APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
506 N.E.2d 629, 153 Ill. App. 3d 841, 106 Ill. Dec. 829 1987.IL.357
Appeal from the Circuit Court of Winnebago County; the Hon. John E. Sype, Judge, presiding.
Justice Unverzagt delivered the opinion of the court. Hopf and Dunn, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT
The defendant, Jessie Partee, Jr., appeals directly from his conviction of aggravated battery following a bench trial in the circuit court of Winnebago County. He was present at trial during the presentation of the State's case in chief. When he did not return to court after a short recess was declared, the trial proceeded, and he was convicted and sentenced in absentia. He contends here the court erred in holding the trial and sentencing him in absentia because the record fails to affirmatively show that he was advised that the trial and sentencing could be held in his absence as required in section 113-4(e) of the Code of Criminal Procedure of 1963 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 113-4(e)).
Initially, we address the State's motion to dismiss the appeal, and the defendant's objections thereto. The State contends that we lack jurisdiction in light of our decision in People v. Brown (1984), 121 Ill. App. 3d 776. In Brown, we remanded the cause with directions that the court conduct a hearing under section 115-4.1(e) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 115-4.1(e)). Defendant there was convicted and sentenced for residential burglary after a jury trial in absentia. Defendant's counsel timely filed a notice of appeal in his absence as well. After defendant was arrested, his appointed counsel moved for a hearing pursuant to section 115-4.1(e) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 115-4.1(e)). Although the trial court agreed the defendant would be entitled to such a hearing, it believed it had lost jurisdiction to conduct any further proceedings since a notice of appeal had been filed. Defendant appealed from the court's denial of its request, and the two appeals were consolidated.
In remanding the cause for a hearing pursuant to section 115 -- 4.1(e), we noted that the State "conceded" that a judgment of conviction of a defendant in absentia was not a final and appealable order and emphasized that the statute provides that a defendant convicted in absentia "must" be granted a new trial if he appears before the court and establishes at a hearing that his failure to appear was due to circumstances beyond his control and was not his fault.
Thus, relying on Brown, the State here contends that no final appealable order exists until the defendant is returned to the trial court "and a ruling rendered on any claim that the defendant's absence from trial and sentencing was not willful." It contends that application of this rule would be most apt here "since the sole issue raised by defendant on appeal concerns the propriety of his having been tried and sentenced in absentia, the very matter which section 115 -- 4.1(e) seeks to address, and a matter which could be resolved by the trial court if defendant appears in that court as mandated by People v. Brown."
The defendant objects to the State's motion to dismiss, noting that our Brown decision is at odds with the posture taken by other courts of review. (See, e.g., People v. Sayles (1985), 130 Ill. App. 3d 882; People v. Stark (1984), 121 Ill. App. 3d 787; People v. Muir (1983), 113 Ill. App. 3d 1096.) He further contends that a hearing under section 115 -- 4.1(e) would be useless since there could be no showing of willfulness since he was never properly admonished. He contends the lack of admonishment sufficiently distinguishes the instant cause from Brown, and he requests that we take judicial notice of the facts in that case which show that the defendant there was admonished at arraignment.
We find the instant cause primarily is distinguished from Brown in that the defendant here has not requested a hearing pursuant to section 115 -- 4.1(e). When such a hearing is requested, "[a] hearing on the defendant's request 'must' be held. 'Must' is generally regarded as mandatory language. [Citation.]" (People v. Brown (1984), 121 Ill. App. 3d 776, 779.) The ratio decidendi in Brown was whether the trial court erred in its belief that the defendant's notice of appeal deprived it of jurisdiction to grant him a hearing pursuant to section 115 -- 4.1(e). We found it was error to not grant such a hearing when requested, reasoning that the judgment rendered in absentia was not final and appealable until the requested hearing had been held. Thus, we found the trial court was not deprived of its jurisdiction in that cause, and remanded it for a hearing.
It is apparent the thrust of the State's argument to dismiss here, premised on Brown, is that a court's judgment in absentia is not final and cannot be appealed until a section 115-4.1(e) hearing has been held and a judgment entered. That argument necessarily presupposes that such a hearing is a prerequisite to a direct appeal, an issue which was not addressed in Brown. Such a contention has, in fact, been soundly rejected in People v. Stark (1984), 121 Ill. App. 3d 787. The Stark court found no authority which indicated that the mere right to request a new sentencing hearing by a defendant sentenced in absentia affected the finality of the judgment of conviction or imposition of sentence. The court stated its view that section 115-4.1 was not meant to preempt Supreme Court Rule 606(b) (103 Ill. 2d R. 606(b)) which governs the perfection of an appeal on the merits from a final judgment entered on a criminal conviction and sentence. Further, it viewed that section 115-4.1 was analogous to section 2-1401 of the Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401) in that it affords a criminal defendant an alternate, albeit a specifically limited, means of obtaining a new trial or sentencing hearing. (People v. Stark (1984), 121 Ill. App. 3d 787, 791; accord People v. Delgado (1984), 126 Ill. App. 3d 239, 241-43; People v. Sayles (1985), 130 Ill. App. 3d 882, 888 (a proceeding under section 115-4.1 after an appeal has been prosecuted in absentia is another species of post-conviction relief).) Further, as noted in Stark, there is nothing in section 115-4.1 which suggests that a defendant automatically will file such a motion, particularly in instances where no reasonable excuse exists for his not appearing in court. People v. Stark (1984), 121 Ill. App. 3d 787, 792.
In view of the fact the defendant here has not filed a motion for a hearing pursuant to section 115 -- 4.1(e), and that he has filed a timely direct appeal, the State's motion to dismiss is denied. In regard to this latter point, we note we granted defendant leave to file an affidavit wherein he expressed his interest in and desire to prosecute this appeal.
Turning to the merits of the direct appeal, the defendant contends that the court erred in completing trial and sentencing him in absentia because the record fails to affirmatively show that he was advised that the trial and sentencing could be held in his absence. He refers ...