NOTICE 2024 IL App (5th) 230629-U NOTICE Decision filed 12/02/24. The This order was filed under text of this decision may be NOS. 5-23-0629, 5-23-0630 cons. Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Champaign County. ) v. ) Nos. 22-CF-1036, 22-CF-438 ) JOSEPHINE D. ZAWISZA, ) Honorable ) Randall B. Rosenbaum, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court. Justices Boie and Sholar concurred in the judgment.
ORDER
¶1 Held: The trial court’s sentence is affirmed where no clear and obvious error was apparent, and defense counsel was not ineffective for failing to object to the court’s consideration of defendant’s probationary failures and rehabilitative potential at sentencing. However, the trial court’s failure to conduct a section 115- 4.1(e) hearing was error and we remand the case for a hearing to determine if defendant’s failure to appear at her sentencing hearing was both not her fault and due to circumstances beyond her control.
¶2 Following a stipulation to the State’s allegations in a petition to revoke probation,
defendant, Josephine D. Zawisza, was sentenced, in absentia, on two charges to which she
previously pled guilty pursuant to a fully negotiated plea. On appeal, she argues that the trial
court’s sentence was plain error and counsel provided ineffective assistance. She also argues that
the trial court erred by failing to provide her with a hearing pursuant to section 115-4.1(e) of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-4.1(e) (West 2022)) that would
1 allow the court to determine whether her failure to appear at sentencing was both without her fault
and due to circumstances beyond her control. For the following reasons, we affirm the sentence
but remand to allow the trial court to conduct a section 115-4.1(e) hearing.
¶3 I. BACKGROUND
¶4 On April 11, 2022, in case No. 22-CF-438, defendant was charged, by information, with
unlawful possession of a stolen vehicle in violation of section 4-103(a)(1) of the Illinois Vehicle
Code (625 ILCS 5/4-103(a)(1) (West 2022)) related to a 2012 Chevrolet Cruze. She was also
charged with a second count of unlawful possession of a stolen vehicle in violation of the same
statute related to a 2003 Ford F-250. Probable cause for the initial charge revealed that defendant
took the 2012 Cruze, along with various items from a freezer in the garage, where the Cruze was
parked. As to the second charge, it was revealed that defendant later took the Cruze to a repair
shop to have them work on the vehicle. When the business informed defendant that they could not
work on the vehicle, defendant abandoned the Cruze and stole a 2003 Ford F-250. She was
eventually stopped by the Rantoul police and claimed she had permission to drive both the Cruze
and the Ford F-250, but both vehicle owners denied knowing defendant or having any relationship
with her. Following her initial appearance, defendant was released on her own recognizance and
ordered to appear for court on May 3, 2022.
¶5 On May 4, 2022, after failing to appear in court, a warrant for defendant’s arrest was issued
with bond set at $10,000. Following her arrest on May 13, 2022, defendant was arraigned on May
16, 2022. She was again released on her own recognizance and ordered to appear for court on June
7, 2022. On June 7, 2022, defendant appeared, waived her right to a preliminary hearing, and pled
not guilty. Pretrial was set for July 12, 2022. Defendant failed to appear at the hearing and a second
arrest warrant was issued.
2 ¶6 On July 30, 2022, in case No. 22-CF-1036, defendant was charged by information with
residential burglary, after entering the dwelling of Cail Daley, with the intent to commit theft in
violation of section 19-3 of the Criminal Code of 2012 (720 ILCS 5/19-3 (West 2022)). An arrest
warrant was issued, and defendant was arrested on August 7, 2022. On August 7, 2022, a bail bond
release ($5000) was issued with an order that defendant have no contact with the homeowner.
Defendant’s arraignment was scheduled for August 8, 2022, and this case was consolidated with
her two previous cases (21-CM-359 1 and 22-CF-438).
¶7 A plea hearing was held on September 8, 2022. On that date, defendant entered a negotiated
plea, waived her right to trial, and pled guilty to the charges in case No. 22-CF-1036 (residential
burglary) and count I of case No. 22-CF-438 (unlawful possession of a stolen vehicle). She was
admonished of a potential sentence between 4 and 15 years in case No. 22-CF-1036 unless she
received probation for acceptance into the Treatment Alternatives for Safe Communities (TASC)
drug program. She was further admonished of a potential sentence of three to seven years in case
No. 22-CF-438 and that the sentences could be ordered to run consecutively. In return for the guilty
plea in case No. 22-CF-438, the State agreed to a sentence of 36 months’ probation, 50 hours
public service, various fees, and testing along with substance abuse and mental health evaluations.
The State would dismiss count II and the charges in case No. 21-CM-359 (aggravated assault). As
to case No. 22-CF-1036, the State agreed to a sentence of 36 months of TASC probation, payment
of fines, 50 hours of public service, and a requirement that defendant undergo substance abuse and
mental health evaluations and follow any recommendations related thereto. The court clarified that
only 50 hours of public service total for both cases was required.
1 This 2021 case involved charges of aggravated battery. 3 ¶8 The factual basis related to the residential burglary was that defendant was in a college
student’s apartment when he returned. She told the student that she was the property manager and
then ran out the back door. It was also noted that defendant was eating leftover food when the
student returned to the apartment and that defendant rummaged through the freezer while she was
there. The court noted that it received the TASC letter and would approve her for TASC. The court
advised defendant that she needed to appear at probation the following day and explained that was
a “special kind of sentence.” It then stated,
“You were required to go to prison between 4 and 15 years. The only reason you’re not is
because you have a drug problem and TASC probation says that they want to monitor you
and you’re willing to do that. *** So this is kind of a gift.”
¶9 On December 15, 2022, a probation violation report was filed with the court. The report
alleged that defendant failed to stay in contact with probation, failed to appear for intake
appointments on September 21, 2022, and October 7, 2022, was admitted to a facility on November
7, 2022, received a mental health evaluation, was discharged from the facility on November 12,
2022, was unsuccessfully discharged from TASC probation on November 14, 2022, failed to report
to the police following her discharge, failed to report for an intake appointment on December 15,
2022, and her whereabouts were unknown. On December 16, 2022, the State filed a petition to
revoke probation based on the allegations in the report. A warrant for defendant’s arrest was issued
on December 21, 2022.
¶ 10 Defendant was arrested on February 2, 2023, and at the hearing held on February 3, 2023,
denied the allegations in the petition, was admonished as to trial and sentencing in absentia, and
was released on her own recognizance. She was ordered to report to probation on February 6, 2023.
4 ¶ 11 At a hearing on February 8, 2023, the court noted defendant failed to appear at probation
on February 6, 2023. Counsel stated that defendant called and said she was having transportation
issues and would be there on February 7, 2023. However, defendant did not call or show up on
February 7, 2023, either. Defendant appeared for her court hearing on February 8, 2023. The State
asked the court to revoke defendant’s recognizance bond. Defense counsel requested defendant
remain on recognizance. Counsel stated that defendant thought she was supposed to be at probation
on February 8. Counsel further stated that defendant had a TASC meeting on February 13, 2023.
The court advised defendant that if she met with probation that day, attended the TASC
appointment on February 13, 2023, and appeared in court on February 13, 2023, it would not put
her in jail. The court told her if she did not show up for the meetings, she would go to jail. The
court further stated that it was her “last chance.”
¶ 12 At the hearing on February 13, 2023, defendant appeared, and her counsel confirmed
defendant’s attendance at the previously scheduled meetings. Counsel advised the court that
defendant had another appointment scheduled for March 13, 2023. Her next court date was set for
March 22, 2023, and defendant was advised to comply with the conditions of her probation.
¶ 13 On March 22, 2023, defendant failed to appear. Her counsel stated that defendant had been
in contact with TASC and probation but neither heard from defendant and counsel did not know
why defendant was not present. An arrest warrant with $25,000 bond was issued. Defendant was
arrested on March 25, 2023. Defendant appeared in court on March 27, 2023. Her counsel stated
that defendant thought court was on March 27, 2023, so she failed to appear. The court stated this
was her “one-time second chance.” Defendant was released on her own recognizance and was
ordered to appear for court on April 19, 2023.
5 ¶ 14 Defendant failed to appear at the hearing on April 19, 2023. Counsel stated that her
probation letter was “returned to sender.” Defendant was unsuccessfully discharged from the
TASC program for the second time on April 4, 2023, because she did not appear at her last court
hearing. She had not completed her intake appointment for probation and counsel had not heard
from her client. The State requested arrest warrants, which were issued with a $50,000 bond on
each case.
¶ 15 Defendant was arrested pursuant to the warrants on May 21, 2023, and appeared before the
court on May 22, 2023. She was advised that there was a hearing scheduled for June 1, 2023.
Defense counsel requested defendant remain released on her own recognizance. The State took no
position on the request and the court released defendant on her own recognizance and ordered her
to appear in court on June 1, 2023, for the petition to revoke probation hearing.
¶ 16 Defendant appeared for the hearing on June 1, 2023, and stipulated to the allegations set
forth in the petitions to revoke. No agreement was reached as to sentencing. Defendant was advised
of the potential sentences for the residential burglary and possession of a stolen vehicle charges
and that she would be resentenced. The court admonished defendant and asked questions about
her ability to stipulate to the allegations in the petitions to revoke. After hearing the responses to
its own questions and the factual basis for the petitions, the court accepted defendant’s stipulations.
The sentencing hearing was scheduled for July 20, 2023.
¶ 17 Defendant failed to appear on July 20, 2023. Her counsel advised the court that defendant
contacted the court that morning and said her ride fell through, she was going to take an Uber and
would be late for court. She thought she would be there by 11:30. The court noted it was 11:47
and proceeded with the sentencing hearing in absentia. No objections, additions, or corrections
were needed for the presentence report, except for the amount of fees listed. The parties agreed
6 that case No. 23-CF-740 (unlawful possession of methamphetamine) remained pending, with a
pretrial conference set that same day. The court confirmed that the two sentences could be
concurrent and were nonprobationable but for TASC. The presentence investigation report (PSI)
noted defendant was approved for a third time for the TASC program on July 10, 2023, and was
scheduled to meet with TASC that day, but never appeared.
¶ 18 The State called Officer Edwin Brown, a police officer for the Village of Mahomet. He
testified that on June 12, 2023, he pulled over a Dodge Caravan and defendant was a passenger in
the vehicle. A packet of methamphetamine was found in her purse along with a pocketknife. No
other evidence was presented, and the parties presented argument in aggravation and mitigation.
¶ 19 The State argued that based on the PSI defendant had “a massive raging drug problem”
that included injecting half a gram of methamphetamine daily, smoking crack, and doing cocaine.
The State further argued that defendant failed TASC twice and failed to appear for the third attempt
so she was “0 for 3” on the only thing that could keep her out of prison. She had three children that
were not in her custody and was forbidden (by her own admission) from seeing until she was sober.
The State argued that defendant continued to commit felonies, and the State believed the only place
defendant would receive treatment was prison. It argued that a fourth shot at TASC was
unwarranted and defendant’s failure to appear at her own sentencing hearing did not help the
situation. The State argued that probation was not an option for the residential burglary conviction
and that defendant needed “confinement to actually get her life together,” stating a sentence of
incarceration seemed fair and fit for defendant to get treatment and get her life back together.
¶ 20 Defense counsel argued that it was unfortunate that drug court was not an option for
defendant. Counsel argued that the residential burglary case occurred because a door was left
unlocked, and defendant entered the apartment to eat food. When the owner arrived, defendant left
7 the food on the counter and ran out. Similarly, the vehicle at the construction site involved an
unattended vehicle with the keys in it. Defendant helped herself to that vehicle when she could not
get people to fix the other vehicle she was driving. Counsel argued that there was nothing violent
about defendant’s behavior but that it did “reek of someone who is dependent on drugs” and in a
bad way. “Her own admissions show that she has, as the State had put it, a raging drug problem,
and I can’t deny that.” Counsel argued that defendant was previously offered TASC probation, but
her addiction got in the way of getting treatment, noting that defendant attended MacNeal for
mental health and substance abuse treatment in November 2022 but left prior to completion of a
more in-depth evaluation. Counsel added that defendant had a ninth-grade education and desired
to obtain her GED, but her drug addiction was hindering that progress as well as visitation with
her children, stating, “It’s just clear that this addiction has taken over her entire life.” Counsel
agreed that defendant needed treatment but stated prison was not the appropriate place for
defendant to receive that treatment.
¶ 21 The court noted it was noon and defendant had still not arrived. The court found mitigation
related to her children. It noted defendant was self-employed, uneducated, had no GED, and was
in fair health. It further noted defendant received mental health treatment the previous year, had
been abused in many ways, was part of the sex trade, and wanted to move from Champaign. The
court also noted a suicide attempt when defendant was young, use of drugs and alcohol, and failure
at TASC, finding all this evidence was mitigating. The court addressed aggravation in terms of
deterrence to her but noted her criminal history was “really not too aggravating.” The court found
it a “very sad and unfortunate situation where the defendant has a serious drug addiction.” It noted
probation staff and TASC attempted to assist defendant, but defendant kept “dropping the ball.” It
further noted defendant failed to show up for court and probation interviews, which did little to
8 show rehabilitative potential or an ability to comply with terms and conditions of probation. The
court noted this was not about her performance while on probation but her rehabilitative potential.
It addressed defendant’s multiple missed appointments, agitation, raising her voice to the probation
officers, her hostility and belligerence shown by her flipping off her attorney, and her continued
drug use to ultimately find that defendant had not shown substantial rehabilitative potential. As to
the crimes, the court noted defendant saw the vehicle with keys in it and broke into a home and ate
food, classifying them as “crimes of opportunity.” The court stated,
“I don’t think imprisonment’s necessary to protect the public, really it would just be to
protect her. But I do believe a community-based sentence would deprecate the seriousness
of her conduct and be inconsistent with the ends of justice.”
¶ 22 The court sentenced defendant to five years in the Illinois Department of Corrections
(IDOC) for the residential burglary conviction and four years in IDOC for possession of a stolen
vehicle, providing credits of 40 days and 47 days of incarceration, respectively. The court also
ordered the sentences to run concurrently. The court would allow defendant to be considered for
drug treatment while incarcerated. The court advised of defendant’s appeal rights and stated it
would issue two no-bond warrants. The State moved to dismiss pending case No. 23-CF-740, and
the court dismissed it.
¶ 23 Defendant was arrested on the warrants on August 15, 2023. She appeared in court and was
advised of the sentence imposed in absentia. As she was being admonished as to her rights she
stated, “Your Honor, I just want to go do my time and go home.” Despite her statement, the court
again provided the necessary admonishments for her rights to appeal.
¶ 24 On August 21, 2023, defense counsel filed a motion to withdraw stipulation to petition to
revoke. In support, the motion claimed defendant’s “stipulations were not knowing and voluntary.
9 She further asserts that [she] was not given the appropriate option or resources to be successful on
her probation and TASC probation.”
¶ 25 The motion was heard on August 23, 2023. Defendant testified that she wrote to her counsel
and stated she wanted to appeal her sentences. She agreed she did not appear for the sentencing
hearing. She stated that the reason she wanted to withdraw the stipulations was because she did
not feel that she was given proper resources when she was previously placed on probation and
wished to be considered for drug treatment. She explained that she lived out of the area and had
no transportation resources because local transportation services did not offer rural pick-ups in
Mahomet where she lived. When asked where she was supposed to meet people while on
probation, defendant stated that she had no set schedule or place for meeting. She stated that
nothing was ever set with TASC, and she never met the TASC probation officer. She clarified that
she did meet with her county probation officer a few times and that officer provided her with
resources about local transportation services. However, when defendant called the transportation
service, it no longer offered service for the rural routes. She stated there was no way for her to get
to town because when she called Uber, their GPS systems always got messed up and she would
“have to walk like four or five blocks just to be able to be picked up.”
¶ 26 When asked if there were any other reasons why she believed she should be entitled to
withdraw her stipulations, she stated,
“Honestly, I just don’t think DOC is going to be successful for me. I think that’s a cop-out
and a way for the State to just shove me under the rug. And I’m sorry if that sounds rude
or disrespectful, but I’m worth saving. I’m worth the effort for myself and for everybody
else.”
10 ¶ 27 Defense counsel then asked why she was not present for her sentencing hearing on July 20,
2023. She replied,
“I had gone to work the day before. In order to assure myself that I had a ride to court, and
I had an Uber paid for and everything. I went and did work out at the Blakely’s property,
and then was told that the morning of court, that oh, the person that is paying for your Uber
can no longer pay for your Uber. Deb, the lady that I went and did some work for, she
unfortunately had eye surgery that morning, so she couldn’t give me a—a ride to court,
which wasn’t her failure, it was just timing of things. But I did try to make it here. I was
scrambling like last minute, like freaking out trying to get here.”
¶ 28 Defendant testified that her employment involved working on property in Candlewood
subdivision cutting down a tree, moving a bunch of logs, and other yard work. She stated that she
contacted the court, and they sent an email to the judge’s office. She also tried to contact the
probation officer’s secretary the same day and the next morning tried to get a court date set up.
She could provide no other reason why she believed she should be able to withdraw her stipulation
to the petitions because she was “a little nervous.” No questions were asked by the State.
¶ 29 Defense counsel argued,
“I’m not sure that her—her reasoning will basically be sufficient, but she does wish to
move to withdraw the stipulations to her petitions. I know that at that point in time we’d at
least have to have hearings on it, we might be back in kind of the same position we are
now. In the alternative I think [defendant] is requesting that she be allowed to have a new
sentencing hearing, or that the sentencing be re-opened[,] and she’d have an opportunity to
provide some information to the court, based on sentencing.”
11 ¶ 30 The State argued that the record would show that defendant’s stipulation was knowing and
voluntary based on questions asked by the court. The State also questioned the timeliness of the
defendant’s motion to withdraw the stipulation. Finally, the State also argued,
“[T]here’s nothing listed in here that would qualify to withdraw an admission or
stipulation, your Honor. These sound like issues that could have been brought up at a
violation hearing or at a sentencing hearing, or most appropriately with a probation officer
during the probationary period of time. I don’t think that the assertions here would rise to
the level of withdrawing an admission or stipulation at this time, your Honor.”
¶ 31 The court stated that it was a close call on whether the request was timely, but opined that
pursuant to the mailbox rule, the request would likely be timely. The court further stated,
“This is a motion to withdraw stipulation, this is not a motion for a new hearing on the
petition, or a new sentencing hearing pursuant to statute, where you have to show that a
defendant was unable to attend through no fault of their own. This is essentially a motion
to withdraw the stipulation. *** [I]f you want to challenge the correctness of the sentence
or any aspect of the sentencing hearing, then a motion with respect to that must be filed.”
¶ 32 The court found that defendant was displeased with her sentence, but did not state that “she
didn’t knowingly and voluntarily enter into this stipulation.” Although it had no transcript, it
believed that the proper admonishments were provided, and defendant had no questions at that
time. She had the right to a hearing where she could have argued that she was not provided the
appropriate options or that her failure was not intentional or willful, but that was “really not
appropriate at this time after the stipulation.” The court acknowledged hearing a lot of excuses as
to why she could not make the sentencing hearing but stated that a “defendant has the obligation
12 to do what they need to do, and the probation officer and the TASC officer can only do what they
can do to help the defendant.”
¶ 33 The court noted that the probation violations to which she stipulated included failures to
attend intake appointments on September 21, October 7, and December 15, in the previous year
and “she failed to provide an updated address, and was considered an absconder, which is in
complete contradiction to her testimony that *** she was meeting with her probation officer.” The
court found, based on the facts, that insufficient grounds were shown that her stipulation should
be withdrawn and denied the motion. The court further stated,
“With respect to a sentencing hearing, again we’re not on the statute dealing with
wanting a new sentencing hearing. But even if I were to reach the issue of whether or not
I should just grant a new sentencing hearing, again what I heard at the sentencing hearing
from an officer, there was no mitigation. It’s clear that I stated that there was mitigation
here. She stipulated *** she has children, she was self-employed, but there was also
aggravation, the deterrent message, her prior record. But what was very compelling to this
court was her performance while on probation. Although I was not sentencing her for how
well she did on probation, it gave me a better idea of her rehabilitative potential.
Clearly she was missing appointments, she was making very little effort, she failed
to appear at sentencing, and I found that she had very little rehabilitative potential at that
time until she gets the treatment that she desperately needs. So therefore any possible
request for a new sentencing hearing is denied as well.”
Following the court’s statement, defendant timely appealed.
13 ¶ 34 II. ANALYSIS
¶ 35 On appeal, defendant argues that the trial court abused its discretion in sentencing her to
five years for residential burglary and four years for possession of a stolen vehicle. She further
argues for plain error review or ineffective assistance of counsel related to claimed errors at
sentencing. She also argues that the trial court erroneously failed to provide her with a hearing
pursuant to section 115-4.1(e) of the Code (725 ILCS 5/115-4.1(e) (West 2022)) and that defense
counsel was ineffective for failing to file a motion requesting a hearing to determine whether
defendant’s failure to appear at her sentencing hearing was not due to her fault and was due to
circumstances beyond her control.
¶ 36 A. Sentence
¶ 37 Defendant argues that the trial court erred by sentencing her to five years in IDOC on the
residential burglary conviction and four years in IDOC on the possession of a stolen vehicle
conviction. In support, she argues that the court failed to consider the non-violence associated with
the offenses and instead improperly punished her for her drug use and failures to appear. Defendant
admits the issue was not raised before the trial court and therefore requests this court consider the
issues under either plain error or as ineffective assistance of counsel.
¶ 38 To preserve a sentencing issue on appeal, a defendant must raise a contemporaneous
objection and raise the issue in a postjudgment motion. People v. Jackson, 2022 IL 127256, ¶ 15.
Failure to object, and raise the issue in a motion to reconsider, precludes review of the error on
appeal. People v. Herron, 215 Ill. 2d 167, 175 (2005). The rationale behind this result is “because
failure to raise the issue at trial deprives the circuit court of an opportunity to correct the error,
thereby wasting time and judicial resources.” Jackson, 2022 IL 127256, ¶ 15 (citing People v.
McLaurin, 235 Ill. 2d 478, 488 (2009)). The rule “also prevents criminal defendants from sitting
14 idly by and knowingly allowing an irregular proceeding to go forward only to seek reversal due to
the error when the outcome of the proceeding is not favorable.” Id.
¶ 39 Forfeiture, however, is not absolute, and Illinois Supreme Court Rule 615(a) (eff. Jan. 1,
1967) “embodies the exception” to the forfeiture rule. People v. Carlson, 79 Ill. 2d 564, 576 (1980).
“The plain-error rule bypasses normal forfeiture principles and allows a reviewing court to
consider unpreserved claims of error in specific circumstances.” People v. Thompson, 238 Ill. 2d
598, 613 (2010). To consider an error that was not raised, the appealing party must request review
under the plain-error doctrine. People v. Hillier, 237 Ill. 2d 539, 545 (2010). Here, this was done.
¶ 40 However, “[t]he plain error rule does not call for the review of all forfeited errors.” Jackson,
2022 IL 127256, ¶ 19. The “plain error rule is a narrow exception to forfeiture principles” and is
limited to “[p]lain errors or defects affecting substantial rights.” (Internal quotation marks
omitted.) Id. ¶ 18. Application of the rule allows for review of a forfeited error under two possible
prongs. People v. Piatkowski, 225 Ill. 2d 551, 564 (2007). To obtain relief under either prong, the
defendant “must first show that a clear or obvious error occurred.” Hillier, 237 Ill. 2d at 545. “In
the sentencing context, a defendant must then show either that (1) the evidence at the sentencing
hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair
sentencing hearing.” Id. (citing People v. Hall, 195 Ill. 2d 1, 18 (2000)). Defendant bears the
burden of persuasion for each prong and failure to meet the burden will result in the reviewing
court honoring the procedural default. Id.
¶ 41 The trial court has broad discretion in imposing a sentence, and its sentencing decisions
receive great deference. People v. Alexander, 239 Ill. 2d 205, 212 (2010). Deference is given
because the trial court is in the best position to observe the defendant, the proceedings, and has the
best opportunity to weigh relevant sentencing factors, such as “ ‘the defendant’s credibility,
15 demeanor, general moral character, mentality, social environment, habits, and age.’ ” Id. at 212-
13 (quoting People v. Stacey, 193 Ill. 2d 203, 209 (2000)). This court will not substitute our
judgment for that of trial court just because we might weigh the factors differently. Id. at 213. We
will not disturb the sentence absent an abuse of discretion. Id. at 212. A trial court abuses its
discretion if it imposes a sentence that is “ ‘greatly at variance with the spirit and purpose of the
law, or manifestly disproportionate to the nature of the offense.’ ” Id. (quoting Stacey, 193 Ill. 2d
at 210).
¶ 42 Under these criteria, we first consider whether a clear or obvious sentencing error occurred.
Generally, a sentence falling within the statutory range is presumed proper. People v. Burton, 2015
IL App (1st) 131600, ¶ 36. There was no argument presented claiming the trial court’s sentences
imposed were not within the statutory ranges for both offenses. The Class 1 felony residential
burglary charge had a sentencing range of 4 to 15 years’ imprisonment. See 730 ILCS 5/5-4.5-
30(a) (West 2022). The Class 2 felony for possession of a stolen vehicle charge had a sentencing
range of three to seven years. Id. § 5-4.5-35(a). It was undisputed that the trial court had the
authority to order the sentences to run consecutively.
¶ 43 As noted above, defendant argues that the trial court erroneously relied on her drug use at
sentencing. However, defendant concedes that the trial court expressly found her drug use was a
mitigating factor, which was likely a strong basis for the deviation from the potential 22-year
sentence and the ultimate 5-year sentence. Defendant also argues that the trial court punished her
for her failure to report to probation and appear in court. However, the trial court specifically stated
that it was only considering those failures as part of its consideration of defendant’s rehabilitative
potential, which is a required factor balanced by the trial court with the seriousness of the offense.
See Ill. Const. 1970, art. I, § 11.
16 ¶ 44 Here, defendant’s alleged errors in the trial court’s sentence stem from the court’s
consideration of required factors to determine the appropriate sentence. At best, defendant’s
argument, for purposes of plain error, can only contend that the trial court should have placed
greater weight on the mitigating factors. However, a defendant’s rehabilitative potential is not
entitled to greater weight that the seriousness of the offense. People v. Coleman, 166 Ill. 2d 247,
261 (1995). The offenses of residential burglary, a Class 1 felony, and possession of a stolen
vehicle, a Class 2 felony, are serious charges as shown by the potential sentences for each crime.
See 730 ILCS 5/5-4.5-30, 5-4.5-35 (West 2022). The trial court’s classification of those charges
as “crimes of opportunity” based on the facts in defendant’s cases does not diminish the
seriousness of those crimes.
¶ 45 The bottom line is that defendant’s argument essentially requests this court reweigh the
evidence submitted at sentencing and substitute our judgment for that of the trial court with the
hopes we will find substantially more rehabilitative potential and classify the crimes as less serious
than the trial court. However, such request is prohibited. See Alexander, 239 Ill. 2d at 214-15.
Here, we cannot find that the trial court’s sentence was “greatly at variance with the spirit and
purpose of the law, or manifestly disproportionate to the nature of the offense” (Stacey, 193 Ill. 2d
at 210). Accordingly, we cannot find the trial court abused its discretion in fashioning defendant’s
sentence. As no clear error is shown, we reject defendant’s request for plain error review and will
instead honor defendant’s procedural default.
¶ 46 In the alternative, defendant argues that her defense counsel was ineffective for failing to
object to the trial court’s improper considerations that included her drug use and her failures to
appear while on probation. Claims for ineffective assistance counsel are considered under the
17 standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). People v. Albanese, 104
Ill. 2d 504, 525 (1984).
¶ 47 “To prevail on a claim of ineffective assistance of counsel [under Strickland], a defendant
must demonstrate that counsel’s performance was deficient and that the deficient performance
prejudiced the defendant.” People v. Cathey, 2012 IL 111746, ¶ 23. This requires a defendant to
show “that counsel’s performance was objectively unreasonable under prevailing professional
norms and that there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’ ” Id. (quoting Strickland, 466 U.S. at 694). A
failure to satisfy either Strickland prong “precludes a finding of ineffective assistance of counsel.”
People v. Henderson, 2013 IL 114040, ¶ 11.
¶ 48 Defendant concedes, “there is a strong presumption counsel’s conduct constituted sound
trial strategy.” Here, it is apparent that defense counsel’s argument was an attempt to persuade the
court to find defendant’s drug use was a mitigating factor. Counsel argued that there was nothing
violent about defendant’s behavior but that it did “reek of someone who is dependent on drugs.”
Counsel further conceded that defendant’s “own admissions show that she has, as the State had
put it, a raging drug problem.” Counsel also addressed defendant’s probationary failures, including
her failure to present to drug treatment, noting that it was “unfortunate” that drug court was no
longer an option for defendant and that her addiction got in the way of her seeking the treatment.
¶ 49 Counsel’s arguments were clearly successful as the trial court found defendant’s drug use
was a mitigating factor. As such, counsel’s failure to object to the consideration of defendant’s
drug use was sound and successful trial strategy.
¶ 50 Defendant also argues that her counsel’s failure to object to statements related to
defendant’s failures to appear. However, we note defendant’s potential sentences were
18 nonprobationable unless she was ordered to participate in TASC. The trial court’s discussion about
defendant’s actions while previously on TASC probation—specifically her failure to comply with
appearances required by TASC—was relevant in determining defendant’s rehabilitation
potential—and the likelihood of success—if defendant were to be sentenced to TASC probation
for a fourth time. Because the trial court’s consideration of defendant’s rehabilitative potential was
not erroneous, defense counsel’s failure to object to the court’s consideration of defendant’s
failures to appear was not unreasonable. Accordingly, we reject defendant’s claim of ineffective
assistance of trial counsel.
¶ 51 A. In absentia Hearing
¶ 52 We next address defendant’s claim of error related to the trial court’s denial of her
counsel’s motion for a hearing pursuant to section 115-4.1(e) of the Code (725 ILCS 5/115-4.1(e)
(West 2022)). Defendant requests de novo review stating the issue involves a question of statutory
interpretation. The State argues, citing People v. Reyna, 289 Ill. App. 3d 835, 838 (1997), that the
trial court’s denial of a request for hearing after a sentence in absentia requires a manifest abuse
of discretion standard of review.
¶ 53 We note that Reyna’s reliance on the manifest abuse of discretion standard is based on
language found in People v. Bushey, 170 Ill. App. 3d 285, 289 (1988). In Bushey, the issue involved
whether the defendant met his burden to show that his failure to appear was not his fault and
beyond his control. As such, we find the issue slightly different from the one raised here which
asks this court to determine if the trial court fulfilled the statutory requirement of having a hearing
to determine whether defendant’s absence was not her fault and beyond her control. As this case
involves statutory interpretation, we will review the issue de novo. People v. O’Brien, 197 Ill. 2d
88, 91 (2001).
19 ¶ 54 A court’s primary objective in construing a statute is to ascertain and give effect to the
legislature’s intent. Id. at 90. The statutory language is given its plain and ordinary meaning, and
if that language is clear and unambiguous the statute is applied with resort to further statutory
construction aids. Id. Section 115-4.1(e) states,
“When a defendant who in his absence has been either convicted or sentenced or both
convicted and sentenced appears before the court, he must be granted a new trial or new
sentencing hearing if the defendant can establish that his failure to appear in court was both
without his fault and due to circumstances beyond his control. A hearing with notice to the
State’s Attorney on the defendant’s request for a new trial or a new sentencing hearing
must be held before any such request may be granted. At any such hearing both the
defendant and the State may present evidence.” 725 ILCS 5/115-4.1(e) (West 2022).
¶ 55 At a section 115-4.1(e) hearing, the court determines whether evidence revealed “good
cause” for defendant’s absence from the sentencing hearing. See People v. Pettigrew, 2018 IL App
(4th) 170808, ¶ 15. Pettigrew further interpreted section 115-4.1(e) to require the trial court to
provide the hearing upon defendant’s request. Id.; see also People v. Johnson, 2019 IL App (4th)
170622, ¶ 16; People v. Cobian, 2012 IL App (1st) 980535, ¶¶ 20-22.
¶ 56 On appeal, the parties agree that defense counsel orally requested a section 115-4.1(e)
hearing. However, they disagree as to whether the hearing was provided. Accordingly, we will
consider this issue to determine whether the statutory requirement was met.
¶ 57 We find the State’s claim that the hearing occurred disingenuous. Defense counsel’s
request was made after the State declined its opportunity to question defendant or present any
evidence at the motion to withdraw the stipulation hearing. Neither defense counsel nor the State
provided any argument to the court on the issues at stake in a section 115-4.1(e) hearing. Therefore,
20 while it is apparent that some testimony was provided that would be relevant at a section 115-
4.1(e) hearing, it is not apparent that either party was prepared to proceed with such hearing or was
proceeding with the requested hearing, at the time of the hearing on the motion to withdraw
defendant’s stipulation.
¶ 58 Equally relevant is the fact that the trial court’s denial of the requested hearing was not
based on evidence presented at the hearing on defendant’s motion to withdraw her stipulation but
was instead based on the criteria the court relied upon during the sentencing hearing. Given the
facts and procedural posture of this case, we cannot find the required section 115-4.1(e) hearing
was held. The courts “must not read a statute so as to render any part superfluous or meaningless.”
People ex rel. Department of Corrections v. Hawkins, 2011 IL 110792, ¶ 23. Here, neither party
presented evidence or argued the issues that would be raised at a section 115-4.1(e) hearing.
¶ 59 The State further argues, as it did in Cobian (see Cobian, 2012 IL App (1st) 980535, ¶ 21),
that the facts underlying defendant’s absence from the sentencing—provided at the hearing on the
motion to withdraw her stipulation—were insufficient to support granting the requested motion.
We decline the State’s request to speculate as to the proper outcome in the absence of the required
section 115-4.1(e) hearing. See id.
¶ 60 “A reviewing court cannot affirm a trial court’s dismissal of a motion for a good cause
hearing unless an evidentiary hearing was conducted.” Pettigrew, 2018 IL App (4th) 170808, ¶ 15.
Here, we hold that, upon review of the statute, no section 115-4.1(e) hearing was held, despite
defense counsel’s request for that hearing. Therefore, we remand the case back to the trial court to
hold a section 115-4.1(e) hearing.
21 ¶ 61 B. Ineffective Assistance of Counsel
¶ 62 Finally, defendant argues that her trial counsel was ineffective for failing to file a section
115-4.1(e) motion. As noted above, claims for ineffective assistance counsel are considered under
the standard enunciated in Strickland, 466 U.S. 668. Albanese, 104 Ill. 2d at 525. The standard
requires a finding that defense counsel’s performance was deficient, and the deficient performance
prejudiced the defendant. Cathey, 2012 IL 111746, ¶ 23.
¶ 63 Here, defendant does not even get past the first requirement as her sole argument claims
that her counsel was required to file a written motion requesting a section 115-4.1(e) hearing. Our
review of the statute fails to reveal any requirement that the motion be written or filed with the
court. See 725 ILCS 5/115-4.1(e) (West 2022). Accordingly, we cannot find “that counsel’s
performance was objectively unreasonable under prevailing professional norms” (Cathey, 2012 IL
111746, ¶ 23) and deny defendant’s claim of ineffective assistance of counsel.
¶ 64 III. CONCLUSION
¶ 65 For the foregoing reasons, we affirm the trial court’s sentence but remand the case back to
the trial court to hold a section 115-4.1(e) hearing.
¶ 66 Affirmed and remanded with directions.