Appeal from the Circuit Court of Cook County. No. 96 CR 28407 Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Hoffman
PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Hall and Rochford concurred in the judgment and opinion.
¶ 1 The defendant, Israel Cobian, appeals from his jury trial conviction and subsequent sentence for first-degree murder. On appeal, he argues that his conviction should be reversed because (1) the trial court erred in trying him in absentia without proper admonishments; (2) the trial court failed to inquire into a possible conflict between him and his counsel; and (3) his counsel rendered ineffective assistance by failing to file a motion for a new trial on the basis that the defendant's absence from trial was not his fault. For the reasons that follow, we affirm the defendant's original conviction. However, we conclude that the defendant presented a request for a new trial and that the circuit court failed to hold a statutorily-required hearing on the request. We therefore vacate the circuit court's rejection of his request for a new trial and remand with instructions that the circuit court conduct a hearing on that issue.
¶ 2 On October 28, 1996, the defendant and two other men were arraigned in case number 96- 26150. The underlying indictments do not appear in the record on appeal. The men waived formal reading of the charges, which were described in open court as "first degree murder, et cetera." During the arraignment, the trial court judge stated, "Gentlemen, I want to advise each of you if at some future date you fail to appear here we can go ahead without you. You'd be giving up your right to confront the witnesses against you. Do you understand that?" The transcript states that all three defendants indicated that they understood. The trial judge later noted his understanding that a fourth defendant had been charged in the case and that a new indictment would be returned on November 6. The record on appeal includes that new indictment, which charged the defendant and three others with first-degree murder in case number 96-28407. The new indictment was tendered to the defense in open court on November 6, but the transcript of that proceeding does not indicate that any new admonishments were given to the defendant.
¶ 3 Although the defendant made court appearances before his trial began, he did not appear at the time of his trial. After a hearing to determine whether the defendant's absence was willful, the trial court allowed the defendant's trial to proceed without him. At the trial, the evidence showed generally that the defendant helped a cohort obtain a gun that was used in a gang-motivated murder. After the defendant was found guilty in absentia, he was sentenced to 50 years' imprisonment. A notice of appeal was filed in the case, but the appeal was dismissed in 1999.
¶ 4 In 2004, the defendant appeared in court. At an initial appearance, the following exchange took place between the defendant and the trial court:
"THE COURT: You have a lawyer to help you with this?
THE DEFENDANT: Jack Rodgon. [Rodgon was the attorney who represented the defendant during his trial in absentia.]
THE DEFENDANT: Yes. Your Honor, I probably need another one, if I can get an appeal or something.
THE COURT: What happened?
THE DEFENDANT: He told me to leave.
THE COURT: You are kidding. He's got a marijuana case, too, I believe.
This is what I am going to do. Warrants are executed. This man was tried and sentence[d] in absentia as to this marijuana case and you are unadjudicated. He was arraigned."
The court then continued the case so that Rodgon could appear on the defendant's behalf.
¶ 5 At a January 2005 hearing, the trial court noted that the defendant had filed a "motion for new trial," and his attorney responded that the defense was "alleging a failure to inform of trial in absentia" and had gotten "some of the transcripts. The cause was thereafter continued. At a March 2005 hearing, Rodgon noted that he had filed a motion for a new trial based on "[n]o warnings," and the cause was again continued. No motion for a new trial appears in the record on appeal.
¶ 6 At the September 2005 hearing on the defendant's motion for a new trial, the parties disputed whether the defendant's trial in absentia admonishments were sufficient, both because the admonishments the defendant received were incomplete and because he did not receive admonishments after he was re-indicted. During argument, Rodgon mentioned that the defendant was not present at trial, and the following exchange ensued:
MR. RODGON: Because he wasn't --
THE DEFENDANT: I was running for my life.
MR. RODGON: If you want to inquire as to that --
THE COURT: I'm asking you. You're asking for an extraordinary remedy here-- MR. RODGON: No, I'm not. I'm ...