Docket No. 107807.
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
JONATHAN BURNETT, Appellant.
Opinion filed March 18, 2010.
JUSTICE KARMEIER delivered the judgment of the court, with
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Garman, and Burke concurred in the judgment and opinion.
Following a bench trial in the circuit court of Cook County,
defendant, Jonathan Burnett, was convicted of burglary (720 ILCS
5/19–1(a) (West 2004)) and possession of burglary tools (720 ILCS
5/19–2(a) (West 2004)). He was sentenced to concurrent prison terms
of 10 and 3 years, respectively. Defense counsel subsequently filed a
motion to reconsider sentence, which the circuit court denied, without
a hearing, when defense counsel failed to appear on the appointed
date. On appeal, defendant argued, inter alia, that (1) his sentence
was excessive; (2) defense counsel was ineffective in the preparation
of his motion to reconsider sentence and in failing to appear for a
hearing on same; and (3) defendant was denied due process when the
circuit court ruled upon his motion to reconsider in the absence of
defendant and counsel. The appellate court rejected those contentions.
385 Ill. App. 3d 610. Defendant then filed a petition for leave to
appeal, narrowing his claims of error to a single issue: whether “the
complete deprivation of counsel at a critical stage requires a showing
of prejudice and can be deemed harmless.” We allowed defendant’s
petition (210 Ill. 2d R. 315), and now affirm the judgment of the
appellate court, as we find that defendant did not suffer the
deprivation of counsel, the trial court did not abuse its discretion
when it ruled on the motion to reconsider in defense counsel’s
absence, and, in any event, counsel’s absence did not result in an
unfair proceeding that denied defendant substantial rights. We set
forth hereafter only those facts necessary to provide a framework for
On August 7, 2006, following a bench trial in the circuit court of
Cook County, defendant was found guilty of burglary and possession
of burglary tools. Hearing on any posttrial motion was scheduled for
August 29, 2006. On that date, defense counsel appeared and filed
what could fairly be described as a boilerplate motion for new trial,
raising 15 generic contentions of error. Before the court, the
following colloquy ensued during the “hearing” on that motion:
“MR. O’MALLEY [defense counsel]: Your Honor, Mr.
Barnett stands before the court. I filed a motion for a new trial,
which I served on the State. Judge, I do not wish to argue it but
ask for your Honor to rule on it.
THE COURT: [to the State] Your position?
MS. GAMBINO [prosecutor]: We ask that you deny it.
THE COURT: Denied.”
Whereupon, defense counsel indicated that he was prepared to
proceed immediately to sentencing.
In that regard, the State pointed out that defendant was subject to
mandatory Class X sentencing because of his prior convictions. See
730 ILCS 5/5–5–3(c)(8) (West 2004). The presentence investigation
report (PSI) indicated that defendant received a sentence of 30
months’ periodic imprisonment for burglary in 1983. On September
14, 1995, he received three-year prison sentences for two burglaries
charged in separate cases. The PSI states that defendant received 14
months’ intensive probation on February 23, 1996, for a controlled
substance offense, probation which defendant eventually violated. On
September 11, 1996, defendant was sentenced to six years’
incarceration for residential burglary, concurrent with two years’
imprisonment for the probation violation. The offense/disposition
section of the report concluded with a notation that defendant
received “two days time served” on February 1, 2005, for retail theft.
Further, the PSI revealed that defendant (41 years of age at the
time of the report) began experimenting with drugs at an early age,
and has been a cocaine and heroin addict since age 25. Defendant said
he was high on cocaine when he committed this burglary. He had not
been employed since 1999, he supported no dependents, and was in
fact supported by his family. The PSI indicated that defendant had
been affiliated with two street gangs, though defendant claimed he
was no longer a member.
The report notes that defendant suffered from learning disabilities
and dropped out of school after the tenth grade. He had problems
comprehending information, but had “excellent mechanical and
artistic skills.” He was a “self-taught mechanic who work[ed] on
automobile engines.” He was generally in good health at the time of
Briefly addressing the court, the prosecutor observed that
defendant had been given an opportunity for drug treatment in the
past and “he did not finish that.” She observed that this offense was
defendant’s sixth felony conviction, and that a minimum sentence of
six years’ incarceration was mandated by statute; however, she did
not recommend a specific sentence.
Defense counsel acknowledged defendant’s criminal record, but
noted that he had been “in no trouble” since he had “been out on
house arrest.” Counsel stated that defendant’s mother would be
“willing to support him in any constructive manner” and he observed
that defendant had “live[d] with his family without committing any
more crimes for a short period during this.” In light of defendant’s
“strong family support,” counsel asked for the minimum sentence.
The circuit court sentenced defendant to 3 years in prison for
possession of burglary tools, and 10 years’ incarceration for burglary.
The latter sentence was just four years over the minimum sentence
required by statute. See 730 ILCS 5/5–8–1(a)(3) (West 2004) (“for a
Class X felony, the sentence shall not be less than 6 years and not
more than 30 years”).
On September 13, 2006, defense counsel filed a motion to
reconsider sentence. Like the motion for new trial, this motion, too,
could fairly be described as a boilerplate motion. In essence, this
motion alleged that the sentence imposed upon defendant was
excessive and failed to take into account his rehabilitative potential.
Although one paragraph of the form motion referenced factors in
mitigation that the court failed to consider, counsel left that section
A docket entry indicates that the motion was originally assigned
a hearing date of September 20, 2006. The record states that the cause
was then continued, upon defendant’s motion, to September 27, 2006.
On that date, the court called the case, noting that defense counsel had
filed a motion to reconsider sentence, “in a written form, suggesting
that the sentence is excessive.” The court then stated: “Considering
the motion, despite the fact that Mr. O’Malley is not here and hasn’t
been here the last couple of times, I’m going to rule on the motion.
Motion to reconsider the sentence is denied.” Although the assistant
State’s Attorney was present, she offered no argument or other input
Following the court’s denial of defendant’s motion to reconsider,
defense counsel made no objection to the court’s ruling in his
absence. Counsel was obviously following the progress of the case,
as he filed a timely notice of appeal on defendant’s behalf.
The appellate court affirmed the judgment of the circuit court,
rejecting, inter alia, defendant’s contentions that (1) counsel rendered
ineffective assistance through inadequate preparation of defendant’s
motion to reconsider, and counsel’s failure to appear when the motion
was scheduled for disposition, and (2) defendant was denied his right
to counsel when the court ruled on the motion in counsel’s absence.
Before this court, defendant contends that this cause should be
remanded for “a new hearing” on his motion to reconsider sentence
“because the sentencing court ruled on the motion at an ex parte
hearing, in violation of [defendant’s] absolute right to be represented
by counsel at critical stages of the proceedings.”
We emphasize at the outset that use of the term “hearing” in this
context seems to us a misnomer. No one presented evidence or
testimony; no one argued the merits or demerits of defendant’s
motion. The cause was called up, as scheduled, and the court ruled on
the motion without input from the State. There was no “hearing” in
any accepted sense of the word, much less an “ex parte hearing.”
Black’s Law Dictionary defines an “ex parte hearing” as one “in
which the court or tribunal hears only one side of the controversy.”
Black’s Law Dictionary 517 (5th ed. 1979). “A judicial proceeding
*** is said to be ex parte when it is taken or granted at the instance
or for the benefit of one party only, and without notice to, or
contestation by, any person adversely interested.” Black’s Law
Dictionary 517 (5th ed. 1979); Parks v. McWhorter, 106 Ill. 2d 181,
185 (1985) (same). There was no ex parte hearing from which
defense counsel was excluded.
The question then becomes whether, as defendant contends, he
was denied representation during postsentencing proceedings. For the
reasons that follow, we hold he was not. As we see it, this defendant
was provided uninterrupted representation during criminal
proceedings in the circuit court, to and including the filing of a notice
The focus here is defendant’s motion to reconsider sentence. The
purpose of a motion to reconsider sentence is not to conduct a new
sentencing hearing, but rather to bring to the circuit court’s attention
changes in the law, errors in the court’s previous application of
existing law, and newly discovered evidence that was not available at
the time of the hearing. People v. Medina, 221 Ill. 2d 394, 413
(2006). Section 5–8–1(c) of the Code of Corrections (730 ILCS
5/5–8–1(c) (West 2004)) requires the filing of a written motion to
reconsider in order to preserve sentencing issues for appeal. People
v. Reed, 177 Ill. 2d 389, 393-94 (1997).
Counsel did raise, and preserve for appeal, a sentencing issue via
the motion to reconsider. Indeed, an excessive-sentence
argument–suggesting that the court should have weighed aggravating
and mitigating factors differently–appears to be the only “arguable”
sentencing issue discernible in this record. We emphasize the
marginal nature of even that issue because, as the appellate court
observed, “[t]en years is hardly a draconian sentence under the
circumstances.” 385 Ill. App. 3d at 615. Beyond preservation of the
excessive-sentence argument for subsequent consideration before an
appellate tribunal, it is difficult to see what counsel would have
gained by rearguing the same points he made at sentencing–before the
same judge–in a hearing on the motion to reconsider.
The circumstances strongly suggest that counsel, too, came to that
realization, and that accounted for his absence on the date scheduled
for disposition of the motion. We note, initially, that counsel was not
given to verbosity, as evinced by his waiver of argument at the
“hearing” on defendant’s motion for new trial and his succinct
argument at sentencing. We find it significant that counsel in this case
did not object to the rendition of a ruling in his absence. Counsel was
obviously monitoring the progress of the case, because, after the
ruling on the motion to reconsider, counsel filed a timely notice of
appeal on defendant’s behalf. It was counsel’s decision whether or not
to argue the motion. In Medina, we recognized certain trial decisions
that ultimately belong to a criminal defendant. Whether or not to
argue a postsentencing motion is not among them. See Medina, 221
Ill. 2d at 403-10. It was defense counsel’s call to make, and it is
apparent that nothing would be gained by making the same
sentencing arguments before the same judge that imposed defendant’s
Beyond this observation, we find that the ultimate decision to
allow oral argument on the motion, as constituted, was vested within
the discretion of the circuit court, and that discretion was not abused
in this case.
We begin this portion of our analysis with the United States
Supreme Court’s decision in Herring v. New York, 422 U.S. 853, 863,
45 L. Ed. 2d 593, 601, 95 S. Ct. 2550, 2555-56 (1975). In Herring,
the Supreme Court held that a New York statute which gave trial
courts discretion as to whether parties would be allowed to deliver
closing arguments denied the defendant “the assistance of counsel
that the Constitution guarantees.” Herring, 422 U.S. at 865, 45 L. Ed.
2d at 602, 95 S. Ct. at 2556. In reaching that conclusion, however, the
majority decision was rife with cautionary comments and limitations
on the reach of the decision:
“This is not to say that closing arguments in a criminal
case must be uncontrolled or even unrestrained. The presiding
judge must be and is given great latitude in controlling the
duration and limiting the scope of closing summations. He
may limit counsel to a reasonable time and may terminate
argument when continuance would be repetitive or redundant.
He may ensure that argument does not stray unduly from the
mark, or otherwise impede the fair and orderly conduct of the
trial. In all these respects he must have broad discretion.”
Herring, 422 U.S. at 862, 45 L. Ed. 2d at 600, 95 S. Ct. at
More to the point, for our purposes, the Court noted that the decision
was not meant to establish a general right to oral argument at all
stages of a criminal case; quite the contrary:
“We deal in this case only with final argument or summation
at the conclusion of the evidence in a criminal trial. Nothing said
in this opinion is to be understood as implying the existence of a
constitutional right to oral argument at any other stage of the trial
or appellate process.” Herring, 422 U.S. at 863 n.13, 45 L. Ed. 2d
at 601 n.13, 95 S. Ct. at 2556 n.13
Since Herring, this court has in fact underscored Herring’s
limitations, holding that there is no absolute right to oral argument on
a motion for directed verdict (People v. Withers, 87 Ill. 2d 224, 23132 (1981)) or on appeal (People v. Navarroli, 121 Ill. 2d 516, 529
In Withers, en route to its holdings that a defendant has no
absolute right to orally argue a motion for directed verdict at the close
of the State’s case, and that the trial court did not abuse its discretion
in denying oral argument, this court noted that “courts have rejected
claims founded on the sixth amendment of a right to argue at stages
other than the time for summation.” Withers, 87 Ill. 2d at 228-29. In
reaffirming the trial court’s discretion in such matters, this court
cited, approvingly, a prior decision in People v. Sally, 17 Ill. 2d 578
(1959), “holding that argument on a motion for a new trial is
discretionary.” Withers, 87 Ill. 2d at 231.
We are not inclined, given the circumstances of this case and the
arguments presented herein, to extend the absolute right to oral
argument beyond its current circumscribed parameters. We hold that
defendant had no absolute right to oral argument on his motion to
reconsider sentence. We note that our prevailing case authority in this
respect is, perhaps, a recognition that, in most instances, what can be
said in oral argument can be presented in at least as orderly, succinct,
and coherent a manner when reduced to writing. Certainly, in this
context, counsel’s absence in court on September 27, 2006, did not
result in an unfair proceeding that denied defendant either substantial
rights or the opportunity to adequately espouse his position.
Under the circumstances, the circuit court did not abuse its
discretion when it proceeded to rule on the motion to reconsider
without further input from either side. We observe, in passing, that it
is abundantly clear that defendant has abandoned his ineffective
assistance of counsel claims, and would have us apply the standard of
United States v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct.
2039 (1984), because he has no underlying issues of merit, i.e., there
was nothing of substance for counsel to argue. It is obvious that
counsel had few favorable facts at his disposal, and many unfavorable
ones with which to contend. There is a reason no ineffective
assistance claims have been reiterated in this court–the same reason
counsel apparently chose not to appear on the date scheduled for
disposition of the motion.
In sum, we hold that this defendant was represented by counsel
throughout the proceedings in the circuit court, and the trial court did
not abuse its discretion in ruling on the motion to reconsider sentence
in counsel’s absence and without first entertaining oral argument on
the motion. Though our analysis is not entirely congruent with that of
the appellate court, we are in no way constrained by the appellate
court’s reasoning and may affirm on any basis supported by the
record. People v. Durr, 215 Ill. 2d 283, 296 (2005).
For the reasons stated herein, we affirm the judgment of the