People v. Phillips
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SECOND DIVISION
FILED: September 30, 2009
No.
1-04-2655
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
EZEKIEL PHILLIPS,
Defendant-Appellant.
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APPEAL FROM THE
CIRCUIT COURT OF
COOK COUNTY
00 CR 16937
HONORABLE
WILLIAM G. LACY,
JUDGE PRESIDING.
JUSTICE HOFFMAN delivered the opinion of the court:
This case returns to us following a remand from the supreme
court.
(2009).
People v. Patrick, 233 Ill. 2d 62, 80-81, 903 N.E.2d 1
When
last
before
us,
we
affirmed
the
convictions for armed violence and aggravated battery.
defendant's
People v.
Phillips, 371 Ill. App. 3d 948, 955, 864 N.E.2d 823 (2007).
However, on the basis that the defendant was sentenced in absentia
without an admonishment by the trial judge of the possibility that
he could be sentenced in his absence if he failed to appear in
court when required, we vacated the defendant's sentences and
remanded the case back to the circuit court for a new sentencing
hearing.
Phillips, 371 Ill. App. 3d at 954.
Thereafter, the
defendant filed a petition for leave to appeal to the supreme
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1-04-2655
court, which was granted. People v. Phillips, 224 Ill. 2d 588, 871
N.E.2d 60 (2007).
While the case was pending in the supreme court, the State
sought cross-relief, contending that this court erred in remanding
the matter back to the circuit court for a new sentencing hearing.
The State admitted that it had conceded the resentencing issue when
the matter was initially before this court; nevertheless, the State
sought and was granted leave to file a supplement to the record
before the supreme court consisting of the defendant's bail bond
slip, which warned him of the possibility of trial and sentencing
in absentia if he failed to appear in court when required. Patrick,
233 Ill. 2d at 80.
After discussing the issues before it, the supreme court held
that, by not testifying, the defendant had failed to preserve for
review the issue of whether the trial court erred in postponing its
ruling on the defendant's pre-trial motion in limine to exclude
evidence of his prior convictions for purposes of impeachment until
after the defendant had testified.
remanded
the
case
back
to
this
However, the supreme court
court
with
directions
that,
following supplemental briefing, we reexamine the sentencing in
absentia issue in light of the bond slip that is now part of the
record on appeal.
Patrick, 233 Ill. 2d at 80-81.
For the reasons
which follow, we again vacate the defendant's sentences and remand
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No.
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this case to the circuit court for a new sentencing hearing.
The right of a defendant to be present at all stages of his
trial,
including
sentencing,
is
of
constitutional
dimension.
Snyder v. Massachusetts, 291 U.S. 97, 105-06, 78 L.Ed. 674, 678, 54
S.Ct 330, 332 (1934).
However, a defendant who flees during trial
waives his constitutional right to be present, and he may be tried
and sentenced in absentia even if he has not been specifically
warned of the possible consequences of his absence.
Taylor v.
United States, 414 U.S. 17, 18-20, 38 L.Ed.2d 174, 177-78, 94 S.Ct.
194, 195-96 (1973).
In Illinois, however, defendants have a
statutory right to be admonished as to the possible consequences of
failing to appear in court when required.
Section 113-4(e) of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-4(e)
(West 2002)) provides, in relevant part, that:
"If a defendant pleads not guilty, the court shall
advise him at that time or at any later court date on
which he is present that if he *** is released on bond
and fails to appear in court when required by the court
that his failure to appear would constitute a waiver of
his right to confront the witnesses against him and
trial could proceed in his absence." 725 ILCS 5/113-4(e)
(West 2002).
In the absence of a section 113-4(e) admonishment, a defendant may
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No.
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not be tried or sentenced in absentia.
See People v. Partee, 125
Ill, 2d 24, 38-41, 530 N.E.2d 460 (1988); People v. Thomas, 216
Ill. Ap. 3d 405, 408, 576 N.E.2d 352 (1991).
In this case, the defendant was present during the entire
course of his trial.
However, he failed to appear in court during
the jury’s deliberations, and he was not present when the verdicts
were returned.
Following the denial of a post-trial motion for a
new trial, which was presented by counsel in the defendant's
absence, the defendant was sentenced in absentia.
The State
concedes that the record does not reflect that the trial court ever
admonished the defendant of the possibility of being tried and
sentenced in absentia if he failed to appear in court, as required
by section 113-4(e) of the Code.
Nevertheless, the State argues
that the defendant’s signature on a bail bond slip constituted a
valid
waiver
of
the
right
to
receive
a
section
113-4(e)
admonishment.
The record now reflects that the defendant signed a bail bond
slip, which contained several provisions relating to the possible
consequences of his failure to appear in court.
On the front of
the bond slip, the following provision appears:
"STATEMENT OF THE DEFENDANT.
I understand and
accept the terms and conditions set forth below and on
the reverse side of this bail bond.
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Further, I hereby
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certify that I understand the consequences of failure to
appear for trial as required."
The following language appears on the reverse side of the bond
slip:
"You are hereby advised that if at any time prior to
final disposition of the charge you escape from custody,
or are released on bond and you fail to appear in court
when required by the court, your failure to appear would
constitute a waiver of your rights to confront the
witnesses against you and the trial could proceed in your
absence.
If found guilty you could be sentenced in your
absence."
In People v. Garner, 147 Ill. 2d 467, 590 N.E.2 470 (1992),
the supreme court rejected an argument that a printed notice on a
bond slip warning of the penalties for the defendant's failure to
be present for trial satisfied the requirements of section 1134(e).
Garner, 147 Ill. 2d at 478.
However, unlike the bond slip
signed by the defendant in this case, the bond slip signed by the
defendant in Garner did not contain any warning of the possibility
of trial in absentia in the event that the defendant failed to
appear in court when required.
Garner, 147 Ill. 2d at 478.
The
supreme court in Garner was careful to point out that it was not
prepared to say that no set of circumstances will result in the
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No.
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waiver of a defendant’s right to receive the section 113-4(e)
admonishments.
Garner, 147 Ill. 2d at 480.
The Court did note,
however, that section 113-4(e) of the Code directs the trial court
to
admonish
the
defendant
and
admonishment requirement exists.
that
no
exemption
from
the
Garner, 147 Ill. 2d at 479.
In People v. Lester, 165 Ill. App. 3d 1056, 519 N.E.2d 1127
(1988), the court addressed and rejected an argument by the State
that the printed notice on a bond slip of the possibility that the
defendant could be tried in absentia satisfied the requirements of
section 113-4(e) of the Code.
Lester, 165 Ill. App. 3d at 1057-58.
The Lester Court noted, as did the supreme court in Garner, that
the statute unambiguously provides that the trial court shall
advise the defendant in court of the possibility of a trial in
absentia.
Lester, 165 Ill. App. 3d at 1057-58.
The court went on
to hold that, where the statute unambiguously requires the trial
court to orally admonish the defendant in court of the possibility
that he might be tried in absentia if he failed to appear in court
as required, "the complete failure to comply with this requirement
is not sufficient compliance with the statute."
Lester, 165 Ill.
App. 3d at 1058; see also People v. Green, 190 Ill. App. 3d 271,
274, 546 N.E.2d 648 (1989).
We are mindful that in People v. Condon, 272 Ill. App. 3d 437,
651 N.E.2d 226 (1995), the court declined to hold that section 113-
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No.
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4(e) specifically requires oral admonishments of the possibility of
trial in absentia.
Condon, 272 Ill. App. 3d at 441.
Strictly
speaking, the Condon Court was correct in holding that the statute
does not require oral admonishments. See 725 ILCS 5/113-4(e) (West
2002).
that
What the statute does unambiguously require, however, is
the
court
admonish
the
defendant
at
the
time
of
his
arraignment or on any later court date on which he is present. 725
ILCS 5/113-4(e) (West 2002).
We believe, therefore, that the
holdings in Lester and Green represent the better statement of the
law, and we find no reason to deviate from the reasoning in those
cases.
On the question of waiver, the Lester Court concluded that,
because waiver assumes knowledge, a defendant who has not received
notice of the possibility of trial in absentia as required by
section 113-4(e) of the Code cannot be deemed to have knowingly
waived his right to be present at trial.
at
1058-59.
The
reasoning
in
Lester, 165 Ill. App. 3d
Lester
on
this
specifically adopted by the supreme court in Garner.
point
was
Garner, 147
Ill. 2d at 481-82.
In this case, the trial court never admonished the defendant,
orally or otherwise, that his failure to appear in court as
required could possibly result in his being tried or sentenced in
absentia.
Based upon the foregoing analysis, we conclude, that,
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No.
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notwithstanding the notice set forth in the defendant’s
bail bond
slip, the admonishment requirement of section 5/113-4(e) was not
complied with, and the defendant did not waive his right to be
present when sentenced.
When, as in this case, the requirements of section 113-4(e) of
the Code have not been complied with and the defendant has,
nevertheless, been sentenced in absentia, the appropriate remedy is
to vacate the defendant’s sentence and remand the cause to the
circuit court for a new sentencing hearing.
Thomas, 216 Ill. App.
3d at 409.
Sentences vacated and cause remanded.
CUNNINGHAM, P.J., and KARNEZIS, J., concur.
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