People v. Cobian

• Decision Date: 27 August 2012
• Docket Number: No. 1–98–0535.,1–98–0535.
• Citation: 977 N.E.2d 247,364 Ill.Dec. 758,2012 IL App (1st) 980535
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Israel Sandoval COBIAN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 980535

977 N.E.2d 247

364 Ill.Dec. 758

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Israel Sandoval COBIAN, Defendant–Appellant.

No. 1–98–0535.

Appellate Court of Illinois, First District, First Division.

Aug. 27, 2012.

Michael J. Pelletier, State Appellate Defender, Peter Sgro, Assistant Appellant Defender, for Appellant.

Anita Alvarez, State's Attorney, (Alan J. Spellberg, Anthony M. O'Brien, Matthew Connors, Asst. State's Attorneys, for Appellee.

OPINION

Presiding Justice HOFFMAN delivered the judgment of the court, with opinion.

[364 Ill.Dec. 759]¶ 1 The defendant, Israel Cobian, appeals from his jury trial conviction and subsequent sentence for first-degree murder. On appeal, he argues that his conviction should be reversed because (1) the trial court erred in trying him in absentia without proper admonishments; (2) the trial court failed to inquire into a possible conflict between him and his counsel; and (3) his counsel rendered ineffective assistance by failing to file a motion for a new trial on the basis that the defendant's absence from trial was not his fault. For the reasons that follow, we affirm the defendant's original conviction. However, we conclude that the defendant presented a request for a new trial and that the circuit court failed to hold a statutorily required hearing on the request. We therefore vacate the circuit court's rejection of his request for a new trial and remand with instructions that the circuit court conduct a hearing on that issue.

¶ 2 On October 28, 1996, the defendant and two other men were arraigned in case number 96–26150. The underlying indictments do not appear in the record on appeal. The men waived formal reading of the charges, which were described in open court as “first degree murder, et cetera.” During the arraignment, the trial court judge stated, “Gentlemen, I want to advise each of you if at some future date you fail to appear here we can go ahead without you. You'd be giving up your right to confront the witnesses against you. Do you understand that?” The transcript states that all three defendants indicated that they understood. The trial judge later noted his understanding that a fourth defendant had been charged in the case and that a new indictment would be returned on November 6. The record on appeal includes that new indictment, which charged the defendant and three others with first-degree murder in case number 96–28407. The new indictment was tendered to the defense in open court on November 6, but the transcript of that proceeding does not indicate that any new admonishments were given to the defendant.

¶ 3 Although the defendant made court appearances before his trial began, he did not appear at the time of his trial. After a hearing to determine whether the defendant's absence was willful, the trial court allowed the defendant's trial to proceed without him. At the trial, the evidence showed generally that the defendant helped a cohort obtain a gun that was used in a gang-motivated murder. After the defendant was found guilty in absentia, he was sentenced to 50 years' imprisonment. A notice of appeal was filed in the case, but the appeal was dismissed in 1999.

¶ 4 In 2004, the defendant appeared in court. At an initial appearance, the following exchange took place between the defendant and the trial court:

“THE COURT: You have a lawyer to help you with this?

THE DEFENDANT: I had.

THE COURT: Who was it?

THE DEFENDANT: Jack Rodgon. [Rodgon was the attorney who represented the defendant during his trial in absentia.]

THE COURT: Jack Rodgon?

THE DEFENDANT: Yes. Your Honor, I probably need another one, if I can get an appeal or something.

THE COURT: What happened?

THE DEFENDANT: He told me to leave.

THE COURT: You are kidding. He's got a marijuana case, too, I believe.

This is what I am going to do. Warrants are executed. This man was tried and sentence[d] in absentia as to this marijuana case and you are unadjudicated. He was arraigned.”

The court then continued the case so that Rodgon could appear on the defendant's behalf.

¶ 5 At a January 2005 hearing, the trial court noted that the defendant had filed a “motion for new trial,” and his attorney responded that the defense was “alleging a failure to inform of trial in absentia” and had gotten “some of the transcripts. The cause was thereafter continued. At a March 2005 hearing, Rodgon noted that he had filed a motion for a new trial based on “[n]o warnings,” and the cause was again continued. No motion for a new trial appears in the record on appeal.

¶ 6 At the September 2005 hearing on the defendant's motion for a new trial, the parties disputed whether the defendant's trial in absentia admonishments were sufficient, both because the admonishments the defendant received were incomplete and because he did not receive admonishments after he was reindicted. During argument, Rodgon mentioned that the defendant was not present at trial, and the following exchange ensued:

“THE COURT: Why?

MR. RODGON: Because he wasn't—

THE DEFENDANT: I was running for my life.

MR. RODGON: If you want to inquire as to that—

THE COURT: I'm asking you. You're asking for an extraordinary remedy here— MR. RODGON: No, I'm not. I'm asking you to follow the law.

THE COURT: And that would involve what I would consider to be an extraordinary remedy. * * * It's a person that was tried in absentia, found guilty of first degree murder, found some years later after he was sentenced in absentia, and now he wants a new trial because it's somebody's fault other than his own why he wasn't there.”

At that point, defense counsel explained the defendant's claim that he was “running for [his] life”:

“[The defendant] was a State's witness involving a murder case. * * *

Subsequent to his testimony, he goes on trial in this case. * * * [T]here were death threats floating around all over.”

¶ 7 When the defendant interjected to plead for a chance to present his case to the judge, the colloquy continued as follows:

“THE COURT: You had a chance to be in front of not only a judge but a jury.

THE DEFENDANT: I didn't get the chance to choose. I left. I recognize that.

THE COURT: You took off on your own, right?

THE DEFENDANT: Because I told you, I feared for my life. They killed my girlfriend. Someone killed my girlfriend a block away from my house—

THE COURT: You purposely didn't come to court, is that what you're telling me? Now you're caught here and you have a jail sentence and now you want to go [to] trial again and you purposely didn't come to court, is that what you're telling me, sir?

MR. RODGON: I would say that he was afraid—

COURT: Is that what you're saying? You purposely didn't—

THE DEFENDANT: I told you I feared for my life, your Honor.

THE COURT: So you didn't come to court. You went somewhere else.

THE DEFENDANT: I thought—

THE COURT: Where did you go?

THE DEFENDANT: I thought—

THE COURT: Where did you go?

THE DEFENDANT: I thought that after the trial, you know, what really happened would come to float—

THE COURT: Where did you go? Where did you go?

THE DEFENDANT: People, you know—

THE COURT: Where did you go?

MR. RODGON: Judge, is it fair for you to question him?

THE COURT: He started the colloquy. I will respect your position. I will not talk to him.

MR. RODGON: Whatever he says will not be real helpful—

THE COURT: Here is what happened. A person is under indictment. He is on bond for murder. He is admonished about trial in absentia. Whatever reasons, he makes his own judgment to not appear at his trial, gets convicted in his absence. He was well represented by more than competent counsel * * *. * * *

I don't find that now because after things didn't work out on his trial in absentia and he gets caught later by the police, not that he ever surrendered himself, he wants a new trial—”

¶ 8 Based on this reasoning, the trial court denied the defendant's motion for a new trial. The trial court, however, stated that it would consider granting the defendant a new sentencing hearing. In so stating, the court explained that “even though it was all his fault what happened here,” the court would consider a new hearing “based on the interest of justice.” At a later status hearing, the trial court instructed defense counsel to file a motion for a new sentencing hearing; the court said that it would “strongly consider” the motion and reiterated that it was concerned about “the total interest of justice.” At a hearing the next day, the State objected that the defendant should not receive a new sentencing hearing unless he could first demonstrate that his failure to appear was not his fault and that his failure to appear was caused by factors beyond his control. The court responded that it would conduct a hearing to consider the defendant's evidence in mitigation and then “determine in the interest of justice [whether] he's entitled to relief or not.” The cause thereafter proceeded to a new sentencing hearing.

¶ 9 During the new sentencing hearing, the defendant testified that he went to Mexico for seven years following his murder conviction and had been in the United States for eight months until he was arrested and returned to Illinois. At the end of the hearing, the trial court sentenced the defendant to 48 years' imprisonment.

¶ 10 In September 2009, our supreme court issued a supervisory order directing us to allow the defendant to reinstate the direct appeal that was dismissed in 1999. The supreme court stated that the defendant's reinstated appeal could challenge his new sentence as well as his 1998 conviction. We understand this to allow our review of all of the proceedings below, including the trial court's ruling on the defendant's request for a new trial, and we now undertake that review.

¶ 11 The defendant's first argument on appeal is that the trial court erred in trying him in absentia in 1998, because he did not receive proper admonishments. A criminal defendant has a constitutional...