THIRD DI VISI ON March 24, 2010

No. 1-08-0870

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the Circuit Court

) of Cook Cou

nty , Illi nois Plaintiff-Appellee, ) ) v. ) No. 06 CR 13568 ) TYSHAWN KELL

ER, ) ) Honorab le Marjor ie La ws, Defend ant-App ellant. ) Judge Presiding

PRESID ING

JUSTICE

MURPHY de livered

the opinion of the c ourt: Defend ant, Ty shawn Ke ller, ple d guilty to possess ion of a c ontrolled substanc e with intent to deliver and was sentenced to probation. After a he aring, defendant's proba tion was revoked. On appeal, he arg ues that this court should reverse the order revoking his probation because (1) his probation officer lac ked the authority to file the pe tition for violation of probation and (2)the State failed to prove by a prepon deranc e of the e

vidence that he f ailed to comply with the terms of his probation. I. BACKGROUND On July 28, 2006, d

efenda nt pled g uilty to possess ion of a c ontrolled substanc e with intent to deliver. The court imposed a term of probation of 26 months. As part of the terms of his p robat ion, defend ant wa s orde red to obtai n his GED, co mplet e five d ays of the Sheri ff's Work Alter

native Pr ogram, submit to ra

ndom drug

testing , and pay

$1,295 in f

ines.1-08-0870

-2-

On October 17, 2007, defendant's proba tion officer, Clyde A

kbar, filed a "Petition for Violation of Probation and Warrant" because defe ndant failed to report on September 14, 2007, did not complete his GED, and had not paid the fines. The petition requested that the court issue

a warra nt for " defenda

nt to appe ar and a

nswer the allege d violation s in open c ourt at a hearing to determine whether or not the probation shall be revoked a nd if so, what new sentence and modifications shall be imposed." At the hearing, the assistant State's Attorney presented the testimony of Akbar. Akbar testified that he was the probation officer assigne d to supervise defendant. On September 14, 2007, def endant ha d an appo intment to r

eport to A

kbar' s office

and compl ete a ra

ndom drug

test, but defendant failed to appear. Akbar notified de fendant of the September 14 appointment at their previous meeting on August 7, 2007. Defendant testified that Akbar told him he had until 2:30 p.m. on September 14 to report. Defe ndan t arr ived at 2:3 0 p.m. , but A

kbar was not the

re. H e spo ke toa woman in the o ffic e next to Akbar 's, who s aid she would leave Akbar a message say

ing that defenda nt was the

re. He a lso left "millions" of voice messages for A kbar. The court noted Akbar's testimony that defendant failed to report on September 14, 2007, and that the defendant had no corroboration that he r eported at 2:30 p.m. that day. T he trial court therefore found that defenda nt violated his probation by missing his scheduled appointment with Akbar. Defendant was then sentence d to three yea rs' imprisonment for the underlying

conviction.1-08-0870

-3- II. AN ALYS IS A. Authority of Probation Offic er to File Petition Defendant contends that this court should reverse the orde r revoking his probation because Akbar, defendant' s probation officer, lacked the authority to file the petition to revoke probation. He cites section 12 of the Probation and Probation Officers Ac t (730 IL CS 110/12 (West 2006)) (the Act), which delineates a probation off icer's authority

but does not include the authority to file a petition to revoke pr obation. He also cites section 5-6-4 of the Unified Code of Corrections (730 ILCS 5/5-6-4 (West 2006)), which he say s does not specify who has the authority to file a petition to revoke pr obation. Defendant argues that, in contrast, section 3- 9005 of the Counties Code specifically states that "[t]he duty of each State' s attorney shall be: *** [t]o commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county , in which the people of the State or county may be concerned." 55 I

LCS 5/3-9005(a)(1) (West 2006). In People v. Dinger , 136 Ill. 2d 248, 259 (1990), our supreme cour t found that "the Unified Code of Corrections contemplates the revocation of a n offender's probation only upon the filing by a

proper party

of a petition charging a violation of a c ondition of probation." As explained in detail below, we find, based on the languag e of section 5-6-4 of the Unified Code of Correct ions (730 I

LCS 5/5 -6-4 (We st 2006)) , that a pr obation of

ficer is a "prop er part

y" to file such a petition. The primary r

ule of statutory construction is to ascertain and give effect to the intent of the legislature. People v. Whitney , 188 Ill. 2d 91, 97 (1999). The lang uage of the statute must be afforded its plain, ordinary , and popularly under stood meaning. In re Detention of Lieberman ,1-08-0870

1 In Cook County, probati on offic ers do not monitor de fendants on super vision. Thi s point was not raised in Kellems

. -4- 201 Ill. 2d 300, 308 (2002). The court will not depart fr om the plain meaning of a statute by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent. Petersen v. Wallach , 198 I ll. 2d 439, 4 46 (2002) . In c onstruing a statute , we pre sume th at th e G en er al As se mb ly, in it s e na ct me nt of le gi sl at io n, di d n ot in te nd ab su rd it y, inconvenience, or injustice. Michigan Avenue National Bank v. County of Cook , 191 Ill. 2d 493, 503-0 4 (200 0). As defend ant's a rgumen t rais es a qu estio n of la w, we re view t he tri al cou rt's decision de novo

. People v. Caballes , 221 Ill. 2d 282, 289 (2006). We decline to follow the two cases from other districts that defendant re lies on in support of his ar gument: People v. Kellems , 373 Ill. App. 3d 1129 (2007), and People v . Herrin , 385 I ll. App. 3d 187 (2008). In Kellems , a probation officer filed a petition to revoke the def endant's supervision, 1 alleging that the defendant violated two ter ms of the supervision order. The defendant filed a motion to dismiss the pe

tition on the

ground that a pr obation of

ficer d oes not ha

ve the au thority to file such a petition. The trial court rejected the defe ndant's argument, but on appeal, the Fourth District reversed. Kellems first noted that section 12 of the Act, which includes the list of duti es and respo nsib ilit ies of proba tion offic ers, d oes no t cont ain a p rovis ion em poweri ng a probation officer to file a petition to revoke supervision. Kellems , 373 Ill. App. 3d at 1131, citing 730 ILCS 110/12 (West 2004). It further noted that section 5-6-4 of the U nified Code of Corrections (730 ILCS 5/5-6-4 (West 2004)) does not specify w ho has the authority to file a1-08-0870

-5-

petition to revoke supervision. Kellems , 373 Ill. App. 3d at 1131. Finally, section 3-9005 of the Coun ties C ode (5 5 ILCS 5/3 -9005 (a)(1) (West 2006) ) stat es tha t the " duty of eac h Sta te's Attorney shall be *** [t]o commence and prose cute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may

be concerned." See Kellems , 373 Ill. App. 3d at 1131. Kellems relied on People v . Birt , 274 Ill. App. 3d 805 (1995). I n Birt , the S tate's Attorney filed a

motion to modify the terms of the defenda nt's probation. The defendant arg ued that the trial court committed reversible error in gr anting the State's motion to amend the conditions of his probation because section 5-6-4(f) did not give the State's Attorney

the authority to file such a motion. At that time, section 5-6-4( f) provided that the "conditions of probation, of conditional discharge and of supervision may be modified by the cour

t on motion of the probation officer or on its own motion or at the request of the off ender after notice and a hearing ." 730 I

LCS 5/5 -6-4(f

) (West 199 2). The F ourth Dist rict disa greed , noting t

hat beca use "a motion to amend probation constitutes a continuation of a criminal case, the People of the State of Illinois continue to be represente d by the State' s Attorney *** conc erning such a motion." Birt , 274 I ll. App. 3d at 808, ci ting 55 I LCS 5/3 -9005(a

)(1) (We st 1992). " We sugg est this point is so basic that the legislature did not deem it necessary to mention the State's Attorney as among thos e who could fi le a motion pursuant t o section 5 -6-4(f) of the C ode." Birt , 274 I ll. App. 3d at 808. Kellems concluded, "Consistent with our reasoning in Birt , *** if the legislature had intended anyone

other than the State's Attorney (whose authority is nec essarily implied) to have authority to file a petition to revoke supe rvision, it would have said so. However, the legislature1-08-0870

-6-

has not chos en to expl icitly empower prob ation offic ers with su ch authorit y." Kellems , 373 I ll. App. 3d at 1133. Therefore, it found that the probation office r lacked the authority

to file a petition to revoke the defendant's supervision. Kellems , 373 Ill. App. 3d at 1133. People v . Herrin , 385 Ill. App. 3d 187 (2008), agr eeing with the reasoning of Kellems , concluded that a petition to revoke probation filed by the probation officer was void ab initio because the probation officer lacke d the authority to file it. Herrin , 385 Ill. App. 3d at 190. The Third District relied on section 3-9005 of the Counties Code, which grants State' s Attorneys the authority to commence a

nd prosecute all actions, and 5-6-4(a) of the U nified Code of Corrections, which "mentions a petition 'charging a violation of a [probation] condition' without specificall y indicating who is a uthoriz ed to file t he pleading." Herrin , 385 Ill. App. 3d at 190- 91, quoting 730 ILCS 5/5-6-4(a) (West 2006). The Herrin court rejected the argument that subsec tions 5-6-4(f) and (i) dictated a different result. Herrin , 385 Ill. App. 3d at 191. The "general grant of institutional pleading authority" in subsection 5-6-4(f) "does not answer the specif ic question of who can file the pleading in co urt." Herrin , 385 Ill. App. 3d at 191. I t also concluded that, since the July 31, 1996, amendment to subsection 5-6-4(f), "[p]robation officers have *** be en removed from the pleading equat ion." Herrin , 385 Ill. App. 3d at 191. Section 5-6-4(f) provide s that the "condit ions of pr obation, o f conditional discharge, of super vision, or of a sent ence of county impact inc arcer

ation may be modifie d by

the cour t on motion o f the supe

rvising agenc y or on its own motion or at the request of the offender afte r notice and a hearing." 730 IL CS 5/5-6-4(f) (West 2006). Subsection 5-6-4(i) provides, in relevant part, "I nstead of filing a violation of probation *** , an agent or employ ee of the supervising age

ncy *** may

serve on the defendant1-08-0870

-7-

a Notice of Interme diate Sanctions." 730 ILCS 5/5-6-4(i) (West 2006). The court found that subsection 5-6-4(i) "could have been wor ded, 'Instea

d of the State's attorney

filing a violation of probation ***,' but such wording was unnece ssary" because the State's Attorney 's role as prosecu tor of suc h actions is a fore gone c onclusion

that does not need t

o be reit erated every time a statute mentions filings to initiate proceedings. Herrin , 385 Ill. App. 3d at 191-92. Herrin conclude d, "The

re can b e no question that the probat ion offic er's pl eading

in the insta

nt case amounted to law pra

ctice. Y et the pr

obation of

ficer la cks a law license . His acti ons not only constituted the unauthorized practice of law but also usurped the statutory prerogative of the State's Att orney." Herrin , 385 Ill. App. 3d at 192. We disagree with the courts' reasoning in Kellems and Herrin . As Justice Schmidt noted in his spec ial conc

urrenc e to Herrin , "The term of art, 'petition to revoke,' is used by many

in the criminal justice arena. However, a pe tition to revoke is actually a pe tition charging a violation of probatio n that sim ply requests revocat ion as a cons equence of the al leged violati on." Herrin , 385 Ill. App. 3d at 194 (Schmidt, J., concurring). Justice Schmidt found this distinction "somewhat significant" in light of the Kellems court's proclamation that a probation officer lacks the " 'authorit y to file a petitio n to revoke de fendant's sup ervision. ' " Herrin , 385 Ill. App. 3d at 194 (S chmid t, J ., con curri ng), qu otin g Kellems , 373 Ill. App. 3d at 1133. Furthermore, the Herrin majority cites no authority for the proposition that a probation officer engag es in the unauthorized practice of law when he or she files a petition for violation of probation. See Herrin , 385 Ill. App. 3d at 192. A probation officer is a judicial employee. 730 IL CS 110/9b(3) (West 2006). See also People v. Hammond , Nos. 4-08-0651, 4-08-0652, 4-09- 0214 cons. (December 21, 2009). Thus, Akbar was not engaging in the unauthorized prac tice of1-08-0870

-8-

law when he filed the petition for violation of defendant' s probation; instead, he was acting as an agent of the trial court. In addition, the Herrin court's interpretation of subsections 5-6-4(f) a nd (i) is faulty. The Herrin majority contends that the " general grant of institutional pleading authority" in subsection 5-6-4(f) "does n ot answer th e specific que stion of wh o can file the pleading in co urt." Herrin , 385 Ill. App. 3d at 191. Section 5-6-4(f) provide s that the "conditions of probation, of conditional discharge, of supervision, or of a sentenc e of county impact incarceration may be modified b

y the court on motion of

the super vising a gency or on its ow

n motion or

at the re quest of the offender after notice a nd a hearing." 730 I

LCS 5/5-6-4(f) (West 2006). I n this case, the "super vising a gency" is the probation

department, whic

h necess arily

includes probation office

rs, since they over

see a defendant's probation. Thus, it is clear to this court that the "supervising agency " listed in subsection (f) must include probation officers, as they are agents of the probation department. Subsection 5-6-4(i) provides, in relevant part, "I nstead of filing a violation of probation *** , an agent or employ

ee of the supervising age

ncy *** may

serve on the defendant a Notice of Intermediate Sanctions." 730 IL CS 5/5-6-4(i) (West 2006). Herrin posits that the opening phras e of su bsect ion 5 -6-4(i ) coul d have been wo rded, "Instead of the Stat e's att orney fil ing a violation o f probat

ion," but that such wording was unne cessar

y, as the State 's Attor

ney's role is a "foregone conclus ion." Herrin , 385 I ll. App. 3d at 191. We f

ind that su

ch an inte rpreta tion is ungram mati cal and contr ary to the clear l anguage o f the s tatut e, as t he part icipi al phr ase's proximity to "an a gent or employ ee of the supervis ing ag ency " can on ly me an that it i s modify ing "a n agen t or employ

ee of the supervis ing ag ency ." Ther efore, a probat

ion offic er, in1-08-0870

-9-

this case an agent of the Cook County Adult Probation Department, is permitted to file a petition for violation of probation. As Justice Schmidt stated, "I can think of no ra tional reason why the legislature would allow a 'supervising agency ' to make a motion to modify pr obationary condi tion s in o ne brea th, an d deny the same age ncy the abi lity to f ile a p etit ion ch arging a violatio n of a condit ion in anot her." Herrin , 38 5 Ill . Ap p. 3 d at 194 (Sc hm id t, J. , co ncu rri ng) . If the legislature had intended that only State's Attorney s would be permitted to file petitions for violation of probation, it would have specified as much. Kellems did not analyze subsections 5-6-4(f ) and (i). Because subsections 5-6-4( f) and (i) make clear that a prob ation off icer may file a pe tition for violation o f probat

ion, their omission from the Kellems court' s analy sis is sign ificant. Furthermore, the Kellems court, like defendant here, cites section 12 of the Act, which delinea tes a pro bation of ficer' s authori

ty b ut does not

include t he author ity t o file a p etition to revoke probation (730 IL CS 110/12 (West 2006)), and section 3-9005 of the Counties Code, which provides that "[t]he duty of ea ch State's attorney

shall be: *** [t]o commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the pe ople of the State or county may be conc erned." 55 ILCS 5/3- 9005( a)(1) ( West 2006) . Whi le the se sta tutes list the du ties o f prob ation offic ers and Stat e's Attorneys, neither spe cifically mentions petitions for violation of probation. Section 5-6- 4, on the other hand, doe s. We note that there is no functional difference betwe en a petition for violation and a petition to revoke. Indeed, the Unifie d Code of Corrections (730 ILCS 5/5-6-1 et seq. (West 2006)) does not address whether any one may file a

petition to revoke probation. Section 5-6-41-08-0870

-10-

outlines the procedure f

or a violati on of probat ion, but i t does not m ention a "peti tion to rev oke"; instead, it allows the filing of a "petition *** charging a violation of a condition." 730 ILCS 5/5- 6-4(a) (West 2006). When such a petition is filed, the trial court may (1) order that the probation department or other age

ncy that hand les proba tion matte

rs issue a notice to the offe nder to report; (2) order a summons to the offender to be pr esent for hearing; or (3) orde r a warrant for the offender's arre st if there is a danger that he will flee or c ause serious harm to others. 730 IL CS 5/5-6-4(a)(1) through (a)(3) ( West 2006). The court "shall conduct a hearing of the alleged violation," where the State " has the burden of going forwa rd with the evidence and proving the viola tion by the prep onderan

ce of the evidenc e." 730

ILCS 5/5-6-4 (b), (c ) (West 20 06 ). If t he co ur t f

in ds th at th e d ef

en da nt vi ol at ed a c on di ti on of pr ob at io n, it ma y, inter alia , revoke probation and impose any other sentence that was originally available. 730 ILCS 5/5-6- 4(e) (West 2006). The Fourth District recently interpreted section 5-6-4(i) to mean that probation office rs may seek inter

mediate sanctions even when to do so is against the wishes of the State' s Attorney. In People v. Hammond

, Nos. 4-08-0651, 4-08-0652, 4-09-0214 cons. (December 21, 2009), the State's Attorney

of Livingston County

filed a petition for the revocation of probation after the three defendants violated the conditions of their probation. The trial cour ts dismissed the petitions because the defendants had acce pted and completed the intermediate sanctions offere d by their probation off

icers. In one of the c ases, the trial court had directed the probation offic er to offer the defe ndant an a

dministra tive sanction. On a

ppeal to t he Four th District, the State argued that the trial courts' interpr etation of section 5-6-4(i) violated the separation of power s doctrine.1-08-0870

-11-

The State in Hammond

argued that it had veto power over the sa nctions offered to the defendant. It cited sec

tion 5-6-4(i), which provides in relevant part that the probation office r may s erv e on th e de fen dan t a n ot ice of i nt erm edi ate san cti ons . S ect io n 5- 6-4 (i) con ti nue s, " If the intermediate sanctions are rejected or the defendant does not respond to the Notice, a violation of probation, conditional discharge, supervision, or a sentence of county impact incarceration shall be immediately filed with the court. The State's Attorney and the sentencing court shall be notified of the Notice of Sanctions." 730 I LCS 5/5-6-4(i) (West 2006). The Fourth District rejected the State's arg ument, concluding, "From the mere sentence, ' The State's Attorney and the sentencing court shall be noti fied o f the [ n]ot ice of [ s]an ction s,' it is qu ite a s tretc h to i nfer t hat th e Stat e's Attorney has ve

to power over the notice of sanctions. The legislature saw the need to apprise the State's Attorney of the notice; otherwise, the State's Attorney might file a petition for revocation while the defenda nt is faithfully comply

ing with the sa nctio ns. If th e legis latur e, how ever, h ad int ended to giv e the S tate's Attorney the powe

r to disapprove the intermediate sanctions after the proba tion department offered them, the legislature surely would not have le ft such an important point to i mplicati on." Hammond, slip op. at 14. We, like the Hammond court, note that a probation officer is a judicial employ ee. Section 9b(3) of the Probation and Probation Officers Act (730 I LCS 110/9b(3) (West 2006)) provides that "pr obation of

ficers a re judic ial employ

ees desi gnated

on a circ uit wide or

county basis and compensated by the appropriate county

board or boards." I

n Hammond, the State argued that, by

enacting section 5-6-4(i), the legislature infringed on the executive branch, of1-08-0870

-12-

which the State's Attorney is an officer, by

transferring an essential function of the e xecutive branch, i.e. , the decision of whether to prosecute a technica l violation of the conditions of probation, to the judicial branch. The court found that a probation offic er is a judicial employe e, so "the actio n of the prob ation offic er was the acti on of the ju dicial branc h." Hammond, slip op. at 16, citing 730 ILCS 110/9b(3) (West 2008). The State argued that the judicial branch exercised its power without the State's Attorney 's input. The court rejected the arg ument, finding that the granting, deny

ing, modifying , or discontinuing probation is an essential judicial function, so the State's Attorney never had the power to decide what ultimately should be done about a technical violation of probation. Hammond, slip op. at 17. Here, the trial judge sentenced de fendant to probation. The probation department, under the auspices of the judiciary , inter alia , "take[s] charge of and watch[es] over all persons placed on probation under such regulations and for such te rms as may be pr

escribed by

the court." 730 ILCS 110/12(5 ) (West 200 6). This la nguag e clear

ly s upports ou

r constr uction of the Act to mean tha t when a d

efenda nt violate s the cond

itions of hi s probati on, a pro bation of ficer sh ould be permitted to file a petition informing the court, defendant, a nd State's Attorney

of such. We reject the holdings in Kellems and Herrin and find that the plain language of se ction 5-6-4 demonstrates that a probation officer may file a petition for violation of probation. B. Manifest Weight of the Evidence Defendant also argues that the State fa iled to prove by a pr

eponderance of the evidence that he failed to comply with his probation. At a pr obation-revocation proceeding, the State has the burden of proving the violation by a preponderance of the evidenc e. 730 IL CS 5/5-6-4(c) (West 2006). "The determination to terminate probation rests within the discretion of the trial1-08-0870

-13-

court, and, unless the determination was against the manife st weight of the evidence, an appellate cou rt will no t disturb the trial co urt's ruling." People v. Taube , 299 Ill. App. 3d 715, 721 (1998 ). A dec ision is against the manifest weight of the evide nce whe n a contr ary result is clearly e vident. People v

. Matthews , 165 I ll. App. 3d 342, 344- 45 (1988) . The dec ision to terminat e is not per se

against the manif

est weig ht of the e

vidence simply because there is a conflict in the evidence. Taube , 299 Ill. App. 3d at 721. Defend ant testif ied at the hearing that he ha

d until 2:30

p.m. on September 1 4, 2007, to report. He stated that he went to Akbar' s office at 2:30 p.m., but Akbar was not there, so he left a message with the woman in the next office. Defe ndant also testified that he left messages on Akbar's voice mail. Defendant ar gues on appeal that Akbar did not testify that he had given defendant a specific appointment time that he missed, did not testify about the office hours he kept on September 14, 2007, and did not confirm or deny that he received voice message s from defendant. Defendant arg ues, therefore, that his testimony was unimpeached and unrebutted. Defendant relies on People v. Leigh , 45 Ill. App. 3d 563 (1976). I n Leigh , the trial court revoked the defendant's proba tion based on proof that she committed felony theft at the currency exchange where she worked. On appeal, the court reversed, noting tha t the State did not produce eyewitnesse s who could establish that the defendant took money from the currency

exchange. Leigh , 45 Ill. App. 3d at 565. There was te stimony that shortages oc curred regularly , and disputed evidence existed as to whether the defendant admitted taking the money. Leigh , 45 I ll. App. 3d at 565. The court also noted that the defendant was not impeac hed by the State af

ter she denied making admissions to a detective two months after the occur rence. Leigh , 45 Ill. App. 3d at 565-66. "The most favorable statement that we c an make regarding the State's evidence is that1-08-0870

-14-

it is vague." Leigh , 45 Ill. App. 3d at 566. Accordingly, the court re versed the order revoking the defendant's probation. Leigh , 45 Ill. App. 3d at 566. Here, there wa s no confusion or va guene ss in the Sta

te's case. Akba

r unambig

uously testified that defendant had an appointment on September 14, 2007, to report to Akbar 's office and co mplet e a rand om dru g test, but t hat de fendan t fail ed to a ppear. To the exte nt th at Akb ar's and defe ndant' s testimony

was inconsistent, " conflicting evi dence a lone is insu

fficien t to overcome a fin ding of a viol ation of pro bationary conditi ons." People v . Durk , 195 Ill. App. 3d 335, 338 (1990). See also Taube , 299 Ill. App. 3d at 721. As the court noted in Durk , "The trial court was in a far better pos ition th an this cou rt to weigh th e credibili ty of the witnesses ." Durk , 195 Ill. App. 3d at 338. Defendant also claims that the trial court shifted the burden fr om the State to him by commenting on the lack of corroboration for de fendant's version of events that day . We agree with the State that the trial court was simply re marking on "the court's we ighing of the evidence." Furthermore, People v. Williams , 229 Ill. App. 3d 677 (1992), the case de fendant relies on, is distinguishable. The trial court in that case told the defenda nt that he had the burden to prove that he was in compliance with the terms of his probation, and it did not require the State to present any e

vidence. Williams , 229 Ill. App. 3d at 679. Here, the State did pre sent evidence, which was sufficient to prove that def endant violated the terms of his probation. Accord ingly, we conc lude that

the trial court' s finding

was not c ontrary

to the man

ifest weight of the evidence.1-08-0870

-15- III. CONCL

USION For th e forego ing reas ons, w e affir m the t rial c ourt's order r evoki ng defen dant's probation. Affirmed. QUINN and COL

EMAN, JJ., concur.1-08-0870

-16- REPORTER OF DECISIONS – IL LINOIS A PPELLATE COURT

(Front Sheet to be Attached to Each Case) THE PEOPLE OF THE STATE OF IL LI NOIS, Plaintiff-Appellee, v. TYSHAWN KELL

ER aka DEMETRI

US KEL LER, Defend ant-App ellant.

Nos. 1-08-0870 Ap pella te C our t of Illino is First Dist

rict , THIRD Division March 24, 2010 (Give month, day

and yea r)

PR ES IDIN G J US TIC E M UR PH Y d elivere d th e op inion of the cou rt: Qu inn an d C olema n, JJ., concur [s]

Lower Court and T rial Judge(s) in form indicated in t he margin: Ho nora ble Marjorie Laws , Judge Presiding. Indi cate if

att orney repre sent s APPELLANTS or APPELLEE S and i nclu de att orney s of

couns el. Indi cate the word NONE if n ot re prese nted. Attorn ey for De fen da nt-A pp ellant: Michael J. Pelletier, State Appellate Defender Linda Olthoff, Asst. App ellat e Defender Office of t

he State Appellate Defender 203 N . La Salle St

reet, 24th Floor Chicag o, I L 60601 Phone: (312) 814-5472

Attorn eys for Plaintiff-Appellee: An ita A lvarez , State ’s A ttorn ey, C ook Co un ty James E . Fitzgerald, Amy W atroba Kern , Asst. State’s Attys. Roo m 3 09, R ichard J. Da ley Cen ter Chicag o, I L 60602 Phone: (312) 603-5496 Please Use Fol lowi ng Fo r m: Co mple te TITLE of Case

Docket No. COURT Opini on Filed

JUSTI CES

APPEAL f

rom the Circuit

Ct. of Cook County, Criminal Div.

For APPELLA

NTS, John Doe, of Chicago. For APPELLEES, Smith and S mith of Chica go, Joseph Brow

n, (of Counsel) Also add attorney s for third-party appellants or appellees.