People v. Woolridge

NO. 4-96-0960

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
RORY L. WOOLRIDGE, ) No. 96DT48
Defendant-Appellant. )
) Honorable
) Jeffrey B. Ford,
) Judge Presiding.
_________________________________________________________________

JUSTICE GARMAN delivered the opinion of the court:
Defendant Rory L. Woolridge appeals the denial by the
circuit court of Champaign County of his motion to reconsider a
sentence imposed in absentia after he pleaded guilty to driving
under the influence (DUI). 625 ILCS 5/11-501(a)(West 1992). He
argues that (1) the trial court did not properly admonish him with
regard to his right to appeal as required by Supreme Court Rule
605(b) (145 Ill. 2d R. 605(b)),(2) the trial court erred in finding
that defendant had waived his right to appeal, and (3) remand is
required because his attorney failed to comply with the certifica-
tion requirements of Supreme Court Rule 604(d) (145 Ill. 2d R.
604(d)). We affirm.
FACTS
Defendant was arrested on January 28, 1996, and charged
with DUI. On April 23, 1996, he pleaded guilty and a date was set
for a sentencing hearing. He was advised at that time if he did
not appear for the sentencing hearing, he would be sentenced in
absentia. On May 30, 1996, he failed to appear and was sentenced
in absentia to serve 364 days in the Champaign County correctional
center. No admonishments regarding the right to appeal were given
by the trial court at that time.
An arrest warrant was issued the following day and the
defendant was subsequently arrested on the warrant on September 11,
1996, in De Witt County. He appeared in the circuit court of
Champaign County on September 12, 1996, and was advised of the
sentence imposed in his absence. At that time, the trial court
admonished defendant of his right to appeal as required by Rule
605(b). He was advised by the court that a motion to withdraw or
vacate his guilty plea or a motion to reconsider the sentence would
have had to have been filed within 30 days of the imposition of the
sentence on May 30, 1996. Defense counsel suggested that because
the Rule 605(b) admonishments had not been given at the May 30,
1996, sentencing hearing, the 30-day time limit in which a motion
to reconsider could be filed would begin to run as of September 12,
1996.
A motion to reconsider the sentence was filed on October
10, 1996, within 30 days of defendant's appearance but several
months after the sentencing hearing. That motion was denied as
untimely by the circuit court of Champaign County on December 12,
1996, finding that defendant had also waived his right to direct
appeal by failing to make a timely motion for reconsideration. The
court advised defendant his only remaining remedy was provided by
the statute on proceedings in absentia, which allows him to obtain
a new sentencing hearing upon proof that his failure to appear was
not his fault and was due to circumstances beyond his control. 725
ILCS 5/115-4.1(e) (West 1992). This appeal followed.
I. ADMONISHMENT UNDER RULE 605(B)
Rule 605(b) requires that "at the time of imposing
sentence, the trial court shall advise the defendant" of his appeal
rights. 145 Ill. 2d R. 605(b). In this case, the sentence of 364
days was imposed on May 30, 1996, at a hearing that the defendant
did not attend. At his September court appearance, the sentence
was reimposed, according to defendant's brief, or defendant was
informed of his sentence, according to the State's brief. Defense
counsel suggested at that time that the 30-day period for motions
under Rule 604(d) (145 Ill. 2d R. 604(d)) would begin to run at the
time the Rule 605(b) admonitions were given, rather than at the
time the sentence was initially imposed.
If this argument is correct, the May 30, 1996, sentencing
proceeding accomplished nothing--the sentence imposed at that time,
in defendant's absence, could not have been enforced unless it were
to be "reimposed" and admonitions given to the defendant personal-
ly. Under this reading of Rule 605(b), the statute that allows
sentencing in absentia (725 ILCS 5/115-4.1(a) (West 1992)) is
rendered meaningless.
We find that sentence was imposed in absentia on May 30,
1996, pursuant to statute and, thus, the relevant date for purposes
of timeliness of the motion to reconsider is May 30, 1996.
This court has held that failure to properly admonish a
defendant under Rule 605(b) is error. People v. Horton, 250 Ill.
App. 3d 944, 954, 620 N.E.2d 437, 444 (1993). In that case,
however, the defendant was present in court for sentencing. The
dispositive issue is, therefore, whether Rule 605(b) requires a
trial court to advise an absent defendant of his appeal rights. If
the admonishment must be given, even in the absence of the
defendant, then defendant's argument has merit. If not, appeal was
waived by defendant's failure to file his motion to reconsider the
sentence within 30 days of May 30, 1996, because Rule 604(d) "makes
the filing of a written motion a condition precedent to appeal."
People v. Foster, 171 Ill. 2d 469, 472, 665 N.E.2d 823, 825 (1996).
Further, the supreme court in Foster adopted an "admoni-
tion exception" allowing an "appellate court to entertain appeals
where trial courts fail to issue Rule 605(b) admonitions, notwith-
standing noncompliance with Rule 604(d)'s written-motion require-
ment." Foster, 171 Ill. 2d at 473, 665 N.E.2d at 825. Defendant's
argument would extend the admonition exception to cases in which
the defendant was not present in court to receive the information
imparted by the required admonitions.
There are two reasons why the rule announced in Horton
should not apply to absent defendants and why the admonition
exception of Foster should not be extended to this case. First, it
is well settled that a defendant may waive his constitutional right
to be present at every stage of trial and may not thereafter "claim
any advantage on account of his absence." People v. Johnston, 160
Ill. App. 3d 536, 540, 513 N.E.2d 528, 531, (1987), citing People
v. Owens, 102 Ill. 2d 145, 157, 464 N.E.2d 252, 258 (1984). A
defendant such as Woolridge, who fails to appear for sentencing, is
arrested on a warrant, and is brought before the court several
months after sentence has been imposed, is not entitled to have the
30-day appeal period begin to run anew. To do so would be to place
"defendants who wilfully fail to appear at their sentencing
hearings in a better position than those who do appear." People v.
Burcham, 208 Ill. App. 3d 939, 942, 566 N.E.2d 832, 835 (1991).
Second, it is impossible for a trial court to proceed
under the statute in the absence of the defendant and to simulta-
neously strictly comply with the Rule 605(d) requirement that the
court "advise the defendant." The supreme court has said that
Rules 402, 604(d), and 605(b) dealing with entry of guilty pleas,
postjudgment motions, and admonishments required upon sentencing
(134 Ill. 2d R. 402; 145 Ill. 2d Rs. 604(d), 605(b)) are "meant to
mesh together not only to insure that defendants' constitutional
rights are protected, but also to avoid abuses by defendants."
People v. Wilk, 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221 (1988).
Similarly, the statute concerning proceedings in absentia and the
supreme court rules regarding guilty pleas must be able to be read
together in such a way as to give effect to each. A defendant who
does not appear for sentencing and is therefore not present to be
advised by the court cannot claim error when the court declines to
engage in the ineffective ritual of advising an empty chair.
We find that the trial court properly denied defendant's
motion to reconsider sentence as untimely and that the admonition
exception does not apply on these facts to create right of direct
appeal.
 II. W AIVER OF APPEAL
A defendant who fails to appear for a trial or sentencing
hearing, after having been informed that the proceeding would be
held even in his absence, waives a number of statutory and
constitutional rights. He is unable to confront the witnesses
against him. He cannot testify on his own behalf or participate
with his attorney in the conduct of his defense. Neither can he
benefit from the advice given by the trial court regarding the
right to file postjudgment motions or to appeal, whether or not
that advice is read into the record.
For the reasons given above, we find defendant's failure
to appear at the sentencing hearing constituted waiver of his right
to be personally informed of his appeal rights as required by Rule
605(b). As this court has said previously:
"The law provides the means for a defendant to
be heard in order to fully protect his rights
at the sentencing hearing, and his wilful
failure to appear ought properly to be viewed
as a self-inflicted wound." Burcham, 208 Ill.
App. 3d at 943, 566 N.E.2d at 835.
In addition to providing an opportunity for the defendant to be
heard, the law also provides a means for him to be informed of his
appeal rights. Waiver of this right to be personally informed is
"one additional cost of his wilful failure to appear for trial as
directed." People v. Emery, 190 Ill. App. 3d 171, 174, 546 N.E.2d 658, 660 (1989).

 III. COMPLIANCE WITH THE CERTIFICATION
REQUIREMENTS OF RULE 604(d)

Rule 604(d) governs the motion for reconsideration of a
sentence imposed upon a plea of guilty. The rule requires the
defendant's attorney to "file with the trial court a certificate
stating that the attorney has consulted with the defendant ***, has
examined the trial court file and report of proceedings of the plea
of guilty, and has made any amendments to the motion necessary for
adequate presentation of any defect in those proceedings."
(Emphasis added.) 145 Ill. 2d R. 604(d).
It is undisputed that defense counsel's certificate
refers only to the sentencing hearings held on May 30 and September
12, 1996, and not to the April 23, 1996, proceeding in which the
defendant pleaded guilty. The certificate is unsigned and undated
but is attached to the motion filed by defense counsel on October
10, 1996.
Because we find that a motion under Rule 604(d) would
have had to have been filed within 30 days of the May 30, 1996,
sentencing hearing, we need not consider the effect of the alleged
deficiencies in the certificate.
CONCL USION
We hold that defendant waived his right to receive
admonitions from the court under Rule 605(b) by his failure to
appear at the May 30, 1996, hearing at which sentence was imposed.
As a result, the motion to reconsider sentence filed on October 10,
1996, was not timely and was properly denied by the trial court.
We therefore need not reach defendant's claim regarding the
insufficiency of the certification filed by defense counsel.
As the trial court pointed out, however, this defendant
is not entirely without recourse. The same statute that allows him
to be sentenced in absentia creates a mechanism for him to obtain
review of the sentence. The statute requires that defendant
demonstrate his "failure to appear in court was both without his
fault and due to circumstances beyond his control." 725 ILCS
5/115-4.1(e) (West 1992). This provision is "part of a statutory
scheme to afford due process to persons tried in absentia." People
v. Williams, 274 Ill. App. 3d 793, 799, 655 N.E.2d 470, 475 (1995).
A defendant who is sentenced in absentia and fails to comply with
the requirements of Rule 604(d) is limited to this mechanism to
obtain review of his sentence.
For the reasons stated, the judgment of the trial court
is affirmed.
Affirmed.
COOK and GREEN, JJ., concur.