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September 29, 1994


Appeal from the Circuit of Du Page County. No. 85-CF-1941. Honorable John J. Nelligan, Judge, Presiding.

Petition for Leave to Appeal Denied February 1, 1995.

Doyle, Quetsch, Colwell

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Defendant, Louis M. Pontillo, was convicted, in absentia, of delivering a controlled substance (see Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)(2) (now codified, as amended, at 720 ILCS 570/401(a)(2)(A) (West 1992))) and sentenced to 25 years' imprisonment. On October 17, 1986, judgment was entered on the jury verdict of guilty. Counsel's motions for a new trial and in arrest of judgment were denied on November 24, 1986. No notice of appeal was filed at that stage.

Defendant was apprehended in Florida sometime prior to June 24, 1992. Following his return to Illinois, defendant moved for a new trial or sentencing hearing pursuant to section 115-4.1(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1(e) (now 725 ILCS 5/115-4.1(e) (West 1992))). This motion was denied on November 17, 1992. A timely notice of appeal of the trial court's denial of defendant's section 115-4.1(e) motion for a new trial or sentencing hearing was filed.

On appeal defendant argues that the trial court erred in (1) failing to send defendant a certified mail notice of his trial date, and (2) denying defendant a new trial based on statements made by the prosecutor during closing argument.

At defendant's first court appearance the trial court admonished him of the potential for trial in absentia should defendant willfully absent himself from the proceedings. On October 6, 1986, defendant and his codefendant were both present when their joint trials commenced with jury selection. At the end of the day the jury was only partially selected, and the court adjourned until the following morning.

On the morning of October 7, the codefendant appeared; however, defendant was absent without explanation. The trial court revoked defendant's bond, issued a warrant for his arrest and, over defendant's counsel's objection, granted the State's motion to proceed with the trial in absentia as to defendant. As the court was preparing to select additional jurors, the codefendant informed the court that he would enter a negotiated plea of guilty. After the court accepted the codefendant's plea, defendant's counsel moved for a seven-day continuance of the trial because he had received additional discovery during the lunch hour, and because he feared prejudice might arise because of defendant's sudden absence. Recognizing that jeopardy had not attached, defendant's counsel also requested a mistrial, citing the potential for prejudice to defendant unless the eight jurors, already selected, were dismissed. The trial court granted the motion for mistrial and re-set" the trial for October 14. No certified mail notice was sent to defendant informing him of the October 14 date. Defendant was thereafter tried in absentia, convicted and sentenced.

Defendant contends that the trial court committed reversible error by conducting the trial in his absence without first having notified him by certified mail of the trial date. Defendant points out that although he was present in court on the first day of his trial, he was absent on October 7, 1986, when a "mistrial" was declared and a second trial date was set. He argues, therefore, that section 115-4.1(a) required the trial court to send him certified mail notice of the second date and maintains that his section 115-4.1(e) motion for a new trial should have been granted on this basis. We disagree.

A defendant has the right to be present at all stages of trial, and this is a right which can be waived only by the defendant himself. ( People v Owens (1984), 102 Ill. 2d 145, 157, 79 Ill. Dec. 654, 464 N.E.2d 252.) However, a defendant will not be allowed to prevent the progress of his trial by voluntarily absenting himself. ( People v. Steenbergen (1964), 31 Ill. 2d 615, 618, 203 N.E.2d 404; People v. Velasco (1989), 184 Ill. App. 3d 618, 626, 132 Ill. Dec. 781, 540 N.E.2d 521.) A defendant's voluntary absence from trial constitutes a waiver of his right to be present and permits the court to proceed with the trial as if he were present, providing that defendant's constitutional rights have been adequately protected. People v. Davis (1968), 39 Ill. 2d 325, 330, 235 N.E.2d 634; Velasco, 184 Ill. App. 3d at 626.

The Code of Criminal Procedure of 1963 (the Code) sets forth specific requirements which must be satisfied before a trial can be conducted in a defendant's absence. In addition to requiring the court to admonish an accused concerning the waiver effect of his or her willful nonattendance at future proceedings (Ill. Rev. Stat. 1985, ch. 38, par. 113-4(e) (now 725 ILCS 5/113-4(e) (West 1992))), the Code provides:

"When a defendant after arrest and an initial court appearance for a non-capital felony, fails to appear for trial, at the request of the State and after the State has affirmatively proven through substantial evidence that the defendant is willfully avoiding trial, the court may commence trial in the absence of the defendant. * * * Trial in the defendant's absence shall be by jury unless the defendant had previously waived trial by jury. * * * 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. * * * The court may set the case for a trial which may be conducted under this Section despite the failure of the defendant to appear at the hearing at which the trial date is set. When such trial date is set the clerk shall send to the defendant, by certified mail at his last known address indicated on his bond slip, notice of the new date which has been set for trial. Such notification shall be required when the defendant was not personally present in open court at the time when the case was set for trial." Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1(a) (now 725 ILCS 5/115-4.1(a) (West 1992)).

As the court noted in People v. Coppage (1989), 187 Ill. App. 3d 436, 135 Ill. Dec. 34, 543 N.E.2d 269, this statute addresses two distinct sets of circumstances which are mutually exclusive. The portion of the statute which requires certified mail notice to the defendant of the trial date applies only to those situations where the defendant has failed to appear at the hearing at which the trial date is set. However, in those situations in which the trial has commenced in the presence of the defendant, and thereafter the defendant willfully absents himself, the court is authorized to proceed in the defendant's absence after waiting two successive court days. ( Coppage, 187 Ill. ...

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