Appeal from the Circuit Court of Cook County. No. 97 CR 24150 The Honorable James B.Linn, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cohen
Petitioner Evelyn Miranda appeals from an order of the circuit court of Cook County denying her petition for post-conviction relief. On appeal, petitioner argues that her conviction for violation of bail bond (720 ILCS 5/32-10(a) (West 2000)) (bail jumping) should be reversed because the trial court did not forfeit her bond, a necessary precondition to the offense of bail jumping. Petitioner further argues that she was denied the effective assistance of counsel at her arraignment on the bail jumping charge. Specifically, petitioner asserts that although trial counsel was present at the hearing where the trial court refused to declare petitioner's bond forfeited, trial counsel failed to move to dismiss the indictment and advised petitioner to plead guilty to the bail jumping offense. For the reasons set forth below, we reverse and vacate petitioner's conviction and sentence.
Petitioner was indicted in the circuit court of Cook County on a single count of possession of a controlled substance (cocaine) with intent to deliver. 720 ILCS 570/401(a)(2)(D) (West 1992). Petitioner posted an indeterminate monetary bond and was released from jail. Petitioner waived her right to a jury trial and the trial court scheduled a bench trial for July 14, 1997. On July 14, 1997, petitioner failed to appear in court and the court held a bench trial in abstentia. The trial court found petitioner guilty and the matter was continued to July 30, 1997, for post-trial motions and sentencing. On July 30, 1997, with petitioner's whereabouts still unknown, the court sentenced petitioner in abstentia to 24 years' imprisonment.
At the conclusion of the bench trial, the trial judge stated the following:
"Warrant to issue. I will also indicate that the warrant, I am not ordering a bond forfeiture because my reading of the Statute indicates the money and bond might be something that can be made for attorney's fees. * * * It's a no bail warrant. * * * No bond forfeiture warrant to issue."
On September 5, 1997, petitioner was apprehended in the vicinity of Fullerton and Clybourn in Chicago. At the time of her arrest petitioner was in possession of a driver's license, birth certificate, and credit cards all in the fictitious name of Janette April Mosolia. On September 10, 1997, petitioner was charged by indictment with bail jumping. 720 ILCS 5/32-10(a) (West 2000). Petitioner's arraignment took place on October 6, 1997. The same attorney who had represented petitioner on the cocaine charge represented her on the bail jumping charge. After being admonished by the trial judge, petitioner entered a negotiated plea of guilty and was sentenced to six years' imprisonment to run consecutively with the 24-year sentence she received for the cocaine conviction.
On October 17, 1997, petitioner filed a direct appeal from her conviction and sentence on the cocaine charge only. No direct appeal was taken from the conviction and sentence for bail jumping. This court affirmed petitioner's conviction and sentence for possession of cocaine with intent to deliver. People v. Miranda, No. 97 CR 24150 (1998) (unpublished order under Supreme Court Rule 23). Petitioner then filed a post-conviction petition. Because the police officer who was the affiant for the search warrant had been indicted in federal court for corruption and theft of narcotics, the trial court vacated the 24-year sentence for the narcotics offense. The State chose not to reprosecute petitioner for that offense.
On August 3, 1999, petitioner, who had retained new counsel, filed a second post-conviction petition. The petition alleged that there was no factual basis either to indict her or to support a guilty plea to the offense of bail jumping. According to petitioner, bond forfeiture was a necessary precondition to the offense of bail jumping and because the trial court specifically stated that it had not forfeited her bond, no bail jumping offense had occurred. Petitioner also alleged ineffective assistance of trial counsel as trial counsel had been present at the hearing where the court refused to declare petitioner's bond forfeit, yet advised petitioner to plead guilty to the offense of bail jumping.
This second post-conviction petition was argued before the same judge who had presided over the cocaine trial and petitioner's arraignment for bail jumping. After hearing argument from both parties, the trial judge denied the petition. He reasoned that although he had stated "no bond forfeiture," for all intents and purposes he had ordered a forfeiture. The judge explained:
"When she [petitioner] jumped bond, I was conscious of the fact that her lawyer * * * had done a tremendous amount of work in preparation and had spent numerous hours working up this case, and preparing the case, and presenting the case.
I was concerned about his fee, and I wanted to make sure that his fee would be protected * * * and I thought that his claim in the interest of justice was greater than the County's claim to her [petitioner's] money; so the Court said, I am not going to forfeit the bond. I want the bond to be available to [petitioner's attorney] for attorney fees.
For all practical purposes, I will let the bond be forfeited; that she [petitioner] had violated the terms of her bond and would no longer be available to her. But I did make a distinction between the bond being -- going to the County or go [sic] to the attorney. And that is what I meant. I never suggested that there was any reason that her bond not be forfeited, just ...