dissenting:
I must respectfully dissent from the majority’s opinion in this case. I would reverse the trial court’s judgment and remand the cause with directions.
First, in response to the State’s argument that defendant has waived this issue on appeal, I agree with the majority that it is necessary to determine whether any due process deprivations have occurred which affect the substantial rights of the defendant and merit invocation of the plain error doctrine. In this regard, I likewise have reviewed the record. However, my examination of the record leads me to resolve that the defendant here was denied his constitutional right of due process of law to receive a fair hearing. I base this conclusion upon the minimum requirements of due process of law to be accorded a defendant in general, and in particular, our supreme court’s holding in People v. Pier (1972), 51 Ill. 2d 96, 281 N.E.2d 289, which determined that a defendant in a probation revocation proceeding is entitled to minimum due process protections. Further, I believe that the applicable statutory requirements, which were enacted to insure the rights of a defendant to a fair and meaningful revocation hearing (see Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 6—4(b), (c)), were not adhered to in the present case. I, therefore, would invoke the plain error doctrine (see People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124) and reverse this cause for the reasons as more fully set forth below.
Much discussion centers on People v. Pier, a 1972 supreme court case which primarily involves the question whether the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.) is applicable to the review of probation revocation proceedings. The court there determined that the defendant should have been given the opportunity to raise questions of errors in the post-conviction hearing which allegedly occurred during his hearing to revoke probation.
The defendant had been convicted of burglary and placed on probation. He then was charged with a violation of probation. During the hearing on the charge, defendant admitted the violation and was sentenced to prison. In the post-conviction petition, defendant contended that his admission to the violation of probation was induced by an unfulfilled promise of the assistant State’s Attorney to recommend a different sentence than that imposed. The supreme court agreed with the defendant and concluded that “due process of law requires that a defendant charged with having violated his probation be entitled to a conscientious judicial determination of the charge.” Pier, 51 Ill. 2d at 100.
Two years later in People v. Beard (1974), 59 Ill. 2d 220, 319 N.E.2d 745, a consolidated appeal, our supreme court commented that People v. Pier did not consider the applicability of Supreme Court Rule 402 (107 Ill. 2d R. 402) upon probation revocation proceedings. As noted by the majority, the court there distinguished its factual matrix from People v. Pier and concluded that Rule 402 admonitions did not apply to probation revocation proceedings. Thus, the majority here agrees with the State’s argument that this court must deny defendant relief because of the People v. Beard decision. Although I disagree with this conclusion, my dissent today is in no way meant as a detraction from the ruling in People v. Beard. I am fully aware that Supreme Court Rule 402 admonishments concern the requirements a trial court must substantially comply within hearings on “pleas of guilty," while the instant matter concerns the requirements applicable in probation revocation hearings. (Emphasis added.)
My major point of contention commences with the supposition that all defendants are entitled to a minimum degree of due process of law in court proceedings and concludes with the belief that defendant here was denied that minimum degree of due process of law during his second probation revocation hearing.
Although People v. Beard concluded that both defendants Beard and Blake had been afforded due process of law during their respective probation revocation hearings, the court in citing to the supreme court decision in Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756, noted that “ ‘minimum requirements’ of due process” and “fairness” should be applied to probation revocation proceedings. (Beard, 59 Ill. 2d at 225.) In Gagnon v. Scarpelli, the court held that due process entitles a probationer to written notice of the alleged violation, to disclosure of the evidence against him, the opportunity to be heard in person and to present evidence, to confront and cross-examine witnesses, and, in some instances, to receive the assistance of counsel. Gagnon, 411 U.S. at 782, 786, 788, 36 L. Ed. 2d at 661-62, 664, 665, 93 S. Ct. at 1759-60, 1761-62, 1762-63.
Similarly, courts in Illinois have long recognized that the Constitution requires that due process be accorded a defendant during a probation revocation proceeding. (See Pier, 51 Ill. 2d at 96; People v. Coffman (1967), 83 Ill. App. 2d 272, 227 N.E.2d 108. See also People v. Baker (1982), 92 Ill. 2d 85, 440 N.E.2d 856; People v. Followell (1987), 165 Ill. App. 3d 28, 518 N.E.2d 706; People v. Houston (1986), 146 Ill. App. 3d 982, 497 N.E.2d 784; People v. Allegri (1984), 83 Ill. App. 3d 1041, 469 N.E.2d 1126, aff’d (1985), 109 Ill. 2d 309, 487 N.E.2d 606; People v. Lee (1980), 88 Ill. App. 3d 396, 410 N.E.2d 646; People v. Seymour (1977), 53 Ill. App. 3d 367, 369, 368 N.E.2d 1018; People v. Bell (1977), 50 Ill. App. 3d 82, 365 N.E.2d 203; People v. Lewis (1975), 28 Ill. App. 3d 777, 779-80, 329 N.E.2d 390; People v. Bryan (1972), 5 Ill. App. 3d 1006, 284 N.E.2d 706.) The principle of fairness forms the basis for these decisions. The underlying rationale is that due process of law mandates fairness to a defendant because the outcome of a revocation proceeding could potentially curtail the defendant’s liberty.
Moreover, section 5 — 6—4(b) and (c) of the Unified Code of Corrections, which govern violation, modification or revocation of probation, prescribe in pertinent part: (1) that the trial “court shall conduct a hearing of the alleged violation”; (2) that the “State has the burden of going forward with the evidence and proving the violation by the preponderance of the evidence”; and (3) that the “evidence shall be presented in open court” wherein the defendant has the “right of confrontation, cross-examination, and representation by counsel.” See Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 6—4(b), (c).
In the case at bar, the petition to revoke probation charged defendant with violating the terms of his home confinement. The defendant’s counsel was present during the scheduled hearing on June 25, 1987; however, in the defendant’s absence, a warrant was issued for his arrest and the matter was continued for hearing until August 31, 1987. On August 31, the State merely presented evidence before the court in the form of the stipulation of facts of the probation officer. The record reflects that there was no further mention of the charges against the defendant. Neither did the trial court advise him of the State’s burden to produce evidence and to prove the allegations of the violation by a preponderance of the evidence. Defense counsel made no averrments to the court as to whether or not he had advised the defendant. Nor did the trial court advise defendant of his right to a hearing on the charge, or his right to confrontation, cross-examination and counsel. The record further reveals that defendant presented no evidence on his own behalf. His counsel made no representations whatsoever, and unlike the first revocation proceeding before the same judge, the trial court was likewise silent.
I believe that under the factual circumstances of the instant case, where the trial court failed to admonish the defendant of his inherent constitutional and statutory rights in a probation revocation proceeding, when coupled with the stipulation of facts and lack of defense on behalf of the defendant, serious due process deprivations have occurred which affect the substantial rights of the defendant and amount to grave and reversible error. Hence, I believe that it is appropriate to invoke the plain error exception to the waiver rule (see generally Enoch, 122 Ill. 2d 176), and remand this cause in light thereof.
Further, under the facts here presented, I believe that minimum requirements of due process of law dictate that the defendant should have been advised of his rights in a probation revocation proceeding. I am uncertain whether defendant was aware of the allegations against him, whether he understood what constitutes a stipulation of fact or what the consequences would be under circumstances wherein the stipulation was admitted into court and he presented no evidence to explain or contradict the stipulation. I would conclude that there was no meaningful hearing within the context of section 5 — 6—4, notwithstanding the presence of counsel. The defendant did not testify in his own behalf. There were no witnesses or cross-examination. Once the stipulation of fact was admitted in evidence, there was no challenge by defendant to rebut or explain the purported probation violation. The record is silent as to any comment by the trial judge. Section 5— 6 — 4 prescribes the proper procedures to be followed, and I believe that the spirit of the provision was not adhered to in the instant case.
The State points to the fact that the defendant had been before the same judge in an earlier probation revocation proceeding at which time the judge admonished him of the consequences of his actions in the event he committed another probation violation. However, I believe this prior warning was insufficient to properly advise the defendant of his rights in the second probation revocation proceeding. I believe that under such circumstances, minimum requirements of due process of law require new and additional advice at each subsequent probation revocation proceeding. The State is required to file a new petition each time there is an allegation of a violation of probation. The defendant is required to present himself before the court to answer the charges against him in each instance a new petition is filed or face arrest. At the very least, the defendant should have been told by the trial court of the allegations against him, the consequences of the stipulation at the point in time he offered no defense and of his statutory rights in a probation revocation proceeding under the code.
Hence, I would find that fairness and substantial justice mandate that a defendant who may be giving up his rights to liberty must be affirmatively admonished at the time he proposes to give up those rights. (See Lewis, 28 Ill. App. 3d 777.) He must be told that he has a right to be heard in his defense, to cross-examine witnesses and to confront them. Having concluded that the defendant here was deprived of due process of law without any advice by the trial court prior to the court’s revocation of probation, I would reverse the ruling of the circuit court.
This dissent in no way is meant to change the status of the law applicable to trial court decisions involving revocation of probation rulings. The question of probation is a matter within the sound discretion of the trial judge {People v. Crowell (1973), 53 Ill. 2d 447, 292 N.E.2d 721), and ordinarily a reviewing court will not disturb the trial court’s order unless there is a finding of an abuse of that discretion (People v. White (1975), 33 Ill. App. 3d 523, 338 N.E.2d 81) and a finding that the order is against the manifest weight of the evidence. (People v. Houston (1987), 118 Ill. 2d 194, 199-200, 514 N.E.2d 989.) Thus, I pass no judgment on the trial court’s finding as to whether a violation of probation occurred which would authorize it to revoke the defendant’s probation. To the contrary, my dissent strictly addresses the issue of the constitutional safeguards and statutory protections to be accorded a defendant in a probation revocation proceeding.
Accordingly, for the reasons as set forth above, I would reverse the decision of the circuit court and remand for a new proceeding consistent with this opinion.