Petition — Randolph v. Illinois

In the

Supreme Court of the United States

Ocroper Term, 1981

ALPHONSO RANDOLPH,

Petitioner,

vs.

PEOPLE OF THF STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS, FOR THE

FIRST JUDICIAL DISTRICT

STEVEN B. MUSLIN

IRA A. MOLTZ

Attorneys at Law

100 N. LaSalle Street

Suite 900

Chicago, Illinois 60602

(312) 263-7249

EDWARD M. GENSON

134 N. LaSalle Street

Suite 306

Chicago, Illinois 60602

(312) 726-9015

Of Counsel

UNITED STATES LAW PRINTING co., CHICAGO, Mois 60618 (312) 525-6581

QUESTION PRESENTED FOR REVIEW

Whether the Petitioner was denied due process of law

where the State waited 43 months to file its petition to

revoke his probation, and where said petition was filed

subsequent to the expiration of said term of probation.

PARTIES

All parties are named in the caption.

iii

TABLE OF CONTENTS

PAGE

Question Presented for Revier i

RES RE OES © i

Table of Contents . iii

. iv

Reported Decisions 2

rere © SL RE 2

Constitutional Provisionn- sss 2

Statement of the Case 3

Argument and Reasons for Allowing the Writ of

Certiorari 8

Conclusion „

Appendix

Opinion of the Illinois Appellate Court, July 28,

1981 App. 1

Order of the Illinois Supreme Court denyi

leave to appeal January 12, 1982 App. 11

Order of the Illinois Supreme Court granting

motion for stay of mandate, February 17,

1982 App. 12

iv

TABLE OF AUTHORITIES

PAGE

Dillingham v. United States, 423 U.S. 64, 46 L. Ed. 2d

205 (1975) ~

Gagon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656

(1973) ~

United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468

(1971) Se ae 8

Constitution

United States Constitution, Amendment ein ae

United States Constitution, Amendment v 3, 8

United States Constitution, Amendment XIV. 3, 8

In the

Supreme Court of the United States

Octroper Term, 1981

Petitioner,

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS, FOR THE

FIRST JUDICIAL DISTRICT

Alphonso Randolph, Petitioner, respectfully asks that

a writ of certiorari issue to review the judgment of the

Appellate Court of the State of Illinois, First Judicial

District, in People of the State of Illinois, Plaintiff-A ppel-

lee v. Alphonso Randolph, Defendant-Appellant, No. 80-

240, which affirmed the finding of violation of probation

and subsequent three-year penitentiary sentence on the

original theft conviction.

REPORTED DECISIONS

The opinion of the Appellate Court, People v. Randolph,

appears at 98 Ill. App. 3d 696, 424 N.E.2d 893 (1981). A

copy of the opinion appears as an appendix to this peti-

tion. The order of the Supreme Court of Illinois denying

leave to appeal is not yet reported. A copy of that order

likewise appears in the appendix to this petition.

JURISDICTION

1. The Appellate Court of Illinois affirmed petitioner’s

convictions by decision filed July 28, 1981. Petitioner then

sought leave to appeal by petition to the Supreme Court

of Illinois filed on October 15, 1981. The Illinois Supreme

Court denied leave to appeal by order dated January 12,

1982. On February 17, 1982, Justice Simon of the Illinois

Supreme Court entered an order staying issuance of the

mandate of that court pending resolution of this petition

for writ of certiorari. No extension of time within which

to petition for certiorari has been sought or allowed.

2. Jurisdiction lies to this cour: under 28 U.S.C.

1257 (3).

CONSTITUTIONAL PROVISIONS

Constitution of the United States

Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising

in the land of naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be com-

pelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

——

the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his defense.

Amendment XIV

Sec. 1 All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State de-

prive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction equal protection of the laws.

STATEMENT OF THE CASE

On June 18, 1975, Alphonso Randolph pleaded guilty to

an information numbered 75 I 1645 charging him with

theft, and pursuant thereto was sentenced to four years

probation, by his Honor Judge Paul F. Gerrity.

Six months later, on December 31, 1975 while patrolling

an area near Deel Ford, in Posen, Illinois, Sergeant Ran-

dall E. Wolfe observed an automobile stop and let an un-

known individual out, then continued on in an easterly

direction. As he followed the moving vehicle, he passed

Deel Ford’s parking lot, where he observed, from a dis-

tance of about ten feet, the individual whom he believed

to be the same one that had gotten out of said moving

vehicle, alighting from a black Ford truck parked in Deel’s

lot.

4

Admittedly his attention was focused on the moving

vehicle, not said individual and he continued in pursuit

without stopping, until he overtook said vehicle, and placed

the driver under arrest. Upon completion of said arrest,

he returned to his squad and radioed what he believed to

be a description of the unknown individual he had ob-

served in Deel Ferd’s parking lot. This description con-

sisted of the following: male, black, stocky build. After

putting out the radio message he returned to the Deel

Ford lot and made an inspection of the aforementioned

black Ford truck. As a result of his inspection he recovered

a lock pulley, and screwdriver which he placed on the front

seat of his squad car, without making any identifying

marks thereon, at this, or any other time. Shortly there-

after in response to a dispatch indicating that a subject

matching his earlier radio description had been appre-

hended by a Dixmoor Police officer, named Hollaway,

at a Texaco gas station in the near vicinity, he went to

said Texaco gas station where he met with officer Joseph

Underwood, a security guard for Deel Ford, Officer Hol-

laway of Dixmoor Police Department, and the subject in

custody, Alphonso Randolph. Upon his arrival at the

Texaco station he identified Alphonso Randolph as being

the unknown individual whom he had seen earlier in Deel

Ford’s parking lot, taking him to the Posen Police De-

partment.

On the same date, Joseph Underwood was working as

a security guard for Deel Ford. At approximately 2:45

a.m., while he was at the north end of Deel’s 3½ acre lot,

he heard officer Wolfe’s radio broadcast regarding a sub-

ject in a black Ford pick-up truck. As he could not see

the truck in question from his vantage point, he went to

the south end of the lot, where the truck was parked. When

he was approximately 200-300 feet away from the black

truck he observed an unknown individual running away

from him. In order to pursue this subject Underwood

went back to his auto, thereafter heading in the direction

of the Texaco gas station. Upon his arrival at said Texaco

station Alphonso Randolph was in the custody of Officer

Hollaway.

As a result of his arrest of December 31, 1975, the Peti-

tioner’s said cause was continued to April 27, 1976. On

April 27, 1976, pursuant to the charge of attempt theft,

Alphonso Randolph again appeared in court, before his

Honor Judge Dwight McKay, without counsel. On this

date the information numbered 75-I-6-137 file was present,

the state made mention of a petition for violation of Mr.

Randolph’s probation; however, the ‘‘memorandum of

orders (half sheet) of this date does not indicate the

same was ever filed with the clerk of the court, nor was

a warrant or summons issued or a bond set to secure Mr.

Randolph’s appearance, or to toll his probationary period.

In fact the charge of attempt theft was merely continued

to a future date.

On February 16, 1978, Alphonso Randolph was arrested

at approximately 7:00 p.m., while a passenger in a parked

vehicle, in front of 15019 Artesian, Markham, Illinois. At

the time of his arrest, he was not in violation of any city,

state, or federal law. This arrest was made by Douglas

Newton, an officer of the Harvey Police Department.

Earlier that date, while off duty, Officer Newton observed

four individuals near a garage behind 15019 Artesian,

Markham, Illinois loading automobile parts into a Budget

Rental van. As Officer Newton approached the garage to

get a better look, the individuals went inside, closing the

door behind them. Based upon this information Officer

Newton obtained a warrant to search the aforesaid garage.

Armed with the warrant Officer Newton returned to the

garage, conducted a search therein, determined that the

vehicles contained therein had been stolen from Chicago,

Illinois and were the property of Alvin Edwards, and

Arthur James. Later that same evening, Officer Newton

arrested Bill Bruton, owner of the premises at 15019

Artesian, Markham, Illinois, and Greg Davis, driver of

the Budget rental van. After said arrests, the auto parts

found in the Budget Rental van, were not matched to the

two vehicles found earlier in the aforesaid garage. Al-

phonso Randolph’s arrest occurred approximately four

hours after the arrest of Bruton and Davis.

On November 13, 1979 the State filed a document en-

titled Supplemental Petition for Violation of Probatica’’

in the case of People of the State of Illinois v. Alphonso

Randolph, numbered 75 I-6-137. This Supplemental Peti-

tion for Violation of Probation, was based upon Mr.

Randolph’s arrest of February 16, 1978.

On December 19, 1979, Alphonso Randolph appeared

before his Honor Judge Paul Gerrity, in the Circuit Court

of Cook County, in Markham, Illinois, pursuant to pro-

ceedings to violate the probation imposed under 75 I-6-137.

A motion was then made by Mr. Randolph, to terminate

said proceedings, in that Mr. Randolph’s probation had

expired as matter of law on June 15, 1979, and as such

the court lacked jurisdiction over the probationer. After

said motion was heard and denied, a hearing to determine

whether or not Mr. Randolph had violated the probation

imposed on 75 I-6-137 was held. At said hearing, testi-

mony was heard from Officer Randall E. Wolfe, Joseph

Underwood, Alvin C. Edwards, Arthur James, Officer

Douglas Newton, Kevin Kelly, and Alphonso Randolph.

The testimony of Officer Wolfe, Underwood, James, and

7

Edwards, was substantially as summarized above. Kevin

Kelly testified that he was present at the premises lo-

cated at 15019 Artesian, Markham, Illinois, on February

16, 1978, during the afternoon hours, and did not see Al-

phonso Randolph at anytime that date.

Alphonso Randolph testified among other things that

on December 31, 1975, he was visiting his sister, and had

walked across the street to a Texaco gas station to buy a

pop and make a phone call, when he was arrested by a

Dixmoor Police officer Hollaway, in connection with a

recently attempted theft at Deel Ford. He further testified

that on February 16, 1978, he had not been in or at the

premises of 15019 N. Artesian, Markham, Illinois, but had

just arrived as a passenger in a friends auto, when he

was arrested by Officer Newton in the front of a said prem-

ises. At the conclusion of all evidence, the court found

Mr. Randolph in violation of probation, ordered a pre-

sentence investigation, and continued the cause for sen-

tencing to January 22, 1980.

On January 22, 1980, as a result of the Violation of

Probation, Alphonso Randolph was sentenced to a period

of 3 years in the Illinois Department of Correction. He

was not given credit for time served on probation prior

to the alleged violation. The speedy hearing and due pro-

cess arguments were represented to the Illinois Appellate

Court, First District, which rejected said contentions in

affirming the trial court’s judgment.

ARGUMENT AND REASONS FOR ALLOWING

THE WRIT OF CERTIORARI

This case presents a substantial question of federal

constitutional law pertaining to the question of the appli-

cation of the Sixth Amendment right to a speedy trial to

probation revocation proceedings. It also raises the issue

of at what point, if any, an individual’s Fourteenth

Amendment guarantee of due process is violated by an

extraordinary delay in the filing and hearing of a proba-

tion revocation petition.

In Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656

(1973) this Court held that a probationer prior to revoca-

tion is entitled to a preliminary hearing to determine

whether there is probable cause to believe that he has

violated probation. He is also entitled to a final hearing

which must include at a minimum:

Written notice of claimed violations; disclosure of

evidence against him; opportunity to be heard and

present witnesses ; right to confront and cross-examine

witnesses; neutral and detached hearing body; and

written statement of evidence relied on for revoking

probation.

In United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d

468 (1971), the Supreme Court noted that the Due Process

Clause may require dismissal of an indictment if it were

shown at trial that pre-indictment delay caused substan-

tial, actual prejudice to the defendant. In Dillingham v.

United States, 423 U.S. 64, 46 L. Ed. 2d 205 (1975), the

Court extended its prior holding by ruling that the pro-

tection of the Sixth Amendment is activated when a erimi-

nal prosecution has begun. At the point of defendant’s

arrest, the speedy trial provision went into effect.

In the instant cause, the petition was brought before the

Cireuit Court of Cook County, Illinois on April 27, 1976.

While the State indicated a desire to file a Petition for

Violation of Probation, there is no indication on the face

of that document that said petition was ever filed. (Tr.

234) In addition the ‘‘Memorandum of Orders’’ does not

indicate the filing of any such petition. (Tr. 222-223)

On November 13, 1979—43 months later—the State filed

what it euphemistically referred to as a ‘‘Supplemental

Petition For Violation of Probation. A hearing on said

Petition was held on December 19, 1979 at which time peti-

tioner’s probation was revoked. This all occurred despite

the fact that petitioner’s four year probationary term

ended on June 18, 1979—prior to the filing of the ‘‘Sup-

plemental Petition’’ and the subsequent hearing.

The Illinois Appellate Court Opinion acknowledges that

unless probation had been tolled or revocation proceed-

ings had begun by June 18, 1979, defendant's probationary

term expired and the court was prevented from entertain-

ing a revocation hearing thereafter.’’ (Appellate Court

Opinion, page 4) The Court accepted the State’s claim

that probation had been tolled by the filing of a revocation

petition on April 27, 1976. This is despite the fact that

both the Appellate Court and the State concede that the

common law record reveals that no such petition was filed

on that date and in fact, that the State waited 43 months

until November, 1979 to file what it cryptically labelled a

‘*supplemental’’ revocation petition.

In examining the record as a whole, it is clear that the

State’s contention that its petition was timely filed does

not logically jibe with the facts of this case. From April

27, 1976—the date the State maintains it filed its Petition

—until February 16, 1978, when the defendant was ar-

10

rested on an unrelated charge, the State took no action

to prosecute or make any other disposition on a revocation

petition. Mr. Randolph was at large in society and if, in

fact, such a revocation petition actually existed, it is

thoroughly unexplainable why the State took no action on

said petition. The only logical answer for the State’s lack

of its usual diligence is that everyone operated under the

assumption that no such revocation petition existed. Per-

haps, as the report of proceedings appears to indicate,

the State intended to file and prosecute such a petition but

the subsequent case history reveals that no such action

was ever taken.

The record thus clearly reveals that Mr. Randolph’s

term of probation was never tolled in accordance with the

statutory requirements and, therefore, his four year pro-

bationary period expired on June 18, 1979. This was six

months prior to the revocation hearing held on December

19, 1979 and five months prior to the filing of the State’s

revocation petition on November 13, 1979. Accordingly, it

is evident that the appellant was beyond the court’s juris-

diction when the revocation hearing was held, and that

the Appellate Court’s ruling to the contrary should be

reviewed and, ultimately, reversed.

11

CONCLUSION

Wuererore, petitioner Alphonso Randolph respectfully

asks that a writ of certiorari issue to the Appellate Court

of Illinois, First Judicial District, to review the judgment

in People v. Randolph, No. 80-240, and that upon review

by this court that the finding of violation of probation and

the subsequent sentence imposed as a result thereof be

reversed.

Respectfully submitted,

AupHonso Ranpoipn, Petitioner

By: /s/ Ira A. Molte

Ina A. Morra, his attorney

Sreven B. Musi

Attorney at Law

100 N. LaSalle

Suite 900

Chicago, Illinois 60602

(312) 263-7249

Ina A. Motz

20 North Clark

Suite 2300

Chicago, Illinois 60602

(312) 236-3709

Of Counsel