{ "id": 2711468, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth J. Harazak, Defendant-Appellant", "name_abbreviation": "People v. Harazak", "decision_date": "1975-09-03", "docket_number": "No. 74-72", "first_page": "686", "last_page": "689", "citations": [ { "type": "official", "cite": "31 Ill. App. 3d 686" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "22 Ill.App.3d 94", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2944886 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/22/0094-01" ] }, { "cite": "59 Ill.2d 220", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2958038 ], "pin_cites": [ { "page": "226-27" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0220-01" ] }, { "cite": "15 Ill.App.3d 39", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2462540 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0039-01" ] } ], "analysis": { "cardinality": 426, "char_count": 7699, "ocr_confidence": 0.702, "pagerank": { "raw": 5.0011153170616546e-08, "percentile": 0.31435655128928364 }, "sha256": "5b28b68a515859bf3a808a54dbbeb1a7cda8796be9d275c49344b1c7be7bc3e4", "simhash": "1:e36ae564b3868364", "word_count": 1264 }, "last_updated": "2023-07-14T21:34:56.206419+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth J. Harazak, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nDefendant appeals from the revocation of his probation and the imposition of sentence of 1 to 8 years with an additional mandatory parole term of 3 years following.\nIn March, 1972, after conviction on a negotiated plea of guilty to the offense of unlawful delivery of a controlled substance (less than 30 grams of LSD), defendant was sentenced to a period of 3 years\u2019 and 9 months\u2019 probation, with the first 9 months to be spent in the County Jail. In November, 1972, the State filed a petition to revoke defendant\u2019s probation alleging that he had committed a burglary, and a supplemental petition alleging defendant\u2019s failure to cooperate with Probation Department program in violation of one of the conditions of his probation. At the hearing on that petition in January, 1973, defense counsel and the prosecutor informed the court that pursuant to an agreement between them the State would proceed only on the earlier petition (charging commission of a burglary), defendant would admit the allegations of the petition in exchange for a 5-month term in the County Jail, and the State agreed not to prosecute him for that burglary. His probation officer testified that defendant was not cooperating in the mental health program which the Probation Department considered necessary for him. Tire State also presented a factual basis for the burglary which defendant committed.\n\u2022\u2022 During that hearing the defendant and the State agreed to amend the plea bargain, and instead of revoking his probation it would be modified by giving him a 5-month term of periodic imprisonment during which he would attend the Lake County Mental Health Center not less than twice a week. The trial judge emphasized to defendant his desire to have defendant change his ways and to cooperate with this probationary program; the judge also warned defendant that if he failed to cooperate he (the judge) would consider it sufficient grounds to revoke. Defendant assured the judge that he understood the possible consequences of his failure to cooperate. After admonishing defendant regarding Iris rights at a probation revocation hearing and the consequence of his agreeing to the modification of his probation, and the defendant having admitted his culpability for the burglary, the court stated the terms of the new probation order.\nIn March, 1973, the State filed its petition to revoke defendant\u2019s probation (as modified by the January, 1973, order) alleging defendant\u2019s failure to return to the County Jail after Iris release to attend the Lake County Mental Health Clinic. At the hearing on this petition in April tire prosecutor stated his understanding from defense counsel that \u201cthere would be an admission.\u201d The trial court then reviewed the status of defendant\u2019s probation and recited the facts alleged in the revocation petition. Defense counsel stated- that defendant was gone for 6 days. The trial court inquired if defendant desired to introduce anything else. Defense counsel thereupon had defendant take the stand. Defendant testified that he left the jail on March 19 for the purpose of attending the clinic. He related a discussion with his probation officer during which he alleged the officer \u201cwas going to revoke my probation\u201d and that defendant \u201cwas scared\u201d and that his \u201cgirl friend had broken up with\u201d him a week earlier. The probation officer was called to the stand and confirmed a conversation with the defendant but testified that it was defendant himself who asserted that the court would agree with the probation officer\u2019s recommendation. At the conclusion of the hearing and after hearing counsel\u2019s arguments, the trial court made a finding of \u201cwilful violation,\u201d revoked defendant\u2019s probation, and imposed sentence for the offense of unlawful delivery of a controlled substance, including the 3-year mandatory parole term following.\nDefendant\u2019s first contention is that the trial court erred in failing to. admonish him of his rights, pursuant to Supreme Court Rule 402, prior to defendant\u2019s admission of the violation charges at the revocation hearing. After the briefs were filed in this case our holding in People v. Blake, 15 Ill.App.3d 39, was affirmed by the Illinois Supreme Court in People v. Beard, 59 Ill.2d 220, 226-27. There the supreme court held that \u201cRule 402 is not applicable to probation revocation proceedings.\u201d That holding is dispositive of defendant\u2019s first contention.\nDefendant next argues that he was denied due process because the court allowed him to proceed first and to testify without the State\u2019s having presented its case. We recently had occasion, in People v. Cook, 22 Ill.App.3d 94, to consider the same argument where the facts were almost identical to those in the case at bar. While- we reiterate as we did in Cook that \u201cthe burden of proof remains at all times with the State\u201d and \u201cthat the course of the hearing in this case was to some extent short circuited,\u201d the real question is whether the defendant was prejudiced by this procedure. Our examination of this record makes it abundantly clear that the defendant was not prejudiced. He admitted that he failed to return to the County Jail (for 6 days) in violation of the terms of his probation. The reasons he gave for his failure to return were obviously insufficient.\nFinally, we consider defendant\u2019s contention that the court erred in imposing a mandatory parole term as a part of his sentence. Defendant was charged with the offense of unlawful delivery of a controlled substance. He pleaded guilty and on March 15, 1972, was admitted to a term of probation for 3 years and 9 months which was revoked in April, 1973, on a petition filed in March of that year.\nSection 8 \u2014 2\u20144 of tire Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1008 \u2014 2\u20144) which became effective January 1, 1973, provides as follows:\n\u00ab\u00ab * * if the offense being prosecuted has not reached the sentencing stage or a final adjudication, then for the purposes of sentencing the sentences under- this Act apply if they are less than under the prior law upon which the prosecution was commenced.\u201d\nBefore adoption of the Unified Code of Corrections the possible term for the offense was 1 to. 10 years (Ill. Rev. Stat. 1971, ch. 56%, par. 1401(c)), and no additional parole term was provided. Under the Unified Code of Corrections the offense was classified as a Class 3 felony and it bears a possible prison term of 1 to 10 years, with the additional mandatory 3-year parole term (Ill. Rev. Stat. 1973, ch. 38. par. 1005 \u2014 8\u2014 1(b)(4) and (e)(2)).\nIn view of the fact that the offense of which the defendant stands convicted was committed in 1971 and he was prosecuted therefor in 1972 before the Unified Code of Corrections became effective, the court erred in including the mandatory parole term in defendant\u2019s sentence. For that reason, that part of the defendant\u2019s sentence providing for the mandatory parole term is vacated with directions to issue an amended mittimus reflecting the correction.\nFor the reasons stated in this opinion the judgment is affirmed as to revocation of probation and the sentence is modified so as to vacate the mandatory parole term.\nJudgment affirmed and sentence modified.\nT. MORAN and DIXON, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE RECHENMACHER" } ], "attorneys": [ "Ralph Ruebner, of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Jack Hoogasian, State\u2019s Attorney, of Waukegan (James W. Jerz and Edward N. Morris, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth J. Harazak, Defendant-Appellant.\n(No. 74-72;\nSecond District (2nd Division)\nSeptember 3, 1975.\nRalph Ruebner, of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJack Hoogasian, State\u2019s Attorney, of Waukegan (James W. Jerz and Edward N. Morris, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0686-01", "first_page_order": 710, "last_page_order": 713 }