People v. Lambert

Opinion

No. 2--03--0808 filed: 4/10/06 ______________________________________________________________________ ________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________ ________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 94--CF--148 ) FREDERICK R. LAMBERT, ) Honorable ) Gerald F. Grubb, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________________ _____

JUSTICE O'MALLEY delivered the opinion of the court:

Defendant, Frederick R. Lambert, appeals the trial court's order denying his motion

to reconsider his 60-year sentence for first-degree murder (720 ILCS 5/9B1(a) (West

1994)). Defendant contends that he should receive a new hearing on the motion because

(1) after imposing the sentence, the trial court did not properly admonish him pursuant to

Supreme Court Rule 605(a) (Official Reports Advance Sheet No. 21 (October 17, 2001), R.

605(a), eff. October 1, 2001) about how to perfect an appeal from his sentence and (2) he

was denied the right to be present at the hearing on the motion to reconsider. We affirm.

In 1994, defendant was convicted of murder and sentenced to 100 years'

imprisonment. This court reversed the conviction and remanded for a new trial. People v.

Lambert, 288 Ill. App. 3d 450 (1997). Following a jury trial at which defendant represented No. 2--03--0808

himself, he was again convicted and sentenced to 100 years in prison. This court affirmed

the conviction but vacated the sentence. People v. Lambert, No. 2--99--0408 ( 2001)

(unpublished order pursuant to Supreme Court Rule 23). This court held that defendant's

sentence violated Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct.

2348 (2000).

The trial court then conducted a new sentencing hearing at which the maximum

sentence defendant could receive was 60 years' imprisonment. Defendant continued to

proceed pro se. Following a hearing at which the parties essentially stipulated to the

evidence presented at the second sentencing hearing, the trial court sentenced defendant

to 60 years in prison. The court admonished defendant that in order to appeal he would

first have to file in the trial court a motion to reconsider the sentence. Defendant filed a

motion to reconsider the sentence that read as follows:

"(1) That defendant's sixty (60) year sentence is grossly disproportionate to

co-defendant Carl Dixon [sic] (34) [y]ear sentenced imposed for his first degree

murder conviction; co-defendant Maurice Bowden [sic] (24) year sentence imposed

for his first degree murder conviction; and Alex Dowthard [sic] (7) year sentence

imposed for his plea of guilty to aggravated battery.

(2) That the court erred by making a finding that the crime for which

defendant has been found guilty was accomplished by brutal and heinous

behavior and as such concluding that a sixty (60) year sentence is appropriate.

(3) That the court erred by finding that defendant has murdered two people

while failing to acknowledge that the defendant plead guilty to second degree

murder and under duress.

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(4) That the court erred by denying defendant's motion entitled 'motion to

Declare

Public Act 91--953 as unconstitutional and a violation [sic] separation [sic] power

[sic].'

***

(5) That the court erred by making a finding that the proceedings [sic] was not

a new

one and as such denying defendant[']s amended motion to substitute judge and the

hearing thereof.

(6) That the court erred by considering a pre-sentence report that wasn't

accurate and considering said information to impose the maximum sentence.

(7) That 730 ILCS 5/5--5--4 violates the single subject rule and rights provided

under the laws of ESTOPPEL and or EXPOST [sic] FACTO." (Emphasis in original.)

On July 3, 2003, a hearing was held at which defendant was not present. The trial

court informed the prosecutor that he did not have to respond to defendant's pro se motion

and proceeded to deny it. Defendant timely appeals.

Defendant claims that he is entitled to a new hearing on his motion to reconsider

sentence because (1) the trial court did not properly admonish him pursuant to Rule 605(a);

and (2) the trial court denied his motion in open court without his being present, in violation

of his constitutional right to be present at every critical stage of the criminal prosecution.

Both parties cite People v. Brasseaux, 254 Ill. App. 3d 283 (1996), in support of their

respective positions. In Brasseaux, the defendant, who had been represented at trial by

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the public defender, filed a pro se motion to reconsider his sentence. The motion was

deficient, containing no allegations of error and no prayer for relief. The defendant's trial

counsel did not contact him to lend assistance on the motion. The trial court set the motion

for a hearing. At the hearing, the defendant did not himself appear but was represented by

a different assistant public defender than had represented him at trial. The attorney

presented no argument on the motion, which the trial court then denied. Brasseaux, 254 Ill.

App. 3d at 286. The appellate court held that, because a motion to reconsider sentence is

a critical stage of a criminal proceeding, the defendant was entitled to the assistance of

counsel in preparing and arguing his motion. Brasseaux, 254 Ill. App. 3d at 288. The court

determined that the defendant received such inadequate assistance in connection with his

motion that he was denied his right to counsel. Brasseaux, 254 Ill. App. 3d at 290. For

reasons of judicial economy, the court addressed the defendant's alternative argument that

he was deprived of his constitutional right to be present at the hearing on his motion. The

court held that, unless a motion to reconsider sentence "alleges facts outside of the record

or raises issues which may not be resolved without an evidentiary hearing," the defendant's

presence at the hearing on the motion is not required. Brasseaux, 254 Ill. App. 3d at 291-

92.

The State relies on Brasseaux's second holding that a defendant does not have an

absolute right to be present at a hearing on a motion to reconsider sentence. Defendant

suggests that Brasseaux is inapposite because there the defendant's absence from the

hearing on his motion to reconsider sentence was mitigated by his attorney's presence.

There was no such mitigation here, defendant urges, because he was pro se.

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We agree with defendant that we must look beyond Brasseaux for the pertinent

authority. "A criminal defendant has a constitutional right to a public trial, and to appear

and participate in person and by counsel at all proceedings which involve his substantial

rights [citations], so that he may know what is being done, make objections, and take such

action as he deems best to secure his rights and for his protection and defense. [Citation.]"

People v. Childs, 159 Ill. 2d 217, 227 (1994). However, a defendant's right to be present is

not absolute (People v. McDonald, 322 Ill. App. 3d 244, 248 (2001)), but, rather, a violation

of that right will warrant relief only if the State cannot prove beyond a reasonable doubt that

the error was harmless (Childs, 159 Ill. 2d 217). Harmless error analysis applies even

where the absent defendant was pro se and therefore had no representation at all at the

stage of the proceeding in question. People v. McDonald, 168 Ill. 2d 420, 460-61 (1995)

(harmless error applied to trial court's answering of question from jury in pro se defendant's

absence).

Defendant was deprived of his right to be present when, in his absence, the trial

court ruled on his motion in open court. However, the State has established that the error

was harmless. The proceeding at which the trial court ruled on defendant's motion

transpired as follows:

"THE COURT: Do I have the document that Mr. Lambert had filed?

THE CLERK: You know, I looked through it, and I think that might be the last

one.

I was hoping that was [sic] last one. This is number four, 94--CF--148, People v.

Frederick Lambert.

STATE'S ATTORNEY: Good afternoon, Your Honor. I'm standing in--

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THE COURT: Good afternoon.

STATE'S ATTORNEY: --for Attorney Karner from my office. I know of the

existence of a motion. I believe he styles it a motion for filing, slash, proof of

service. Second page is [sic] post-sentencing motion and motion for reconsideration

of sentence. But I'm under the impression that there is another motion that he has

filed that we don't have a copy of.

THE CLERK: I ran the docket sheet, too, before I came to see if there was

anything

else filed.

THE COURT: You don't need to respond to the motion for reconsideration of

sentence and post-sentencing motion. The Court will deny the same. Will you

prepare an order?"

The State points out that defendant has not attempted to show how his presence at

the proceeding would have improved his chances of persuading the trial court that his

motion was meritorious. Defendant's written motion adequately set out the grounds for the

motion. It merely asked the court to reevaluate the evidence in aggravation and mitigation

and to consider various legal arguments. The trial court evidently believed that it had

sufficient information to rule on the motion without further input from either side, and

defendant does not challenge this conclusion. Defendant does not claim that he would

have adduced evidence at the proceeding or that the opportunity for oral argument would

have benefitted him. In any event, a defendant's right to present oral argument is

extremely limited. In Herring v. New York, 422 U.S. 853, 863, 45 L. Ed. 2d 593, 601, 95 S.

Ct. 2550, 2555-56 (1975), the United States Supreme Court struck down on constitutional

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grounds a state statute permitting a trial judge to deny a defendant the opportunity to make

a summation at the close of a criminal trial. The Court held that a defendant has a

constitutional right to make such a summation. Herring, 422 U.S. at 865, 45 L. Ed. 2d at

602, 95 S. Ct. at 2556. The Court emphasized how integral a closing summation is to a

defense:

"It can hardly be questioned that closing argument serves to sharpen and

clarify the issues for resolution by the trier of fact in a criminal case. For it is only

after all the evidence is in that counsel for the parties are in a position to present

their respective versions of the case as a whole. Only then can they argue the

inferences to be drawn from all the testimony, and point out the weaknesses of their

adversaries' positions. And for the defense, closing argument is the last clear

chance to persuade the trier of fact that there may be reasonable doubt of the

defendant's guilt. [Citation.]

The very premise of our adversary system of criminal justice is that partisan

advocacy

on both sides of a case will best promote the ultimate objective that the guilty be

convicted

and the innocent go free. In a criminal trial, which is in the end basically a factfinding

process,

no aspect of such advocacy could be more important than the opportunity finally to

marshal

the evidence for each side before submission of the case to judgment." Herring,

422 U.S. at 862, 45 L. Ed. 2d at 600, 95 S. Ct. at 2555.

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The Court added, however, that the trial court "must be and is given great latitude in

controlling the duration and limiting the scope of closing summations." Herring, 422 U.S. at

862, 45 L. Ed. 2d at 600, 95 S. Ct. at 2555. Finally, the Court cautioned: "Nothing said in

this opinion is to be understood as implying the existence of a constitutional right to oral

argument at any other stage of the trial or appellate process." Herring, 422 U.S. at 863

n.13, 45 L. Ed. 2d at 601 n.13, 95 S. Ct. at 2556 n.13. Courts in the wake of Herring have

consistently refused to extend the right to present oral argument to any other stage of a civil

or criminal proceeding. See United States v. Salovitz, 701 F.2d 17, 21 (2d Cir. 1983) (no

constitutional right to present opening statement at criminal trial); Ogle v. Estelle, 641 F.2d

1122, 1127 (5th Cir. 1981) (no constitutional right to present oral argument on appeal);

State v. Vliet, 91 Hawaii 288, 295-96, 983 P.2d 189, 196-97 (1999) (no constitutional right

to present oral argument on motion for judgment of acquittal); Holland v. State, 77 Md. App.

252, 257-58, 549 A.2d 1178, 1181 (Md. Ct. Spec. App. 1988) (no constitutional right to

present oral argument on motion to suppress), cert. denied, 314 Md. 628, 552 A.2d 894

(1989); People v. Withers, 87 Ill. 2d 224, 229-30 (1981) (no constitutional right to present

oral argument in support of motion for directed verdict). In Withers, our supreme court

distinguished Herring, noting that a motion for a directed finding merely requires the court

to consider the evidence just presented and therefore needs little, if any, elaboration.

Withers, 87 Ill. 2d at 228.

The differences between a trial and a motion to reconsider sentence are too extreme

for Herring's rationale to apply here. A motion to reconsider sentence does not present

factual and legal complexities on any level approaching those of a typical trial. By the time

a sentence is imposed, the facts are already determined and what remains is the question

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of what sentence fits the facts. The issues have narrowed even further by the time a

motion to reconsider sentence is filed. We decline to find a constitutional right to present

oral argument on a motion to reconsider sentence. We further hold that, though

defendant's constitutional right to be present was violated when the trial court ruled on his

motion in his absence, the error was harmless and does not warrant reversal.

Defendant alternatively contends that he is entitled to additional admonishments

pursuant to Supreme Court Rule 605(a). The rule requires the trial court to admonish a

defendant about how to perfect an appeal from a sentence. The court must inform the

defendant that he must file a motion to reconsider the sentence, that any issue not raised in

the motion can be deemed waived on appeal, and that, following the disposition of the

motion, the defendant must file a notice of appeal within 30 days. Official Reports Advance

Sheet No. 21 (October 17, 2001), R. 605(a)(3), eff. October 1, 2001. Defendant contends

that he was not informed that, among other things, any issue not raised in the motion would

be waived. Citing People v. Glenn, 345 Ill. App. 3d 974 (2004), defendant argues that he is

entitled to a remand for new admonishments, regardless of whether he can demonstrate

prejudice from the incomplete admonishments.

In People v. Henderson, 217 Ill. 2d 449 (2005), the supreme court held that a

defendant who receives incomplete Rule 605(a) admonishments is not entitled to a remand

unless he can demonstrate that he was prejudiced or denied "real justice." Henderson, 217

Ill. 2d at 459. The defendant in Henderson did not file a motion to reconsider the sentence.

On appeal, he did not point to any issues that he would have raised in such a motion had

he been properly admonished. Therefore, the court held that he suffered no prejudice and

was not entitled to a remand. Henderson, 217 Ill. 2d at 469.

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Here, despite the defective admonishments, defendant actually did file a

postsentencing motion. Moreover, he does not suggest any additional issues that he would

have raised had he received proper admonishments. We conclude that defendant was not

prejudiced by the lack of complete admonishments.

For the reasons stated above, the judgment of the circuit court of Winnebago County

is affirmed.

Affirmed.

BYRNE and GILLERAN JOHNSON, JJ., concur.

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