
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 condi­tions, including that she not have any contact with Chris John­son, 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 neces­sary 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 bur­glar­ized 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 substanc­es 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 condi­tions 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
, di­rectly or indirectly, with 
certain
 
specified
 
persons
 or par­ticular types of persons, in­cluding 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. M
eyer
, 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 ap­plies to a trial court's determi­nation regard­ing proba­tion condi­tions:  

"[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 John­son].  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 stan­dard 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 appro­pri­ate, 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 condi­tions--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 follow­ing:

"[T]his court has recognized repeatedly that the purpose of probation is to benefit soci­ety by restoring a defendant to useful citi­zenship, 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, defen­dants 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 consid­er­ation 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.

