*1 ILLINOIS, THE PEOPLE OF THE Plaintiff-Appellee, STATE OF v. CEDRIC DUPREE, JR., Defendant-Appellant. F. (2nd Division)
First District No. 1 - 98-3931 Opinion May filed *2 GORDON,J., specially concurring. J.,
COUSINS, dissenting. (Eileen Pahl, Defender, Chicago Public Fry, A. of T. Assistant Rita Public Defender, counsel), appellant. (Renee Goldfarb, Devine, Attorney, Chicago Kenneth Richard A. State’s Cox, Attorneys, of McCurry, Blakey State’s
T. and Katherine Assistant counsel), for People. opinion of the court:
JUSTICE CAHILL delivered the
amay
this
this:
The ultimate
we reach in
case is
issue
tried in
absentia obtain
review his conviction and sentence under
(the
Code of Criminal Procedure of 1963
Code) (725
(West 2000))
though
even
he has failed
to establish that his absence from trial was without
fault
due to
beyond
circumstances
his control?
We conclude the answer
“yes,”
if
but
the record on appeal establishes
the trial
conducted
the defendant’s
principles
absence violated
of fundamen
tal
fairness and due
prejudice
adopted
the cause and
test
by our supreme
Jackson,
court.
generally People
See
v.
Defendant was in February with theft jury was selected on June 1997. Defendant was told the trial judge required that he to appear in court when his case was on trial. Defendant also told that could be tried and sentenced *3 in his absence should he jury choose not to attend. The trial on began appear. June 19. Defendant failed to All attempts to find or contact The defendant failed. trial court then found that defendant’s absence 4.1(a) was willful. Defendant in was tried absentia under section 115 — (725 4.1(a) (West 2000)). of the Code ILCS jury The returned a 5/115— 19,1997. guilty verdict on June The court then issued bond forfeiture 21, 1997, warrant July sentencing. and continued case until for posttrial motion filed argued on defendant’s behalf and denied on was July 21. appear. Defendant did not He was then sentenced in absentia years to 10 prison. Defendant never filed a notice from his conviction sentence. later,
Defendant was arrested 11 months on June He 1998. posttrial 8, 1998, filed a on September asking motion for new trial 4.1(e) or, alternatively, sentencing hearing new under section 115 — (West (725 4.1(e) 2000)). alleged of the Code ILCS Defendant that his was willful but that he being wrongfully not feared that his was The argued convicted. Defendant also sentence excessive. on posttrial hearing trial court denied motion after a defendant’s The court September said: well, from date of days the 30 beyond
“[Defendant] well only issue at post file trial motions. from which to in trial appear failure to juncture is the defendant’s this whether beyond his control. due to circumstances was you’re post do in this motion entitled appears trying It what might have trial motion issues that bootstrap post trial motion is timely manner. they had been filed in a been valid only he are this because Sentencing issues also not before Court his sentence. file motion to reconsider days within which to had validly those are not before this court. So your post trial motion issue which I will consider trial due to appear whether the defendant’s failure in the And I would submit that beyond circumstances his control. being appear he due fear allegation motion the did admitting willfully that he absented wrongfully He’s convicted. appear his indeed not due to circum- himself and failure to beyond stances his control.” September on 1998. The
Defendant filed notice 19, 1997, dating sought notice orders from June review of several through notice of based September 1998. Defendant’s (134 603) jurisdiction Supreme Court Rule 603 R. both (West 2000)). (725 of the Code 5/115 — 4.1(e) (g) read: Sections 115 — “(e) has been either When defendant who his absence appears convicted or sentenced or both convicted and sentenced sentencing court, granted be trial or new before the must new hearing appear failure to if the defendant can establish that his fault and due to circumstances court was both without his Attorney hearing on the control. A notice the State’s with sentencing hearing a new request for a new trial or any may At such any request granted. be held before must such may present evidence. hearing the defendant and the State both (e) paragraph for a new (g) A motion under defendant whose may sentencing hearing denied file a notice or new has been request for review notice also include a appeal therefrom. Such court.” 725 vacated the trial judgment and sentence not 2000). 4.1(e), (g) ILCS 5/115 — dismiss, defendant’s claim challenging a motion to The State filed jurisdiction. We took that section vests us *4 argues The State that section the motion with case. 115 — ap or, does not alternatively, that section unconstitutional 115 — of timely a notice The the absence of ply this case. State also notes 606). (134 Ill. 2d R. Court Rule 606 appeal Supreme under 516
The
argument suggests
State’s constitutional
that section 115—
4.1(g) supplants
the direct
requirements set out in Rule 606
jurisdiction
and creates
where none would otherwise exist.
The State
legislative
concludes that this
encroachment violates the
separation
powers
disagree.
of
doctrine. We
interplay
The
between Rule 606 and section
115 —
analyzed by
Partee,
our supreme
24,
court in
Ill.
2d
N.E.2d 460
The issue in Partee was
whether
defendant
timely
convicted in absentia could file a
direct
of his conviction
4.1(e)
without
filing
first
motion under section
to establish
115 —
Partee,
that his absence was not willful.
2d at 28. The
defendant in Partee was convicted and
sentenced
absentia.
timely
of appeal
Partee,
notice
filed
on the defendant’s behalf.
125 Ill. 2d
at 28. The State
for
jurisdiction.
moved to dismiss
lack of
4.1(e)
interpreted
State
Partee
section
motions as a
prerequisite
judgment
to an
argued that,
of
in absentia and
4.1(e)
prevailed
until
in a
hearing,
section
a convic
115 —
tion and sentence
are not final
appealable
absentia
under
(g). Partee,
rejected
subsection
at
28. Our
supreme
argument
this
and found no
in the
language
in absentia statute that
deprives
jurisdiction
court of
over an absent defendant’s
timely
of
Partee,
direct
his sentence and conviction.
125 Ill. 2d
at
In finding
30.
that a
conviction and sentence
absentia are im
mediately
appealable
606,
final and
under Rule
the Partee court noted
willfully
that even a
procedural
absent defendant “retains some of the
of
rights
See,
a present defendant.”
“more akin to collateral attack a final than it is procedural step judgment. to a in the direct of that In other words, a analogous motion is for action post-judgment relief section 2 — 1401 the Civil Practice 1401) (Ill. par. Law Rev. Stat. ch. action post-conviction under section 122 — 1 the Code Criminal relief (Ill. seq.)” ch. 122 — 1 par. Procedure Rev. Stat. et added.) Partee, (Emphasis *5 ripe does not affect appeal of a direct availability pendency
The or Partee, 125 relief. postjudgment postconviction a ness of claim 4.1(e) motion may hear a section at A trial court Ill. 2d 35. 115 — timely filed jurisdiction over court’s affecting without Partee, Ill. at 36. 125 2d judgment. in absentia direct of section interpretation that the State’s The court also noted Partee .1(e) dilemma.” in an “intolerable place 11 defendants would 5—4 who wishes to Partee, willfully Ill. at defendant 125 2d 31. absent for reasons challenge of his in the fairness absentia until he doing from so prevented unrelated to his absence would be 4.1(e) in he made the moved for a trial under section which new 125 allegation that his absence was willful. unwarranted Ill. 2d at 31. and the case difference between Partee
Despite procedural (the timely post- lawyer in Partee filed before us conscientious though even his client had judgment and notice motion vanished), our best to resolve the analysis guide court’s is supreme issues this case. here cre argument legislature
As in the State’s that the jurisdiction through improperly ated a which loophole implies 4.1(g) vested that a motion is a continua under section 115 — proceedings. tion of the in absentia But Partee makes clear that rights guarantees absent defendant retains the same constitutional defendant, including afforded a fair from present procedural trial free 4.1(g) defects. Section which an absent defendant is means may collaterally judgment attack an in absentia he believes is claim, no fundamentally Contrary legisla unfair. to the State’s there is given tive nature encroachment or conflict with Rule 606 the collateral 4.1(g) People Williams, App. of a 274 Ill. 3d motion. 655 470 reached a similar conclusion. But Wil presents with liams us another issue. in absen
The defendant Williams was convicted and sentenced Williams, tia. Ill. at The defendant filed motion App. 3d 794-95. nine judgment to vacate the absentia section 115— Williams, Ill. at years App. after he sentenced. 3d 795. was The denial af appealed. motion was denied and the defendant unpublished in an order but the court later allowed firmed Williams, at The Williams rehearing. App. 21AIll. 3d 795. petition for request sufficient to court found that the notice of the Code. judgment and sentence under section 115 — conviction and relating had raised issues sentence, finding that the defendant’s but not the trial court’s Williams, 3d at App. own fault. was his
The Williams then court considered whether 4.1(g), section 115— which allows review of the in sentence, absentia conviction and conflicted with governs Williams, Rude which appeals. direct 3d In App. finding exists, at 796. that no conflict the Williams reasoning followed Partee an appeal under section 115— proceeding independent collateral that is and has ef no fect Williams, on direct under Rule 606. App. 274 Ill. 3d at 797-98. But step Williams took one further and referred to an appeal “general as a Williams, review.” 274 Ill. 115— App. 3d 798. The court noted “general that a review” created some tension between our supreme court and the legislature, but concluded that, because review under section 4.1(g) was a “matter of procedure,” the conflict was did indirect. The court not elaborate on this statement. at 798-99. The court then appeal. Williams, addressed the merits 3d at 799. *6 Defendant cites Williams as support for what he the now seeks: functional equivalent a Rule 606 direct appeal under section 115— 4.1(g). urges reject The State tous Williams. Defendant’s and the readings assumption State’s are based on an that compels Williams the appellate every court to reach the merits under section 4.1(g). We do not believe Williams stands for such a broad First, proposition. timely a of appeal may direct notice be filed aon fugitive (Partee, 31), defendant’s behalf and there is authority for proposition may that such an al briefed, be leged addressed, trial errors a resolution reached. But appel grant late court retains discretion not relief if the defendant remains (1952). fugitive. People Estep, So, a See too, 4.1(g) under section fugitive may “request” a returned but appeal, we do not believe the appellate that court must entertain it unless of fundamental apparent. issues fairness and due are Partee,
A reading, believe, better we one in line more is that an appeal 4.1(g) that raises issues of fundamental and due process analysis fairness overrides the waiver usually applied timely defendants who fail to file a of appeal. notice rationale, This principle reconciles the Partee that section 115— designed proceeding protect “procedural” is collateral defendants, rights analysis of absent with the result in Williams. An that in that of Williams shows two the issues raised case a proper related to the defendant’s fitness to stand trial and the lack of admonishment that the defendant could be tried in absentia. Wil liams, alleged procedural 3d at 795. These are errors which, the underlying proceeding are not forfeited the absent defendant. mandating as review all broadly, to read Williams
Were we direct we would timely appeal, that could be raised under issues than we al greater protection fugitive defendant granting effect (the Act) (725 Hearing Act the Post-Conviction low a defendant under (West 2000)). seeking relief under A defendant seq. et 5/122 — 1 of his constitutional that substantial violations the Act must show direct ap been raised on that could not have rights occurred at trial 1(a) 2000); Smith, Ill. 2d People v. peal. 725 ILCS 5/122 — subject also petition is postconviction 2000)). 1(c) (West (725 Here defendant to time limits ILCS 5/122 — alleged at trial raise all errors arguing right for an unfettered he chooses to fugitive arrested on warrant when whenever be read to argue may To extent that Williams resurface and them. position, we choose not to follow it. support this investing court with a read section We request also include certain amount of discretion: “Such notice by the trial judgment of the and sentence not vacated review added.) (West 2000). (Emphasis court.” 725 ILCS 5/115 — to undertake such a language compel does not unless, procedural is as we read raises process. fundamental fairness and due We implicate sues out, recognize, points require as the that Williams did not dissent analysis fundamental fairness to reach substantive issues. We recognize authority was relevant at the time this Williams reason, For of the was filed. and to address one concerns opinion, will address each of the substantive issues. we challenge
Defendant’s to the admission other crimes evidence is unsupported by the record. Defendant did not file a motion in limine bar of other crimes. Defendant made an oral motion evidence testimony girlfriend’s to bar that defendant stole his car. Defendant explained that the withdrew oral motion when State evidence *7 car, only that defendant used would not used to show theft aside, he from another victim. money car when stole Waiver on argument defendant’s fails the merits. to that other crimes evidence was introduced
Defendant claims intent, of mistake. knowledge, establish identification grounds proper was as these Defendant contends none these by the criminal act itself. Defendant also factors were established identification claims that resort to other crimes evidence to establish unnecessary identified defendant as the of- since the witnesses fender. establish modus posits
The State
that the evidence was used to
353, 364-65,
Illgen,
2d
Defendant’s trial court testify opinions, lowed witnesses to as to their to three state relates attorney. ments State witnesses that defendant as an posing opinion Defendant claims that the statements amount to improper testimony disagree. lay from witnesses. We
Setting object three aside fact defendant failed to trial, statements and failed to raise them his motion for a new lay express opinion defendant overlooks that a is allowed to witness People Terrell, personally based on observed facts. Here, the witnesses testified to defendant’s
demeanor, they signed the contents of his briefcase and the documents attorney. defendant as an These reason- which identified observations ably the witnesses to recount at trial that defendant acted like caused attorney. There nowas error.
521 argu- closing relate to the State’s arguments next Defendant’s two used defendant’s improperly that the State ment. Defendant claims guilt and misstated the as demonstration of his flight from the scene evidence. court was not the trial already have determined
We to defendant’s absence. jury relating to instruct required it not error as was is also State’s reference to defendant’s absence v. Emer People at adduced trial. comment based evidence proper (2000). 302 son, 189 Ill. 2d 727 N.E.2d quotes the State’s the record and Defendant also mischaracterizes prejudiced that he was closing argument argue out of context to in context arguments Our misstatements evidence. review misstatement, otherwise, made. There is prejudicial or was shows no no error. him argues against next that the evidence does
Defendant sufficiency challenge This of the evidence support his conviction. ele if a rational trier of fact cannot find the essential requires reversal People a reasonable doubt. v. ments of offense (2000). 306, 338, Ill. 2d 455 193 739 N.E.2d knowingly by deception A when defendant commits theft the intent property deception obtains control over another’s (West 2000). 1(a)(3) keep property. 720 ILCS 5/16 — defendant, attorney, as posing evidence here showed that an while jail. paid given person retainer fee and to bond a out of $300 $500 jail out and never anyone Defendant never bonded returned paid by the victim. A rational trier of fact could find the essential $800 doubt under this by deception beyond elements theft reasonable record. excessive. Sentenc argues
Defendant last
sentence is
court,
will not
ing is left
the wide discretion of the
we
People
v.
Perruquet,
reverse absent
abuse
that discretion.
(1977).
149, 154,
882
is no abuse of that discre
368 N.E.2d
There
proper statutory
tion here
sentenced within the
where
eligible
range. Defendant’s earlier convictions made him
2(5)
5/5—5—3.2,
up
years.
extended term
730 ILCS
—
5—8
(West 2000).
statutory range
A
is not excessive
sentence within the
spirit
purpose
unless it is at variance with the
the law
Fern,
189 Ill. 2d
manifestly
to the offense.
disproportionate
address,
although
There
one
choose to
remains
other issue we
limiting
parties
directly
Although
have not
raised it.
we read Partee
to those issues that
fugitive’s right
returned
(see Partee, 125 Ill. 2d
and due
implicate fundamental fairness
31), a
disparity
rights
remains between the
afforded a defendant
present
who has been
for trial and a
fugitive.
returned
The former is
always subject
to time
limits.
defendant must establish a lack of
(725
culpable negligence justify
delay in accessing the Act
1(c) (West 2000); People Wright,
1, 10,
(1999)).
fugitive,
A returned
however, may use section
to seek
review without establishing that his
from
*9
Partee,
trial was not willful.
Finally,
reject
we
the State’s alternative argument
that section
.1(g)
11
does not apply unless a defendant
first establishes
5—4
that his absence is without fault and due
beyond
to circumstances
his
control.
has
question. Partee,
Partee
answered this
Should there be review that defendant’s absence was without fault and due to beyond control, circumstances his of the issues raised the defendant with respect underlying remedy trial is unnecessary. The for a defendant prevailing on a section .1(e) trial, 11 motion is a new review of the errors oc 5—4 4.1(e) (West 2000) (a in curring the first trial. See ILCS 725 5/115 — granted defendant must be a new trial if he shows that his control). was without beyond fault and due circumstances Last, agree we jurisdiction with the State that there is no under Rule 606. 134 Ill. 2d R. 606. Defendant concedes as much in his jurisdictional which, statement unlike the notice of appeal, invokes 4.1(g). section 115 —
The State’s motion to dismiss is denied. of the None substantive challenges issues raised in defendant’s brief the fundamental fairness of the jurisdiction in absentia trial. There no under Rule 606. Defendant’s conviction and sentence are affirmed.
Affirmed; motion denied. GORDON, specially
JUSTICE concurring: I with the majority’s concur ultimate result of the decision. However, my upon analysis solely concurrence rests the substan- disagree majority, however, their I with the tive issues on merits. fully myself position respect with align with dissent
523
4.1(g)
obtainable under
defining
scope
of review
Code) (725
(hereinafter,
of 1963
the Code of Criminal Procedure
2000)).
any
dissent, I
find
with the
cannot
Along
solely
its application
the statute to narrow
language
basis
or fundamental
questions
due
invoking
errors
constitutional
legislative
statutory
require
alteration would
fairness. To effect such
prece
established
previously
of our
repudiation
intervention and a
Ill.
3d
v.
274
dents, including
People
decisions in
our
Stark,
3d
(1995),
121
People
Ironically, majority the attempts ap to use Partee to diminish the fugitive pellate rights when in its fact manifest thrust is expand rights those by providing two distinct parallel obtaining but routes for 606(a) recourse, appellate the first under Supreme Court Rule and the out, second under section 4.1(g). pointed analogy As the between 115 — 4.1(g) sections and 122 — 1 is deployed provide in Partee to 115 — explain why 4.1(g) theoretical basis to should supersede construed to preclude right of a fugitive the to appel through Supreme late recourse well, Court Rule 606 as but does not purport scope to limit the of review under either route. fact,
In
if anything,
holding
reasoning
in Partee militate
precisely
If,
contends,
the opposite
majority
conclusion.
Partee
had
scope
considered the
of review under section
to be
only,
limited to
pointed
constitutional issues
it could have readily
out
that difference
a so
between
limited section
and an
appeal
unrestricted
appeal
response
Rule 606
contention that the
concomitant
availability
gives
fugitive
both
two
bites
the same
Instead,
appellate apple.
apple”
Partee fields the “two bites at the same
contention
pointing
fugitive
deploys
out that a
who
both
appeals,
routes to file two
one in absentia under Rule 606 and the
upon
other
his return under
4.1(g),
permit
would not be
ted in
the second
to relitigate
already
issues
subsumed in the
earlier
under the
judicata,
doctrines
res
collateral estoppel,
waiver and
law
case. See
at2d
36-37. This would
in and of
appeals
itself denote that
provisions
under both
would
otherwise share the
scope, except
same breadth and
a Rule
when
deployed
first
a second
115 —
would be bound
made in the
appeal.
determinations
earlier
Moreover,
fallacy
majority’s interpretation
of Partee is
upholds
although
further reflected in the fact that Partee
rule
by fugitive
be taken
Supreme
absentia under
Court
compelled
ap-
Rule
court is not
to hear it
while
pellant
fugitive.
In
regard,
“[w]e
remains
Partee states
adhere
century-old
discretionary
rule that an appellate court has the
power to refuse to hear a fugitive’s appeal
fugi-
unless and until the
(1952),
tive returns to the
jurisdiction. (People Estep
[court’s]
100.)”
[,109
762];
Ill. N.E.2d
McGowan v. People
125 Ill. 2d at
at 466.
Estep
Under
and McGowan
*11
relies,
may
which Partee
to
upon
the
refuse
hear the
fugitive
a
appeal
appellant
may
while the
remains
and
dismiss such an
fugitive
if
appeal
physically
the
does not
within a reasonable
appear
440-41,
764-65;
at
at
Estep,
time. See
109 N.E.2d
McGowan
If in this case the could be left fugitive appellate apple, bites at the then instead two appeal Rule 606 single bite, fugitive since as a his far than less fugitive would be and remain could be dismissed what would solely to constitu- under section restricted appeal limited 115— Thus, to draw from majority that the seeks support tional issues. the what Partee illusory is and inconsistent with the decision Partee actually sets forth. the trigger policy apparently the concerns that
I further note that 115— narrowly scope of the section confine the majority’s effort largess compelling. seemingly undue 4.1(g) appeal are less than is appeal avenues of by availing him of two fugitive extended to a under Rule 606 by already fact noted that an temporized if rejected appellant discretion may be at the court’s hand, if fugitive. On other a Rule chooses to remain forward, of those is go it would a second preclude allowed to of res judicata, in his earlier under the doctrines sues subsumed 2d collateral and law of the case. See estoppel, waiver 36-37, at at 465-66. 530 N.E.2d
Moreover,
to facilitate
advantage
fugitive
receive
whatever
fact
be tried
right
countervailed
could
instance, notwithstanding
absentia in the first
the incursion
This
present
to be
at his trial.
right
defendant’s otherwise inherent
complex
noting
the existence “of a
series
too was articulated
Partee
designed
balance the
legislation
[in
here]
of tradeoffs
involved
trial,
in the
right
the State’s interest
present
justice,
distrust of
administration of
and our traditional
expeditious
at 467. See
Accordingly, encouragement I can find no repudiation previous of our decisions abandonment (1994), Stark, Pontillo, 3d People Manikowski, cases, these extensively in the dissent. In each of which are discussed 4.1(g) was unfet we review under section scope held that the 115— available under generally the review tered and coextensive with particular is of inter Court Rule 606. A look at Manikowski Supreme dissent, specifically in Manikowski pointed est. As out the court 4.1(g) with the scope contrasted the review under 122 — 1 proceeding scope postconviction of review in Code, must demonstrate stating “[p]ostconviction petitions do magnitude. petitions Such by error of constitutional flawed 4.1(e) motion, subject judicial trial error review. section 115 — *12 526
however, opens the entire underlying judgment and sentence to further
scrutiny.
1992);
See
725 ILCS
People v.
125
(1988).”
Manikowski,
Ill. 2d
Thus, reasons, for the foregoing align I myself must the dis- with regard sent with to the procedural pertaining scope issue However, indicated, review. I concur with majority the in its ultimate affirmance upon analysis based its of the merit of the substan- tive issues. COUSINS1,dissenting:
JUSTICE
While I
in part
majority’s
concur
regarding
the
answer
the
case,
ultimate
in
issue
I disagree with the majority’s view that the
answer to the
“may
‘yes,’
ultimate issue
be
if
but
the record on
appeal establishes that the trial conducted in the defendant’s absence
violated
principles
fundamental
fairness and due
under the
prejudice
by
cause and
adopted
supreme
test
our
court.” 339 Ill. App.
3d at 514. The majority
People
cites to
v. Simpson,
cases decided this court. In the court held defendant appealing from a denial of a section 115 — motion to vacate the conviction and sentence was allowed to have disposition on the merits the conviction and sentence the Williams, of the App. Code. 274 Ill. 3d at 115— 795. The Williams court concluded that claims proceed relative ings 4.1(e) absentia could be reviewed the merits because 115—
makes the on the merits part ruling on the Williams, of the collateral attack. 3d at App. 799. See also Par- tee, (citing 125 People Stark, Ill. 2d. at 33-34 47 merely provides that section 115 — 4.1 trial). review, defendant with securing additional means of new however, brought must be within the time frame required Supreme 606(b) Court Rule from the final order of the collateral proceeding. Ill. 3d at 799. Stark, that, In court recognized possibility properly this when requested, may defendant tried in absentia receive review on the merits of the underlying judgment a section 115 — 4.1 motion. The court stated: participated disposition Justice Cousins this case before
retirement. *** given a second bite a defendant is it well “While and, if section 115 — 4.1 a motion under apple pursuing when
successful, an otherwise valid will undermine I, our section of sentence, harmony is in with article this section right appear upon confers a defendant constitution which statutory 115 — 4.1 is person. himself in Section and defend By right. predicating protect this constitutional mechanism to exclusively sentencing hearing upon a new trial or granting of apparent it jurisdiction, from the defendant’s excusable absence criminal legislature distinguishes between direct upon alleged violation on the and an based merits proceedings. This all criminal right present to be procedure for appropriate forth the not intended set absentia-, obtained in from conviction sentence appealing *13 rather, merely attacking means provides it an additional of Stark, 3d at App. or 792-93. sentence.” Pontillo, 27, (1994), this App. In remedy 115— again court that the collateral under section concluded appeal the direct support appeal separate 4.1 of the Code will an from Pontillo, In Pon underlying judgment. App. 267 Ill. 3d at 33. tillo, judgment from the appeal the defendant did not file an years timely later defendant filed an sentence entered absentia. Six of an motion under section 115 — 4.1 appeal denying from order his Pontillo, noted the 267 Ill. 3d at 28. The Pontillo court Code. following: appeal days within 30 of
“Although defendant filed no notice of trial, timely he filed a notice the denial of his 1986 motion for new 17, 1992, denial of his appeal of from the trial court’s November sentencing 115— hearing under section motion for new trial new 4.1(e), of a claim for the consideration which allows without his fault and due to that his absence from trial was both beyond 4.1(g) provides for his control. Section circumstances 115 — such denial: from (e) paragraph for a new ‘A defendant whose motion under may sentencing hearing has been denied file notice trial or new request also include notice therefrom. Such the trial judgment by not vacated review the and sentence added.) 38, par. ch. 115— Ill. Rev. Stat. (Emphasis court.’ (West 1992)). (now 4.1(g) 4.1(g) 725 ILCS 5/115 — 4.1(e) col as a characterized section supreme Our court has 115 — circumstances, may which, remedy appropriate lateral as a convicted in absentia by a defendant who has been utilized analogous to an of his conviction. It securing method of 2 — 401 of the Code post-judgment relief under section action for (735 (West 1992)) Civil Procedure ILCS or an action for 5/2 — 401 post-conviction relief under section 122 — 1 of the Code of Criminal (Ill. (now Procedure 38, par. of 1963 Rev. Stat. ch. 122 — 1 (West 1992))) codified, amended, at 725 ILCS and will 5/122 — 1 support separate an appeal from a direct underlying judgment. People v. Partee 31-38. 4.1(e) proceeding
Because section solely upon focuses is 115 — relating sues to a defendant’s from absence trial at the time of his conviction, it is evident that an from the court’s denial aof motion under ordinarily that section would be confined to the same However, issues. expressly provides section separate enabling obtain, addition, device the defendant to al a review of legations of relating error underlying Specifically, conviction. he must include in his of appeal request notice ‘a for review of the (Ill. judgment and sentence not vacated the trial court.’ Rev. (now 38, par. Stat. ch. ILCS 5/115 — (West 1992)).) Without such a request, the notice of would necessarily pertain only relating to issues denying to the order his motion sentencing for new trial or new hear i.e., ing, whether his from court was without his fault and due to circumstances An appellate control. court has jurisdiction appeal. those matters raised in the notice of Pontillo, [Citations.]” 3d at 33-34. appears
It the rule proposed majority requires necessary same showing evidentiary hearing for an 1(a) (725 1(a) (West 2000)) of the Code be made before a review merits of underlying judgment sentence in 115 — 4.1 motion. This has drawn a distinction between the two sections of the Code when a postconviction motion was filed instead of a Manikowski, section 115 — 4.1 motion in People v. *14 (1997). In that case we stated: petition presents question
“The a serious is timeliness. It clearly filed the time imposed postconviction constraints relief under section 122 — 1 of the Code of Criminal Procedure (West 1992). question joined by 1963. 725 The is the 5/122 — 1 allegation delay culpable negligence. that due to defendant’s 4.1(e). question Such a does not arise under section potential provides passage relief it not limited the of time. 4.1(e) Moreover, requires precise evidentiary hear ing unsuccessfully pursued by the petition. advantages overshadowed, however, by
These obvious are 4.1(e) path fact that motion clears a to test error that occurred in the conduct of trial. defendant’s Postconviction petitions process must demonstrate a flawed error constitu- error subject do not magnitude. petitions Such tional 4.1(e) however, motion, opens the judicial A section review. scrutiny. See to further underlying judgment and sentence entire 1992); People 725 ILCS 5/115 — and sentence conviction Since defendant’s reviewed, pursued effort even an unsuccessful been have never advantage. It direct provides harbors under section 115 — original.) (Emphasis appeal of the conviction and sentence.” Manikowski, 3d at 160-61. case in the instant majority’s opinion
To that the extent that showing the record purports require defendant to make process and fairness due principles the trial violated fundamental test, and it is inconsistent with prejudice the cause authority to no Manikowski, majority and cites Stark Pontillo. tried in apposite support holding defendant allege supported by the process absentia must first due violations and underlying judgment of the record before review merits sentence. in a analysis requiring the trial conducted
Because of fundamental fairness principles absence violated in absentia obtain due before tried Code, of his under section 115 — 4.1 of sentence raised defen majority declines address substantive issues view, my dant’s In address the substantive issues brief. we should Perforce, I dissent. raised defendant’s brief. v. THE Petitioner-Appellant, BOARD
THE COOK COUNTY OF REVIEW al., Respondents-Appellees. et PROPERTY TAXAPPEAL BOARD Division) (2nd 1-00-1183, 1-00-1184, 1-00-2213,1-00-2228, 1-00-2237, 1-00-2238,1-00-2239, First District Nos. 1 95 cons. -2 5 - 0 0 Opinion August filed