Appeal from the Circuit Court of Cook County. No. 00 CR 8815 Honorable Thomas M. Davy, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice Hartigan
In March 2001, defendant LeRoy Priest pled guilty to possession of a controlled substance with intent to deliver in exchange for a four-year sentence in the Illinois Department of Corrections pursuant to a plea agreement. In April 2001, when defendant failed to appear at his sentencing hearing, the trial court sentenced him in absentia to 15 years' imprisonment. In September 2001, defendant filed a motion for a new sentencing hearing under section 115-4.1(e) of the Code of Criminal Procedure of 1963 (Criminal Code)(725 ILCS 5/115-4.1(e) (West 2000)) which the trial court heard and denied in October 2001.
Defendant appeals, arguing that the trial court (1) violated Supreme Court Rule 402(d)(2) (177 Ill. 2d R. 402(d)(2)) when it sentenced defendant in absentia to 15 years' imprisonment without affording defendant the opportunity to affirm or withdraw his plea and (2) abused its discretion when it denied defendant's motion for a new sentencing hearing when defendant presented evidence establishing that his absence at the April 2001 sentencing hearing was not wilful and where the court considered improper evidence in making its ruling. We affirm.
In March 2000, defendant was charged by information with two counts of possession of a controlled substance with intent to deliver and one count of possession of a controlled substance.
On March 8, 2001, defendant appeared before the trial court to plead guilty to one count of possession of a controlled substance with intent to deliver following a Rule 402 conference. The court admonished defendant of the nature of the charge and the applicable sentencing range of four to fifteen years' imprisonment. The court further informed defendant that by pleading guilty he had waived his right to a jury trial, his right against self-incrimination, and his right to present and cross-examine witnesses. Defendant answered that he understood the charge, the possible sentences, and the rights he was waiving. He signed a jury waiver and a waiver of his right to a presentence investigation and report.
Prior to the entry of defendant's guilty plea, the trial court agreed to postpone sentencing until April 12, 2001, to permit defendant time to care for his ill mother and get his affairs in order. The court stated that it agreed to sentence defendant to four years' imprisonment. However, the court warned defendant that if he failed to appear at his sentencing hearing, the court would sentence him in his absence, to 15 years in prison. Following this admonishment, the court entered defendant's plea of guilty.
On April 12, 2001, defendant failed to appear at his sentencing hearing, and the trial court continued the case until April 23, 2001. Defendant failed to appear on that date as well. At the hearing, defendant's attorney informed the court that he had contacted defendant's family, but was unable to locate defendant. Consequently, the court sentenced defendant in absentia to 15 years in prison.
On May 10, 2001, defendant's attorney filed two motions on defendant's behalf while defendant was still missing. His attorney filed a motion to withdraw defendant's guilty plea, contending that defendant did not understand (1) the nature of the charge against him, (2) the consequences of entering his plea, and (3) that the court was not bound by the plea agreement. The second motion filed by defendant's attorney moved to reconsider the sentence, claiming that the sentence was excessive based on the facts of this case and the mitigating factors of "his lack of prior criminal history, his mental and physical status, and his general upbringing and background." However, according to the record, the court never ruled on either motion.
On May 18, 2001, judgment was entered against the bond. On September 17, 2001, defendant was taken into custody. On September 24, 2001, defendant filed a motion for a new sentencing hearing pursuant to section 115-4.1(e) of the Criminal Code, which allows a defendant convicted or sentenced in absentia to be granted a new trial or sentencing hearing if defendant can establish that his failure to appear was both without his fault and due to circumstances beyond his control. 724 ILCS 5/115-4.1(e) (West 2000). In his motion, defendant admitted that the trial court admonished him that he would be sentenced to 15 years in prison if he failed to appear. Defendant claimed that he failed to appear and to contact his attorney or the court because he was the sole caretaker for his ill mother and sister.
On October 11, 2001, the trial court conducted a hearing on defendant's motion. Defendant did not testify, but defendant's mother and sister testified. Defendant's mother, Georgia Priest, testified that in mid-April her heart condition flared up and left her bedridden. She stated that defendant was the only person to take care of her and the household. She also testified that her daughter and defendant's sister, Mildred Berry, was also bedridden at that time, because of her diabetes. On cross-examination, Georgia testified that she began to feel better in June. She also stated that she has a sister and a niece that live in the Chicago area and that defendant has a 23-year-old son.
Defendant's sister, Mildred, testified that she was bedridden for about two months before she eventually went to the hospital, where it was discovered she had kidney failure. She stated that she was in the hospital for two months. She testified that defendant took care of her prior to her hospital admission because no one else was available to do so. Mildred stated that she is now undergoing dialysis and that defendant's son came to Chicago from Mississippi to take care of her. On cross-examination, she admitted that she did not know who asked her nephew to come to Chicago.
Following this testimony, the trial court denied defendant's motion for a new sentencing hearing. In its ruling, the court noted that defendant not only failed to appear, but he failed to make any attempt to contact the court or his attorney when his family situation improved. The court found that defendant wilfully ignored his promise to appear at his sentencing hearing. Finally, the court observed that the 30-day period for moving to withdraw his guilty plea or to ...