Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois Nos. 97--CF--5224 & 97--CF--5743 Honorable Herman S. Haase, Judge Presiding
The opinion of the court was delivered by: Presiding Justice Homer
Pursuant to a partially negotiated plea agreement, defendant Tierrion D. Caruth pled guilty to home invasion (720 ILCS 5/12--11(a)(2) (West 1996)) in case 97--CF--5224. He was subsequently tried by a jury and found guilty of residential burglary and aggravated criminal sexual assault (720 ILCS 5/19--3, 12--14(a)(1) (West 1996)) in case 97--CF--5743. Following a joint sentencing hearing, defendant was sentenced to consecutive prison terms of 14, 20 and 25 years, respectively. The issues on appeal are (1) whether defendant was deprived of due process by the court's use of closed circuit television at arraignment, (2) whether the trial court mistakenly believed that consecutive sentences were statutorily mandated for all three offenses, and (3) whether the consecutive sentence imposed for home invasion violated the rule of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For reasons that follow, we affirm defendant's convictions and sentences.
FACTS AND PROCEDURAL CONTEXT
The record shows that the defendant appeared without objection by closed circuit television for his arraignment in case 97--CF--5224 on October 22, 1997. He was likewise arraigned in case 97--CF--5743 on October 31, 1997. In both cases, appointed counsel entered pleas of not guilty and waived a formal reading of the indictment.
Defendant subsequently pled guilty in open court to one count of home invasion in case 97--CF--5224 in exchange for the State's agreement to dismiss three related counts in that case. The factual basis established that on September 20, 1997, defendant broke into an apartment occupied by Shelly Wruk. He tied Wruk's wrists and ankles together with a telephone extension cord and stole electronic equipment, credit cards and the contents of her wallet. Wruk suffered bruises to her wrists and ankles from being bound. The court admonished defendant and accepted his plea.
On June 8, 1999, case 97--CF--5743 proceeded to a jury trial. The evidence established that defendant broke into the home of Jacqueline Rizzo on August 27, 1997. He stabbed her in the hand with a knife and forced her to perform acts of fellatio and intercourse. He then tied Rizzo's wrists and ankles together and proceeded to take jewelry, money, electronic equipment, video tapes and other items from her home. Rizzo reported the incident to the police after defendant left, and a rape kit was prepared at the hospital. DNA from semen on a vaginal swab matched defendant's DNA. Based on the evidence, the jury found defendant guilty of aggravated criminal sexual assault and residential burglary, as charged.
The two cases then proceeded to a joint sentencing hearing. The State urged the court to impose consecutive sentences for each of the three offenses, and defense counsel argued for concurrent sentences. The court imposed consecutive sentences totaling 59 years. Defendant's posttrial and post-sentencing motions were denied, and he appeals.
ARRAIGNMENT VIA CLOSED CIRCUIT TELEVISION
Defendant first argues that his constitutional right to be present in person at every critical stage of his trial was violated by the court's use of closed circuit television during the proceedings to arraign him. In the alternative, he contends that the court erred by not complying with the statute requiring it to promulgate local rules for the use of closed circuit television. See 725 ILCS 5/106D--1 (West 1998).
It is well settled that a defendant in a felony case has a right to be present at his arraignment. People v. Lindsey, 309 Ill. App. 3d 1031, 723 N.E.2d 841 (2000), appeal allowed, 189 Ill. 2d 670 (2000). However, the right to be present may be waived. Lindsey, 309 Ill. App. 3d 1031, 723 N.E.2d 841. Where a defendant appears by closed circuit television without objection, he is deemed to have consented to the procedure and thereby waives the issue on review unless plain error is shown. Lindsey, 309 Ill. App. 3d 1031, 723 N.E.2d 841.
A procedural defect is plain error if the evidence of guilt was closely balanced or if the defendant was deprived of a substantial right. People v. Keene, 169 Ill. 2d 1, 660 N.E.2d 901 (1995). A substantial right has been denied if the error affected the proceedings to such a degree that we cannot confidently state that the defendant's trial was fundamentally fair. Keene, 169 Ill. 2d 1, 660 N.E.2d 901. In other words, this court will act on error that is of such gravity that it threatens the very integrity of the judicial process. People v. Blue, 189 Ill. 2d 99, 724 N.E.2d 920 (2000).
A defendant's constitutional right to appear in person is not a substantial right in itself. People v. Bean, 137 Ill. 2d 65, 560 N.E.2d 258 (1990). Rather, it is a means of securing substantial due process rights that may be affected by the proceeding. Bean, 137 Ill. 2d 65, 560 N.E.2d 258 (1990). A defendant is constitutionally guaranteed the right to be present whenever his presence has a reasonably substantial relation to the fulness of his opportunity to defend against the charge. People v. Lofton, 194 Ill. 2d 40, 740 N.E.2d 782 (2000). Thus, at proceedings implicating the ultimate decision of guilt or innocence, a defendant's appearance solely by closed circuit television may be considered plain error, regardless of the strength of the State's evidence. See People v. Guttendorf, 309 Ill. App. 3d 1044, 723 N.E.2d 838 (2000).
In this case, defendant did not object to the use of the closed circuit television procedure. Further, the record does not support defendant's claim that the use of the closed circuit procedure was plain error. Defendant does not argue that the evidence of guilt was closely balanced, and there is no indication that defendant did not understand the charges and penalties he faced. The arraignment proceedings were extremely brief, consisting only of counsel's entry of not-guilty pleas and waivers of a formal reading of the indictments. Under the circumstances, we cannot say that the closed circuit procedure prejudiced defendant or impaired any substantial rights.
We also reject defendant's argument that the trial court committed reversible error by failing to comply with section 106D--1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/106D--1 (West 1998)). As aforesaid, defendant did not preserve the issue by objecting in the trial court. The evidence was not closely balanced; and, without any basis upon which to find that the fairness of proceedings to arraign defendant was impaired, ...