People v. Phillips ( 2011 )

Docket No. 109413.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
EZEKIEL PHILLIPS, Appellee.
Opinion filed March 24, 2011.
JUSTICE THEIS delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman and Burke concurred
in the judgment and opinion.
Justice Thomas dissented, with opinion, joined by Justices Garman
and Karmeier.
OPINION
This case is before us for the second time. At issue in this appeal
is whether defendant waived his right to receive admonishment under
section 113–4(e) of the Code of Criminal Procedure of 1963 (Code)
(725 ILCS 5/113–4(e) (West 2000)) based upon a signed bail bond
slip, which warned him on the back of the slip of the possibility that
he could be tried or sentenced in absentia if he did not appear in court
as required. The appellate court vacated defendant’s sentence, and
remanded to the trial court for a new sentencing hearing, after
concluding that the requirements of section 113–4(e) had not been
met. 394 Ill. App. 3d 808. For the reasons set forth below, we affirm
the judgment of the appellate court.
BACKGROUND
Defendant, Ezekiel Phillips, was charged by indictment with
attempted first degree murder (720 ILCS 5/8–4, 9–1 (West 2000)),
armed violence (720 ILCS 5/33A–2(a) (West 2000)), and three counts
of aggravated battery (720 ILCS 5/12–4(a), (b)(1), (b)(8) (West
2000)). Defendant was arraigned on July 31, 2000, and subsequently
posted bond on May 3, 2001. The following notice appears, in
pertinent part, on the back of the bail bond slip that was executed on
the day of defendant’s release on bond:
“FELONY DEFENDANTS: You are hereby advised that
if at any time prior to the final disposition of the charge you
escape from custody, or are released on bond and you fail to
appear in court when required by the court, your failure to
appear would constitute a waiver of your rights to confront
the witnesses against you and trial could proceed in your
absence. If found guilty you could be sentenced in your
absence.”
On the front side of the slip, defendant’s signature appears under the
following language:
“STATEMENT OF DEFENDANT. I understand and
accept the terms and conditions set forth below and on the
reverse side of this bail bond. Further, I hereby certify that I
understand the consequences of failure to appear for trial as
required.”
Also on the front side of the bond slip, at the bottom, is the signature
of a deputy clerk of the court under the representation that “[t]he
above conditions and certification of defendant have been taken,
entered into and acknowledged before me. Defendant is hereby
released from custody.”
Defendant was present in court for his arraignment and on other
dates prior to when he posted bond. Nothing in the record indicates
that the trial court provided him with section 113–4(e) admonishment
at the time of his arraignment, or on any court date thereafter.
Following a jury trial in the circuit court of Cook County, defendant
was found not guilty of attempted first degree murder, but guilty of
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armed violence and aggravated battery. Defendant was present during
the entire course of his jury trial, but he was not present when the
verdicts were returned. Following the denial of a posttrial motion for
a new trial, which was presented by defense counsel in defendant’s
absence, defendant was sentenced in absentia to life imprisonment for
the armed violence conviction and five years’ imprisonment for each
of the three aggravated battery convictions, to merge and run
concurrently.
The appellate court affirmed defendant’s convictions and
remanded the cause to the trial court for a new sentencing hearing
because the record did not reflect that defendant had been admonished
by the trial judge as required by section 113–4(e) of the Code. People
v. Phillips, 371 Ill. App. 3d 948 (2007). This court granted
defendant’s petition for leave to appeal on the issue of whether a trial
court may defer ruling on a motion in limine to exclude a defendant’s
prior convictions as impeachment. We consolidated defendant’s
appeal with another case raising the same issue. See People v. Patrick,
233 Ill. 2d 62 (2009). While that matter was pending before this court,
the State located the original bail bond slip executed on May 3, 2001.
The State was granted leave by this court to supplement the record
with the bond slip and the document formed the basis for the State’s
request for cross-relief. This court affirmed defendant’s convictions.
We held that by not testifying defendant failed to preserve his right of
appellate review of the issue of whether the trial court erred by
refusing to rule, until after he testified, on his motion in limine to
exclude evidence of his prior convictions for impeachment purposes.
Patrick, 233 Ill. 2d at 79. We remanded the cause to the appellate
court for the sole purpose of reexamining the sentencing issue in light
of the bail bond slip. Patrick, 233 Ill. 2d at 80.
The appellate court again vacated defendant’s sentence and
remanded the matter to the trial court for a new sentencing hearing.
The appellate court concluded that, notwithstanding the notice set
forth in defendant’s bail bond slip, the requirements of section
113–4(e) of the Code had not been met because the trial court had not
admonished defendant, orally or otherwise, that his failure to appear
in court as required could result in him being sentenced in his absence.
394 Ill. App. 3d at 812. We subsequently granted the State’s petition
for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
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ANALYSIS
The State contends that defendant’s signature on the bail bond
slip, which includes language on the back of the form that is consistent
with that found in section 113–4(e) of the Code, should operate as a
valid waiver of his right to receive the admonishment again in court
because the prophylactic purpose of this section of the Code was
achieved by the notice contained on the slip. The State argues that
only substantial compliance with section 113–4(e) is required to
legitimize a trial in absentia, which occurred in this case due to the
language contained on the back of the bond slip. The State further
contends that the act of defendant signing the bond slip was a more
formal procedure than simply hearing the same admonishment recited
by the court at the time of his arraignment and, moreover, it was
signed and certified by a deputy clerk of the court. Because the
question of whether defendant waived his right to receive section
113–4(e) admonishment under the circumstances of this case presents
strictly a question of law, our review proceeds de novo. See In re
D.S., 198 Ill. 2d 309, 321 (2001).
As a constitutional matter, a defendant has a right to be present at
all stages of his trial, including sentencing. Snyder v. Massachusetts,
291 U.S. 97, 105-06 (1934). A defendant’s voluntary absence from
trial may be construed as an effective waiver of his constitutional right
to be present and he may be tried and sentenced in absentia, even if
he is not specifically warned that this is a possible consequence of his
absence. Taylor v. United States, 414 U.S. 17, 18-20 (1973). As
recognized by the appellate court, however, a defendant in Illinois has
a statutory right under section 113–4(e) of the Code to be admonished
as to the possible consequences of failing to appear in court when
required. 394 Ill. App. 3d at 810.
Section 113–4(e) is contained in article 113 of the Code, which
governs arraignment. Arraignment has been defined by our legislature
as “the formal act of calling the defendant into open court, informing
him of the offense with which he is charged, and asking him whether
he is guilty or not guilty.” 725 ILCS 5/102–4 (West 2000). Consistent
with this definition, section 113–1 of the Code provides, in relevant
part, that “[b]efore any person is tried for the commission of an
offense he shall be called into open court, informed of the charge
against him, and called upon to plead thereto.” 725 ILCS 5/113–1
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(West 2000). Arraignment presents an almost certain opportunity to
have the defendant present before the court. People v. Garner, 147 Ill.
2d 467, 481 (1992).
Section 4 of article 113 of the Code governs when a defendant is
called upon to plead at arraignment. This section provides, in relevant
part, that “the defendant shall be furnished with a copy of the charge
and shall plead guilty, guilty but mentally ill, or not guilty” and “[i]f
the defendant pleads guilty such plea shall not be accepted until the
court shall have fully explained to the defendant the consequences of
such plea.” 725 ILCS 5/113–4(a), (c) (West 2000). Subsection (b)
addresses the consequences of when a defendant stands mute when
called upon to plead while subsection (d) specifies the requirements
for when a defendant pleads guilty but mentally ill. 725 ILCS
5/113–4(b), (d) (West 2000). Finally, subsection (e), at issue here,
provides, in relevant part:
“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 *** is released on bond and fails to appear in court when
required by the court that his failure to appear would
constitute a waiver of his right to confront the witnesses
against him and trial could proceed in his absence.” 725 ILCS
5/113–4(e) (West 2000).
Consequently, the admonishment requirement found in section
113–4(e) applies only to a defendant when he appears in open court
and pleads not guilty at the time of his arraignment, or is present in
court at any later date after his arraignment. This admonishment
requirement applies even in the case of a defendant who flees during
trial, as opposed to prior to trial. People v. Partee, 125 Ill. 2d 24, 41
(1988).
As this court has previously explained, the warning contained in
section 113–4(e) is “part of a complex series of tradeoffs designed to
balance the defendant’s right to be present at trial, the State’s interest
in the expeditious administration of justice,” and the long-standing
principle that courts distrust trial in absentia because of its inherent
unfairness to a defendant. Partee, 125 Ill. 2d 24, 40 (1988). This court
has also recognized that “[t]he primary purpose of section 113–4(e),
as evidenced by the legislative history, is to prevent ‘bail jumping’ and
to promote the speedy satisfaction of judgment.” Garner, 147 Ill. 2d
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at 481 (citing 81st Ill. Gen. Assem., House Proceedings, May 25,
1979, at 151 (statements of Representative Kosinkski), at 153
(statements of Representative McAuliffe). This court has further
recognized that “Partee cited, approvingly, those appellate court cases
which have interpreted the word ‘shall’ in section 113–4(e) as
mandatory.” Garner, 147 Ill. 2d at 480. Therefore, “while Partee gave
cognizance to the possible interpretation of the word ‘shall’ as being
directory, it apparently viewed the use of the word ‘shall’ in section
113–4(e) as mandatory.” Garner, 147 Ill. 2d at 480.
In Garner, this court stated that the section 113–4(e)
admonishment serves as the procedural mechanism to effect a formal
waiver of a defendant’s right to be present. Garner, 147 Ill. 2d at 483.
Consequently, before a trial may proceed in absentia, the court must
inform the defendant of his right to be present and the defendant must
have knowingly and intelligently waived that right. Garner, 147 Ill. 2d
at 483. Absent such a knowing and intelligent waiver, the defendant’s
statutory right to be informed that he could be tried in his absence is
violated. Garner, 147 Ill. 2d at 483. This court also held that it is the
intent of the legislature that section 113–4(e) admonishment be given
at the time of arraignment and explained that the admonishment is
most effective at that time when the defendant is also being informed
of other significant protections, such as the right to counsel and the
right to a jury trial. Garner, 147 Ill. 2d at 481, 482.
This court considered in Garner whether the defendant had
waived his right to receive the section 113–4(e) admonishment
because he had signed a bond slip that contained a printed notice
warning him of the penalty of his failure to be present at trial. Garner,
147 Ill. 2d at 478. We rejected that argument after reviewing the bond
slip and noting that while it provided a warning of the penalties for
failure to appear, it did not provide any warning of the possibility of
trial in absentia. Garner, 147 Ill. 2d at 478. We observed that:
“Noticeably absent from the slip, however, is any warning of
the possibility of trial in absentia. Thus, we find that the bond
slip does not satisfy the requirement of section 113–4(e). Cf.
17 Ariz. Rev. Stat. Ann., Form VI, at 737 (1987) (warning of
possibility of trial in absentia included on bond slip which
defendant was required to sign upon release).” Garner, 147
Ill. 2d at 478-79.
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While this court was not prepared to say that no set of
circumstances would result in the waiver of a defendant’s right to
receive the admonishment in court, we ultimately concluded that the
trial court committed reversible error by failing to admonish the
defendant pursuant to section 113–4(e) at the time of his arraignment.
Garner, 147 Ill. 2d at 480, 483-84.
The State’s position in this case has been rejected in two appellate
court decisions. In People v. Lester, 165 Ill. App. 3d 1056 (1988), the
defendant was tried and sentenced in absentia, and at no time did the
trial court orally admonish him of the possibility of trial in his absence.
Similar to this case, the State maintained that the defendant had
adequate notice of the possibility of trial in his absence because the
admonishment was contained on printed bond slips which the
defendant was twice required to execute. The Lester court concluded
that section 113–4(e) unambiguously requires the trial court to orally
admonish the defendant in court and that the complete failure to
comply with this portion of the statute did not constitute sufficient
compliance with the Code. Lester, 165 Ill. App. 3d at 1057-59. The
Lester court also found that “[b]ecause waiver assumes knowledge,
a defendant who has not received notice of the possibility of trial in
absentia cannot be deemed to have knowingly waived his right to be
present at trial.” Lester, 165 Ill. App. 3d at 1059.
Likewise, in People v. Green, 190 Ill. App. 3d 271 (1989), the
defendant did not appear at trial and the State argued on appeal that
the requirements of section 113–4(e) had been met, even though the
defendant had not been warned by the court, because he had signed a
bond slip which contained a printed notice warning him of the
possibility of trial in absentia. The Green court concluded that the
defendant must be orally warned in person by the court and that the
warning provided on the bond slip did not satisfy the requirements of
section 113–4(e). Green, 190 Ill. App. 3d at 272-74.
We find that section 113–4(e) unambiguously requires the trial
court to admonish a defendant in open court and reject the State’s
claim that defendant waived his right to be admonished by a trial judge
based upon the signed bond slip in this case. Defendant was required
to sign the bond slip as a condition of his release from jail, which is a
far different circumstance than a defendant voluntarily relinquishing a
known statutory right in court. We agree with the reasoning of the
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appellate court in Lester and Green and conclude that a warning
provided outside the presence of the court through language
contained on a bond slip does not constitute a blanket waiver
precluding the need for any section 113–4(e) admonishment by the
trial judge. Contrary to the State’s reliance on Garner, this court did
not hold that a form similar to the one used in Arizona would amount
to a valid waiver of the statutory requirement without any
admonishment by the trial court but, rather, used it comparatively to
point out that the bond slip in that case did not even contain the
warning encompassed in section 113–4(e).
We disagree with the State’s contention that due to the notice
contained on the back of the bond slip, this case presents an issue of
substantial rather than strict compliance with the Code. Based upon
Garner, when a trial judge does not admonish a defendant in any way
under section 113–4(e) at the time of his arraignment, or at any later
court date that he is present, and there has not been a valid waiver of
the statutory requirement, there cannot be substantial compliance with
the Code. The signature of defendant and a deputy clerk on the bond
slip does not change the statutory requirement. We decline to read
into section 113–4(e) an exception which would allow a deputy clerk
of the court to perform a function that is reserved for a trial judge. A
deputy clerk would not be permitted to substitute for a judge in
meeting any of the other requirements of section 113–4 of the Code,
such as accepting a plea, or advising a defendant of the consequences
of pleading guilty. In the same way, the trial court’s duty to advise a
defendant of the possibility of trial in absentia cannot be delegated to
a deputy clerk.
Given the architecture of this provision of the Code within the
section of the statute that governs when a defendant is called upon to
plead at arraignment, and the plain and ordinary meaning of the
language contained in section 113–4(e), we further agree with Lester
and Green that the legislature intended for the trial court to orally
admonish a defendant as to the possibility of trial in absentia when he
is present in open court at arraignment, or at any later date. We also
believe that oral admonishment is most effective to meet the legislative
purpose of section 113–4(e) as it provides the trial court with an
opportunity to both notify a defendant of his right and obligation to be
present at trial, and to verify that he understands this important right
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and duty.
The appellate court’s decision in People v. Condon, 272 Ill. App.
3d 437 (1995), does not assist the State’s position. There, the
defendant signed a form provided by the trial court at his arraignment
acknowledging that if he failed to appear in court he would waive his
right to be present at the proceedings and that he could be tried and
sentenced in his absence. The Condon court concluded that section
113–4(e) does not specifically require oral admonishment and that an
admonition, written or oral, which advises a defendant of all the
information required by section 113–4(e) is sufficient to legitimize a
trial in absentia. Consequently, the court rejected the defendant’s
claim that his postconviction counsel was ineffective for failing to
attack the in absentia nature of the proceedings. Condon, 272 Ill.
App. 3d at 438-42. To the extent that the Condon court held that
written admonishment by the trial court alone would satisfy the
requirements of section 113–4(e), it is inconsistent with this opinion
and, therefore, overruled.
Moreover, in contrast to this case, we note that the trial court in
Condon provided the defendant with the form at his arraignment and
later orally admonished him that the proceedings could go forward in
his absence and reminded him of his obligation to appear in court. See
Condon, 272 Ill. App. 3d at 441-42.
This court has previously held that “the statute directs the trial
court to admonish the defendant. No exemption from the
admonishment requirement exists, regardless of how seasoned or
knowledgeable the criminal defendant.” (Emphasis added.) Garner,
147 Ill. 2d at 479. Defendant was present at his arraignment on July
31, 2000, and could have been admonished by the court at that time.
He was also present on several other court dates prior to, and after,
posting bond on May 3, 2001. As this court has determined, reversible
error occurs when the trial court fails to admonish a defendant as
required under section 113–4(e) at the time of his arraignment, or at
a later court date that he is present. Garner, 147 Ill. 2d at 483-84; see
also People v. Thomas, 216 Ill. App. 3d 405, 408-09 (1991) (in the
absence of section 113–4(e) admonishment, sentencing in absentia
constitutes error requiring a new sentencing hearing). Therefore, the
appellate court correctly concluded that the proper recourse was to
vacate defendant’s sentence and remand for a new sentencing
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hearing.1
CONCLUSION
For the foregoing reasons, the judgment of the appellate court,
vacating defendant’s sentence and remanding to the trial court for a
new sentencing hearing, is affirmed.
Affirmed.
JUSTICE THOMAS, dissenting:
I respectfully dissent.
In People v. Garner, 147 Ill. 2d 467 (1992), the defendant was
tried in absentia despite not having received section 113–4(e)
admonishments. The appellate court reversed and remanded for a new
trial, and the State appealed to this court. Before this court, the State
argued, inter alia, that, despite the lack of statutory admonishments,
“defendant had knowledge that he could be tried in absentia since the
bond slip he signed contained a printed notice warning him of the
consequence of failure to be present for trial.” Garner, 147 Ill. 2d at
478. Although the court rejected this argument, it did so not because
a bond slip may never satisfy the requirements of section 113–4(e),
but only because the particular bond slip used in that case did not
satisfy the requirements of section 113–4(e):
“We have reviewed the bond slip in this case. Most
1
The State urges us to conclude that even if defendant did not waive his
right to receive section 113–4(e) warnings, reversal for a new sentencing
hearing is unwarranted because this section of the Code is directory, rather
than mandatory, and the violation is not a structural or constitutional error
warranting automatic reversal. As the State acknowledges, this argument has
been forfeited because the State failed to raise it in its petition for leave to
appeal before this court. See People v. Williams, 235 Ill. 2d 286, 298
(2009). The State also acknowledges, as it did before the appellate court, that
as a general rule in Illinois, the failure to give the warnings found in section
113–4(e) constitutes error requiring reversal.
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assuredly, the bond slip states that defendant should appear on
June 30, 1981. Additionally, the slip provides a warning of the
penalties for failure to appear. Noticeably absent from the slip,
however, is any warning of the possibility of trial in absentia.
Thus, we find that the bond slip does not satisfy the
requirement of section 113–4(e).” (Emphasis added.) Garner,
147 Ill. 2d at 478.
According to this passage, the only reason that the bond slip in
Garner did not satisfy the requirement of section 113–4(e) was the
absence from that slip of any warning of the possibility of trial in
absentia. See Webster’s Third New International Dictionary 2388
(1993) (defining “thus” as either “in this or that manner or way” or
“for this or that reason or cause”). Stated conversely, then, had the
bond slip in Garner contained a warning of the possibility of trial in
absentia, it would have satisfied the requirement of section 113–4(e),
and the defendant’s trial in absentia would have been proper.
This case presents the very situation contemplated but not quite
present in Garner. Like the bond slip in Garner, the bond slip in this
case most assuredly states that defendant must appear and warns
defendant of the penalties for failing to appear. In addition, and unlike
the bond slip in Garner, the bond slip in this case most assuredly
warns defendant of the possibility of trial in absentia. Thus, the sole
deficiency from Garner is cured, and the requirements of section
113–4(e) are satisfied fully. Garner, 147 Ill. 2d at 478.
This court has explained that section 113–4(e) is “a prophylactic
measure which is designed both to dissuade defendants from
absconding at any time, before or after trial, and to provide for a
formal waiver of their right to be present.” People v. Partee, 125 Ill.
2d 24, 41 (1988). Here, both of these purposes were achieved. The
bond slip that defendant signed before a deputy court clerk not only
informed him of the consequences for failing to appear, up to and
including trial and sentencing in absentia, but also put defendant on
direct notice that “[his] failure to appear would constitute a waiver of
[his] rights to confront the witnesses against him.” These warnings
track the language of section 113–4(e) exactly, and therefore there is
nothing that the trial court could have told defendant through formal
admonishment that defendant did not already know. Defendant
understood fully the consequences of fleeing, and he chose to flee
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anyway. To the extent an error in judgment occurred in this case, it is
to defendant we must look, not to the trial court.
For these reasons, I am convinced that the trial court did not err
in sentencing defendant in absentia, and the judgment of the appellate
court therefore should be reversed.
JUSTICES GARMAN and KARMEIER join in this dissent.
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