People v. Coppage

543 N.E.2d 269, 187 Ill. App. 3d 436, 135 Ill. Dec. 34, 1989 Ill. App. LEXIS 1204
CourtAppellate Court of Illinois
DecidedAugust 14, 1989
Docket1-87-1251
StatusPublished
Cited by13 cases

This text of 543 N.E.2d 269 (People v. Coppage) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Coppage, 543 N.E.2d 269, 187 Ill. App. 3d 436, 135 Ill. Dec. 34, 1989 Ill. App. LEXIS 1204 (Ill. Ct. App. 1989).

Opinion

JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant was tried in absentia in a bench trial and found guilty of burglary. (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1(a).) He was then sentenced to two years’ probation. He now appeals contending that his conviction should be reversed and a new trial ordered because he was not properly admonished in accordance with section 113 — 4(e) of the Code of Criminal Procedure of 1963 (hereafter Code) (Ill. Rev. Stat. 1985, ch. 38, par. 113 — 4(e)); he was never notified of the new trial date by certified mail as required by section 115 — 4.1(a) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4.1(a)); and the State failed to show by a preponderance of the evidence that his absence from the trial was willful.

The record shows that defendant was arrested on July 22, 1986, and subsequently charged by information with the burglary of Turner Language School in Chicago. At a preliminary hearing held November 7, 1986, the following exchange occurred:

“MR. RONKOWSKI (Prosecutor): Our file does not indicate the defendant has been admonished regarding trial in absentitia [sic].
THE COURT: Mr. Coppage, the State is referring to a statute which allows them to try you in your absence if you fial [sic] to appear for court. So make sure you make all your court dates.”

On March 5, 1987, trial commenced with defendant present and represented by counsel. The stipulated testimony of Mr. Malone was entered, indicating that he was employed by the Chicago Board of Education, which owned the property known as Turner Language School at 9300 South Princeton, and that on July 22, 1986, defendant did not have permission or authority to enter the school or remove property therefrom.

Chicago police officer Mark Fortuna then testified that on July 22, 1986, he had responded to a burglary-in-progress report at the Turner Language School and observed defendant and two other men at an open window on the west side of the school. He testified that he first saw defendant positioned half inside and half outside the window. Defendant then jumped out of the window and ran. He was soon apprehended by two other police officers who had also responded to the call.

Fortuna also testified that defendant agreed to make a statement after being informed of his Miranda rights. Defendant told police that he had not entered the school, although his two friends had done so. He also told police the whereabouts of certain items which had been stolen from the school.

After Fortuna testified the State requested a recess due to the fact that its next witness, Officer Tully, was not present. Shortly thereafter the court learned that Officer Tully would not be available, and the case was continued by agreement to March 13, 1986.

On March 13, 1986, the case was called and defendant was present. However, Officer Tully was still not available and the case was passed until 1 p.m. that day.

At 1 p.m. Officer Tully was still not available. At this time, however, defendant did not appear in court. Defense counsel informed the court that defendant was absent because he had gone to pick up a defense witness. The case was passed until 2 p.m., at which time both defendant and Officer Tully were still not present. Thus, the court agreed to another continuance until March 17, 1987. Because defendant had failed to appear, the court issued a bond forfeiture warrant against defendant.

When the case was called on March 17, 1987, defense counsel informed the court that defendant was aware that the trial had been continued to this date but that he was not present due to “transportation problems.” The State then indicated that it was electing to proceed in defendant’s absence. The court refused to proceed “without complying with the statute,” which the court interpreted as requiring that a certified letter be sent to defendant’s last known address and that a substantial showing be made that defendant’s absence was wilful. Therefore, the case was passed until 11 a.m. to await defendant’s arrival.

At 11:15 a.m., however, the trial court reconsidered its position and decided that defendant had been made aware of the court date by counsel and that the statutory requirement that a certified letter be sent to defendant regarding the court date was permissive and not mandatory. The trial court then held that the only statutory requirement was to wait two successive court dates before proceeding without defendant, upon a finding that his absence was willful, and that this requirement had been met. Therefore, the court allowed the State to proceed with its case. Officer Tully testified and corroborated Officer Fortuna’s testimony in every detail.

After Officer Tully’s testimony, the court continued the case until 1 p.m. that day to give defendant another chance to appear. However, at 1 p.m. defendant had still not arrived, and the court refused to grant another continuance to allow defense counsel an opportunity to locate defendant. Therefore, defense counsel merely submitted copies of the police reports, which contained defendant’s statement that he had not entered the school building. The court then found defendant guilty of burglary.

On April 15, 1987, defendant’s sentencing hearing was held. Defendant, who had surrendered to police on March 25, 1987, was present. The trial court first denied defendant’s motion for a new trial and then sentenced him to two years’ probation. Defendant appeals, contending that the trial court erred by proceeding with the trial in absentia because (1) he was insufficiently admonished that his right to confront the witnesses against him would be waived by his failure to appear at trial; (2) he was not notified of the new court date by certified mail; and (3) the State failed to make a prima facie showing that his absence had been willful.

We first address the State’s claim that defendant has waived his right to present these issues to this court because he failed to make a post-trial motion for a new trial pursuant to section 115— 4.1(e) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4.1(e)) and because he failed to raise the issues presented here in the new-trial motion that he did file. We cannot accept the State’s argument that defendant waived the issues he now raises by his failure to file a section 115 — 4.1(e) motion. Section 115 — 4.1(e) of the Code states:

“When a defendant who in his absence has been either convicted or sentenced or both convicted and sentenced appears before the court, he must be granted a new trial or new sentencing hearing if the defendant can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control. A hearing with notice to the State’s Attorney on the defendant’s request for a new trial or a new sentencing hearing must be held before any such request may be granted. At any such hearing both the defendant and the State may present evidence.” (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4.1(e).)

However, our supreme court held in People v. Partee (1988), 125 Ill. 2d 24, 530 N.E.2d 460

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Bluebook (online)
543 N.E.2d 269, 187 Ill. App. 3d 436, 135 Ill. Dec. 34, 1989 Ill. App. LEXIS 1204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-coppage-illappct-1989.