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The People of the State of Illinois v. Ezekiel Phillips

March 24, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
APPELLANT,
v.
EZEKIEL PHILLIPS,
APPELLEE.



The opinion of the court was delivered by: Justice Theis

JUSTICE THEIS delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman and Burke concurred in the judgment and opinion.

Justice Thomas dissented, with opinion, joined by Justices Garman and Karmeier.

OPINION

This case is before us for the second time. At issue in this appeal is whether defendant waived his right to receive admonishment under section 113--4(e) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113--4(e) (West 2000)) based upon a signed bail bond slip, which warned him on the back of the slip of the possibility that he could be tried or sentenced in absentia if he did not appear in court as required. The appellate court vacated defendant's sentence, and remanded to the trial court for a new sentencing hearing, after concluding that the requirements of section 113--4(e) had not been met. 394 Ill. App. 3d 808. For the reasons set forth below, we affirm the judgment of the appellate court.

BACKGROUND

Defendant, Ezekiel Phillips, was charged by indictment with attempted first degree murder (720 ILCS 5/8--4, 9--1 (West 2000)), armed violence (720 ILCS 5/33A--2(a) (West 2000)), and three counts of aggravated battery (720 ILCS 5/12--4(a), (b)(1), (b)(8) (West 2000)). Defendant was arraigned on July 31, 2000, and subsequently posted bond on May 3, 2001. The following notice appears, in pertinent part, on the back of the bail bond slip that was executed on the day of defendant's release on bond:

"FELONY DEFENDANTS: You are hereby advised that if at any time prior to the final disposition of the charge you escape from custody, or are released on bond and you fail to appear in court when required by the court, your failure to appear would constitute a waiver of your rights to confront the witnesses against you and trial could proceed in your absence. If found guilty you could be sentenced in your absence."

On the front side of the slip, defendant's signature appears under the following language:

"STATEMENT OF DEFENDANT. I understand and accept the terms and conditions set forth below and on the reverse side of this bail bond. Further, I hereby certify that I understand the consequences of failure to appear for trial as required."

Also on the front side of the bond slip, at the bottom, is the signature of a deputy clerk of the court under the representation that "[t]he above conditions and certification of defendant have been taken, entered into and acknowledged before me. Defendant is hereby released from custody."

Defendant was present in court for his arraignment and on other dates prior to when he posted bond. Nothing in the record indicates that the trial court provided him with section 113--4(e) admonishment at the time of his arraignment, or on any court date thereafter. Following a jury trial in the circuit court of Cook County, defendant was found not guilty of attempted first degree murder, but guilty of armed violence and aggravated battery. Defendant was present during the entire course of his jury trial, but he was not present when the verdicts were returned. Following the denial of a posttrial motion for a new trial, which was presented by defense counsel in defendant's absence, defendant was sentenced in absentia to life imprisonment for the armed violence conviction and five years' imprisonment for each of the three aggravated battery convictions, to merge and run concurrently.

The appellate court affirmed defendant's convictions and remanded the cause to the trial court for a new sentencing hearing because the record did not reflect that defendant had been admonished by the trial judge as required by section 113--4(e) of the Code. People v. Phillips, 371 Ill. App. 3d 948 (2007). This court granted defendant's petition for leave to appeal on the issue of whether a trial court may defer ruling on a motion in limine to exclude a defendant's prior convictions as impeachment. We consolidated defendant's appeal with another case raising the same issue. See People v. Patrick, 233 Ill. 2d 62 (2009). While that matter was pending before this court, the State located the original bail bond slip executed on May 3, 2001. The State was granted leave by this court to supplement the record with the bond slip and the document formed the basis for the State's request for cross-relief. This court affirmed defendant's convictions. We held that by not testifying defendant failed to preserve his right of appellate review of the issue of whether the trial court erred by refusing to rule, until after he testified, on his motion in limine to exclude evidence of his prior convictions for impeachment purposes. Patrick, 233 Ill. 2d at 79. We remanded the cause to the appellate court for the sole purpose of reexamining the sentencing issue in light of the bail bond slip. Patrick, 233 Ill. 2d at 80.

The appellate court again vacated defendant's sentence and remanded the matter to the trial court for a new sentencing hearing. The appellate court concluded that, notwithstanding the notice set forth in defendant's bail bond slip, the requirements of section 113--4(e) of the Code had not been met because the trial court had not admonished defendant, orally or otherwise, that his failure to appear in court as required could result in him being sentenced in his absence. 394 Ill. ...


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