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10/21/97 PEOPLE STATE ILLINOIS v. RORY L. WOOLRIDGE

October 21, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RORY L. WOOLRIDGE, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County. No. 96DT48. Honorable Jeffrey B. Ford, Judge Presiding.

Released for Publication November 20, 1997.

Honorable Rita B. Garman, J., Honorable Robert W. Cook, J. - Concur, Honorable Frederick S. Green, J. - Concur. Justice Garman delivered the opinion of the court.

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court:

Defendant Rory L. Woolridge appeals the denial by the circuit court of Champaign County of his motion to reconsider a sentence imposed in absentia after he pleaded guilty to driving under the influence (DUI). 625 ILCS 5/11-501(a) (West 1992). He argues that (1) the trial court did not properly admonish him with regard to his right to appeal as required by Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)),(2) the trial court erred in finding that defendant had waived his right to appeal, and (3) remand is required because his attorney failed to comply with the certification requirements of Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). We affirm.

FACTS

Defendant was arrested on January 28, 1996, and charged with DUI. On April 23, 1996, he pleaded guilty and a date was set for a sentencing hearing. He was advised at that time if he did not appear for the sentencing hearing, he would be sentenced in absentia. On May 30, 1996, he failed to appear and was sentenced in absentia to serve 364 days in the Champaign County correctional center. No admonishments regarding the right to appeal were given by the trial court at that time.

An arrest warrant was issued the following day and the defendant was subsequently arrested on the warrant on September 11, 1996, in De Witt County. He appeared in the circuit court of Champaign County on September 12, 1996, and was advised of the sentence imposed in his absence. At that time, the trial court admonished defendant of his right to appeal as required by Rule 605(b). He was advised by the court that a motion to withdraw or vacate his guilty plea or a motion to reconsider the sentence would have had to have been filed within 30 days of the imposition of the sentence on May 30, 1996. Defense counsel suggested that because the Rule 605(b) admonishments had not been given at the May 30, 1996, sentencing hearing, the 30-day time limit in which a motion to reconsider could be filed would begin to run as of September 12, 1996.

A motion to reconsider the sentence was filed on October 10, 1996, within 30 days of defendant's appearance but several months after the sentencing hearing. That motion was denied as untimely by the circuit court of Champaign County on December 12, 1996, finding that defendant had also waived his right to direct appeal by failing to make a timely motion for reconsideration. The court advised defendant his only remaining remedy was provided by the statute on proceedings in absentia, which allows him to obtain a new sentencing hearing upon proof that his failure to appear was not his fault and was due to circumstances beyond his control. 725 ILCS 5/115-4.1(e) (West 1992). This appeal followed.

I. ADMONISHMENT UNDER RULE 605(B)

Rule 605(b) requires that "at the time of imposing sentence, the trial court shall advise the defendant" of his appeal rights. 145 Ill. 2d R. 605(b). In this case, the sentence of 364 days was imposed on May 30, 1996, at a hearing that the defendant did not attend. At his September court appearance, the sentence was reimposed, according to defendant's brief, or defendant was informed of his sentence, according to the State's brief. Defense counsel suggested at that time that the 30-day period for motions under Rule 604(d) (145 Ill. 2d R. 604(d)) would begin to run at the time the Rule 605(b) admonitions were given, rather than at the time the sentence was initially imposed.

If this argument is correct, the May 30, 1996, sentencing proceeding accomplished nothing--the sentence imposed at that time, in defendant's absence, could not have been enforced unless it were to be "reimposed" and admonitions given to the defendant personally. Under this reading of Rule 605(b), the statute that allows sentencing in absentia (725 ILCS 5/115-4.1(a) (West 1992)) is rendered meaningless.

We find that sentence was imposed in absentia on May 30, 1996, pursuant to statute and, thus, the relevant date for purposes of timeliness of the motion to reconsider is May 30, 1996.

This court has held that failure to properly admonish a defendant under Rule 605(b) is error. People v. Horton, 250 Ill. App. 3d 944, 954, 620 N.E.2d 437, 444, 189 Ill. Dec. 469 (1993). In that case, however, the defendant was present in court for sentencing. The dispositive issue is, therefore, whether Rule 605(b) requires a trial court to advise an absent defendant of his appeal rights. If the admonishment must be given, even in the absence of the defendant, then defendant's argument has merit. If not, appeal was waived by defendant's failure to file his motion to reconsider the sentence within 30 days of May 30, 1996, because Rule ...


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