People v. McCombs , 372 Ill. App. 3d 967 ( 2007 )

No. 3--04--0575
(Consolidated with Nos. 3--04--0576, 3--05--0417, 3--06--0320)
Filed April 19, 2007.
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 14th Judicial Circuit,
) Whiteside County, Illinois
Plaintiff-Appellee, )
)
v. ) Nos. 99--CF--379
) 00--CF--74
ROBERT E. McCOMBS, )
) Honorable Tim Slavin
Defendant-Appellant. ) Judge, Presiding.
JUSTICE SCHMIDT delivered the opinion of the court:
After separate bench trials, the circuit court of Whiteside
County found defendant, Robert McCombs, guilty of felony theft in
each of two cases which have been consolidated for purposes of
this appeal. Defendant was sentenced to two concurrent extended
10-year terms of imprisonment. Defendant appeals, arguing, inter
alia, that he is entitled to a new trial on both charges because
in each case he was tried in absentia without counsel.
FACTS
On September 6, 2000, defendant was convicted of two counts
of felony theft by deception during two bench trials in Whiteside
County held without the defendant present. Defendant waived his
right to counsel in the first case (No. 99--CF--379). Defendant
claims that the waiver was invalid. Defendant waived his right
to a jury trial in both cases.
Defendant failed to appear for the trials, even though the
record shows that he was fully advised and aware of the trial
date. Defendant was warned that there would be no more
continuances and if he did not appear, a trial would be held
without his presence and he could be found guilty. The State
requested that the cases proceed to trial as allowed in the in
absentia statute. 725 ILCS 5/115--4.1 (West 2000). The State
called Detective John Kellogg to establish that defendant was
willfully avoiding trial. Detective Kellogg stated that when he
had tried to contact the defendant on the previous day, he talked
to defendant's girlfriend, Frieda Estes, who is now married to
defendant and known as Frieda McCombs. She told Kellogg that
defendant was aware of the trial date, but she did not think he
was going to show up. At the conclusion of the hearing, the
court found that the requirement that a defendant's attorney be
present during a trial held in absentia was not applicable to the
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defendant since he had waived his right to counsel. Then, the
court allowed the trials to proceed in defendant's absence.
On September 6, 2000, the court found defendant guilty of
theft in both cases, issued a warrant for defendant's arrest, and
set a sentencing hearing three months later. Defendant failed to
appear for his sentencing hearing and the court conducted the
hearing in defendant's absence. During this hearing, the State
argued that defendant was eligible for extended-term sentencing.
The court ordered defendant to serve two concurrent 10-year terms
of imprisonment, as well as pay restitution of $9,500 and $2,900.
Defendant was arrested 11 months after his convictions.
Eleven months after his arrest, twenty-two months after the
convictions, defendant filed a postconviction petition, which
included the following three claims: (1) the trial court erred
when it conducted an evidentiary hearing, a bench trial, and
sentencing without the defendant being present; (2) the
defendant's due process rights were denied when the assistant
State's Attorney failed to inform the trial court that the
defendant had called the assistant State's Attorney on the day of
trial to request a continuance and to inform the assistant
State's Attorney that he was in Rockford without transportation
to Morrison, where the trial was being held; and (3) the trial
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court erred when it stated that the defendant was warned of the
perils of representing himself because defendant claims he never
requested to represent himself.
During the initial stage of proceedings under the Post-
Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West
2000)), the trial court summarily dismissed two of the claims
raised in the defendant's postconviction petition. The court
appointed counsel to represent defendant in the second stage of
the postconviction proceeding on the claim that the assistant
State's Attorney failed to notify the court of the conversation
he had with the defendant on the day of trial. Defendant
supplemented his original pro se petition. The State filed a
motion to dismiss this remaining claim. The trial court held a
hearing and granted the State's motion to dismiss the remaining
claim. The defendant appealed the dismissals of his
postconviction petitions, case Nos. 3--03--0464 and 3--03--0465.
This court held that the trial court erred when it granted a
partial summary dismissal of defendant's postconviction petition
and remanded the matter to the trial court to conduct a second-
stage proceeding under the Act on all issues raised in
defendant's postconviction petition. People v. McCombs, No. 3-
03-0465 (2004) (unpublished order under Supreme Court Rule 23).
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While the first appeal was pending, defendant filed a pro se
motion for new trial in both cases before the trial court which
included the same allegations that were set forth in his
postconviction petition. The court denied defendant's motions
and defendant appealed. Those appeals were docketed in this
court as case Nos.3--04--575 and 3--04--576, and have been
consolidated into this appeal.
After this court issued its Rule 23 order in Nos. 3--03--
0464 and 3--03--0465, the matters were returned to the trial
court. The State filed an amended motion to dismiss the entire
petition. The court summarily dismissed the petition for No. 99-
-CF--379, which the defendant appealed. It was docketed as case
No. 3--05--0417 and has been consolidated with defendant's other
appeals.
The court found that No. 00--CF--74 was different because
the defendant had never waived his right to counsel and set the
petition in that case for an evidentiary hearing. During the
hearing, defendant was represented by counsel. A number of
witnesses testified, including the attorney in Rockford whom
defendant had met with on another matter the day of his initial
trial and who had contacted the assistant State's Attorney on
defendant's behalf. Also testifying were defendant and
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defendant's wife, Frieda McCombs. The State called no witnesses.
At the conclusion of the hearing the court stated, "I find
Mr. McCombs' testimony today particularly, and, on the other
occasions, to be completely incredible. Mr. McCombs is a liar.
He did not tell the truth today. He has not told the truth
virtually any time he has been on the witness stand." The court
further found that the defendant was willfully avoiding court on
the day of trial. After reviewing People v. Davis, 39 Ill. 2d 325(1968), and hearing arguments on whether Davis applied to the
McCombs case, the court found that Davis was not applicable and
denied defendant's petition in No. 00--CF--74. Defendant
appeals. The matter was docketed as No. 3--06--0320 and
consolidated with defendant's other appeals.
The defendant raises four issues in the consolidated
appeals: (1) whether a defendant must be represented by counsel
during a trial held in absentia pursuant to section 115--4.1 of
the Code of Criminal Procedure of 1963 (the Code) (725 ILCS
5/115--4.1 (West 2000)); (2) whether the court erred when it
conducted a trial in absentia in case No. 00--CF--74 in which
defendant had not waived his right to counsel, without any
counsel representing defendant present; (3) whether defendant's
waiver of counsel in case No. 99--CF--379 complied with Supreme
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Court Rule 401(a) (134 Ill. 2d R. 401(a)); and (4) whether
section 16--1.2 of the Criminal Code of 1961 (720 ILCS 5/16--1.2
(West 2000)) creates an unconstitutional mandatory presumption
regarding the intent necessary to prove theft by deception.
ANALYSIS
First, we consider the issue of whether a defendant must be
represented by counsel during a trial held in absentia. The
Second District recently held in People v. Gargani, No. 2--05--
0478 (February 14, 2007), that a trial court's failure to provide
counsel for defendant before trying him in absentia is reversible
error. People v. Gargani, slip op. at 10. The court found that
the counsel provision of section 115--4.1(a) is a mandatory
prerequisite to conducting a criminal trial in absentia. People
v. Gargani, slip op. at 10. Although, the defendant in Gargani
had not waived his right to counsel as McCombs did in case No,
99--CF--3791, the Second District's analysis regarding the
counsel provision is certainly on point with regard to case No.
00--CF--74, in which McCombs had not waived his right to counsel.
We find Gargani to be a sound decision and follow it.
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For purposes of our discussion of the issue of whether defendant must be represented by
counsel during an in absentia trial, we assume that McCombs' waiver of his right to counsel was
valid.
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Defendant's conviction in case No. 00--CF--74 is hereby vacated.
We must now address whether defendant's prior waiver of counsel
demands a different result in case No. 99--CF--79. For purposes
of our analysis, we presume that the waiver was valid.
As the court noted in Gargani, section 115--4.1(a) of the
Code states in relevant part:
"(a) When a defendant after arrest and an
initial court appearance for a non-capital felony or
a misdemeanor, fails to appear for trial, at the request
of the State and after the State has affirmatively proven
through substantial evidence that the defendant is
willfully avoiding trial, the court may commence trial
in the absence of the defendant. Absence of a defendant
as specified in this Section shall not be a bar to
indictment of a defendant, return of information against
a defendant, or arraignment of a defendant for the
charge for which bail has been granted. If a defendant
fails to appear at arraignment, the court may enter a
plea of 'not guilty' on his behalf. If a defendant
absents himself before trial on a capital felony, trial
may proceed as specified in this Section provided that
the State certifies that it will not seek a death
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sentence following conviction. Trial in the defendant's
absence shall be by jury unless the defendant had
previously waived trial by jury. The absent defendant
must be represented by retained or appointed counsel.
(Emphasis added.) 725 ILCS 5/115--4.1(a) (West 2000).
"The cardinal rule of statutory construction is to ascertain
and give effect to the intent of the legislature." People v.
McClure, 218 Ill. 2d 375, 381, 843 N.E.2d 308 (2006). The best
evidence of legislative intent is the language of the statute.
When possible, the court should interpret the language of a
statute according to its plain and ordinary meaning. If intent
can be determined from the plain language of the statute, there
is no need to resort to interpretative aides. "A court should
not depart from the language of the statute by reading into it
exceptions, limitations, or conditions that conflict with the
intent of the legislature." People v. McClure, 218 Ill. 2d at
382, 843 N.E.2d at 312.
The counsel provision of section 115--4.1(a) contains no
exception for waiver of counsel. On the other hand, the statute
specifically creates an exception for the requirement that the
trial in absentia be by jury. It states, "Trial in defendant's
absence shall be by jury unless the defendant had previously
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waived trial by jury." (Emphasis added.) 725 ILCS 5/115--4.1(a)
(West 2000). Had the legislature intended to create an exception
to the requirement of counsel, it would have explicitly stated
that there was such an exception just as it did for the jury
requirement in the preceding sentence. We can, therefore,
presume that the legislature intended no exception based on a
prior waiver of counsel. Expressio unius, est exclusio alterius.
Therefore, being constrained to apply the plain language of the
statute, we find that conducting a trial of the defendant in
absentia without counsel present is reversible error regardless
of whether there was a valid waiver of counsel.
The State argues that requiring counsel to be present during
an in absentia trial of a defendant who waived counsel is
nonsensical. According to the State, the only solution in such a
case would be to continue the trial, which would result in
further delay and frustrate the very purpose of the in absentia
provision. One additional continuance is a small price to pay to
assure the safeguards of the important constitutional rights that
are otherwise lost when a defendant is tried in absentia. The
State further argues that if every defendant is required to be
represented by counsel during a trial held in absentia, a
defendant who has decided to proceed pro se and does not appear
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for trial would never be tried. Although we concede that such a
result would be absurd, we do not agree that such a result would
ensue. There is nothing to prevent a trial court from issuing a
warrant for defendant's arrest for failure to appear for trial
under such circumstances and then, upon defendant's arrest,
conducting a trial. If defendant could not be found, the court
could appoint counsel, provide a reasonable time for counsel to
prepare and then conduct the trial in absentia.
Given our finding that the statute requires that defendant
be represented by counsel during a trial held in absentia,
notwithstanding a previous waiver of counsel by defendant, we
need not address the remaining issues raised by defendant.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Whiteside County is reversed, defendant's convictions are
reversed, and the causes are remanded for new trials.
Reversed and remanded.
CARTER and O'BRIEN, JJ., concur.
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