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People v. Ramirez

January 21, 2005

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
MARCO RAMIREZ, APPELLEE.



The opinion of the court was delivered by: Justice Thomas

Docket No. 97620-Agenda 4-November 2004.

Defendant, Marco Ramirez, was charged with unlawful possession of cocaine with the intent to deliver (720 ILCS 570/401(a)(2)(B) (West 1992)). After being tried in absentia by a jury, defendant was convicted and sentenced to 21 years in prison. He later moved for a new trial, arguing that the trial in absentia was held in violation of the notice requirement set forth in section 115-4.1(a) of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-4.1(a) (West 1992)). The circuit court of Boone County denied the motion, and the appellate court reversed and remanded for a new trial (344 Ill. App. 3d 296). We allowed the State's petition for leave to appeal. 177 Ill. 2d R. 315(a).

[9]     BACKGROUND

On March 28, 1994, defendant was charged with unlawful possession of cocaine with the intent to deliver (720 ILCS 570/401(a)(2)(B) (West 1992)). He appeared in court the next day, and the trial court advised him that he could be tried in absentia if he failed to appear for future court dates. A trial date was set for January 3, 1995. The State later moved for a continuance, and that motion was heard on November 18, 1994, with defendant present in open court. At the hearing, defense counsel stated that, although he had no objection to the State's request for a continuance, he would not be available for trial until after February 1995. According to the report of proceedings, the trial court responded, "Set it for March, then, but no continuances. So it will be a year old by then, and I would like to get it resolved." The trial court then set the case for status on February 24, 1995.

Defendant failed to appear for the February 24, 1995, status hearing, as well as for a hearing held on February 28, 1995. When defendant failed to appear for trial on March 6, 1995, the trial court set the case for trial in absentia on April 3, 1995. On April 3, 1995, defendant again failed to appear. Although the State answered ready for trial, defense counsel argued that the trial in absentia could not validly proceed because defendant was not sent notice of the April 3, 1995, trial date by certified mail, as specifically required by section 115-4.1(a). Instead, notice was sent to defendant by regular mail. The trial court rejected defense counsel's argument and commenced a jury trial in absentia. Defendant was convicted and sentenced to 21 years in prison.

Defendant remained at large until June 2002. Following his arrest, defendant moved for a new trial on the grounds that he had not been sent notice of the April 3, 1995, trial date by certified mail, as required by section 115-4.1(a). The trial court denied the motion, and defendant appealed. The appellate court reversed and remanded for a new trial, holding that "[t]he trial court erred in conducting a trial in absentia without notice by certified mail as required by section 115-4.1(a)." 344 Ill. App. 3d at 301. We allowed the State's petition for leave to appeal. 177 Ill. 2d R. 315(a).

DISCUSSION

The question before us is whether strict compliance with the certified mailing provision of section 115-4.1(a) is a mandatory prerequisite to conducting a trial in absentia, where the defendant was not personally present in open court when the trial date was set. This is a question of statutory construction, and the rules for addressing such questions are familiar. The fundamental rule of statutory construction is to ascertain and give effect to the legislature's intent. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 503-04 (2000). The best indication of legislative intent is the statutory language, given its plain and ordinary meaning. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 479 (1994). Where the language is clear and unambiguous, we will apply the statute without resort to further aids of statutory construction. Davis v. Toshiba Machine Co., America, 186 Ill. 2d 181, 184-85 (1999). The construction of a statute is a question of law that is reviewed de novo. In re Estate of Dierkes, 191 Ill. 2d 326, 330 (2000).

At the time of defendant's trial, section 115-4.1(a) provided as follows:

"When a defendant after arrest and an initial court appearance for a non-capital felony, fails to appear for trial, at the request of the State and after the State has affirmatively proven through substantial evidence that the defendant is willfully avoiding trial, the court may commence trial in the absence of the defendant. *** The court may set the case for a trial which may be conducted under this Section despite the failure of the defendant to appear at the hearing at which the trial date is set. When such trial date is set the clerk shall send to the defendant, by certified mail at his last known address indicated on his bond slip, notice of the new date which has been set for trial. Such notification shall be required when the defendant was not personally present in open court at the time when the case was set for trial." 725 ILCS 5/115-4.1(a) (West 1992).

Over the years, a conflict has developed in the appellate court over whether strict compliance with the certified mailing provision of this section is a mandatory prerequisite to commencing a trial in absentia. One view is represented by the Third District's opinion in People v. Clark, 96 Ill. App. 3d 491 (1981). In Clark, the defendant was tried in absentia, convicted, and sentenced to two years in prison. On appeal, the defendant challenged her conviction in part on the grounds that she was neither present in open court when the trial date was set nor sent notice of that date by certified mail, as required by 115-4.1(a). In affirming, the court held that lack of compliance with the certified mailing requirement was harmless error because defense counsel was present in open court when the trial date was set. Clark, 96 Ill. App. 3d at 496. According to Clark, "such knowledge on the part of the attorney is deemed constructively to be imparted to the defendant." Clark, 96 Ill. App. 3d at 496. See also People Haywood, 183 Ill. App. 3d 212, 213-14 (1989); People v. Voight, 178 Ill. App. 3d 933, 936 (1989).

The opposite view is represented by the Fourth District's decision in People v. Watson, 109 Ill. App. 3d 882 (1982), which the appellate court below specifically endorsed. 344 Ill. App. 3d at 300-01. In Watson, the defendant was present in open court when his case was "set for jury trial on the January jury call." Although the defendant was later sent two notices of the specific trial date (January 11, 1982), those notices were sent by regular mail and nothing in the record confirmed that he received them. When the defendant failed to appear for the January 11 trial, he was tried and convicted in absentia. In reversing, the appellate court first held that the defendant was entitled to notice of the January 11, 1982, trial date by certified mail because he was not present in open court when that date was set. According to the court, "[t]he trial court's statement at Watson's arraignment that the case was `set for jury trial on the January jury call' was insufficient to set the date in open court in defendant's presence." Watson, 109 Ill. App. 3d at 882-83. The court then rejected Clark outright and held that defense counsel's knowledge of the trial date could not be constructively imparted to the defendant. According to the court, "Clark ignores the fact that section 115-4.1(a) requires notice by certified mail and emasculates the clear statutory protections." Watson, 109 Ill. App. 3d at 883. The court further explained that the "exception" created in Clark completely swallows the rule:

"[T]he only way defendant can be said to have known of his trial date and the consequences of his failure to appear is if the knowledge of his counsel is imputed to him. We decline to do so because such a holding would amount to ruling that trial in absentia is proper whenever defendant is represented by counsel." Watson, 109 Ill. App. 3d at 883.

Accordingly, the court declined to follow Clark, reversed defendant's convictions, and remanded for a new trial. ...


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