People v. Wakenight

Opinion

No. 2--05--1090 ______________________________________________________________________________

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. 00--CF--1078 ) PATRICIA C. WAKENIGHT, ) Honorable ) J. Edward Prochaska, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE CALLUM delivered the opinion of the court:

Following a bench trial, defendant, Patricia C. Wakenight, was convicted of possession of a

controlled substance with intent to deliver within 1,000 feet of a church (720 ILCS 570/407(b)(1)

(West 2000)). Defendant did not attend the second day of the trial and the sentencing hearing, after

she left the courtroom to use the restroom and never returned. Defendant appeals, contending that

(1) this court should exercise its discretion to hear her appeal despite her "probable" status as a

fugitive; (2) although she initially received proper admonishments that she could be tried in absentia,

the court's later statements and actions led her to believe that that was no longer a possibility; and

alternatively (3) that a new sentencing hearing is required because notice of the date of the hearing

was not mailed to her last known address. For the following reasons, we elect to hear the appeal, but

hold that defendant is not entitled to relief on the merits. Therefore, we affirm. No. 2--05--1090

On April 27, 2000, police executed a search warrant for 1728 7th Street in Rockford. They

saw defendant and Joseph Cooper sitting on the front porch. Detective Robert Veruchi searched

Cooper and found car keys. A car was parked in front of the building. When Veruchi asked to whom

the car belonged, defendant volunteered that it was her mother's. Defendant consented to a search

of the car, which revealed a green bag containing packets of cocaine. Police also found a piece of

mail dated April 25, 2000, and addressed to defendant at 420 Ashley Court in Rockford.

On April 28, 2000, the public defender was appointed to represent defendant. However, the

public defender told the court that her office would have to withdraw due to a conflict of interest.

At the next hearing, on May 25, 2000, the trial court admonished defendant as follows:

"Ms. Wakenight, it is my duty to advise you that if you fail to appear at any time that

the case is set for trial, the trial can go ahead without you. And if you were found guilty, you

could also be sentenced without being present. Do you understand?"

Defendant responded that she understood.

On August 28, 2000, the trial court allowed the public defender to withdraw and appointed

Frank Martinez as counsel. However, Martinez soon withdrew from the case due to his own conflict

of interest. Mark Danielson was then appointed as counsel, but he withdrew on September 14, 2000,

because he was moving out of state. On September 21, 2000, David Caulk was appointed conflict

counsel. He soon withdrew because his conflict contract expired. On January 18, 2001, the court

appointed Gregory Clark as defendant's counsel.

Problems soon arose between defendant and Clark and, on August 16, 2002, she filed a pro

se motion requesting appointment of a different attorney. The trial court initially denied the request

but, after Clark received a letter from the Attorney Registration and Disciplinary Commission

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accompanied by defendant's complaint against Clark, the court allowed Clark to withdraw. The court

appointed Patrick Braun as new counsel.

On August 29, 2003, Braun announced that the parties had reached a plea agreement, under

which defendant would receive a four-year prison sentence. In anticipation of the plea agreement,

defendant executed a jury waiver. The matter was continued to March 1, 2004, when defendant

informed the court that she had decided not to accept the State's offer.

The cause was continued to June 18, 2004, for a bench trial. Defendant failed to appear on

the trial date, and the court issued a no-bond warrant. Defendant was arrested on November 30,

2004. At that time, she learned that Braun no longer represented her because he had taken a position

with the Boone County State's Attorney's office. Jeffrey Kline was appointed in Braun's place.

Defendant told the judge that she was in jail and pregnant. She was scheduled to deliver her

baby by cesarean section shortly thereafter. The court asked defendant why she had failed to appear

for trial on June 18, 2004, and she explained that she had confused the trial date with another date.

When she received notice of the bench warrant, she became scared because she did not want to

deliver her baby in jail. The trial court set defendant's bond at $50,000.

Kline moved to reduce defendant's bond, citing her "high-risk" pregnancy and attendant

medical needs. At the hearing on the motion, the court noted that defendant goes "through attorneys

like most people change their underwear," and labeled the delays in the case "horrendous." However,

the court granted defendant's motion to reduce her bond to $5,000, warning her that the case would

go to trial as soon as Kline was ready.

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The court also stated that it would set a status date for January 27, 2005. The court noted

that it would then clear a date and "this case will go to trial no matter what, absolutely no matter

what." The court then stated:

"If you fail to appear for the trial date, I'll set a no bond warrant and I'll leave it no

bond and then that way I can ensure you will sit, and the case will go to trial as soon as you're

picked up on the warrant. I cannot stress enough this case is going to be resolved. It's

ridiculous."

The court ordered that, as a condition of her bond, defendant remain at her current address.

Kline told the court that defendant's address was 1015 Center Street, South Beloit. Later that day,

defendant signed a bond receipt that contained the following admonishment:

"I understand further that if at any time prior to the disposition of the charge(s) I escape or

am released on the bond and fail to appear in court when required by the court, the result of

my failure to appear will be as follows: I thereby waive my right to confront the witnesses

against me; the trial can proceed in my absence; I forfeit the security money posted;

judgement will be entered against me for the full amount of this bond, plus costs; a warrant

may be issued, in which event additional bond may be required."

The court set a trial date of April 5, 2005. On that date, defendant complained that she had

not met with Kline to discuss defense strategy. Kline told the court that, although he thought he had

met with defendant, he could have been wrong. He asked for a continuance. The court continued

the case to May 20, 2005, and instructed Kline and defendant to meet before that date.

On May 20, 2005, Kline informed the court that he was not ready for trial and had "not ha[d]

the opportunity to talk to Miss Wakenight with regard to her position." The court asked Kline if he

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had met with defendant since April 5, 2005. Kline responded, "I don't recall. I know I have spoke

[sic] to her on the phone."

The court noted that the trial could not be completed that day in any event. The court stated

that it would allow three State witnesses who were present to testify, then it would continue the trial

to another date, which would give defendant and Kline a chance to meet. After the three witnesses

testified, the court continued the case to July 22, 2005. The court instructed Kline to meet with

defendant and to have subpoenas issued for witnesses in the meantime.

When the trial resumed on July 22, 2005, Kline told the court that he had met with defendant,

but was "having a problem with a witness." Kline knew where the witness worked and was going

to try to get him to court. He acknowledged that he had not subpoenaed the witness because he

expected him to appear voluntarily.

During these proceedings, it occurred to the court that defendant was taking an inordinately

long time to return from the restroom. After the bailiff unsuccessfully searched for defendant, the

following occurred:

"THE COURT: If she left, there's going to be one very unhappy Judge.

(Whereupon Mr. Kline entered the courtroom.)

THE COURT: Come on. Don't tell me she's gone. How did you leave it with her?

I understand there were other people with her, too?

MR. KLINE: Yes, her mom was with her. I spoke to [the prosecutor]. She asked

me to approach him about the possibility of probation. I went in, I explained [the

prosecutor's] position and the state's position with regard to why they don't think probation

was appropriate.

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THE COURT: I don't want to get into the substance of the plea negotiation. I want

to know why she's not inside my courtroom.

Did she tell you she was going to use the rest room, she told you that?

MR. KLINE: Yes, she said, 'Do you think I can use the rest room one more time?' "

The prosecutor urged the court to proceed with the trial. The court agreed that the case was

appropriate for trial in absentia, and the State completed its case. The defense rested without

presenting any witnesses. The court found defendant guilty and continued the case to September 23,

2005, for sentencing.

On September 23, 2005, the State informed the court that it had neglected to send defendant

a notice by certified mail informing her of the sentencing date. The court continued the case to

November 1, 2005. On that date, the State informed the court that it had sent notice by certified mail

to defendant at 420 Ashley Court, Rockford. The court denied defendant's posttrial motion and

sentenced her to 10 years' imprisonment. Kline filed a notice of appeal on defendant's behalf the same

day.

Defendant first contends that we should exercise our discretion to hear her appeal. In People

v. Partee, 125 Ill. 2d 24, 37 (1988), the supreme court stated that an appellate court has the

discretionary power to refuse to hear a fugitive's appeal unless and until the fugitive returns to the

jurisdiction. Some later appellate court cases have dismissed the appeals of fugitive defendants. See

People v. Wicklund, 363 Ill. App. 3d 1045 (2006); People v. Taylor, 247 Ill. App. 3d 321 (1993).

We decline to dismiss the appeal here because the only substantive issues defendant raises are

whether she was properly admonished about the possibility of a trial in absentia and whether she was

entitled to a separate notice of the sentencing hearing. If defendant were not properly admonished

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about the possibility of a trial in absentia or did not receive a required notice, it would be unfair to

dismiss her appeal on the ground that she failed to attend the trial. Thus, the substantive issues are

intertwined with the issue of whether we should hear the appeal in the first place. Accordingly, we

decline to dismiss the appeal and will reach the merits.

In doing so, we note our disagreement with defendant's suggestion that her decision to absent

herself from the trial can be blamed on her appointed attorney. Defendant cites her repeated

complaints to the trial court that Kline was unable to meet with her and discuss her defense and

argues that "the record strongly suggests that the defendant left her trial because her appointed

attorney did not adequately consult with her regarding potential witnesses and viable defenses to the

charge." We disagree.

Initially, we note that this argument is pure speculation. The record shows that Kline met

with defendant at least once in person and spoke with her once by telephone. Moreover, this case

was not extraordinarily complex. The evidence showed that police found cocaine in a car that

defendant admitted belonged to her mother. If defendant believed that she was not the person the

police saw on the porch of 1728 7th Street, that the cocaine was placed in the car without her

knowledge, or that the substance the police found was not in fact cocaine, this information could have

easily been conveyed during a telephone conversation and a face-to-face meeting. Of course, by

being absent, defendant is unable to explain what additional information she wished to convey to

Kline but was unable to.

Moreover, even if the factual assumptions underlying this argument are true, they provide no

excuse for defendant's absence. Section 115--4.1(a) of the Code of Criminal Procedure of 1963 (the

Code) specifies the circumstances under which an absent defendant may be tried in absentia. 725

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ILCS 5/115--4.1(a) (West 2004). The provision does not contain an exception for a defendant whose

attorney has not met with her as often as she would prefer. If defendant truly believed that Kline was

not adequately representing her, procedures were available to address that situation. Defendant well

knew this, because she succeeded in having one of her former attorneys removed from the case.

Finally, if defendant was truly concerned about Kline's ability to represent her, this would have

provided all the more incentive for her to attend the trial and assist him, rather than simply vanishing,

leaving him to defend an absent client.

While we need not resolve the question why defendant left the trial, we note the State's

observation that she did so, according to Kline, immediately after the prosecutor rejected her request

for a plea-bargained sentence of probation. This appears to be a more likely explanation for her

sudden absence from court than some vague, unsupported concern about the quality of her attorney's

representation.

On the merits, defendant's first substantive contention is that she was not properly admonished

about the possibility of a trial in absentia. She concedes that she initially received the proper

admonishment, but contends that the court's later remarks that if she failed to appear, it would issue

a no-bond warrant "and the case will go to trial as soon as you're picked up on the warrant"

"superceded and negated" the first, proper admonishment.

Section 113--4(e) of the Code provides that if a defendant pleads not guilty, the court shall

advise him or her "that if he escapes from custody or 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

2004). Again, defendant concedes that the trial court properly admonished her early on in the case.

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However, she contends that the combination of circumstances left her with the impression that a trial

would not commence until she was actually arrested on a warrant. She notes that approximately five

years had passed since she received the proper admonishment. Since then, she had missed one earlier

trial date, but a trial in absentia did not occur at that time. Instead, the court continued the case and

issued a bench warrant. When defendant was arrested on the warrant, the court then reduced her

bond, admonishing her that if she again failed to appear, "I'll set a no bond warrant and I'll leave it

no bond and then that way I can ensure you will sit, and the case will go to trial as soon as you're

picked up on the warrant." Defendant contends that she was thus left with the impression that if she

again missed court, the case would not go forward until she was arrested on a warrant and forcibly

brought to court.

Initially, we note that defendant cites no authority for the proposition that a proper section

113--4(e) admonishment can be "negated" by a trial court's later remarks in another context.

Moreover, the record here does not show that the earlier admonishment was in fact negated. The

court never explicitly said that a trial in absentia was no longer a possibility. The quoted remarks

came in the context of the court expressing its frustration with the delays in the case and defendant's

previous failure to appear for trial. The quoted statement was immediately preceded by the court's

remark that "I'm going to clear a morning or an afternoon, and this case will go to trial no matter

what, absolutely no matter what." Finally, as the State points out, later that same day defendant

signed a bond receipt that contained a written version of the trial in absentia warning (and after being

released on bond previously, she had signed a receipt containing the same warning). Considering all

the circumstances, including the court's extreme frustration with the delays in the case, and its

concomitant threat that the case would proceed "no matter what," defendant cannot reasonably

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contend that she took the court's remarks to mean that a trial would not proceed until she was

arrested on a bench warrant and physically brought to court.

People v. Condon, 272 Ill. App. 3d 437 (1995), which defendant cites, provides her with no

support. There, at his arraignment, the defendant received a written admonition that if he failed to

appear he could be tried and sentenced in his absence. Condon, 272 Ill. App. 3d at 441. At a later

proceeding, the defendant was orally warned that " 'the proceedings [could] go forward in his

absence' " if he failed to appear " 'on whatever court date is set.' " Condon, 272 Ill. App. 3d at 442.

We held that substantial, and not perfect, compliance with section 113--4(e) was required, and that

the combination of oral and written admonishments sufficiently conveyed to the defendant that if he

did not appear for trial, the trial could go forward without him. Condon, 272 Ill. App. 3d at 442.

We fail to see how Condon helps defendant here, where she received more complete and specific oral

admonishments than those given in Condon and twice received a written admonition that her failure

to appear could result in a trial in absentia.

Defendant also contends that she must receive a new sentencing hearing because she was not

notified of the sentencing date by certified mail at her last known address. Defendant points out that,

although the clerk sent her a certified letter containing the date of the sentencing hearing, the letter

was sent to her former address in Rockford, rather than her new address in South Beloit, which was

part of the record. The State responds that the trial and sentencing hearing are parts of the same

proceeding and, because defendant knew of the trial date, a separate notice was not necessary.

Once again, we note that defendant cites no authority specifically holding that separate notice

of the date of a sentencing hearing is required when the defendant was present when the trial date was

set. Section 115--4.1(a) of the Code provides that if a defendant does not appear at the hearing on

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which the trial date is set, the court can conduct the trial in the defendant's absence if the clerk notifies

the defendant of the trial date by certified mail at his or her last known address. 725 ILCS 5/115--

4.1(a) (West 2004). As the State points out, the statute does not differentiate between trials and

sentencing hearings. Undoubtedly, this is because the trial and sentencing hearing are considered

parts of a single proceeding. Indeed, courts have noted that there can be no final judgment in a

criminal case until a sentence is imposed. People v. Harrison, 372 Ill. App. 3d 153, 155 (2007). In

People v. Smith, 202 Ill. App. 3d 606, 608 (1990), the court held that a defendant need not be

specifically admonished that he could be sentenced in his absence, because a "sentencing hearing is

a part of the trial." In People v. Thomas, 216 Ill. App. 3d 405 (1991), the defendant appeared for

trial but not for sentencing and was sentenced in absentia. While agreeing with Smith that "an

admonition concerning trial may include any proceedings held in conjunction with the charge," the

court vacated the defendant's sentence because he was never admonished about the possibility of trial

in absentia. Thomas, 216 Ill. App. 3d at 409.

These cases support the conclusion that the trial and sentencing hearing are parts of the same

proceeding. Accordingly, where defendant was in court when the court set the trial date (indeed, she

came to court on the trial date before leaving), separate notice of the sentencing hearing was not

required.

In her reply brief, defendant appears to contend that the State is judicially estopped from

arguing that notice of the sentencing hearing is not required, because the State attempted to notify

defendant, albeit at the wrong address. However, judicial estoppel requires that a party take factually

inconsistent positions. People v. Jones, 223 Ill. 2d 569, 598 (2006). Here, the State's positions are

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at most legally inconsistent. Thus, the State is not precluded from arguing that the statute's plain

language does not require notice.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

GROMETER, P.J., and McLAREN, J., concur.

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