People v. Wofford

2023 IL App (3d) 210247-U

• Court: Appellate Court of Illinois
• Decided: May 15, 2023
• Docket: 3-21-0247
• Status: Unpublished

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).

2023 IL App (3d) 210247-U

Order filed May 15, 2023 ____________________________________________________________________________

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. 3-21-0247 ) Circuit Nos. 19-CF-359 and v. ) 19-TR-4423 ) JAMES A. WOFFORD, ) Honorable ) Gregory G. Chickris, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HETTEL delivered the judgment of the court. Presiding Justice Holdridge and Justice Albrecht concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: Defendant did not receive ineffective assistance of counsel.

¶2 Defendant, James A. Wofford, appeals his conviction for felony driving while license

revoked (DWLR). Defendant argues that defense counsel provided ineffective assistance by

failing to object to the lack of notice to defendant of his trial date in person or by certified mail,

failing to object to the State’s failure to prove that defendant willfully avoided trial, and agreeing

to not retry defendant, which resulted in defendant being tried in absentia. We affirm. ¶3 I. BACKGROUND

¶4 Defendant was ticketed for DWLR and later charged with felony DWLR (625 ILCS 5/6-

303(a) (West 2018)). The court appointed the public defender to represent defendant. A docket

entry from March 30, 2020, states that the “case has been reset to 7/14/20 @ 9AM. SAO to send

notice.” A docket entry from April 8 provides “Notice sent out to all parties, filed. Due to

COVID 19.” The record includes a “Re-set Notice” dated April 8 advising the bench trial was

reset to July 14, 2020, and indicating that the notices were sent to defendant and his attorney.

¶5 On July 14, 2020, at the time for trial, defendant failed to appear. Defense counsel moved

to continue and stated he did not know defendant’s whereabouts. The court denied the motion.

The matter proceeded to a trial in absentia. The State called an officer who testified that he

effectuated a stop on defendant’s vehicle and determined that defendant’s license was revoked.

The State also admitted the squad car video from the stop and a page of defendant’s driving

abstract which showed his license was revoked on the day the officer pulled him over. The State

rested.

¶6 Defense counsel sought to admit the remainder of the abstract, but ultimately withdrew

his request because he thought the State was “going to fail under Apprendi” as he believed that

the State needed to prove the specific reason defendant’s license was revoked. Counsel believed

that the reason for the revoked license was an element the State needed to prove at trial and if

they failed to do so, then they would be left with a basic DWLR charge rather than a felony

DWLR. The court asked if the State would like to reopen and defense counsel argued they could

not. The State responded it was a sentencing issue and did not want to reopen. The court found

defendant guilty of DWLR, but decided to take the issue regarding the reason for revocation

under advisement and ordered briefing.

2 ¶7 While discussing a briefing schedule, a public defender’s office assistant advised that

defendant called and was almost to the courthouse. She stated, “He had trouble with a ride this

morning because he does not have a license of his own.” At that point, the court decided to wait

for defendant to arrive. After defendant arrived, the court stated:

“Previously we had a trial in absentia, the State presented its evidence, the

defendant declined to present any evidence, and I found the defendant guilty of

[DWLR].

Now the defendant is here, and we have basically three options: We can

start again and vacate what was done, and I can ignore all the evidence, or (2) the

Defense can proceed and call the defendant as a witness if it wants, or both of

you—or the State could move to reopen the evidence, or you both can agree that

the evidence is closed.”

The State advised it wanted to proceed as if the evidence was closed because it would put on the

same evidence if another bench trial was held and defense counsel stated, “In agreement with

that.” The court noted it would not force a different result if both parties agreed the evidence was

closed and defense counsel stated, “The evidence is closed.”

¶8 After taking the matter under advisement and having briefing and argument on the issue

of proof regarding the reason the license was revoked, the court found defendant guilty of felony

DWLR. Defendant did not file a motion for new trial. He was sentenced to one year in prison.

Defendant appeals.

¶9 II. ANALYSIS

¶ 10 Defendant argues that because he was not present when the trial was rescheduled he was

required to be given notice by certified mail in order to be tried in absentia and the record does

3 not show that was done. Further, that in order to be tried in absentia the State also had to show

defendant was willfully absent, which it did not do.

¶ 11 Initially, we note that defendant forfeited the issues surrounding the trial in absentia

because he did not object or move for a new trial on these bases. People v. Enoch, 122 Ill. 2d

176, 186 (1988) (providing that in order to preserve an error for appellate review, a defendant

must object to the error at trial and raise it in his posttrial motion). Defendant attempts to avoid

forfeiture by alleging ineffective assistance of counsel. Specifically, defendant argues that these

issues are reviewable because counsel was ineffective for failing to object to the trial in absentia

due to the improper service and the State’s failure to show he was willfully absent and for

agreeing to not retry him once he arrived for trial. Defendant argues he was prejudiced because

had counsel properly objected, the trial would not have proceeded or he would have received a

new trial. Defendant argues counsel’s failures resulted in the loss of his right to be present and

confront the witnesses against him.

¶ 12 “[T]o prevail on a claim of ineffective assistance of counsel, a defendant must show that

(1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s

substandard representation so prejudiced the defense as to deny the defendant a fair trial.” People

v. Horton, 143 Ill. 2d 11, 23 (1991). “To show actual prejudice, defendant must establish that

‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668,

694 (1984)). “The failure to satisfy either the deficiency prong or the prejudice prong of the

Strickland test precludes a finding of ineffective assistance of counsel.” People v. Enis, 194 Ill.

2d 361, 377 (2000).

4 ¶ 13 Here, assuming deficient performance by counsel, there is no prejudice to defendant by

counsel’s purported errors because defendant has not shown, or even argued, that there is a

reasonable probability that but for counsel’s errors the result of the proceedings would have been

different. In other words, defendant does not argue and nothing in the record supports a

determination that there was a reasonable probability that defendant would have been acquitted

had he been present for trial. Thus, his claim fails. 1

¶ 14 III. CONCLUSION

¶ 15 The judgment of the circuit court of Henry County is affirmed.

¶ 16 Affirmed.

1 We have considered the additional authority cited by defendant—People v. Session, 2022 IL App (3d) 200335-U. Although the analysis in Session may be relevant to (1) issues surrounding deficient performance regarding the failure to object to trial in absentia on the bases of improper service and lack of willful absence, and (2) a plain error analysis, it is not relevant to the outcome of this matter when it does not affect the prejudice analysis regarding defendant’s ineffective assistance claim and defendant has not raised a claim of plain error. 5