                             No. 3--04-0422
                           Filed May 4, 2006

                                IN THE

                    APPELLATE COURT OF ILLINOIS

                            THIRD DISTRICT

                              A.D., 2006


THE PEOPLE OF THE STATE OF      )    Appeal from the Circuit Court
ILLINOIS,                       )    of the 21st Judicial Circuit,
                                )    Kankakee County, Illinois
     Plaintiff-Appellee,        )
                                )
           v.                   )     No.    01--CF--480
                                )
LEONARD IRELAND,                )    Honorable

                                )    Kathy Bradshaw-Elliott,
     Defendant-Appellant.       )    Judge, Presiding.


 PRESIDING JUSTICE SCHMIDT delivered the opinion of the court:



     Defendant, Leonard Ireland, was convicted of criminal sexual

assault in violation of section 12--13(a)(3) of the Criminal Code

of 1961 (the Code) (720 ILCS 5/12--13(a)(3) (West 2000)) in the

circuit court of Kankakee County.    As a result of this

conviction, defendant was sentenced to time served plus four

years' probation.   The defendant's probation was ultimately

revoked and it is from that order of revocation that defendant

appeals.

                              BACKGROUND

     On September 19, 2001, a six-count information was filed
against defendant alleging three counts of predatory criminal

sexual assault of a child in violation of section 12--14.1(a)(1)

of the Code and three counts of criminal sexual assault in

violation of section 12--13(a)(3) of the Code.     720 ILCS 5/12--

14.1(a)(1), 12--13(a)(3) (West 2000).      Ultimately, the grand jury

of Kankakee County returned a bill of indictment which mirrored

the six counts as detailed in the information.     The grand jury

indictment reads as follows:
                               "COUNT I

                         (Class X Felony)

     The Grand Jury charges:

          That on or between May 1, 2000 and August 25,

     2000, in the County of Kankakee and State of Illinois,

     LEONARD IRELAND, Defendant, committed the offense of

     PREDATORY CRIMINAL SEXUAL ASSAULT OF A CHILD, in that

     said defendant, being 17 years of age or over, committed

     an act of sexual penetration with 'T.I.', a female child,

     who was under 13 years of age when the act was committed,

     in that said defendant placed his finger in the vagina

     of 'T.I.', in violation of Chapter 720, Paragraph 5/12-

     14.1(a)(1) of the Illinois Compiled Statutes.

                                COUNT II

                          (Class X Felony)

     The Grand Jury further charges:

                                   2
     That on or between May 1, 2000 and August 25

2000, in the County of Kankakee and State of Illinois,

LEONARD IRELAND, Defendant, committed the offense of

PREDATORY CRIMINAL SEXUAL ASSAULT OF A CHILD, in that

said defendant, being 17 years of age or over, committed

an act of sexual penetration with 'T.I.', a female child,

who was under 13 years of age when the act was committed,

in that said defendant placed his penis in the vagina of
'T.I.', in violation of Chapter 720, Paragraph 5/12-

14.1(a)(1) of the Illinois Compiled Statutes.

                        COUNT III

                     (Class X Felony)

The Grand Jury further charges:

     That on or between May 1, 2000 and August 25, 2000,

in the County of Kankakee and State of Illinois, LEONARD

IRELAND, Defendant, committed the offense of PREDATORY

CRIMINAL SEXUAL ASSAULT OF A CHILD, in that said defendant,

being 17 years of age or over, committed an act of sexual

penetration with 'T.I.', a female child, who was under

13 years of age when the act was committed, in that said

defendant placed his penis in the mouth of 'T.I.', in

violation of Chapter 720, Paragraph 5/12-14.1(a)(1) of

the Illinois Compiled Statutes.

                        COUNT IV

                           3
                      (Class I Felony)

The Grand Jury further charges:

     That on or between May 1, 2000 and August 26, 2000,

in the County of Kankakee and State of Illinois, LEONARD

IRELAND, Defendant, committed the offense of CRIMINAL

SEXUAL ASSAULT, in that said defendant, the grandfather of

'T.I.', a female child, did knowingly commit an act of

sexual penetration with 'T.I.', who was under 18 years
of age when the act was committed, in that said defendant

did place his finger in the vagina of 'T.I.', in violation

of Chapter 720, Paragraph 5/12-13(a)(3) of the Illinois

Compiled Statutes.

                         COUNT V

                     (Class I Felony)

The Grand Jury further charges:

     That on or between May 1, 2000 and August 26, 2000,

in the County of Kankakee and State of Illinois, LEONARD

IRELAND, Defendant, committed the offense of CRIMINAL

SEXUAL ASSAULT, in that said defendant, the grandfather

of 'T.I', a female child, did knowingly commit an act

of sexual penetration with 'T.I.', who was under 18

years of age when the act was committed, in that said

defendant did place his penis in the vagina of 'T.I.',

in violation of Chapter 720, Paragraph 5/12-13(a)(3)

                            4
     of the Illinois Compiled Statutes.

                              COUNT VI

                          (Class I Felony)

     The Grand Jury further charges:

           That on or between May 1, 2000 and August 26, 2000,

     in the County of Kankakee and State of Illinois, LEONARD

     IRELAND, Defendant committed the offense of CRIMINAL

     SEXUAL ASSAULT, in that said defendant, the grandfather
     of 'T.I.', a female child, did knowingly commit an act

     of sexual penetration with 'T.I.', who was under 18

     years of age when the act was committed, in that said

     defendant did place his penis in the mouth of 'T.I.',

     in violation of Chapter 720, Paragraph 5/12-13(a)(3)

     of the Illinois Compiled Statutes."

     At his arraignment on October 19, 2001, defendant pled not

guilty to the charges and demanded a jury trial.     However, on

August 2, 2002, pursuant to a plea agreement, and after receiving

the proper admonishments, defendant waived his right to a jury

trial and pled guilty to one count (count IV) of criminal sexual

assault.   In exchange for his plea of guilty, the State dismissed

the other five counts against defendant.     During the August 2,

2002, hearing, the trial court read count IV to defendant and

asked, "Are you now changing your plea from not-guilty to guilty

as to count IV, a Class I felony?"   Defendant answered in the

                                 5
affirmative.    The trial court also stated during this hearing, "I

just want to make sure [because], as I say often, sex offender

probation is a three page form with many conditions.    I want to

make sure you had a chance to read that."    Defendant answered, "I

have."

     The trial court continued, "Now, if you do not successfully

complete that four years sex offender probation, you could be

resentenced.    If the State in fact files a petition to revoke
that probation and proves it -- their burden of proof is

preponderance of the evidence -- then I can resentence you."

     After the State proffered its evidence that the victim would

testify defendant placed his penis in her vagina, the court found

that there was a factual basis upon which to accept the plea

agreement and further stated, "And one last time, Mr. Ireland;

you had a chance to look over the sex offender probation form.

And as I said, it's very detailed as to what you have to do.      And

you will be on reporting probation for four years, plus go

through counseling and a number of other requirements.    Do you

wish to accept this plea agreement?"    Defendant then answered,

"Yes, ma'am."    Defendant was then sentenced to four years' sex

offender probation and time he already served in the county jail.

     On August 12, 2002, defendant signed the three-page order of

probation form discussed by the circuit court.    Relevant sections

of that form state as follows:

                                  6
               "The defendant shall attend and participate

          in such counseling treatment programs as may be

          directed in writing by a probation officer and

          abide by all rules, regulations and directions

          of any such program.    Failure to participate in

          such counseling is a sufficient basis to find a

          violation of these conditions.

               The defendant shall, at the directions and
          discretion of the Kankakee County Probation

          Department, submit himself/herself for and

          successfully complete a sexual abuse evaluation

          as requested by the Kankakee County Probation

          Department.    The defendant shall also comply with

          any recommended treatment provider's rules,

          regulations and directions of their program

          (including but not limited to polygraph/

          plethysmograph testing).    Willful failure to comply

          with any recommended treatment provider's rules,

          regulations and directions is a sufficient basis

          to find a violation of these conditions."

     On October 30, 2002, the State filed a petition to revoke

defendant's probation.    The petition stated that defendant was

granted probation by the court for a period of four years and

that defendant failed to comply with the terms and conditions of

                                  7
his probation in that he was unsuccessfully discharged from sex

offender treatment.

     At the hearing on the petition to revoke, the State called

Dr. James Simone to provide testimony.   Dr. Simone stated that he

is in private practice and has a contract with the County of

Kankakee to run the sex offender treatment program.    Dr. Simone

stated as part of that program, defendant was referred to him and

he met with defendant in October of 2002.   Dr. Simone stated that
the initial step in the program is a preplacement interview.

During this preplacement interview, Dr. Simone discusses the

logistics of the program with the offender.

     Dr. Simone further testified that part of the initial

interview involves the discussion of a "treatment contract," all

the rules, the regulations, expectations for the group, and when

the group will meet, and is "an opportunity for [the offender] to

sign all of this paperwork or to take it home with them and read

it over and bring it back signed."

     Dr. Simone was then asked, "Did Mr. Ireland sign any

paperwork?"   Dr. Simone stated that defendant did not sign any of

the paperwork associated with the treatment program because "Mr.

Ireland said that he had not -- was not guilty of the offense and

that he wasn't going to participate in treatment."    Dr. Simone

stated that he then "explained to him that -- that he was

required to attend the group as part of his probation.    That if

                                 8
he didn't sign the paperwork or attend the group, that I would

discharge him unsuccessfully and inform his probation officer."

Dr. Simone further testified that to the best of his

recollection, defendant "never" came to the group counseling

sessions.

     On cross-examination, Dr. Simone explained that the

paperwork "requires the individual to take responsibility for

their offense."    Simone ultimately stated that this means that
the offender "has to admit that he did it."      The doctor explained

that the treatment program consists of 20 mandatory assignments.

 The first mandatory assignment is the check-in, which requires

"an individual to take responsibility and admission to the

offense."

     The only other witness called at the revocation hearing was

the defendant.    Defendant admitted that he did not sign the

paperwork as requested by Dr. Simone.      Defendant stated that the

reason he did not sign the paperwork was "because of what it

stated that I would have to explain what I did to [the victim],

how I did it and I didn't do it.       How can I say what I didn't do.

 I didn't do it."    At the conclusion of the evidence portion of

the hearing, the court asked defense counsel if defendant was

"reconsidering his participation in the program."      Defense

counsel answered that he was not.

     Following the conclusion of the evidence portion of the

                                   9
hearing, the State argued that it had proved its petition by

putting forth competent evidence that defendant failed to comply

with the terms of his probation.     Defense counsel then argued

that, "Granted, he's probably technically in violation of his

probation, but I think you ought to consider at the time also the

nature of the case and the fact that he did report to his other

probation."   The trial court then stated, "The State's burden of

proof is by a preponderance of the evidence in this petition and
they certainly met it.   They show through Dr. Simone, as well as

the defendant, that he went to meet with Dr. Simone.     He refused

to sign the documents.   Thereafter, he never entered the group."

 Having found that defendant violated the terms of his probation,

the court then revoked defendant's probation.

                             ANALYSIS

     We review a trial court's determination that a defendant

violated the terms of his probation under a manifest weight of

the evidence standard.   People v. Williams, 303 Ill. App. 3d 264,

707 N.E.2d 729 (1999); People v. Prusak, 200 Ill. App. 3d 146,

558 N.E.2d 696 (1990).

     Defendant's sole contention on appeal is that "the

allegation that [he] violated his probation by being

unsuccessfully discharged from sex offender probation was not

proven by a preponderance of the evidence."     We disagree.

     When accepting defendant's guilty plea, the trial court went

                                10
to great lengths to ensure that he was aware of the terms of his

probation.   One of these terms plainly states that, "The

defendant shall attend and participate in such counseling

treatment programs as may be directed in writing by a probation

officer and abide by all rules, regulations and directions of any

such program."   By defendant's own admission, he did not abide by

all rules, regulations and directions of the program as outlined

by Dr. Simone.   Clearly, the State proved by a preponderance of
the evidence that defendant violated the terms of his probation.



     Defendant claims that People v. Prusak, 200 Ill. App. 3d

146, 558 N.E.2d 696 (1990), and People v. McClellan, 353 Ill.

App. 3d 1027, 820 N.E.2d 578 (2004), support his position that

the State failed to prove he violated the terms of his probation.

Defendant's reliance on these two cases is misplaced.

     The glaring difference between Prusak and the case at bar

is, as noted by the Prusak court, "that Prusak did everything

that was required of him in the counseling sessions."    Prusak,

200 Ill. App. 3d at 149.   Defendant is correct to note that the

appellate court reversed Prusak's revocation, finding that, "The

only thing that Prusak did not do was accept responsibility for

his sexual misconduct."    Prusak, 200 Ill. App. 3d at 149-50.

     Unlike the defendant here, Prusak did, in fact, attend

therapy for several months, fulfilling that requirement of his

                                 11
probation.    Prusak, 200 Ill. App. 3d at 148.   Prusak also related

"to the group particular incidents of physical contact with his

daughter that Prusak thought his daughter may have misconstrued."

 Prusak, 200 Ill. App. 3d at 148.     Defendant Ireland made it very

clear to Dr. Simone at the initial interview that he had no

intention of participating in the group counseling sessions.

Again, Dr. Simone testified that defendant stated that he "was

not guilty of the offense and that he wasn't going to participate
in treatment."   (Emphasis added.)    While the Prusak defendant

maintained his innocence and defendant Ireland refused to admit

his guilt to Dr. Simone, the similarities between the two cases

stop there.   This defendant simply refused to participate in the

treatment program.

     Assuming it was correctly decided, McClellan is also

distinguishable from this case in that the McClellan court noted

that defendant complied "with all the requirements demanded of

her during her term of probation."     (Emphasis in original.)

McClellan, 353 Ill. App. 3d at 1034.     Moreover, unlike the

defendant in this case, McClellan participated in 22 years of

counseling and "[t]he parties also agree that the defendant had

attended and participated in all group sessions required and had

demonstrated appropriate effort on homework assignments and

contributed to group discussions."     McClellan, 353 Ill. App. 3d



                                 12
at 1030-31.

     Unlike the McClellan defendant, Leonard Ireland made it

clear that he would not participate in the counseling sessions as

he claimed he had nothing to discuss.    Neither Prusak nor

McClellan supports defendant's contentions that the State failed

to prove he violated the terms of his probation by a

preponderance of the evidence.

     Had defendant been convicted of any of the Class X felony
counts, he would not have been eligible for probation (730 ILCS

5/5--5--3(c)(2)(C) (West 2000)) and would have faced a minimum

term of incarceration of 6 years and a maximum term of 30 years

(730 ILCS 5/5--8--1(a)(3) (West 2000)).    Furthermore, defendant

would have been eligible for "not only" an extended-term sentence

of 30 to 60 years' incarceration (see 730 ILCS 5/5--5--3.2(c), 5-

-8--2(b)(2) (West 2000)), but also for consecutive sentences had

he been convicted of more than one count detailed in the

indictment.   730 ILCS 5/5--8--4(a)(ii) (West 2000).   In light of

defendant's age at the time of his plea and the charges filed

against him, he faced the real possibility of spending the rest

of his life in prison.   To avoid a trial and the possibility of a

long term of incarceration, defendant pled guilty to one count of

criminal sexual assault of a minor under age 18.

     Generally, defendants convicted of criminal sexual assault

are not eligible for probation.    730 ILCS 5/5--5--3(c)(2)(H)

                                  13
(West 2000).    However, the legislature has enacted what is

commonly referred to as the "family exception" to the general

rule.   730 ILCS 5/5--5--3(e) (West 2000).   The family exception

does not mandate probation, but instead states:

          "In cases where prosecution for criminal sexual

     assault or aggravated criminal sexual abuse under

     Section 12-13 or 12-16 of the Criminal Code of 1961

     results in conviction of a defendant who was a family
     member of the victim at the time of the commission of

     the offense, the court shall consider the safety and

     welfare of the victim and may impose a sentence of

     probation only where:

           (1) the court finds (A) or (B) or both are

           appropriate:

               (A) the defendant is willing to undergo a

           court approved counseling program for a minimum

           duration of 2 years; or

               (B) the defendant is willing to participate

           in a court approved plan including but not limited

           to the defendant's:

                 (i) removal from the household;

                 (ii) restricted contact with the victim;

                 (iii) continued financial support of the family;

                 (iv) restitution for harm done to the victim; and

                                 14
                (v) compliance with any other measures that the

          court may deem appropriate; and



          ***

          Probation may be revoked or modified pursuant to

     Section 5-6-4; except where the court determines at the

     hearing that the defendant violated a condition of his

     or her probation restricting contact with the victim or
     other family members, *** the court shall revoke the

     defendant's probation and impose a term of imprisonment."

     730 ILCS 5/5--5--3(e) (West 2000).

     The record is crystal clear that defendant entered his plea

of guilty with full knowledge of the consequences (including sex

offender counseling).   He then refused the court-approved and

statutorily mandated counseling, claiming he is not guilty of the

offense to which he pled.   In an obvious attempt to give

defendant one last chance to avoid prison, the trial judge,

following the conclusion of the evidence at the revocation

hearing, asked whether defendant was reconsidering his decision

not to participate in the counseling.   Defense counsel announced

that defendant had not changed his position.

     Defendant was charged with sexually penetrating his 11-year-

old granddaughter three different ways.   He was willing to admit

his guilt to avoid the risk of conviction on multiple counts, but

                                15
then, as soon as he was granted probation, he denied his guilt

and refused to cooperate in sex offender counseling, frustrating

the very purpose of his probation.     In light of the crime to

which defendant pled guilty, participation in sex offender

counseling was a statutory requirement of probation.     Defendant

cannot have it both ways.   We find that the trial court's

determination that defendant violated the terms of his probation

is supported by the manifest weight of the evidence.
                            CONCLUSION

     For the foregoing reasons, the judgment of the circuit court

of Kankakee County is affirmed.

     Affirmed.

     LYTTON and O'BRIEN, JJ., concur.




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