The People Of The State Of Ill. v. Sharifpour

• Decision Date: 03 June 2010
• Docket Number: No. 2-08-0512.,2-08-0512.
• Citation: 341 Ill.Dec. 319,402 Ill.App.3d 100,930 N.E.2d 529
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Jamal SHARIFPOUR, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

402 Ill.App.3d 100
930 N.E.2d 529
341 Ill.Dec. 319

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Jamal SHARIFPOUR, Defendant-Appellant.

No. 2-08-0512.

Appellate Court of Illinois,
Second District.

June 3, 2010.

930 N.E.2d 530

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930 N.E.2d 531

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930 N.E.2d 532

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930 N.E.2d 533

Thomas A. Lilien, Deputy Defender, Office of the State Appellate Defender, Elgin, for Jamal Sharifpour.

John A. Barsanti, Kane County State's Attorney, St. Charles, Lawrence M. Bauer, Deputy Director, Victoria E. Jozef, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice SCHOSTOK delivered the opinion of the court:

The defendant, Jamal Sharifpour, pled guilty to attempted aggravated criminal sexual assault (Ill.Rev.Stat.1989, ch. 38, pars. 8-4(a), 12-14(a)(2)) and was subsequently sentenced to 14 years' imprisonment. Following the denial of his motion to withdraw his guilty plea, the defendant filed a timely notice of appeal. On appeal, the defendant argues that the trial court erred in denying his motion to withdraw his guilty plea because (1) the surrounding circumstances rendered his plea involuntary and (2) his counsel was ineffective in failing to move for dismissal of the charges based on statutory and constitutional violations of his right to a speedy trial. We affirm.

On September 23, 1989, the defendant was arrested. The following day he was charged by complaint with one count each of attempted aggravated criminal sexual assault (Ill.Rev.Stat.1989, ch. 38, pars.8-4(a), 12-14(a)(2)), aggravated criminal sexual abuse (Ill.Rev.Stat.1989, ch. 38, par. 12-15(a)(1)), and aggravated battery (Ill.Rev.Stat.1989, ch. 38, par. 12-14(b)(1)). The defendant was released on bond that day. At the bond hearing, the trial court admonished the defendant of his rights, including the possibility that he could be tried in absentia. On October 17, 1989, the grand jury returned a four-count indictment supplanting the complaint. The defendant was charged with the same counts as contained in the complaint along with an additional count of aggravated battery. The charges arose from an incident on September 22, 1989, during which the defendant allegedly hit the victim with his car, forcibly removed her clothing, and fondled her breasts.

On September 27, 1989, following the defendant's arrest in the present case, the State moved to revoke the defendant's bail in two previously pending but unrelated cases: cases No. 89-CF-1252 and No. 89-CF-1253. The trial court granted the motion and issued a warrant. On October 4, 1989, two attorneys, retained by the defendant's father, entered appearances in all three cases. On October 5, 1989, when the defendant did not appear, the trial court entered a bond forfeiture in the three cases. The record indicates that at some point after the defendant's bond hearing, he had fled the country.

On March 6, 1990, case No. 89-CF-1252 proceeded to a jury trial in absentia. Following trial, the defendant was found guilty of attempted aggravated criminal sexual assault and sentenced to 12 years' imprisonment.

930 N.E.2d 534

Thereafter, the State moved for trial in absentia in the present case. At a June 29, 1990, hearing, the trial judge who presided at the defendant's bond hearing testified that the defendant was present at that hearing and was represented by counsel. The trial judge further testified that, at the bond hearing, he explained the defendant's rights, including the defendant's right to trial. He also informed the defendant that if he failed to appear in court, a trial could be held in his absence and he could be convicted and sentenced in his absence. The State requested an October trial date so that it would have time to comply with the statutory notice requirements for a trial in absentia. The State indicated that it would send notices to the defendant at addresses in West Dundee, Illinois, and in Turkey, where the defendant was believed to be residing. The trial court found that the requirements for conducting a trial in absentia had been met and set the case for trial on October 15, 1990.

A jury trial in absentia commenced on October 15, 1990. The defendant was represented by counsel. The trial court denied the defense motion to bar the trial in absentia. Thereafter, the victim testified in detail concerning the incident, and law enforcement personnel testified concerning their investigations. During trial, the State dismissed the two counts of aggravated battery. The jury found the defendant guilty of attempted aggravated criminal sexual assault (Ill.Rev.Stat.1989, ch. 38, pars.8-4(a), 12-14(a)(2)) and aggravated criminal sexual abuse (Ill.Rev.Stat.1989, ch. 38, par. 12-15(a)(1)). On December 6, 1990, following the denial of the defendant's posttrial motions, the trial court vacated the conviction of aggravated criminal sexual abuse and sentenced the defendant to 15 years' imprisonment for attempted aggravated criminal sexual assault, consecutive to the defendant's sentence in case No. 89-CF-1252. Thereafter, the defendant filed a notice of appeal from the court's judgment in each case. On the State's motion, this court dismissed the appeals due to the defendant's continued absence.

In August 2000, shortly after returning to the United States, the defendant was taken into custody in New York. On September 14, 2000, the defendant returned to Illinois and appeared in court. The State requested that the defendant be remanded to the Department of Corrections (DOC). As of September 15, 2000, the defendant was sent to the DOC to begin serving his sentence. On October 13, 2000, the defendant filed a motion to have his convictions in both cases declared void because the procedures for trial in absentia had not been followed. On November 29, 2000, the defendant's attorney withdrew and a public defender was appointed to the defendant's case.

On February 15, 2001, the public defender filed a motion to have the defendant's convictions in both cases declared void based on the alleged failure to comply with the statutory requirements regarding trial in absentia. The defendant submitted a supporting affidavit indicating that he was not aware that the cases had been set for trial. On May 10, 2001, a hearing was held on the defendant's motion. The defendant argued that before a trial in absentia could be held, the statute required thE state to prove he was willfully avoiding trial and the clerk to send the defendant notice of the trial date via certified mail at the defendant's last known address. The defendant argued that the State had not proved that the defendant was willfully avoiding trial. The defendant pointed out that the attorney present at the defendant's bond call submitted an affidavit indicating that at the hearing the defendant never looked up and never made

930 N.E.2d 535

any sort of verbal recognition of what was happening. The defendant argued that he did not understand anything at the bond hearing. Additionally, the defendant argued that although the State's Attorney's office had sent notices to two addresses by regular post, the clerk's office did not send notice of the trial date via certified mail. The State conceded that the notice of trial that was sent by the State and not by the clerk was not in compliance with the statutory requirement of certified mail. The record reveals that the State's Attorney's office sent notice to the defendant in the following ways: (1) notice was sent by certified mail to the defendant's home address in West Dundee; (2) notice was sent by registered mail to the defendant's address in Turkey; and (3) notice was sent by regular mail to the defendant's attorney.

On May 31, 2001, the trial court granted the defendant's motion to vacate his convictions. The trial court found that “no notice was sent by certified mail or even by regular mail to the defendant. There was notice sent by the State's Attorney's Office with proof of service, but it was not sent certified.” As a result, the trial court found “that both convictions are void, and [the defendant] is entitled to a new trial on both matters.” However, on May 9, 2008, following a hearing on the defendant's supplemental motion to withdraw his guilty plea, the trial court clarified its finding and explained that “the court order was voidable and not void” and that the trial court had jurisdiction.

On June 15, 2001, the defendant filed his demand for a speedy trial in the present case. On August 20 and 21, 2001, a bench trial was held in case No. 89-CF-1252, and the trial court found the defendant guilty of attempted aggravated criminal sexual assault. On September 7, 2001, at a status date for case No. 89-CF-1252, the defendant appeared to enter a “cold” guilty plea to the charge of attempted aggravated criminal sexual assault in the present case. The State indicated that, in exchange for the plea, the other counts in the case, along with the charge in case No. 89-CF-1253, would be dismissed. The defendant acknowledged that he understood the agreement.

Thereafter, the trial court proceeded to admonish the defendant pursuant to Supreme Court Rule 402 (177 Ill.2d R. 402). The trial court explained the nature of the charge, the minimum and maximum sentences, and the fact that any sentence would be mandatorily consecutive to his sentence in case No. 89-CF-1252. The trial court explained that by pleading guilty the defendant was waiving his right to trial, including the rights to have an attorney present at trial, to present evidence, to cross-examine the State's witnesses, and to appellate review of any trial errors. In response to questions by the trial court, the defendant indicated that he was giving up his rights freely and voluntarily and that no one was forcing him to plead guilty. The defendant also indicated that he had discussed the matter with his attorney but that he was satisfied with his representation only to...