointed counsel for him.  The record reflects that the defendant had served his sentence

in Indiana at that time.  

	On July 8, 2002, the defendant filed a motion to dismiss the petition to revoke

probation.  In his motion, the defendant argued that the State's delay in prosecuting the

petition violated his due process rights.  At the hearing held on the defendant's motion on

July 17, 2002, the prosecutor acknowledged that the only prejudice the defendant could

claim is that he lost his chance to ask that his sentence in Illinois run concurrently with his

sentence in Indiana.  The prosecutor stated that he could have asked for a writ but that 

Indiana would not have honored it.  The prosecutor, apparently relying on section 3-8-9 of

the Unified Code of Corrections (730 ILCS 5/3-8-9 (West 2002)), advised the court that he

had no authority to extradite the defendant from Indiana because a petition to revoke

probation is not an "untried complaint, charge[,] or indictment pending against him."  The

prosecutor acknowledged that he did not try to have the defendant brought to Illinois for the

petition to revoke probation while the defendant was incarcerated in Indiana.  The prosecutor also acknowledged that the defendant had sent both the State's Attorney's office and the court

some letters saying that the defendant wanted to be brought to Illinois from Indiana to take

care of the probation revocation proceeding while he was in custody.  The prosecutor

indicated that he intended to seek the minimum sentence following the revocation of the

defendant's probation, i.e., two years' incarceration. 

	On July 24, 2002, the trial court entered its order granting the defendant's motion to

dismiss the petition to revoke probation.  The trial court held that it was fundamentally unfair

to delay a hearing on the petition for more than six years and that the State's failure to try to

have a hearing on the petition violated the defendant's right to a prompt hearing.  The court

also noted that there was no evidence that the State had tried and failed to get the defendant

back to Illinois when everyone knew where he was and that he wanted a hearing.  At the

hearing on the State's motion to reconsider, the court reiterated its prior ruling and stated that

the State's delay was presumptively prejudicial.  The State appeals the trial court's dismissal

of the petition to revoke probation.  

	ANALYSIS

	On appeal, the State argues that there can be no "presumption" that a lengthy delay

in a probation revocation proceeding is inherently prejudicial because there is no talismanic

formula for determining whether a probation revocation hearing was held within a reasonable

time.  The State therefore contends that the trial court's ruling that the delay was

"presumptively prejudicial" was error.  The State also argues that it was the defendant's

burden to show that the petition to revoke should be dismissed and that the defendant failed

to meet that burden.  The State also argues that the defendant failed to show that he was

prejudiced by the delay in prosecuting the petition to revoke probation.  In addition to

answering the State's arguments, the defendant argues that the State's appeal should be

dismissed for lack of jurisdiction because Supreme Court Rule 604(a) (188 Ill. 2d R. 604(a)) makes no provision for the appeal of a dismissal of a petition to revoke probation. 

	We first consider the defendant's argument that this court lacks jurisdiction to consider

the State's appeal because Rule 604(a) does not provide for the appeal of a dismissal of a

petition to revoke probation.  In its brief, the State indicated that it was bringing its appeal

under the civil appeal rules, i.e., Supreme Court Rule 301 (155 Ill. 2d R. 301).  As the State correctly states, a probation revocation proceeding is a civil proceeding.  People v. Lindsey, 199 Ill. 2d 460 (2002).  Because a probation revocation proceeding is civil in nature, the

State can appeal an adverse ruling in a probation revocation proceeding under Rule 301, and

we have jurisdiction to consider the State's appeal. 

	The State argues that the trial court's ruling that the six-year delay in prosecuting the

defendant's probation revocation was "presumptively prejudicial" was erroneous.  The State

also argues that the defendant failed to prove that the probation revocation petition should

be dismissed or that the defendant was prejudiced by the six-year delay in prosecuting the

petition.  

	The standard of review for a trial court's ruling is de novo when the parties do not dispute the facts or the credibility of the witnesses.  People v. Love, 199 Ill. 2d 269 (2002).  Here, the facts and the credibility of the witnesses are not in dispute.  Instead, the State

questions the trial court's application of the law to the facts.  

	Because a probation revocation involves a potential loss of liberty, probation

revocation proceedings must comply with the minimum requirements of due process.  People v. Renner, 321 Ill. App. 3d 1022 (2001); People v. White, 273 Ill. App. 3d 638 (1995).  Procedural protections ensure that a probationer's liberty is not unjustifiably denied and that

the State does not thwart a successful effort at rehabilitation or imprudently prejudice the

community's safety.  People v. Tillman, 237 Ill. App. 3d 971 (1992).  One of the due process protections afforded a defendant in a probation revocation proceeding is that the hearing on the petition must be brought within a reasonable time.  Tillman, 237 Ill. App. 3d at 973.  Whether the State's delay in proceeding on a probation revocation petition is reasonable is

evaluated on a case-by-case basis.  Tillman, 237 Ill. App. 3d at 974.  If a defendant does not cause the delay (People v. Williams, 309 Ill. App. 3d 1022 (2000)), an unreasonable delay by the State is a violation of the probationer's due process rights.  White, 273 Ill. App. 3d 638.  Other factors a trial court should consider in determining whether a delay in

prosecuting a probation revocation was unreasonable are whether the defendant was

prejudiced and whether the defendant protected his rights by requesting a hearing.  People v. Randolph, 98 Ill. App. 3d 696 (1981).  

	We agree with the State that there are no speedy trial rights attached to a probation

revocation proceeding (White, 273 Ill. App. 3d at 643) and that a considerable delay, without more, does not make the delay "presumptively prejudicial."  However, under the facts of this

case, we agree with the trial court that the State's delay was unreasonable.  

	The evidence presented at the hearing on the motion to dismiss established that the

State filed its petition to revoke probation six years before it brought the defendant before

the court for a hearing on the petition.  The State knew where the defendant was during this

six-year period but made no attempt to have him brought to Illinois for a hearing.  At the

hearing, the State considered only section 3-8-9 of the Unified Code of Corrections (730

ILCS 5/3-8-9 (West 2002)) as a vehicle for obtaining the defendant's presence at a hearing

on the probation revocation petition.  However, in its appellate brief, the State acknowledged

that  section 5 of the Uniform Criminal Extradition Act (725 ILCS 225/5 (West 2002)) would

have allowed the State to procure the defendant's presence for a hearing while he was still

incarcerated in Indiana.  

	The evidence at the hearing also demonstrated that, because of the State's delay, the

defendant lost the opportunity to have his sentence in Illinois run concurrently with his sentence in Indiana.  In addition, the State advised the court at the hearing that it intended

to seek a two-year sentence for the probation violation.  Thus, if the defendant had been

given the opportunity to seek concurrent sentences during his incarceration in Indiana and

if the court had ordered a concurrent sentence, his Illinois incarceration would have been

served by the time he served his time in Indiana.  Accordingly, we find that the defendant

was prejudiced by the delay.  

	In addition, as evidenced by his motions and letters contained in the record, the

defendant made numerous requests to be transported to Illinois for a hearing on the probation

revocation petition.  In fact, the prosecutor acknowledged at the hearing that the defendant

had sent the State's Attorney's office and the court letters saying that he wanted to be

transported from Indiana to Illinois to take care of the probation revocation proceeding while

he was in custody.

	The record supports the trial court's finding that the State's failure to prosecute its

petition to revoke probation within a reasonable time violated the defendant's due process

rights, and the trial court was correct in concluding that the State's delay was fundamentally

unfair.  Accordingly, the trial court properly dismissed the State's probation revocation

petition.

	CONCLUSION

	For the foregoing reasons, the judgment of the circuit court of Marion County is

affirmed.  

	Affirmed.  

	MAAG, J., concurs.

	JUSTICE WELCH, dissenting:

	I respectfully dissent.  The circuit court dismissed the State's petition to revoke

probation on due process grounds because six years had elapsed between the time the

petition to revoke probation was filed and the time the defendant returned to Illinois to face

the allegation that he had violated his probation, and it is upon those same due process

grounds that the majority affirms that dismissal.  I do not agree with the majority that under

the circumstances of this case the defendant's due process rights have been violated.  The

United States Supreme Court does not attach to revocation proceedings the full range of

procedural safeguards associated with a criminal trial, because the probationer already stands

convicted of a crime.  See United States v. Sanchez, 225 F.3d 172, 175 (2d Cir. 2000).  A delay between a defendant's violation of probation and the execution of the violation warrant

does not, in and of itself, violate a defendant's due process rights.  See Sanchez, 225 F.3d at 175.  Furthermore, the delay in this case does not impair the defendant's ability to contest the

revocation petition; either he was convicted of attempted burglary in Indiana or he was not

so convicted.

	The defendant claims prejudice, however, because he does not have the chance to

have his sentences served concurrently.  I do not believe that the lost opportunity to ask

permission to serve sentences concurrently amounts to the deprivation of a due process right. 

The statute allowing for concurrent sentencing under the circumstances of this case states,

"A defendant who has a previous and unexpired sentence of imprisonment imposed by

another state *** and who, after sentence for a crime in Illinois, must return to serve the

unexpired prior sentence may have his sentence by the Illinois court ordered to be concurrent

with the prior sentence in the other state."  730 ILCS 5/5-8-1(e) (West 2000).  The operative

word in the statute is "may."  The defendant did not have a right to concurrent sentences, nor did he have a right to credit against the time he served in Indiana.  The defendant has been convicted of felonies in Illinois, Kentucky, and Indiana.  The conviction on which he was

granted probation in this cause was the defendant's fifth felony conviction.  The fact that the

circuit court attempted probation on the underlying conviction in the first place must not be

allowed to denigrate the gravity of that offense.  Rather, it merely indicates that the court was

willing to give the defendant a chance.  People v. Reznick, 141 Ill. App. 3d 593, 598, 491 N.E.2d 444, 447 (1986).  Accordingly, I believe that the circuit court should be afforded the

discretion to punish the defendant for his violation of probation.

	In support of its proposition that a due process violation has occurred, the majority

states that "section 5 of the Uniform Criminal Extradition Act (725 ILCS 225/5 (West 2002))

would have allowed the State to procure the defendant's presence for a hearing while he was

still incarcerated in Indiana."  Slip op. at 6.  I take issue with that statement on two counts. 

First, section 5 is couched in permissive, rather than mandatory, language as well, and there

is no duty on the part of the requestee state to return the defendant to the requesting state. 

725 ILCS 225/5 (West 2002).  The defendant has presented no credible evidence that Indiana

would have agreed to return him to Illinois for a probation revocation hearing during the

defendant's Indiana prison term.  Second, although the defendant would presumably be

restrained while in transit, the transportation of the defendant to Illinois from Indiana while

the defendant was still incarcerated in Indiana nevertheless would expose the citizens of both

Indiana and Illinois to unnecessary risk and would divert law enforcement and corrections

officers in both states from more pressing duties.

                                     	NO. 5-02-0593

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the 

							)  Circuit Court of

     Plaintiff-Appellant,				)  Marion County.

							)

v.							)  No. 94-CF-156

							)  

DAVID W. BREDEMEIER,			)  Honorable

							)  William J. Becker,

     Defendant-Appellee.				)  Judge, presiding.

___________________________________________________________________________________

Opinion Filed:		February 6, 2004	

___________________________________________________________________________________

Justices:	Honorable Terrence J. Hopkins, J.

	Honorable Gordon E. Maag, J.,

	Concurs

	Honorable Thomas M. Welch, J., 

	Dissents

___________________________________________________________________________________

Attorneys	Hon. James Creason, State's Attorney, Marion County Courthouse, P.O. Box 157,

for	Salem, IL 62881; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director,

Appellant	Patrick D. Daly, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor,

	730 E. Illinois Highway 15, P.O. Box 2249, Mt. Vernon, IL 62864

___________________________________________________________________________________

Attorneys	Daniel M. Kirwan, Deputy Defender, Rita K. Peterson, Assistant Defender, Office

for	of the State Appellate Defender, Fifth Judicial District, 730 E. Illinois Highway 15,

Appellee	Suite #1, Mt.V Vernon, IL 62864

___________________________________________________________________________________