Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Kenneth L. Gillis, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
George Maya and Mario Maya were indicted in the circuit court of Cook County for the illegal possession and delivery of cocaine and methaqualone. On the third day of their bench trial, the prosecution and defense had completed the presentation of evidence when the court called a recess in preparation for hearing closing arguments. When the court reconvened five minutes later, the defendants were absent from the courtroom. After a time, the defendants not appearing, the trial proceeded with the defendants in absentia under section 115 4.1(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115-4.1(a); People v. Flores (1984), 104 Ill.2d 40). The defendants were found guilty, and the court, after forfeiting their bonds and issuing bench warrants for their arrest, set the case for a sentencing hearing. The defendants did not appear at the sentencing hearing, and each was given in absentia a 12-year sentence. Following this, the trial court ordered the allowance of attorney fees from the forfeited cash bond deposits. The court then entered bond-forfeiture judgments in favor of the State in the amount of the balance in the bond deposit and two judgments for the State in the amount of the appearance bonds. The State appealed to the appellate court contending that section 110-7(h) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 110-7(h)) (since relettered to subparagraph (g) by Public Act 83-336), required that the trial court forfeit to the State the entire amount of the bond deposits, less costs, and that the allowance of attorney fees was error. The appellate court affirmed the order awarding fees but vacated the fee awards themselves and remanded to the circuit court for a hearing on the reasonableness of the fees. (119 Ill. App.3d 961.) We granted the State's petition for leave to appeal under our Rule 315(a) (87 Ill.2d 315 (a)).
The details of the defendants' representation by the attorneys involved are set out in the appellate court's opinion, and it is not necessary to restate them here.
Section 115-4.1(a), under which the court allowed attorney fees, provides:
(a) When a defendant after arraignment * * * fails to appear for trial * * * the court may commence trial in the absence of the defendant. * * * The court, at the conclusion of all of the proceedings, may order the clerk of the circuit court to pay counsel such sum as the court deems reasonable, from any bond monies which were posted by the defendant with the clerk, after the clerk has first deducted all court costs. If trial had previously commenced in the presence of the defendant and the defendant willfully absents himself for two successive court days, the court shall proceed to trial. * * * (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 115-4.1(a).
The State contends that the provision granting the court the discretion to award fees applies only where the defendant absents himself before the commencement of trial. This is based on a disjunctive interpretation of the conditional language "[i]f trial had previously commenced * * *" in the section (Ill. Rev. Stat. 1981, ch. 38, par. 115-4.1(a)). Thus, the argument is, once a trial has begun and the defendant absents himself, a court has no discretion to award attorney fees to a privately engaged attorney who, in the State's view, presumably had earlier made fee arrangements with the defendant.
This court in Gill v. Miller (1983), 94 Ill.2d 52, 56, stated:
"It is fundamental that in construing a statute a court is to ascertain and give effect to the legislature's intent. * * *
In ascertaining the legislature's intent we should consider the statute in its entirety, noting the subject it addresses and the legislature's apparent objective in enacting it."
(See People ex rel. Gibson v. Cannon (1976), 65 Ill.2d 366, 369; Chastek v. Anderson (1981), 83 Ill.2d 502, 510-11.) In enacting section 115-4.1(a), we consider that the legislature's intention was to provide for a trial in absentia, within constitutional limits, if a defendant wilfully and without justification absented himself from trial. The Senate debates show that the legislature was particularly concerned with assuring a defendant's constitutional right to the effective assistance of counsel (81st Gen. Assem., Transcript of Senate Proceedings, June 27, 1979, at 220) and, to accomplish this, gave the trial court authority to award reasonable fees from the defendant's bond deposit. Considering this, it would be unreasonable to hold that the authority to award fees was to be contingent on the actual point in a trial proceeding that the defendant chooses to absent himself.
Furthermore, we judge that there is no reasonable ground to distinguish between appointed and privately retained counsel as the State urges us to do. It is generally known that often attorneys in making fee arrangements will look to the defendant's bond deposit for full or partial compensation. Section 115-4.1(a) itself makes no distinction between retained or appointed counsel in authorizing the allowance of fees.
An alternate argument of the State is that the provisions of section 115-4.1(a) are in conflict with section 110-7(h), which, it says, requires the court to forfeit the entire bond deposit of a defendant who ...