People v. Kimbrell

NO. 4-96-0604
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
KIM D. KIMBRELL, ) No. 95CF414
Defendant-Appellant. )
) Honorable
) David L. Slocum,
) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In May 1996, a jury convicted defendant, Kim Kimbrell,
of one count of theft of property over $300 (720 ILCS 5/16-
1(a)(4)(A) (West Supp. 1995)). In June 1996, the trial court
sentenced her to 30 months' probation, subject to various condi-
tions, including that she not have any contact with Chris John-
son, the person who allegedly provided her with the stolen
property (and who is the father of her son). Defendant appeals,
arguing only that the trial court abused its discretion by
imposing the "no contact" probation condition. We affirm.
I. BACKGROUND
We review the trial evidence only to the extent neces-
sary to put defendant's argument in context. Michelle Crawford
testified that she lived with Johnson in the downstairs apartment
at 1625 Ohio in Quincy, Illinois, while defendant and her 13-
year-old son lived in the upstairs apartment. In September 1995,
two homes near Quincy were burglarized and jewelry and other
items (including a grandfather clock) were stolen. On September
15, 1995, Johnson gave Randy Wert "some money *** and some
meth[amphetamine]" for the stolen jewelry. Crawford stated that
Johnson "had [defendant] take the jewelry," who then put it in a
plastic baggie inside her purse and took it from the downstairs
apartment. Crawford also testified that Nick Salyer, who bur-
glarized the homes with Wert, brought stolen items (including the
grandfather clock) to 1625 Ohio. Based on information provided
by Crawford, police officers executed a search warrant at 1625
Ohio and found the stolen jewelry in the upstairs apartment
inside defendant's purse.
Defendant testified that she found the jewelry in the
upstairs apartment (inside the grandfather clock). She took the
jewelry because she wanted to "trade" it for items she believed
Salyer had previously stolen from her. Defendant also stated
that Salyer often brought property to 1625 Ohio.
At the June 1996 sentencing hearing, the trial court
sentenced defendant to 30 months' probation subject to various
conditions (including the "no contact" provision at issue here)
and stated, in relevant part, the following:
"As far as you knowing what went on out there
at 1625 Ohio, you certainly I think had every
knowledge. *** And, essentially, you're
raising your son in a den of thieves and a
place where cannabis and controlled substanc-
es are trafficked. *** [T]hat's the point I
can't grasp why anybody would put their son
in that kind of situation. When the boy gets
about 20 years old and is doing drugs and out
of hand, if he is, then you have nobody to
blame because he knows what he sees around
him."
The presentence report prepared by the probation
department indicated that (in addition to stolen property) police
found cannabis and a large sum of money at 1625 Ohio during their
execution of the search warrant.
II. THE "NO CONTACT" PROBATION CONDITION
Defendant argues that the "no contact" probation
condition constituted an abuse of discretion because it was
unreasonable and constitutionally overbroad. We disagree.
Section 5-6-3(b) of the Unified Code of Corrections
(Code) enumerates 16 permitted probation conditions which the
trial court may impose "in addition to other reasonable condi-
tions relating to the nature of the offense or the rehabilitation
of the defendant as determined for each defendant in the proper
discretion of the [c]ourt." 730 ILCS 5/5-6-3(b) (West Supp.
1995). In particular, section 5-6-3(b)(15) of the Code provides
that the trial court may require that the defendant
"refrain from having any contact, di-
rectly or indirectly, with certain specified
persons or particular types of persons, in-
cluding but not limited to members of street
gangs and drug users or dealers." (Emphasis
added.) 730 ILCS 5/5-6-3(b)(15) (West Supp.
1995).
The trial court is afforded a great deal of discretion
in choosing the conditions of probation to be imposed on a
particular defendant. People v. Meyer, 176 Ill. 2d 372, 378, 680 N.E.2d 315, 318 (1997). Further, in People v. Ferrell, 277 Ill.
App. 3d 74, 79, 659 N.E.2d 992, 996 (1995) (cited approvingly by
the supreme court in Meyer (176 Ill. 2d at 378, 680 N.E.2d at
318)), this court held that the following standard of review ap-
plies to a trial court's determination regarding probation condi-
tions:
"[A] probation condition (whether explicitly
statutory or not) is reasonable if (1) the
trial court believes the condition would be a
good idea, and (2) the record contains no
indication that the court's imposition of the
condition is clearly unreasonable."
In this case, the trial court's comments during the
sentencing hearing unquestionably show that it believed it would
be a good idea for defendant to stay away from Johnson. In
addition to the remarks already quoted, the court also stated
that "[defendant] runs a risk [by having any contact with John-
son]. If [Johnson] leads her down the primrose path, she's the
one going to jail."
The record here contains no indication that the trial
court's imposition of the "no contact" probation condition is
clearly unreasonable. Instead, the record shows that (1) Johnson
was in the business of receiving and buying stolen property; and
(2) whether Johnson gave defendant the jewelry directly or she
took it out of the stolen clock, defendant's association with
Johnson negatively influenced her behavior.
Thus, judged in accordance with the appropriate stan-
dard of review, we hold that the trial court did not abuse its
discretion by imposing the "no contact" probation condition in
this case.
In so holding, we reject defendant's contention that
the "no contact" probation condition "ignores the reality" that
defendant will "need to have contact with" Johnson when he and
their son visit. Defendant and Johnson need not have contact to
accomplish visitation between Johnson and their 13-year-old son.
That it may be an inconvenience or a problem for defendant to
arrange for a third party to assist with such visitation is of no
moment. As long as a probation condition is otherwise appropri-
ate, the fact that it inconveniences or adversely affects the
defendant is of no importance. Indeed, given the legitimate
punitive component of some probation conditions, such as serving
a term of periodic or straight imprisonment, paying a fine,
paying restitution, performing public service work, or serving a
term of home confinement--among other possible punitive condi-
tions--the inconvenience of a particular probation condition to a
particular defendant may make it legitimately more attractive to
the court to impose, not less so. 730 ILCS 5/5-6-3(b)(1),
(b)(2), (b)(8), (b)(9), (b)(10), (e) (West Supp. 1995).
In addition, we note that it is important that the
public understand the purpose of probation and support it as a
legitimate sentencing alternative. In Meyer, the supreme court
recently addressed the purpose of probation and wrote the follow-
ing:
"[T]his court has recognized repeatedly that
the purpose of probation is to benefit soci-
ety by restoring a defendant to useful citi-
zenship, rather than allowing a defendant to
become a burden as an habitual offender.
[Citations.] Probation simultaneously serves
as a form of punishment and as a method for
rehabilitating an offender. [Citation.]
Protection of the public from the type of
conduct that led to a defendant's conviction
is one of the goals of probation." Meyer,
176 Ill. 2d at 379, 680 N.E.2d at 318.
One way to develop such public understanding and support is for
trial courts to take this sentencing alternative seriously and
not shirk from punishing defendants with reasonable probation
conditions when appropriate. Courts should not be dissuaded from
doing so because of a defendant's claim that such conditions
would interfere with his employment. Because no one works 24
hours a day, 7 days a week, some time is always available for the
court to require the defendant to do something he frankly would
rather not do. The court's unapologetic attitude toward an
employed defendant when sentencing him to probation should be, "I
don't want to interfere with your job, I just want to interfere
with your life." Perhaps if the sentenced defendant finds his
probation conditions onerous and unpleasant, he--and other felon
"wannabes"--might think twice before committing his next felony,
thus giving real impact to the deterrent effect of probation and
earning the approval and support of the public.
In this regard, we commend the trial court here for not
sentencing defendant to probation without any conditions, an
action that occurs with disturbing frequency. Too often, defen-
dants simply "get paper"--that is, probation without conditions
that pinch. In this case, the court specifically noted that it
had considered the evidence, the presentence report prepared by
the probation department, arguments of counsel, and defendant's
statement prior to imposing the following probation conditions on
defendant: (1) periodic imprisonment for 30 days, (2) undergo
alcohol and substance abuse evaluations, (3) seek and maintain
gainful employment, and (4) refrain from having any contact with
Johnson and three other individuals allegedly involved in the
burglaries or receiving stolen property. The court's consider-
ation of the particular circumstances of this case and its
imposition of these additional probation conditions assured that
defendant did not merely "get paper" and made her probation both
more rehabilitative and more punitive.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
KNECHT and GREEN, JJ., concur.