No. 2--05--1119 Filed: 9-7-07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Du Pa ge Co un ty. ) Plaintiff-Appellee, ) ) v. ) No. 04--CF--3478 ) AKI L K. ELLIS, ) Honorab le ) Robert J. Anderson, Defend ant-App ellant. ) Judge , Pres idin g.

_________

______________________________________________________________________ _ _ JUSTICE O'MAL LEY d elivere d the opini on of the c ourt: Defend ant, Akil K. Ellis, app eals from the judg ment of the

circuit c ourt of Du

Page Cou

nty revokinghis probation for the offense of possession of a stole n motor ve

hicleand sente

ncing h im to a nine-y

ear ter m of impris onment. Defendant argues that the trial c ourt erroneously admonished him concerning the potential penalties he faced if he adm

itted to the

allega tions in the

petition to revoke his probation. Defendant further contends this error wa s compounded by the tr ial co urt's continual understa

tement of the minimum

penalty he face d throug

hout all phases of his criminal case and the petiti on to revoke proba tion. We ag

ree, va cating defenda nt's sentence and remanding the
cause to the trial court with directions to allow defendant to withdraw his admissions to the petition to revoke his probation. We begin w

ith the und

erly ing cri mi nal case in which defendant receive d a sentence of probation. In a Decembe

r 21, 2004, indictment, defendant was charged w ith the offense of

unlawfulNo. 2--05--1119

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possession of a stolen or converted motor vehicle (625 I LCS 5/4--103(a)(1) (West 2004)). Th e indictmentalso alleged that, within the previous 10 years, de fendant had been convicted of a Class 2 o r g re at er fe lo ny. OnFebruary

23, 2005, defendant agreed to plea d guilty to the cha

rge of unlawful possession of a stolen or converted motor vehicle. In exchang e, the State agreed to dismiss ot

her traffic co

unts pending agains tdefendant. No agreeme nt was reached rega

rding the terms of defendant's sentence. The trial court admonished defendant that hewas admitting to being in possession of a stolen
or converted vehicle, knowing it to have been stolen or converted. The court further advised defendant that he wa s admitting

that he ha

d committe d a Cl as s 2 or greater felony within the previous 10 yea

rs. The prosecutor interjected that the previous felony render ed defe ndant eli gible to be sentenced as a Class X offender. B oth defendant and the State agree d that def endant wa s eligible for Treatment Alternatives to Street Crime (TASC) proba tion. Continuing its admonitions to defendant, the trial court advised that de f endant was relinquishing his right to have the State prove him

guilty bey ond a rea sonable d

oubt as we ll as his right to any sort of trial, bench or

jury. Defe

ndant was relinquishing his right to confront witnesses and to call wi

tnesses on his o wn behalf. Th e trial court (erroneously ) informed defendant that he faced a sentencing range fr

om a minimum of TASC probation to a maximum of a 30-year term of imprisonme

nt. Defendant

maintaine d that he w

ished to plead guilty a

nd that he had experienced no threats or coercion in order to procure his guilty plea. The trial court

ascert ained tha t a factual basis for the plea existed. Had witnesses been ca lled, they would have testified that defendant was found in a car that was reported to have been stolen. Defendant further admitted to a police officer that he had borrowed the car from a fr iend who hadNo. 2--05--1119

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informed defendant that he had

stolen the car and that the car wa s "hot." The owne r of the c ar would have testified that, about

a week before defenda

nt's arrest, his car had

been stolen out of his garage. De fendanta ga in as su re d t he tr ia l c ou rt th at he wa s p er si st in g i n h is de si re to pl ea d g ui lt y. The trial court then accepted defendant' s plea, findingit to be knowing and voluntary. The trial c ourt proceeded

immediately to sentencing . After argument, the t rial cou rt t ook the matter under adviseme nt, reques ting t hat an offic ial fr om TAS C att end th e nex t heari ng to enabl e the cou rt to understand

TASC's reco mmendati on. About a week la ter, the parties r econve ned, and TASC explained that the least restrictive recommendation was intensive outpa tient tre atment. T ASC further explained

that, if the outpatient

treatment were ineffective, TASC could move towar d a more restrictive treatment. Following the TASC presentation, the trial court sentenc ed defendant to a 30- month term of probation with TASC treatment as one of the conditions of his probation. The trial court also ordered defendant to serve per iodic imprisonmentwhile the TASC treatment was being arranged. The tr ial co urt em phasi zed t o defen dant w hat a gre at chan ce he wa s bein g gi ven with TASC probation and cautioned defendant not to "screw up." About four months later, on July 15, 2005, the State filed a petition to revoke probation. The petition alleged that defendant failed to re port to the probation office and that he also failed to attend his TASC meetings. On September 14, 2005, defendant appear ed before t

he trial court on the petition to revoke. On that date, the trial court advised defenda nt that his m

inimum pena

lty would be another

sentence of probation and that his maximum penalty would be a sentence to prison. The trial court asked

whether defenda nt was eli gible

for extended-term sentencing, and the prosec utor stated that he did not believe defendant was eligible. The trial court then advised defenda ntthat hisNo. 2--05--1119

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maximum prison se

ntence was 7 y

ears, un less defendant had a previous Cl as s 2 or gr ea te r f el on y, in which c ase the maximum prison sentenc e was 14 y ears. At a September

28, 2005, hearing, defendant informed the tria l court that

he wishe d to admit the allega tion s cont ained in th e peti tion to rev oke an d requ ested sente ncing. Regarding the potential penaltie s he fac ed, the tr

ial cour t admonish ed defe

ndant as f ollows: "You'reon probation for

a Class II felony. The minimum sentence for a [C]lass I I fe lony

is probation. The maximum s entence is seven y

ears in the penite

ntiary with two years mandatory

supervised release or parole. You could be fined up to $25,000 . If y

ou admit the petition to revoke probation, I could g ive you more prob ation or I can send y ou to the penitentiary

for up to seven ye ars or do any thing in b etween . There

is no agr eement a s to what the sentence is going to be. Life being wha t it is, I can tell y

ou that the State is going to ask th at you g o to the penitentiary. Your lawyer is not g oing to ask that you go to the pe ni te nt ia ry. I don't know what I 'm going to do. More importantly, you don't know what I am going to do today ." The trial cou

rt then a dmonished

defenda nt that, by

admitting

to the pet

ition, he w as giv ing up the right to have the State prove the allegations by a preponderance of the evidenc e, giving up the right to confront and cross-examine witnesses, and giving up the right to put on evidence and witnesses
onhis behalf. Defend

ant pers isted in his

desire to admit to the petition, and the trial court accepted admissions that he had violated h is prob ation by failing to r eport to the probation office, was
unsucce ssfully

terminated by TASC, and had f ai led to make any pa

yments on the fine, costs, and restitution conditions of his probation.No. 2--05--1119

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OnOctober 19, 2005, the trial court conducted a sentencing hea ring. Followin

g the pa rties' argume nts, the trial court sentenced defendant to a nine-y ear term of imprisonment. Defendant filed
a motion to re duce his s entence , contending th at the sente nce was exces sive b ased o n defen dant's character and reha bilitative potentia l. The tri al court

denied the motion a

nd defen dant timel

y appeals
. Onappeal defendant contends that the trial cou rt faile d to properly a

dmonish him pursuant to Supreme Court Rule 402A (210 Ill. 2d R. 402A) and Peoplev. Hall , 198 Ill. 2d 173, 181 (2001), when it erroneou s ly a

dvised him

of the ma

ximum and mini

mum penal

ties he wo

uld face if his probationwere revoked. Specifically, def endant contends that the trial court erred by advising him that he wa s subject

to sentenc ing as a

Class 2 fe lon when he was actually required to be sentenced
as a Class X o ffende

r. The tr ial cour t furth er er

red by informing

defendant that probation was availab le when

in fact it was not, due to the fact defendant was re quired to be sentenc ed as a Cla ss X offender. The relatively re cent enactment of Rule 402A codified the admonitions that must be given to a defen dant bef ore the d efenda nt admits to a

petition to revoke probation. Specifically , Rule 402A provides : "The court shall not accept an admission to a violation, or a stipulation that the evidence is su ffici ent to revok e, wit hout first addres sing t he defendan t personally in open court, and informing the defendant of and det ermining that the defendant understands the follo wing: (1) the spec ific alle gation i nthe p etition to revoke probation, conditional discharge or supervision;No. 2--05--1119

-6- (2) that the defendant

has the right to a hearing with defe nse counsel present , and the ri gh t to appointed counsel if the defendant is indigent and the underly ing offense is punisha

ble by imprisonme

nt; (3) t hat at the hearing, the defenda nt has the right to confront and cros s examine adverse witnesses and to prese nt witness es and ev

idence i nhis or her behalf; (4) that at the hearing, the State must prove the alleged vi ol at io n b y a preponderance of the evidence ; (5 ) that by

admitting

to a viola

tion, or by

stipulatin

g that th e eviden

ce is sufficient to revoke, there will not

be a hearing on the petition to revoke probation, conditional dischar

ge or su pervisi on, so that by admitting to a violation, or by stipulating that

the evidence is sufficient to revoke, the defenda nt waives the rig ht to
a hearing and the right

to confr ont and cr oss-examine adverse witnes ses, and the right to present witnesses and evidence in his or her behalf; a nd (6) th e sent encin g range for the underly ing offense for which

the defendant is on probation, conditional discharge or supervision." 210 I ll. 2d R. 402A(a). Rule 402A codifies the requirements of due process in an admission to a probation violation as set forth in Hall , 198 I ll. 2d at 18 1. 210 I ll. 2d R. 402 A, Committe e Comments , at ccxvii. Inturn, Hall(and, consequently , Rule 402A, by implication) w as interpret ed in People v. Dennis , 354 Ill. App. 3d 491 (2004). There, the cour t noted tha

t Halltook the Rule 402 (177 Ill. 2d R. 402) requirements for guilty plea hearings and made

them applicable to admissions to probation violations
. Dennis , 354 Ill. App. 3d at 495. Further, bec aus e Hall (a nd Rule 402 A) essen tially overlap ped with the requirements contained in Rule 402, the Dennis court de cided to r ely on RuleNo. 2--05--1119

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402 juris prude nce in inter preti ng Hall
. Dennis , 354 Ill. Ap p. 3d at 495. The court noted that substantial compliance, meaninga specific and affirmative showing in the r ecord that the defendant understood

each of the requ ired admonitions, is

all that is required under Rule 402A to satisfy due process . Dennis , 354 I ll. App. 3d at 495-96. Further, the go al of the Rule 402A a

dmonitions i s "to
ensure that

[the] defendant understood his admission, the rights he was waiving, and the potential consequences of his admi ssion." Dennis , 354 I ll . App. 3d at 496. Nevertheless, a defendant in a probationrevoca

tion proc eeding

has few er proc edural r

ights tha n a defe ndant aw aiting tr

ia l in a n original crimi nal pr oceedi ng. Dennis , 354 I ll. App. 3d at 495. A t

rial cou rt's compliance

with the admonition requirements of Rule 402A presents a lega l question, which we review de novo
. Hall , 198 Ill. 2d at 177. Here, in the underlying

criminal proceeding, thetrial court ad monished d

efenda nt that, a t a minimum, he could receive probation and, at a maximum, he could be sen ten ced as a

Class X offender, receiving a 30-y ear term of imprisonment. We note that, pursuant to People v. Redmond , 357 Ill. App. 3d 256, 262 (2005 ), defe ndant wa s not, in

fact, eligible to receive probation and tha t the trial court' s advice

as to the mi

nimum possib le sente

nce was errone ous. Th e erroneous admonition was compounde d in the probation revocation proceedings. During the probation revocation proceedings, def endant was consistently advised that he faced sentencing
as a Class 2 felon, with a

minimum sentence of probation and a maximum sentence of a 7-y ear term of imprisonme

nt, or a 14 -y ear ter

m if defenda nt were e ligible

for an extended-t

erm sente nce. I n fact, and as was later correctly

ascertained, defendant at all times was require d to be sen tenced a s a Class X offender. There is no question, therefor e (and the State does not try to contradic t), that the trialNo. 2--05--1119

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court errone ously

admonishe d defend

ant c oncer

ning the sentenc es that c ould resu lt from his admission to the petition to revoke probation. While we have

found no c ase dire ctly

on p oint regarding errone ous admonitions about possible sentencing consequences during a hearing on an admission to a petition to revoke probation,
cases analyzing the sa

me issue in guilty plea he arings, per Dennis , provide guid a nce. It has long been held that a guilty ple a cannot be understandingly entered where the t

rial cou rt in forms the defendant that the minimum sentence is less than it actually is. People v. Latham , 73 Ill. App. 3d 995, 999 (1979). Analogously , we hold that the erroneous admonitions re garding possi ble sente nces, both the maximum and the minimum, during the pro b ation revocation proceedings did not substantia lly comply with the require

ments of Rule 402A. See also, e.g. , Peoplev. Kidd , 129 Ill. 2d 432, 446 (1989) (failure to properly admonish defend ant conce rning maximum and minimum penalties resulted

inlack of substantial compliance with Rule 402 and in reversible err

or); People
v. Chern etti , 257 Ill. A

pp. 3d 742, 745 (1994 ) ("the failure to advise a defen dant of th e possible minimum and maximum sentences is reversible err or"); People v. Price , 196 Ill. App. 3d 321, 325-26 (1990) (same). If the goal o f providi ng def endant with admonitions in this case was "to ensure that defendant understood his admission, the rights he was waiving, and the potential conse quences of his admissio n" ( Dennis , 354 Ill. App. 3d at 496), then we cannot say

that this goal was met where the court bot

h advised d

efenda nt of a mini

mum senten

ce less than what w as actua lly available and
errone ously

imposed a sentence less than the actually ava ilable minimum in the underlying criminal prosecution. The State argues that the trial court substantially complied with the requiremen ts of Rule 402A. The State argues that defendant was c orrectly infor med that he was su

bject to se ntencing inNo. 2--05--1119

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the Class X range and contends that the only error occurring

i n the admonitions was the mistake about the minimum

sentenc e. (We not

e that the Sta

te appar ently carries over the admonitions from th e underlying

criminal guilty plea

to the probation revocation proceedings. F or purposes of
a rgumen t, we are content t o accept the State 's asse

rtion that defenda nt was ap propria tely admonish e d regarding the maximum s entence

as a Class X offender.) A ccordin g to the St

ate, the error in describing the minimum penalty should notresult in a finding of a lack of substantial compliance. The State offers no authority to supportits contention concerning an erroneous admonition about the minimum sentence. We reject the State's contention. As has been noted

above, erroneous advice concerning

the sente nces has long be en held to

constitute

reversible error

in the guilty plea/Rule 402 context. Because Rule 402A m irrors the requir ements of Rule 402, w e do not se e why the same should not o

btain in a probation revoca

tion conte xt. The State points to the ru le t hat, in the Rule 402 context, an imperfect admonition is not
revers ible e rr or un le ss re al ju st ic e h as be en de ni ed or th e d ef en da nt ha s b ee n p re

ju di ce d b y t h e incorre ct admoni

tion, citin g to People v. Jarrett , 372 Ill. App. 3d 344, 350 (2007), quoting People
v. Whitfield , 217 Ill. 2d 177, 195 (2005). The State arg ues that this rule, in combination wi th the acknowledgment

that a defendant in a pro bation revocation proceeding is entitled to fewe r procedural rights than

a defendant facing trial, manda tes a finding that the trial court's admonitions were in substantial compliance with Rule 402A. We disagree. First, we note that Jarrett

is inapposite. In Jarrett , the defendant was complaining that the 3- year term of ma

nda tory supervised re lease (MSR) that was required to be added onto his 8-y ear prisonsentence violated the agree d sentencing cap of 10 years. Jarrett , 372 Ill. App. 3d at 348. The court disagreed, noting that defenda nt had been pr op er ly a dmonished that, af ter comp leting h

isNo. 2--05--1119

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sentence of imprisonment, he would be subject to a term of MSR of up to three y ears. Jarrett , 372 Ill. App. 3 d at 352. The court noted that defendant also had been c orrectly a dmonished and had understoodth at he wa s subject to a fine in addition

to his prison sentenc e. The c ourt held that, because defendant understood that the fine was in addition to his prison sentence, it was
unreasonableto conclu

de that de fendant

did not unde

rstand th at the MSR te

rm a ls o was to be

in addition to his prison sentence. Jarrett , 37 2 Ill. App. 3d at 352. Here, by contrast, defendant was
never co rr ec tl y admo nished concerning the minimum sentence, either in the under lying cr iminal prosecution

or in the probation

revoca tion proc eeding s. Thus, there was no correct admonition from whichto find substantial compliance. Additionally, defe ndant here, unlike in Jarrett , is not complaining that he did not receive the benefit of his bar gain; rather , defend

ant is arguing that the improper admonitions prevented him from under standing th e bargain in the first place. Jarrett , therefore, is distinguishable from this case. Second, andperhaps

more impor

tantly , while a d

efenda nt facin g proba tion revo cation is entitled to fewer procedural protections than a de fendant facing an original criminal prosecution, one of the explicit procedural protections to which a probation revocation defenda nt is entitle d is a

clear explanation of the sentencing range he faces. 210 Ill. 2d R. 402A(a )(6). The State does not and cannot contend that defendant here ever r eceived a clear explanation of the sentencing ra nge he was facing. Accordingly

, we reject the State's contention. The State a lso arg

ues, in the

alterna tive, tha t the admonition issue

is moot bec ause defenda nt's ori ginal se

ntence o f TASC pro

bation wa s illega

l and void ab initio . We fail to see the relevance of

this argument. In fa

ct, it cuts strongly against the State's position because, if defendant received an illegally

lenient sentence and was con sistently advised that this same illegally lenientNo. 2--05--1119

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sentence was amon

g the ra nge of sentenc es he cou

ld receive when

his probation was revoked, then defendant was never

in a position to understandingly admit to the allegations in the petition ro revoke his probation, because he was never properly infor

med of the consequences of such an admission. We note that the State correctly points out that defendant is not attacking and cannot attack his origina

l plea of guilty . Neither

is defenda

nt conten ding tha t his curr ent sente nce is improper or illegal in some manner. All that defendant contends hereis that, under all of the circumstances of this case, including the illegal initial sentence of T ASC probation, he was nev er properl y a dmonished
re garding his decision to admit to the allegations in the petition to revoke probation. Having carefully considered the record, we ag ree. For the foregoing reasons, the judg ment of the circuit court of

Du Page County is va

cated and the cause remanded

with dire ctions to a

llow defe ndant to withdraw h

is admissions to the pe

tition to
re vo ke pr ob at io n a nd fo r f ur th er pr oc ee di ng s c on si st en t w it h t hi s d is po si ti on , a s n ec es sa ry. Vacate d and remanded wi th direc tions. HUTCHINSON and GI

LLERAN JOHNSON, JJ., concur.