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05/02/95 PEOPLE STATE ILLINOIS v. BERNARD J. CONDON

May 2, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE,
v.
BERNARD J. CONDON, PETITIONER-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 85-CF-1946. Honorable Eugene A. Wojcik, Judge, Presiding.

The Honorable Justice Inglis delivered the opinion of the court: Geiger and Rathje, JJ., concur.

The opinion of the court was delivered by: Inglis

JUSTICE INGLIS delivered the opinion of the court:

Petitioner, Bernard Condon, appeals the order of the circuit court of Du Page County dismissing his amended petition for post-conviction relief. We affirm.

On November 7, 1985, petitioner was charged by complaint with the offense of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2) (now codified, as amended, at 720 ILCS 570 /401(a)(2) (West 1992))). After a preliminary hearing, he was bound over for arraignment. On December 10, 1985, petitioner was charged by information with unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2) (now codified, as amended, at 720 ILCS 570/401(a)(2)(A) (West 1992))) and unlawful possession of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(a)(2) (now codified, as amended, at 720 ILCS 570/402(a)(2)(A) (West 1992))) in connection with the same incident. That day he was arraigned, and he signed a written acknowledgement of the fact that his failure to appear for a court date could result in trial in absentia. Petitioner was represented by attorney Christopher Edmonds at both hearings.

On July 1, 1986, Edmonds withdrew as counsel and was replaced by attorney Bruce Fawell. On September 22, 1987, petitioner was orally admonished that his failure to appear for a court date could result in the proceedings going forward without him. On October 14, 1987, petitioner was indicted for the additional offense of armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2 (now 720 ILCS 5/33A-2 (West 1992))), based on the same incident for which he was previously charged. On November 24, 1987, the court entered an order setting trial for December 2, 1987.

Petitioner failed to appear for trial on December 2, and a hearing was held that day, pursuant to section 115-4.1 of the Code of Criminal Procedure of 1963 (Code)(Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1 (now 725 ILCS 5/ 115-4. 1 West 1992))), to determine whether he should be tried in absentia. Finding that petitioner had been admonished and that his absence was willful, the court issued a warrant for his arrest. December 3 to 4, 1987, a jury trial was held in petitioner's absence. He was represented by attorneys Jeffrey and Bruce Fawell.

Testimony at trial indicated that on November 7, 1985, a Du Page County sheriff's deputy pulled over a car driven in an erratic manner by petitioner. While the deputy called in the stop, petitioner exited his vehicle and walked toward the squad car, hands in pockets. The deputy ordered petitioner to stay by his own car and to keep his hands in sight. Petitioner removed his hands from his pockets but continued toward the squad car.

While conversing with petitioner, the deputy noticed that his eyes were bloodshot, he smelled faintly of an alcoholic beverage, and he repeatedly returned his hands to his pockets despite the deputy's instructions to the contrary. The deputy administered field sobriety tests and then arrested petitioner for driving under the influence of alcohol or drugs. He then searched petitioner.

During the search, petitioner repeatedly attempted to put his hands into his jacket pockets. The search revealed $1,500 cash in petitioner's pants pocket and a loaded .22 caliber semiautomatic pistol in his jacket pocket. At no time did petitioner use or clearly threaten to use the gun. He was polite and cooperative during the incident, except that he would not keep his hands out of his pockets.

Securing petitioner in the squad car, the deputy searched petitioner's vehicle. There he found a bag containing a white substance later determined to be cocaine and a list of initials and numbers. Based on this testimony the jury convicted petitioner of armed violence, possession, and possession with intent to deliver.

On January 29, 1988, the court conducted petitioner's sentencing hearing in his absence. Again he was represented by Jeffrey Fawell. In aggravation the State presented evidence that drugs and guns had been seized under a warrant from petitioner's residence and that petitioner had been actively engaged in the business of selling drugs for some time. Fawell presented no evidence in mitigation but argued petitioner's lack of criminal history and the lack of evidence linking petitioner to the residence wherein guns and drugs were found. Fawell directed the court to the presentence report in petitioner's file for information about his family, education, and employment.

The court sentenced petitioner to concurrent terms of 30 years for armed violence and possession with intent to deliver (maximum terms), merging the simple possession count into the possession with intent count. The court fined petitioner $10,000 for the armed violence charge and $50,000 for the drug charge. Fawell filed a prompt notice of appeal, and we dismissed the appeal. People v. Condon (2d Dist. Aug. 16, 1988).

Petitioner was arrested on March 9, 1989, pursuant to the warrant issued for his failure to appear for trial. On December 19, 1991, petitioner file a pro se petition for post-conviction relief alleging, inter alia, that (1) petitioner failed to appear for trial because counsel had advised him that he did not need to appear; (2) the trial court failed to conduct a hearing pursuant to section 115-4.1 of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1 (now 725 ILCS 5/115-4.1 (West 1992))) to establish that petitioner was willfully absent; and (3) petitioner was denied the right to effective ...


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