People of The State of Ill. v. LANE

• Decision Date: 31 August 2010
• Docket Number: No. 3-08-0858.,3-08-0858.
• Citation: 404 Ill.App.3d 254,343 Ill.Dec. 570,935 N.E.2d 578
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Chad M. LANE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

404 Ill.App.3d 254
935 N.E.2d 578
343 Ill.Dec. 570

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Chad M. LANE, Defendant-Appellant.

No. 3-08-0858.

Appellate Court of Illinois,Third District.

Aug. 31, 2010.

935 N.E.2d 579

COPYRIGHT MATERIAL OMITTED.

935 N.E.2d 580

Kerry J. Bryson (argued)(Court-appointed), Office of the State Appellate Defender, Ottawa, for Chad M. Lane.

Terry A. Mertel, Deputy Director, Thomas D. Arado (argued), State's Attorneys Appellate Prosecutor, Ottawa, Stewart Umholtz, State's Attorney, Pekin, for the People.

Justice LYTTON delivered the opinion of the court:

343 Ill.Dec. 572

404 Ill.App.3d 255

Defendant, Chad M. Lane, was tried in absentia for predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 2006)) and aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2006)). The jury found defendant guilty of all charges, and the trial court sentenced him to 30 years' imprisonment. Defendant filed a motion to reconsider, which the trial court denied. On appeal, defendant

404 Ill.App.3d 256

argues that (1) he should not have been tried in absentia, (2) the trial court did not properly instruct the jurors as required by Supreme Court Rule 431(b) (177 ill.2d r. 431(B)), AND (3) the evidence was insufficient to prove him guilty of predatory criminal sexual assault. We reverse and remand, holding that the trial court erred in trying defendant in absentia.

The State filed a four-count information against defendant. Count I alleged that defendant committed predatory criminal sexual assault against his step-daughter, S.M., by placing his finger in her vagina. Counts II through IV alleged that defendant committed aggravated criminal sexual assault against S.M. by kissing her neck and stomach and having her touch his penis with her hand.

On November 8, 2007, defendant was arrested. A court order from that date indicates that defendant was “called into open court” and “informed of the charge(s), right to counsel, right to bail and is furnished a copy of the Information.” The order also indicates that defendant was advised “as to trial in absentia pursuant to 725 ILCS 5/113-4(e).” The order does not indicate that defendant entered a plea at that time. Defendant's arraignment was scheduled for a later date.

On December 31, 2007, defendant was arraigned. The written order from that date indicates that defendant was advised “as to trial in absentia.” The order also indicates that “Defendant enters a plea of Not Guilty to the charge(s) and demands Jury Trial.” The transcript from this hearing date shows that defendant requested a jury trial but does not show that the trial court admonished defendant regarding trial in absentia.

Defendant's jury trial was set for July 21, 2008. On that date, defendant failed to appear and was tried in absentia. Andrea Lane testified that she is defendant's wife. She has four children with defendant and one child, S.M., from a previous marriage. On November 3, 2007, S.M., who was 10 years old, was visiting for the weekend. At approximately 10 p.m., Andrea fell asleep on the living room couch. When she woke up at about 11 p.m., she went upstairs and found defendant and S.M. in her son's room. S.M. was lying on the bed with her feet dangling off. Defendant was on his knees in between S.M.'s legs. S.M.'s nightshirt was pulled up to her neck, and defendant was kissing her stomach. When defendant saw her, he left the room. After defendant left, Andrea asked S.M. if defendant was “fucking” with her.

343 Ill.Dec. 573

935 N.E.2d 581

S.M. said “yes.” Andrea then went downstairs and talked to defendant. Defendant said that S.M. started it, and he did not want her to feel rejected. The next morning, Andrea talked to S.M. about what happened. At first, S.M. said that defendant was just

404 Ill.App.3d 257

kissing her but eventually said that defendant had his hand in her pants.

S.M. testified that she last saw defendant in the fall of 2007. After the other children went to bed, she, her mom and defendant were in the living room. Her mom fell asleep on the couch. Defendant was sitting on a chair and asked S.M. to sit on his lap. When she refused, he made her. While she was sitting on his lap, defendant put his hand inside her underwear and touched her “private” “in inappropriate ways.” She said that he moved his hand, but she did not feel his hand go inside of her. She denied that it hurt but said it felt “very uncomfortable.” Then he made her touch his “private part” under his clothes. After that, he picked her up and took her upstairs to her brother's room. He put her on the bed and pulled up her shirt and started kissing her stomach and neck. He stopped when her mom came in the room.

Jennifer Norman, a forensic interviewer for the Children's Advocacy Center, interviewed S.M. on November 6, 2007. That interview was recorded, and the DVD was played for the jury. During the interview, S.M. said that a few days earlier she was at her mom's house. After her mom fell asleep, defendant starting sucking and kissing on her stomach and neck. He also touched her private area under her underwear. She said defendant touched her private “inside” with “his hand” and “his fingers.” She said it hurt. He also made her touch his private area.

Eric Goeken of the Tazewell County sheriff's office testified that he interviewed defendant on November 6, 2007. That interview was recorded, and the DVD was played for the jury. During the interview, defendant claimed that on November 3, 2007, he was drunk and fell asleep. When he woke up, S.M. was sitting on his lap “doing things she shouldn't have been doing * * * to me and herself.” He walked upstairs with S.M. and asked her if she was okay with what she had been doing. She said “yes.” S.M. went into her brother's room and laid down sideways on the bed. Andrea walked in the room when he was finishing his “conversation” with S.M. At the end of the interview defendant asked, “What is an adult supposed to do when a 10-year-old touches him? * * * Is there a right response for that?”

Defendant's biological daughter, S.L., testified that she last saw defendant four years earlier, when she was nine years old. She visited him at his house for one month during the summer. Near the end of that month, she was sitting on the couch near defendant. Defendant told her to scoot over next to him. He put his arm around her and then moved his hand toward her breast area and touched her over her clothes. He placed his other hand on her knee and then moved it to

404 Ill.App.3d 258

her crotch area and touched her over her clothes. He continued to touch her for about 20 to 30 minutes.

On July 22, 2008, the jury found defendant guilty of all charges. On August 25, 2008, defendant filed a posttrial motion. The trial court denied the motion and sentenced defendant in absentia to 25 years' imprisonment on the predatory criminal sexual assault conviction and 5 years on the remaining convictions, to be served concurrently with each other but consecutive to the predatory criminal sexual assault conviction. Defendant was apprehended in early October 2008.

935 N.E.2d 582

343 Ill.Dec. 574

On October 20, 2008, defendant filed a motion to reconsider his sentence and appeared in court for the first time following his trial and sentencing. On that date, the court expressed concern about whether the motion to reconsider the sentence was timely because it was filed more than 30 days after his sentence. The prosecutor stated that the statute did not specifically address when a posttrial motion must be filed following a trial and sentencing in absentia. She opined that it was “up to the Court's interpretation.” The court suggested scheduling a hearing on defendant's motion, but defense counsel stated that he had no additional argument and would rely on his written motion. The State argued that the sentence the trial court imposed on defendant was “appropriate.” The trial court denied the motion.

ANALYSIS I

The State argues that we should dismiss defendant's appeal because defendant's motion to reconsider his sentence was untimely.

[1] [2] [3] “A trial court loses jurisdiction to vacate or modify its judgment 30 days after entry of judgment unless a timely postjudgment motion is filed.” People v. Minniti, 373 Ill.App.3d 55, 65, 311 Ill.Dec. 251, 867 N.E.2d 1237, 1246 (2007). “However, under the revestment doctrine, litigants may revest a court that has general jurisdiction over the matter with both personal and subject matter jurisdiction over the particular cause after the 30-day period following final judgment.” Minniti, 373 Ill.App.3d at 65, 311 Ill.Dec. 251, 867 N.E.2d at 1246. “Revestment applies when the parties (1) actively participate without objection (2) in further proceedings that are inconsistent with the merits of the prior judgment.” Minniti, 373 Ill.App.3d at 65, 311 Ill.Dec. 251, 867 N.E.2d at 1246.

In People v. Gargani, 371 Ill.App.3d 729, 309 Ill.Dec. 130, 863 N.E.2d 762 (2007), the defendant was found guilty and sentenced in absentia. He filed a motion to reconsider his sentence more than 30 days after the judgment. The State did not object to the defendant's motion but argued at the hearing on the motion that the defendant's sentence was proper. The court held that “the State's active participation in the proceedings

404 Ill.App.3d 259

revested the trial court with jurisdiction.” Gargani, 371 Ill.App.3d at 732, 309 Ill.Dec. 130, 863 N.E.2d at 766.

[4] Similarly, in this case, defendant's motion to reconsider his sentence was untimely. However, at the hearing on the motion, the State did not object. When the court expressed concern that the motion was untimely, the prosecutor stated that it was “up to the Court's interpretation.” The prosecutor then went on to address the merits of defendant's motion, arguing that defendant's sentence was proper. By arguing against the substance of defendant's motion to reconsider his sentence, the...