Lead Opinion
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.
Justice Thomas dissented upon denial of rehearing, 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.
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,
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.
ANALYSIS
The State contends that defendant’s signature on the bail bond slip, which includes language on the back of the form that is consistent with that found in section 113 — 4(e) of the Code, should operate as a valid waiver of his right to receive the admonishment again in court because the prophylactic purpose of this section of the Code was achieved by the notice contained on the slip. The State argues that only substantial compliance with section 113 — 4(e) is required to legitimize a trial in absentia, which occurred in this case due to the language contained on the back of the bond slip. The State further contends that the act of defendant signing the bond slip was a more formal procedure than simply hearing the same admonishment recited by the court at the time of his arraignment and, moreover, it was signed and certified by a deputy clerk of the court. Because the question of whether defendant waived his right to receive section 113 — 4(e) admonishment under the circumstances of this case presents strictly a question of law, our review proceeds de novo. See In re D.S.,
As a constitutional matter, a defendant has a right to be present at all stages of his trial, including sentencing. Snyder v. Massachusetts,
Section 113 — 4(e) is contained in article 113 of the Code, which governs arraignment. Arraignment has been defined by our legislature as “the formal act of calling the defendant into open court, informing him of the offense with which he is charged, and asking him whether he is guilty or not guilty.” 725 ILCS 5/102 — 4 (West 2000). Consistent with this definition, section 113 — 1 of the Code provides, in relevant part, that “[b]efore any person is tried for the commission of an offense he shall be called into open court, informed of the charge against him, and called upon to plead thereto.” 725 ILCS 5/113 — 1 (West 2000). Arraignment presents an almost certain opportunity to have the defendant present before the court. People v. Garner,
Section 4 of article 113 of the Code governs when a defendant is called upon to plead at arraignment. This section provides, in relevant part, that “the defendant shall be furnished with a copy of the charge and shall plead guilty, guilty but mentally ill, or not guilty” and “[i]f the defendant pleads guilty such plea shall not be accepted until the court shall have fully explained to the defendant the consequences of such plea.” 725 ILCS 5/113 — 4(a), (c) (West 2000). Subsection (b) addresses the consequences of when a defendant stands mute when called upon to plead while subsection (d) specifies the requirements for when a defendant pleads guilty but mentally ill. 725 ILCS 5/113 — 4(b), (d) (West 2000). Finally, subsection (e), at issue here, provides, in relevant part:
“If a defendant pleads not guilty, the court shall advise him at that time or at any later court date on which he is present that if he *** is released on bond and fails to appear in court when required by the court that his failure to appear would constitute a waiver of his right to confront the witnesses against him and trial could proceed in his absence.” 725 ILCS 5/113 — 4(e) (West 2000).
Consequently, the admonishment requirement found in section 113 — 4(e) applies only to a defendant when he appears in open court and pleads not guilty at the time of his arraignment, or is present in court at any later date after his arraignment. This admonishment requirement applies even in the case of a defendant who flees during trial, as opposed to prior to trial. People v. Partee,
As this court has previously explained, the warning contained in section 113 — 4(e) is “part of a complex series of tradeoffs designed to balance the defendant’s right to be present at trial, the State’s interest in the expeditious administration of justice,” and the long-standing principle that courts distrust trial in absentia because of its inherent unfairness to a defendant. Partee,
In Garner, this court stated that the section 113— 4(e) admonishment serves as the procedural mechanism to effect a formal waiver of a defendant’s right to be present. Garner,
This court considered in Garner whether the defendant had waived his right to receive the section 113— 4(e) admonishment because he had signed a bond slip that contained a printed notice warning him of the penalty of his failure to be present at trial. Garner,
“Noticeably absent from the slip, however, is any warning of the possibility of trial in absentia. Thus, we find that the bond slip does not satisfy the requirement of section 113— 4(e). Cf. 17 Ariz. Rev. Stat. Ann., Form VI, at 737 (1987) (warning of possibility of trial in absentia included on bond slip which defendant was required to sign upon release).” Garner,147 Ill. 2d at 478-79 .
While this court was not prepared to say that no set of circumstances would result in the waiver of a defendant’s right to receive the admonishment in court, we ultimately concluded that the trial court committed reversible error by failing to admonish the defendant pursuant to section 113 — 4(e) at the time of his arraignment. Garner,
The State’s position in this case has been rejected in two appellate court decisions. In People v. Lester,
Likewise, in People v. Green,
We find that section 113 — 4(e) unambiguously requires the trial court to admonish a defendant in open court and reject the State’s claim that defendant waived his right to be admonished by a trial judge based upon the signed bond slip in this case. Defendant was required to sign the bond slip as a condition of his release from jail, which is a far different circumstance than a defendant voluntarily relinquishing a known statutory right in court. We agree with the reasoning of the appellate court in Lester and Green and conclude that a warning provided outside the presence of the court through language contained on a bond slip does not constitute a blanket waiver precluding the need for any section 113 — 4(e) admonishment by the trial judge. Contrary to the State’s reliance on Garner, this court did not hold that a form similar to the one used in Arizona would amount to a valid waiver of the statutory requirement without any admonishment by the trial court but, rather, used it comparatively to point out that the bond slip in that case did not even contain the warning encompassed in section 113 — 4(e).
We disagree with the State’s contention that due to the notice contained on the back of the bond slip, this case presents an issue of substantial rather than strict compliance with the Code. Based upon Garner, when a trial judge does not admonish a defendant in any way under section 113 — 4(e) at the time of his arraignment, or at any later court date that he is present, and there has not been a valid waiver of the statutory requirement, there cannot be substantial compliance with the Code. The signature of defendant and a deputy clerk on the bond slip does not change the statutory requirement. We decline to read into section 113 — 4(e) an exception which would allow a deputy clerk of the court to perform a function that is reserved for a trial judge. A deputy clerk would not be permitted to substitute for a judge in meeting any of the other requirements of section 113 — 4 of the Code, such as accepting a plea, or advising a defendant of the consequences of pleading guilty. In the same way, the trial court’s duty to advise a defendant of the possibility of trial in absentia cannot be delegated to a deputy clerk.
Given the architecture of this provision of the Code within the section of the statute that governs when a defendant is called upon to plead at arraignment, and the plain and ordinary meaning of the language contained in section 113 — 4(e), we further agree with Lester and Green that the legislature intended for the trial court to orally admonish a defendant as to the possibility of trial in absentia when he is present in open court at arraignment, or at any later date. We also believe that oral admonishment is most effective to meet the legislative purpose of section 113 — 4(e) as it provides the trial court with an opportunity to both notify a defendant of his right and obligation to be present at trial, and to verify that he understands this important right and duty.
The appellate court’s decision in People v. Condon,
Moreover, in contrast to this case, we note that the trial court in Condon provided the defendant with the form at his arraignment and later orally admonished him that the proceedings could go forward in his absence and reminded him of his obligation to appear in court. See Condon,
This court has previously held that “the statute directs the trial court to admonish the defendant. No exemption from the admonishment requirement exists, regardless of how seasoned or knowledgeable the criminal defendant.” (Emphasis added.) Garner,
CONCLUSION
For the foregoing reasons, the judgment of the appellate court, vacating defendant’s sentence and remanding to the trial court for a new sentencing hearing, is affirmed.
Affirmed.
Notes
The State urges us to conclude that even if defendant did not waive his right to receive section 113 — 4(e) warnings, reversal for a new sentencing hearing is unwarranted because this section of the Code is directory, rather than mandatory, and the violation is not a structural or constitutional error warranting automatic reversal. As the State acknowledges, this argument has been forfeited because the State failed to raise it in its petition for leave to appeal before this court. See People v. Williams,
Dissenting Opinion
dissenting:
I respectfully dissent.
In People v. Garner,
“We have reviewed the bond slip in this case. Most assuredly, the bond slip states that defendant should appear on June 30, 1981. Additionally, the slip provides a warning of the penalties for failure to appear. Noticeably absent from the slip, however, is any warning of the possibility of trial in absentia. Thus, we find that the bond slip does not satisfy the requirement of section 113 — 4(e).” (Emphasis added.) Garner,147 Ill. 2d at 478 .
According to this passage, the only reason that the bond slip in Garner did not satisfy the requirement of section 113 — 4(e) was the absence from that slip of any warning of the possibility of trial in absentia. See Webster’s Third New International Dictionary 2388 (1993) (defining “thus” as either “in this or that manner or way” or “for this or that reason or cause”). Stated conversely, then, had the bond slip in Garner contained a warning of the possibility of trial in absentia, it would have satisfied the requirement of section 113 — 4(e), and the defendant’s trial in absentia would have been proper.
This case presents the very situation contemplated but not quite present in Garner. Like the bond slip in Garner, the bond slip in this case most assuredly states that defendant must appear and warns defendant of the penalties for failing to appear. In addition, and unlike the bond slip in Garner, the bond slip in this case most assuredly warns defendant of the possibility of trial in absentia. Thus, the sole deficiency from Garner is cured, and the requirements of section 113 — 4(e) are satisfied fully. Garner,
This court has explained that section 113 — 4(e) is “a prophylactic measure which is designed both to dissuade defendants from absconding at any time, before or after trial, and to provide for a formal waiver of their right to be present.” People v. Partee,
For these reasons, I am convinced that the trial court did not err in sentencing defendant in absentia, and the judgment of the appellate court therefore should be reversed.
JUSTICES CARMAN and KARMEIER join in this dissent.
Dissenting Opinion Upon Denial of Rehearing
Dissenting Opinion
dissenting:
In its petition for rehearing, the State appropriately takes issue with the majority’s conclusion that written admonishments alone can never satisfy the requirements of section 113 — 4(e). See
For this reason, and for the reasons set forth in my initial dissent, I would grant the State’s petition for rehearing in this case.
JUSTICES CARMAN and KARMEIER join in this dissent.
See, e.g., 720 ILCS 5/12 — 3.2(d) (West Supp. 2009) (“the court shall advise the defendant orally or in writing”); 720 ILCS 5/12— 3.3(c) (West Supp. 2009) (same).