The opinion of the court was delivered by: Justice Colwell
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Appeal from the Circuit Court of Stephenson County.
Honorable Tomas M. Magdich, Judge, Presiding.
Defendant, Anthony Ehlers, was convicted of first degree murder, sentenced to death, and imprisoned in Menard Correctional Center (Menard). Defendant moved to vacate his sentence and obtain a new sentencing hearing. He sought an order of habeas corpus ad testificandum (see 735 ILCS 5/10--135, 10--136 (West 1996)) for the hearing on his motion to vacate. The circuit court granted the request, ordering intervenor, the Department of Corrections (DOC), to transport defendant to Lee County the day before the hearing and to deliver him to the custody of the Lee County sheriff pending his testimony. The circuit court denied the DOC's motion to quash the order, and the DOC appeals (see 166 Ill. 2d R. 307(a)(1); People v. Collins, 249 Ill. App. 3d 924, 926-27 (1993)).
On appeal, the DOC argues that the court exceeded its authority in requiring the DOC to transfer defendant to the county sheriff the day before the hearing. The DOC maintains that, although the court could require the DOC to produce defendant for the hearing, it could not order the DOC to surrender custody for the convenience of defendant's counsel.
We agree that the circuit court could not order the DOC to transfer custody of defendant. Therefore, we modify the circuit court's order to direct the DOC to produce defendant for the hearing but to retain custody of him throughout the proceedings.
On September 13, 1996, a Stephenson County jury convicted defendant of first degree murder and armed robbery. Later, the circuit court sentenced defendant to death for murder and 30 years' imprisonment for armed robbery. On March 8, 1998, the court vacated the sentences and granted defendant a new sentencing hearing. This interlocutory appeal centers on the events preceding the order granting defendant a new sentencing hearing.
On October 20, 1997, the circuit court entered an "Order of Habeas Corpus" directing the warden of Menard to transport defendant to the Lee County jail in Dixon and to deliver defendant to the Lee County sheriff's custody on December 1, 1997; directly after defendant's court appearance on December 4, 1997, Lee County would return defendant to the warden's custody. After continuing the hearing to January 23, 1998, at 10 a.m., the court ordered that defendant would be "returned" to Lee County on January 22, 1998, at 1 p.m. "to confer with his counsel."
The DOC moved to quash the order, asserting that the court could order an inmate produced in court for a hearing but could not order the inmate transferred to a county facility "for the convenience of his attorney." An assistant warden at Menard submitted an affidavit stating in part that the nearest suitable State facility to house defendant after he was taken from Menard and before he testified was in Pontiac; transporting defendant between there and Lee County would increase the danger to the general public and the cost to the State.
Defendant responded that section 10--135 authorized the court to require the DOC to produce defendant to testify at the hearing and that, given the distance involved, fairness and practicality required that he be brought to court the day before he testified.
The circuit court denied the motion to quash. The court explained that, in giving defendant time to meet with his counsel before the hearing, it had tried to serve the interest of all concerned in a prompt and fair hearing. The DOC had suggested there was no need to bring defendant to Lee County, as his attorney could visit him at Menard. However, this procedure would greatly increase the expense to Stephenson County, which paid defendant's counsel. Also, the DOC's security concerns were unpersuasive; it had raised no such issues when defendant was confined without incident in the Lee County jail for four days in August 1997.
On appeal, the DOC asserts that the trial court exceeded its authority under section 10--135 in ordering defendant transferred to a county jail 21 hours before the actual hearing. The DOC urges that, because an order of habeas corpus ad testificandum serves the narrow purpose of ensuring a defendant's presence at a hearing, the court could not order defendant transferred well in advance of the hearing solely for the convenience of his counsel and the county paying counsel's expenses.
Defendant has not filed a brief, but the record is short and we may decide the issues without the benefit of an appellee's brief. See First Capitol Mortgage Corp. v. Talandis ...