People v. Goodwin

• Court: Appellate Court of Illinois
• Decided: April 21, 2008
• Docket: 4-06-0354 Rel
• Status: Published

Opinion

NO. 4-06-0354 Filed 4/21/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court v. ) of Macon County STEPHEN G. GOODWIN, ) No. 05CF486 Defendant-Appellant. ) ) Honorable ) John K. Greanias, ) Judge Presiding _________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

In February 2006, following a jury trial, the jury

convicted defendant, Stephen G. Goodwin, of escape (720 ILCS

5/31-6(c) (West 2004)), unlawful possession of a converted

vehicle (625 ILCS 5/4-103(a)(1) (West 2004)), burglary (720 ILCS

5/19-1(a) (West 2004)), aggravated kidnaping (720 ILCS 5/10-

2(a)(2) (West 2004)), aggravated unlawful possession of a con-

verted vehicle (625 ILCS 5/4-103.2(a)(7)(A) (West 2004)), and

aggravated fleeing or attempting to elude a police officer (625

ILCS 5/11-204.1(a)(4) (West 2004)). In June 2005, at a pretrial

hearing on a motion to receive a new attorney, the trial court

held defendant in direct criminal contempt for an outburst of

profanity. The court sentenced defendant to 180 days in the

Macon County jail.

In March 2006, the trial court sentenced defendant to

concurrent prison terms of 7 years for escape, 3 years for fleeing, 15 years for possession of a converted vehicle, and 30

years for aggravated kidnaping, all running consecutive to the

sentence in another case.

Defendant appeals, arguing that (1) the trial court

erred in making his contempt sentence consecutive to any future

sentence which might be imposed; (2) his contempt sentence was

excessive; and (3) the State failed to prove him guilty of

kidnaping beyond a reasonable doubt. We affirm.

I. BACKGROUND

In April 2005, the State charged defendant with escape

(720 ILCS 5/31-6(c) (West 2004)), unlawful possession of a stolen

vehicle (625 ILCS 5/4-103(a)(1) (West 2004)), burglary (720 ILCS

2(a)(2) (West 2004)), aggravated unlawful failure to obey an

order to stop (625 ILCS 5/4-103.2(a)(7)(a) (West 2004)), and

aggravated fleeing or attempting to elude a police officer (625

ILCS 5/11-204.1(a)(4) (West 2004)). The unlawful-possession-of-a

stolen-vehicle charge was later amended to unlawful possession of

a converted vehicle (625 ILCS 5/4-103(a)(1) (West 2004)), and the

aggravated-unlawful-failure-to-obey-an-order-to-stop charge was

amended to aggravated unlawful possession of a converted vehicle

(625 ILCS 5/4-103.2(a)(7)(A) (West 2004)).

As is relevant to this appeal on the aggravated kidnap-

ing charge, the information alleged that on April 3, 2005,

- 2 - defendant intentionally escaped from Decatur police officer

Christopher Copeland and entered a Dodge Caravan with the intent

to commit a theft. The information further alleged defendant

knowingly and secretly confined Carmen Howard, a child under the

age of 13 years, and refused to stop when Decatur police officer

Chad Shull signaled for him to do so.

On June 10, 2005, at a pretrial hearing, defendant

interrupted the proceedings several times complaining about his

attorney. When the trial court refused to interrupt the discus-

sion of other issues to address defendant's accusation that his

attorney was "working with" the assistant State's Attorney,

defendant said "[t]his mother-fucking court is crooked." The

court immediately found defendant in direct criminal contempt and

orally sentenced him to 180 days in the Macon County jail,

stating:

"Mr. Goodwin, I find you are in direct crimi-

nal contempt of court for swearing by audibly

saying 'mother-fucker' in open court. I

sentence you to 180 days in the Macon County

[j]ail for contempt which sentence will run

consecutive to the sentence you are currently

serving and any other sentence that is subse-

quently imposed on you in the pending cases."

On June 20, 2005, defendant handed the trial court a

- 3 - letter apologizing for his outburst. That same day, defendant

also verbally apologized to the court during a pretrial hearing

on defendant's motion to proceed pro se.

On June 24, 2005, at a hearing on defendant's motion to

dismiss count IV (aggravated kidnaping), the State asked the

trial court to enter a written finding of direct criminal con-

tempt. The court responded that it would consider defendant's

letter as an oral motion to modify the sentence and to vacate the

finding of contempt. The court stated:

"Again, Mr. Goodwin [(defendant)] *** you

have filed a written apology to the [c]ourt

which I have now received. What I am going

to do with respect to that is, I am going to

take that as an oral motion to *** modify the

sentence and to vacate the finding of con-

tempt and I'm going to take that under ad-

visement at this time until, basically, we

get done with the case. So, it will leave

that--the possibility of me vacating all or

part of the sentence and vacating the finding

of contempt open so that it again that will

be possible. If I don't do that right now,

then, once 30 days passes, I can't do that;

so, I'm leaving that possibility open right

- 4 - now *** and I will prepare a written order,

and I'll provide [a] copy of that to both

[defendant] and you, [defense counsel], once

I've prepared and filed that written order."

On June 27, 2004, the trial court entered a written

order finding defendant in direct criminal contempt and sentenc-

ing him to 180 days in the Macon County jail, to be served

"consecutive to [d]efendant's other sentence previously imposed."

Although the "Findings" section of the written order referred to

the oral sentence given on June 10 and the corresponding docket

entry where the written order recited that the court had "sen-

tenced [d]efendant to 180 days in the Macon County [j]ail to run

consecutive to the sentence previously imposed in another case

and any other sentences imposed in the future for criminal

offenses charged in this case," the sentence contained in the

decretal portion of the written order corrected what the court

said orally on June 10, in its docket entry, and in the findings

of the written order.

The "previously imposed" sentence referred to was for

theft over $300. On March 8, 2005, the Macon county circuit

court sentenced defendant to four years in the Illinois Depart-

ment of Corrections (DOC) for that charge. Defendant asked to be

released on a $100,000 recognizance bond for a week before he had

to report to serve his sentence. He was given a three-day stay

- 5 - and ordered to report for his sentence on March 11, 2005.

Defendant did not report and a warrant was issued for his arrest.

On February 6, 2006, the jury trial commenced on five

charges (the State was granted a motion just before trial to nol-

pros the burglary charge). Kevin Howard testified, as is rele-

vant to this appeal, that on April 3, 2005, he and his 11-month-

old daughter, Carmen, were sitting in a minivan belonging to

Kevin and his wife Dorian, as it was idling in the driveway at

2822 Cardinal Drive. Kevin was in the driver's seat and Carmen

was in a child's car seat, facing forward, belted to the seat

directly behind the driver's seat. The windows behind the front

doors of the van were tinted.

Kevin saw a man, whom he identified as defendant, being

chased by a police officer. Defendant ran up along side the van,

crossed in front of it, then ran around the house. Kevin got out

to see what was happening. He left his door open. He headed

back to the van, but saw defendant again. This time, defendant

jumped into the driver's seat of the minivan, shut the door, and

locked the doors. The evidence at trial conflicted on whether

the driver's window of the van was open and whether, as defendant

drove off in the van, Kevin yelled that there was a child in the

car or "stop, get out of my car."

The evidence at trial indicated that defendant drove

away, accelerating quickly, with the child still strapped in her

- 6 - car seat in the car. Kevin and Dorian chased on foot briefly,

with Dorian screaming that there was a baby in the car. Decatur

police officers Nathan Binkley and Christopher Copeland, who were

attempting to take defendant in on the outstanding warrant, ran

back to their squad car. Officer Chad Shull, who was also on the

scene, gave chase in his patrol car, and Kevin and his sister-in-

law got in another vehicle and also chased defendant. After

driving a short way, Kevin and his sister-in-law asked some

passersby whether they had seen the van. The passersby said they

had seen the van and pointed Kevin and his sister-in-law in the

direction they had seen it travel. Kevin spotted the van, which

had no police cars behind it. Kevin and his sister-in-law turned

around and followed the van, but they then lost sight of it.

Officers Nathan Binkley and Christopher Copeland also

attempted to locate the van. They did find it, following it

briefly before their commander called off the pursuit. Officers

Chad Shull and Chad Larner pursued the defendant in the minivan

for a longer time. During this time, defendant drove at speeds

of 75 to nearly 100 miles per hour, ran red lights, crossed a

median, and drove in oncoming traffic lanes to drive around

stopped traffic. The pursuit was terminated by Sargent Squires

(first name not in evidence). Officer Chad Shull and Chad Larner

slowed and lost sight of the van, but they continued driving.

Shortly after that, Officer Chad Shull saw people

- 7 - pointing toward an apartment complex at the next intersection.

Officer Chad Shull saw the van on the curb at that intersection.

Officers Chad Shull and Chad Larner arrived at the van about the

same time and found that Kevin had arrived before any police

officers. Kevin had not seen the van since the first time he

lost sight of it. Officer Chad Larner estimated that the van was

out of his sight for about two minutes. The record indicates

that Officer Chad Shull also lost sight of the van. Immediately

after he arrived, Kevin removed Carmen from the van. Carmen was

crying, and both parents noted that her face was red and

splotchy, which is how it looked when she has been crying.

At trial, defendant testified in his own defense. He

admitted that he knew there was a warrant for his arrest, and he

did not want to be taken in on it. Defendant testified he was

going to hide in the van but decided to drive away when one of

the officers tried to spray him with mace. He said the windows

were closed, and he heard a man yell at him to get out of the

van, but did not hear anything about a child in the van. He said

he did not look behind him, music was playing in the van, and he

never heard Carmen. He also said that he spent a considerable

amount of the time he was running from police talking to his

girlfriend on Kevin's cell phone.

The jury found defendant guilty on all charges. On

March 22, 2006, the trial court vacated the (nonaggravated)

- 8 - possession-of-a-converted-vehicle conviction, and sentenced

defendant to concurrent sentences of 7 years' imprisonment for

escape, 30 years' imprisonment for kidnaping, 15 years'

imprisonment for aggravated possession of a converted vehicle,

and 3 years' imprisonment for eluding, all running consecutive to

defendant's March 8, 2005, sentence for theft over $300 in Macon

County case No. 04-CF-752.

This appeal followed.

II. ANALYSIS

Defendant raises three issues on appeal. Defendant

argues (1) the trial court erred in making his contempt sentence

consecutive to any future sentence the court might impose, (2)

his contempt sentence was excessive, and (3) the State failed to

prove him guilty of kidnaping beyond a reasonable doubt.

A. This Court Lacks Jurisdiction To Review the Trial Court's Order on Timing and Duration of Defendant's Contempt Sentence

Defendant argues the trial court erred by ordering his

contempt sentence run consecutive to any future sentence the

court might impose in the pending case. The State concedes it

would have been improper for the court to order the contempt

sentence run consecutive to any future sentence but argues (1)

defendant forfeited any error regarding the finding of contempt

by failing to obtain a final ruling from the court; and (2) in

the alternative, this court lacks jurisdiction to address the

alleged errors because defendant did not appeal the order within

- 9 - 30 days. This court will address the State's arguments first.

1. The June 27, 2005, Order Was Final

The State claims that the trial court never ruled on

defendant's motion to modify or vacate. The State notes that the

court did enter a written order of contempt on June 27, 2005.

The State argues, however, that the order was not a final

judgment of contempt because the court stated on June 24, 2005,

that it was taking the motion under advisement until completion

of the case. We disagree.

Although the trial court stated that it would take the

motion under advisement until completion of the case, the court

clearly reconsidered that statement when it entered the June 27,

2005, order.

At the same time the trial judge said he would decide

the motion at the end of the case, he said that he knew the

decision on the motion would have to be made quickly. The judge

said that he would have to decide within 30 days, if at all. At

the same hearing, this case was set for pretrial on September 6,

2005, and trial was set for the term beginning September 19,

2005. Because the case was clearly not going to trial within 30

days, and the judge was clearly cognizant of the limited time he

had to reconsider, the judge could not have meant after the trial

when he said at "the end of the case." The judge then said that

he would keep the issue open for the moment but would issue a

- 10 - written order. Placed in context, when the judge said "the end

of the case," he apparently meant that after the pretrial hearing

he would consider modifying or vacating the finding of contempt,

and he then would issue a written order. He issued the final

order three days later with no modification.

2. This Court Lacks Jurisdiction To Consider Defendant's Appeal of His Contempt Sentence Because Defendant Failed To Timely Appeal

The State also argues that this court lacks

jurisdiction to consider the issues of timing and excessiveness

of defendant's contempt sentence because defendant did not appeal

within 30 days of the entry of the final order of contempt.

"An order finding a person or entity in contempt of

court which imposes a monetary or other penalty" is final for

purposes of appeal. 155 Ill. 2d R. 304(b)(5). An appeal must be

filed within 30 days of the entry of the order appealed. 188

Ill. 2d R. 606(b).

Because defendant did not file an appeal within 30 days

of the order entered by the trial court on June 27, 2005, this

court lacks jurisdiction to consider the issues defendant raises

with regard to timing and excessiveness his contempt sentence.

B. Defendant Was Not Awarded Sentence Credit in Excess of What He Was Entitled

The State also argues that the trial court awarded

defendant sentence credit in excess of what he was entitled. In

their briefs, neither party discusses the appropriateness of the

- 11 - State raising the issue. The State did not cross-appeal. The

State raised this issue in its appellee brief. The State,

however, is in the position of an appellant by raising this issue

and is thus restricted by Supreme Court Rule 604(a)(1) (188 Ill.

2d R. 604(a)(1)), which lists the few permissible grounds for an

appeal by the State. People v. Kent, 40 Ill. App. 3d 256, 265-

66, 350 N.E.2d 890, 898 (1976).

Challenging the calculation of credit for time served

is not among the list of bases for a State's appeal. 210 Ill. 2d

R. 604(a)(1). If the State had filed a cross-appeal, the cross-

appeal would fail on this basis.

The State asserts, however, that the trial court's

determination of sentencing credit is a void judgment, which may

be attacked at any time. City of Chicago v. Roman, 184 Ill. 2d

504, 510, 705 N.E.2d 81, 85 (1998). The State argues the result

of giving what the State believes is too much credit for time

served is that the court exceeded its authority by giving a

lesser sentence than the statute imposed. Roman, 184 Ill. 2d at

510, 705 N.E.2d at 85.

However, the trial court here sentenced defendant to

six months' jail time consecutive to the four-year sentence he

was then serving for theft. Consecutive sentences are discrete

and individual; thus, the contempt sentence will begin once the

theft sentence is complete. People v. Pack, 224 Ill. 2d 144,

- 12 - 148, 862 N.E.2d 938, 941 (2007). As the defendant points out,

this just means he has not yet started serving the contempt

sentence. Although defendant was sentenced to six months in the

county jail for contempt, a docket entry dated June 24, 2005,

indicated the trial court transferred defendant to DOC to serve

time on the theft charge. Defendant spent the entire time that

the State presumes he was serving his contempt sentence in the

custody of DOC with the exception of a few days in August 2005,

when he was awaiting a hearing on several motions he had filed in

this case. This corroborates defendant's contention that he has

not yet served the contempt sentence.

C. State Proved Defendant Guilty of Aggravated Kidnaping Beyond a Reasonable Doubt

Defendant last argues the State did not prove the

aggravated-kidnaping charge beyond a reasonable doubt. Defendant

claims that the State failed to prove "secret confinement"

because everyone knew the baby was in the van and the baby could

be observed by a person looking inside the van's window.

Generally, where a defendant challenges the sufficiency

of the evidence, the test is whether, after viewing the evidence

in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. People v. Ward, 215 Ill. 2d

317, 322, 830 N.E.2d 556, 559 (2005). It is not the function of

the appellate court to retry the defendant. People v. Slinkard,

- 13 - 362 Ill. App. 3d 855, 857, 841 N.E.2d 1, 3 (2005).

However, when the facts are not in dispute, and the

reviewing court is interpreting whether those facts meet the

definition of a statutory term, the question is one of law.

People v. Lamborn, 185 Ill. 2d 585, 590, 708 N.E.2d 350, 354

(1999); People v. Smith, 191 Ill. 2d 408, 411, 732 N.E.2d 513,

514 (2000). Here, the issue is whether the undisputed facts of

the case constitute "secret confinement" under section 10-1(a) of

the Criminal Code of 1961 (720 ILCS 5/10-1(a) (West 2004)). The

question is one of law and this court will review the finding of

"secret confinement" de novo. Lamborn, 185 Ill. 2d at 590, 708

N.E.2d at 354; Smith, 191 Ill. 2d at 411, 732 N.E.2d at 514

A kidnaping occurs when a person knowingly and secretly

confines another person against his will. 720 ILCS 5/10-1(a)(1)

(West 2004). Confinement of a child under the age of 13 is

considered "against his will" if done without the consent of the

parents or legal guardian, and, where the victim is under 13, the

crime also become aggravated kidnaping. 720 ILCS 5/10-1(b), 10-

2(a)(2) (West 2004).

The precedent in Illinois is clear and consistent: one

person holding another in a car on the public highways

constitutes secret confinement. People v. Bishop, 1 Ill. 2d 60,

64, 114 N.E.2d 566, 568 (1953); People v. Hamil , 20 Ill. App. 3d

901, 908, 314 N.E.2d 251, 256 (1974). In Bishop, 1 Ill. 2d at

- 14 - 64, 114 N.E.2d at 568, the court rejected the argument that there

can be no secret confinement where the victim was forcibly

confined in a car that was driven around for four hours. In

Hamil, 20 Ill. App. 3d at 908, 314 N.E.2d at 256, the element of

secret confinement was established where the defendant confined

the victim in the car while driving down several alleys, then

stopped where the victim could not open the door. Defendant

argues the police and the Howards lost visual contact with the

van for only a short time. However, there is no minimum time of

confinement set forth in the kidnaping statute.

In this case, the facts demonstrated that defendant was

driving in a van at a high rate of speed and attempting to elude

capture. He had Carmen in the van and managed, for a time, to

succeed in getting away from her family and the police.

Defendant argues that Carmen was not secretly confined

under the analysis in People v. Pasch, 152 Ill. 2d 133, 187-88,

604 N.E.2d 294, 316-17 (1992). In Pasch, the supreme court found

the defendant not proved guilty of aggravated kidnaping beyond a

reasonable doubt where the State failed to prove secret

confinement in a hostage standoff where the defendant never

attempted to keep the victim's location (in the victim's

apartment) a secret and the victim's sister was aware of the

victim's location at all times. Defendant argues that Carmen was

not secretly confined because her parents and the police knew she

- 15 - was in the minivan from the time defendant drove it away until

Kevin found the van and removed Carmen. Pasch is distinguishable

because defendant was driving a van with Carmen in it, attempting

to elude detection, not holding her in a fixed location where her

presence was widely known

Defendant also argues that the child was visible

through the window of the van, which was operated on public

roads, so Carmen was never removed from the public awareness. In

People v. Trotter, 371 Ill. App. 3d 869, 876-77, 864 N.E.2d 281,

287 (2007), overruled on other grounds by People v. Harrison, 226

Ill. 2d 427, 441, 877 N.E.2d 432, 439 (2007), the appellate court

found the defendant was not proved guilty beyond a reasonable

doubt where the defendant took a child without the parents'

consent, boarded a light-rail train, rode it for a while,

disembarked, spoke with a suspicious police officer, walked to a

gas station while the police officer kept her in sight, and went

to the bathroom where she was ultimately arrested. The court in

Trotter found that secret confinement was not proved because the

victim was never removed from the public awareness. Trotter, 371

Ill. App. 3d at 877, 864 N.E.2d at 287.

Again, however, Carmen was not in clear view of the

public, as she would be on a train or bus, or had she been taken

through a gas station in view of an employee and had briefly been

taken to a public restroom. She was strapped in the child seat

- 16 - of a van with tinted windows. Even if Carmen were visible in the

van, her presence there would not arouse suspicion. There would

be no indication to the public that her being in the van was

without her parents' permission.

Finally, defendant asserts that this situation is

comparable to People v. Lamkey, 240 Ill. App. 3d 435, 439, 608

N.E.2d 406, 409 (1992), because, defendant asserts, Carmen was

visible through the van window. The court found the State failed

to prove secret confinement in Lamkey, where the victim was held

and sexually assaulted behind a glass door a couple steps off of

a busy Chicago street. Lamkey, 240 Ill. App. 3d at 439, 608

N.E.2d at 409. Confinement, though, is much more "secret" when

it involves a very small child in a child seat in a moving

vehicle than it is when a sexual assault is being perpetrated

behind a glass door clearly visible from a busy street.

Clearly, defendant had Carmen secretly confined within

the meaning of the statute, and defendant was therefore correctly

found guilty of aggravated kidnaping beyond a reasonable doubt.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment. As part of our judgment, we grant the State its

statutory assessment of $50 against defendant as costs of this

appeal.

Affirmed.

- 17 - McCULLOUGH and STEIGMANN, JJ., concur.

- 18 -