People v. Hall
| Decision Date | 15 July 1985 |
| Docket Number | No. 84-0513,84-0513 |
| Parties | , 89 Ill.Dec. 644 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard R. HALL, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
G. Joseph Weller, Office of State Appellate Defender, Manuel S. Serritos, Elgin, for defendant-appellant.
J. Michael Fitzsimmons, State's Atty., Barbara A. Preiner, Wheaton, Phyllis J. Perko, State's Attys. Appellate Service Com'n, Andrea Becker, Elgin, for plaintiff-appellee.
The defendant, Richard Hall, appeals from the revocation of his probation and imposition of a 364-day sentence of imprisonment for the offense of battery. His sole contention on appeal is that he was denied due process when the probation revocation hearing was held in his absence. We disagree.
On July 1, 1983, defendant was charged by information with the offense of aggravated battery in violation of section 12-4(a) of the Criminal Code of 1961 (Ill.Rev.Stat.1983, ch. 38, par. 12-4(a)). Defendant was arraigned on that date and, at arraignment, the judge advised defendant that he had a right to be present at every stage of the proceedings but that if he failed to appear the proceedings could go forward and he could be tried and sentenced in his absence. Defendant stated that he understood that.
On September 1, 1983, defendant appeared before the trial court and presented a plea negotiation which reduced the charge of aggravated battery, a Class 3 felony (Ill.Rev.Stat.1983, ch. 38, par. 12-4(e)), to battery, a Class A misdemeanor (Ill.Rev.Stat.1983, ch. 38, par. 12-3). Defendant pleaded guilty to the reduced charge of battery and was sentenced to one year probation with conditions of a $300 fine, costs, and restitution.
On October 14, 1983, with the defendant and defense counsel present in court, the State filed a petition to revoke the defendant's probation. On November 4, defendant appeared in court, and his attorney entered a general denial of the petition and advised the court that they were engaging in plea negotiations with the State's Attorney. On December 23, 1983, the State filed an amended petition to revoke probation which alleged three grounds: (1) commission of the offense of theft on September 2, 1983, (2) commission of the offense of battery on September 5, 1983, and (3) commission of the offense of unlawful possession of cannabis on November 9, 1983.
Defendant and defense counsel were both present in court when the hearing on the petition to revoke was scheduled to take place, on January 12, 1984, and when it was continued, without objection, to February 9, 1984.
On February 9, at 1:30 p.m., the prosecution was ready to proceed and had a number of witnesses present. Defendant was not present, although his attorney said defendant would be there momentarily. At 2:15 p.m., the following colloquy took place:
"MS. WILSON [Assistant State's Attorney]: Your Honor, the defendant has failed to appear at this time, and may the record reflect that it is now quarter after 2:00.
This matter having been set for 1:30, the People's motion is for warrant to issue.
I am not sure the defendant was ever admonished that he could be tried in absentia.
The Court is free to do whatever it desires.
THE COURT: On June 24, 1983, when the defendant was personally present before the Court for arraignment on the underlying charge, he was admonished of the possibility of trial in absentia.
I will pass it, and we will come back to it.
MR. BOYD: Fine."
After a short recess, the court, over defense counsel's objection, found that the matter would proceed in absentia, noting that the defendant had previously been admonished. The hearing on the petition to revoke probation commenced and at the close of the day was continued to February 14, 1984, at which time the hearing was concluded.
The prosecution called nine witnesses and proffered several exhibits to prove that defendant committed the following offenses: (1) a theft of $207 on September 2, 1983, (2) a battery on September 5, 1983, and (3) possession of cannabis on November 9, 1983. After hearing the evidence and oral arguments, the court found defendant guilty of violation of his probation, in particular, guilty of theft and possession of cannabis and not guilty of battery. Thereafter, defense counsel requested that defendant not be sentenced in absentia and that a presentence report update be made. The court found no need for an update report, noting that the underlying offense, battery, was a misdemeanor, and sentenced defendant to 364 days in the county jail and imposed a fine of $500, plus costs.
On March 16, 1984, defendant appeared in court, having been arrested on the warrant which was issued following the revocation of his probation. The court reminded defendant that he had previously been admonished that he could be tried in his absence and that, in fact, he had been tried and sentenced in his absence.
On March 30, 1984, defendant filed a motion for a new trial and to reconsider the sentence. A hearing on the motion was held on May 24, 1984, at which defense counsel argued that the court erred in conducting the hearings and sentencing defendant in absentia. Counsel argued that the statute providing for in absentia proceedings (Ill.Rev.Stat.1983, ch. 38, par. 115-4.1) is not applicable to probation revocation hearings, that the State failed to affirmatively request that such a hearing occur, and that the State failed to prove that defendant was wilfully avoiding trial. Neither the defendant, his counsel, nor the motion for a new trial or reconsideration of sentence made any statement about a meritorious defense in the proceedings. No attempt was made to explain the defendant's absence or account in any way for his failure to appear either on February 9 or February 14. Following the State's argument, the court denied defendant's motion, holding that under the facts presented the defendant was required to make an affirmative showing as to a meritorious defense or to explain why he was absent.
Defendant's sole contention on appeal is that he was denied due process when the probation revocation hearing was held in his absence. He submits: (1) the in absentia statute (Ill.Rev.Stat.1983, ch. 38, par. 115-4.1) is not applicable to the present case, (2) the State failed to prove that defendant was wilfully avoiding the hearing, as required by section 115-4.1, and (3) section 5-6-4 of the Unified Code of Corrections (Ill.Rev.Stat.1983, ch. 38, par. 1005-6-4) regarding probation revocation hearings provides only an arrest warrant to issue and makes no allowance for ex parte proceedings.
The State's position is that the trial court properly conducted the probation revocation hearing in absentia since defendant had been admonished pursuant to section 113-4(e) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1983, ch. 38, par. 113-4(e)) and he was wilfully absent from the hearing.
It is undisputed that section 115-4.1 is inapplicable to the present case since that provision explicitly applies only to non-capital felonies and the defendant here was charged with misdemeanor offenses. (See People v. Carroll (1982), 109 Ill.App.3d 1041, 1042, 65 Ill.Dec. 573, 441 N.E.2d 888.) Thus, compliance with the requirements of section 115-4.1 is unnecessary.
We also disagree with defendant's argument that the probation revocation statute (Ill.Rev.Stat.1983, ch. 38, par. 1005-6-4) provides only for an arrest warrant to issue for a probationer who fails to appear. Defendant provides no case law in support of his position and the State does not respond to this particular assertion. The statute provides that "when a petition is filed charging a violation of a condition [of probation], the court may: * * * (3) order a warrant for the offender's arrest * * * when the offender fails to answer a summons or notice from the clerk of the court." (Ill.Rev.Stat.1983, ch. 38, par. 1005-6-4.) There is no evidence here that defendant failed to answer a summons or notice from the clerk of the court. Rather, defendant appeared in court on November 4, 1983, and January 12, 1984, for scheduled hearings on the petition to revoke probation of which the defendant had been advised. The matter was continued to February 9, at which time defendant failed to appear. Furthermore, the fact that the court may issue an arrest warrant for a defendant does not preclude it from holding a hearing in absentia.
The issue then becomes whether defendant voluntarily waived his right to be present by failing to appear at the probation revocation hearing.
It is well settled that a defendant may be tried in his absence when charged with a misdemeanor or violation of an ordinance. (People v. Powell (1981), 95 Ill.App.3d 93, 95, 50 Ill.Dec. 600, 419 N.E.2d 708; City of Bloomington v. Heiland (1873), 67 Ill. 278, 280.) The decision to proceed in absentia is a matter within the discretion of the trial judge. People v. Joyner (1982), 109 Ill.App.3d 1083, 1088, 65 Ill.Dec. 700, 441 N.E.2d 1214.
Section 113-4(e) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1983, ch. 38, par. 113-4(e)) provides for the admonition to be given a defendant that trial could proceed in his absence. It states:
"If a defendant pleads not guilty, the court shall advise him at that time or at any later court date on which he is present that if he escapes from custody or is released on bond...
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