People v. Hill

2022 IL App (3d) 190782-U

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2022 IL App (3d) 190782-U

Order filed December 2, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Henry County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0782 v. ) Circuit No. 17-CF-374 ) NICOLE K. HILL, ) Honorable ) Terence M. Patton, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

PRESIDING JUSTICE O’BRIEN delivered the judgment of the court. Justice McDade concurred in the judgment. Justice Hettel dissented. ____________________________________________________________________________

ORDER

¶1 Held: The circuit court violated defendant’s due process rights by proceeding to in absentia probation revocation and sentencing hearings without providing proper in absentia admonishments.

¶2 Defendant, Nicole K. Hill, appeals from the Henry County circuit court’s revocation of her

probation and sentence of seven years’ imprisonment. Defendant argues the court erred by not

providing complete trial and sentencing in absentia admonishments before conducting probation revocation and sentencing hearings in absentia. Defendant also argues her sentence is excessive.

We reverse and remand.

¶3 I. BACKGROUND

¶4 Defendant was charged with possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1)

(West 2016)) and criminal damage to property (720 ILCS 5/21-1(a)(1) (West 2016)). Defendant

appeared in court for a preliminary hearing and signed a form titled “Warning of Trial in Absentia.”

The form stated:

“I do understand that if I fail to appear for any future court hearings that I could be

tried and sentenced in my absence. I do understand that I will be waiving or giving

up my right to be present at my trial and to confront my accusers face to face and

to have them cross-examined in my presence. I understand that if I fail to appear

for trial I will be waiving my right to testify for myself and to be present to see and

hear my witnesses testify. I understand that, if I fail to appear at sentencing that I

will be waiving my right to testify and to give an unsworn statement. I also

understand that my failure to appear for any future court hearings may result in a

warrant for my arrest. I understand that I have to appear in Court when required

and to keep the Circuit Clerk of Henry County aware of my current address.”

Additionally, during the preliminary hearing, the following conversation occurred between

defendant and the court:

“THE COURT: I will enter a plea of not guilty and demand for jury trial.

I’ll set the case for a pretrial conference December 14th at 9:30, final pretrial

conference December 26th at 9:30, jury trial the week of January 2nd of 2018.

2 [Defendant], you’ll get a piece of paper with all of those dates on it. And I

want to show you this warning of trial in absentia your attorney handed me. Is this

your signature?

THE DEFENDANT: Yes, sir.

THE COURT: Did you read this before you signed it?

THE COURT: Do you understand what rights you’d be giving up if you fail

to appear at future court dates?

THE COURT: OK, as soon as she gets a copy of the pretrial order, she can

be remanded.”

¶5 Defendant pled guilty to possession of a stolen motor vehicle in exchange for the State

dismissing the remaining count. Defendant was sentenced to 48 months of probation and 180 days

in the county jail.

¶6 Thereafter, the State filed a petition to revoke defendant’s probation. The petition alleged

that defendant violated her probation by testing positive for methamphetamines, benzodiazepines,

and cannabis; admitting to using opiates and benzodiazepines; and failing to pay $25 per month

probation fees. The State filed a supplemental petition that further alleged defendant violated her

probation by testing positive for marijuana and admitting to marijuana use; failing to obtain a

substance abuse evaluation and commence treatment; failing to pay drug testing fees; and failing

to report to court services. Defendant was informed by the court of these allegations and

admonished of the consequences she would face if found in violation of probation.

3 ¶7 At the hearing on the State’s petition, defendant did not appear in court. Defense counsel

requested a continuance, which the court denied. The court found that defendant violated her

probation, ordered a presentence investigation report, and issued a warrant for defendant’s arrest.

¶8 At the sentencing hearing, defendant again did not appear in court. Defense counsel asked

for a continuance, which the court denied. The court sentenced defendant to seven years’

imprisonment. Defense counsel filed a motion to reconsider sentence. Counsel also filed a motion

for a new probation revocation hearing and sentencing hearing.

¶9 At the hearing on defendant’s motions, defendant appeared in court. Defendant indicated

that she was not aware that both the probation revocation and sentencing hearing would be able to

proceed without her. Defendant did not recall receiving the warning of trial in absentia form.

Additionally, defendant did not understand that the form applied to probation revocation and

sentencing proceedings. Defendant explained that instead of appearing in court, she went to a

rehabilitation center. The court denied the motions. Defendant appealed.

¶ 10 II. ANALYSIS

¶ 11 Defendant argues the court erred by not providing complete trial and sentencing in absentia

admonishments before conducting probation revocation and sentencing hearings in absentia.

¶ 12 A defendant has a constitutional right to be present at all stages of trial including

sentencing. People v. Phillips, 242 Ill. 2d 189, 194 (2011); U.S. Const., amend. XIV. A defendant

may waive this right and be tried and sentenced in absentia if they are voluntarily absent. Phillips,

242 Ill. 2d at 194-95. Whether a trial in absentia violated a defendant’s constitutional right to be

present at trial is reviewed de novo. People v. Montes, 2013 IL App (2d) 111132, ¶ 52.

¶ 13 In Illinois, a defendant has a statutory right to be admonished as to the possible

consequence of proceeding in absentia. Phillips, 242 Ill. 2d at 195; 725 ILCS 5/113-4(e) (West

4 2016). Section 113-4(e) of the Code of Criminal Procedure of 1963 (Code) requires, in relevant

part, that if a defendant pleads not guilty, the court shall advise defendant at that time, or at a later

court date, that if defendant fails to appear in court when required, a trial could proceed in

defendant’s absence. A court must substantially comply with this admonishment requirement

before conducting in absentia proceedings. People v. Liss, 2012 IL App (2d) 101191, ¶ 17. The

section 113-4(e) admonishments protect a defendant’s due process rights in the event of an

in absentia proceeding as long as defendant receives notice of the hearing date. People v. Sherrod,

279 Ill. App. 3d 383, 387 (1996). Although a defendant in a probation revocation proceeding is

afforded lesser due process protection than a defendant initially standing trial, that defendant is

still entitled to minimal due process protection, which includes adequate in absentia

admonishments. Id. A written admonishment, by itself, will not satisfy the admonishment

requirements of section 113-4(e). Phillips, 242 Ill. 2d at 201. While written admonishments are

not a substitute for oral admonishments, written admonishments can be of value where incomplete

oral admonishments have been given. People v. Dominguez, 2012 IL 111336, ¶ 30. However,

where oral admonishments are extremely deficient, the written admonishment is considered a total

substitute. Id. ¶ 29 (citing People v. Cummings, 7 Ill. App. 3d 306, 308 (1972)).

¶ 14 Here the circuit court did not give the defendant any oral admonishments, but instead only

referenced the form. The trial court did not notify defendant of any of her rights; only asking if

defendant read and signed the form, and whether defendant understood the rights she would forfeit

if she failed to appear at future court dates. The court made no mention of what these rights were.

In essence, the court relied on the form as a complete substitute for the required oral

admonishment. As a written form alone is not an admonishment pursuant to section 113-4(e) of

the Code, defendant was not admonished by the court as to proceedings in absentia and her due

5 process rights were violated when the court proceeded in absentia with a probation revocation and

sentencing hearing.

¶ 15 Accordingly, we vacate defendant’s probation revocation and sentence, and remand for a

new probation revocation hearing. The vacatur of defendant’s sentence renders the second issue

moot.

¶ 16 III. CONCLUSION

¶ 17 The judgment of the circuit court of Henry County is reversed and remanded.

¶ 18 Reversed and remanded.

¶ 19 JUSTICE HETTEL, dissenting.

¶ 20 I respectfully dissent. I agree with the majority that the admonitions in this case would be

insufficient if the court held a trial in absentia because due process requires that a defendant tried

in absentia receive more than written admonishments. See Philips, 242 Ill. 2d at 201. However,

here, the proceeding held in absentia was not a trial but a hearing to revoke probation. “A

defendant at a probation revocation proceeding is afforded lesser due process protection than a

defendant initially standing trial for the substantive offense.” People v. Sherrod, 279 Ill. App. 3d

383, 387 (1996). The “minimal due process protection” afforded a defendant at a hearing to revoke

probation is satisfied where the defendant receives and signs a written form that contains in

absentia warnings and receives notice of the date of the probation revocation hearing. See id. Here,

defendant signed a written form including in absentia warnings and was notified of the date of the

probation revocation hearing. Therefore, I would find defendant’s due process rights were not

violated and affirm defendant’s probation revocation and sentence.