People v. Hoyer , 2022 IL App (5th) 210412-U ( 2022 )

NOTICE
2022 IL App (5th) 210412-UNOTICE
Decision filed 10/07/22. The
This order was filed under
text of this decision may be NO. 5-21-0412 Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for
Rehearing or the disposition of
IN THE limited circumstances allowed
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Effingham County.
)
v. ) No. 20-CF-130
)
DANIEL W. HOYER, ) Honorable
) Christopher W. Matoush,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
PRESIDING JUSTICE BOIE delivered the judgment of the court.
Justices Cates and Vaughan concurred in the judgment.
ORDER
¶1 Held: We affirm the judgment of the trial court denying the defendant’s motion to
reconsider sentence where the defendant had no constitutional right to appear
at the hearing and has failed to demonstrate the denial of an underlying
substantial right.
¶2 On September 29, 2021, the defendant, Daniel W. Hoyer, was found guilty of two
counts of aggravated fleeing a police officer in violation of sections 11-204.1(a)(1) and 11-
204.1(a)(4) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-204.1(a)(1), 11-
204.1(a)(4) (West 2020)). On November 2, 2021, the trial court sentenced the defendant
to 30 months of confinement within the Illinois Department of Corrections (IDOC).
1
¶3 On November 8, 2021, the defendant filed a motion to reconsider sentence. The trial
court conducted a hearing on the defendant’s motion, via videoconferencing, on December
16, 2021. The defendant was not present at the hearing and the trial court denied the
defendant’s motion in its entirety. The defendant now appeals his sentence arguing that the
trial court committed second-prong plain error in conducting a hearing on the defendant’s
motion to reconsider sentence without the defendant being present. For the following
reasons, we affirm the judgment of the trial court.
¶4 I. BACKGROUND
¶5 On June 17, 2020, the defendant was charged with one count of aggravated fleeing
a police officer, at a rate of speed at least 21 miles per hour over the legal speed limit, in
violation of section 11-204.1(a)(1) of the Code (id. § 11-204.1(a)(1)), and one count of
aggravated fleeing a police officer, while disobeying two or more official traffic control
devices, in violation of section 11-204.1(a)(4) of the Code (id. § 11-204.1(a)(4)). A jury
trial was conducted on September 28 and 29, 2021.
¶6 Prior to trial, the defendant had made two requests for continuances in order to
obtain private counsel. The trial court denied both motions, but indicated that it would
consider a continuance if the defendant obtained private counsel. At the final pretrial
conference on September 23, 2021, the following dialog occurred:
“THE COURT: [Defendant] what attempts have you made to hire
counsel?
2
THE DEFENDANT: If I file a motion to—for ineffective assistance of
counsel will that—is that going anywhere? Is it going to be denied? He
doesn’t seem like he wants to handle my case honestly.
THE COURT: Again sir my question to you is you asked for time to hire
counsel.
THE DEFENDANT: I am working, but I mean if you can appoint
somebody different that would ...
THE COURT: So you have made no attempts to hire private counsel?
THE DEFENDANT: I called Lupita. She didn’t call me back. As he said
he is not going to be any more prepared on my case.
THE COURT: Motion to continue jury trial is denied.”
¶7 On September 29, 2021, the defendant was found guilty of both counts of
aggravated fleeing a police officer. The defendant filed a motion for acquittal, or in the
alternative, motion for a new trial on October 5, 2021. On November 2, 2021, the trial court
denied the defendant’s posttrial motion and, the same day, sentenced the defendant to 30
months of confinement within the IDOC. At the sentencing hearing, the defendant
indicated to the trial court that he anticipated filing a motion to reconsider sentence and
requested to appear at the hearing, “VIA ZOOM,” 1 if transported to the IDOC before the
hearing.
1
“Zoom” is a videoconferencing platform.
3
¶8 On November 8, 2021, the defendant filed his motion to reconsider sentence arguing
that his sentence was excessive and that the trial court failed to determine the penalty
according to the seriousness of the offense and with the objective of restoring the defendant
to useful citizenship as required by article I, section 11 of the Illinois Constitution. Ill.
Const. 1970, art. I, § 11. The defendant’s motion to reconsider sentence also argued that
the sentence imposed was not in keeping with the defendant’s past history of criminality,
mental history, family situation, economic status, education, and occupation. Finally, the
defendant’s motion to reconsider sentence argued that the sentence imposed was not in
keeping with the alternatives available to the trial court to assist the defendant in his
rehabilitation. The defendant’s motion to reconsider did not state any specific factual basis,
either within the record or outside of the record, nor did the defendant’s motion to
reconsider cite any supporting precedent for the arguments.
¶9 The trial court conducted a hearing on the defendant’s motion to reconsider
sentence, via videoconferencing, on December 16, 2021. At the beginning of the hearing,
the following dialog occurred:
“THE COURT: 20-CF-130, People of Illinois versus Daniel Hoyer. Show
that [counsel] is present for the State and [counsel] is present for the
Defendant. [Defense Counsel], you’re asking for me to consider this motion
without your client being present; is that correct?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Any objection, State, to me considering the motion without
the Defendant being present?
4
[THE STATE]: No, Your Honor.
THE COURT: I’ll show the Defendant’s presence is waived by
agreement. The Court has reviewed the Motion to Reconsider Sentence that
was filed on November 8, of this year, in essence alleging, if anything, the
sentence was excessive. The Court will rest on it’s [sic] recitation of factors
in aggravation and mitigation at the time of sentencing. I will deny that
motion in it’s [sic] entirety. The sentence of 30 months incarceration will
remain in effect with various fines, cost, credit and one year period of
mandatory supervised release to stay imposed.”
¶ 10 The defendant now appeals the trial court’s denial of his motion to reconsider
sentence arguing that the trial court committed second-prong plain error in conducting a
hearing on the defendant’s motion to reconsider sentence without the defendant being
present at the hearing.
¶ 11 II. ANALYSIS
¶ 12 The defendant acknowledges that the issue of whether the trial court erred in
conducting a hearing on the defendant’s motion to reconsider sentence without the
defendant being present was not preserved in the lower court and, thus, is forfeited on
appeal. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (failure to raise an issue in the
trial court results in the forfeiture of that issue on appeal). The defendant argues, however,
that this court should review his claim under the plain error doctrine, codified in Illinois
Supreme Court Rule 615 (eff. Jan. 1, 1967). The plain error doctrine is a narrow and limited
exception to the general rule of procedural default that allows plain errors or defects
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affecting substantial rights to be noticed although the error or defect was not brought to the
attention of the trial court. People v. Hillier, 237 Ill. 2d 539, 545 (2010).
¶ 13 There are two circumstances under which an otherwise unpreserved error may be
considered under the plain error doctrine. Those two circumstances are (1) when a clear or
obvious error occurred and the evidence is so closely balanced that the error alone threatens
to tip the scales of justice against the defendant, regardless of the seriousness of the error,
or (2) when a clear or obvious error occurred and that error is so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process,
regardless of the closeness of the evidence. People v. Sebby, 2017 IL 119445, ¶ 48. The
burden of persuasion remains with the defendant under both prongs of the plain error
doctrine. People v. Lewis, 234 Ill. 2d 32, 43 (2009).
¶ 14 In this matter, the defendant argues that his claim falls within the second prong of a
plain error analysis in that his absence at the trial court’s hearing on his motion to
reconsider sentence challenged the integrity of the judicial process. The defendant states
that he had the right to appear at the hearing and that neither the trial court nor his defense
counsel were authorized to waive the defendant’s right to appear. The defendant argues
that his absence denied him the ability to vindicate his sixth amendment right to counsel as
the hearing was the last opportunity to present any potential claims of ineffective assistance
of trial counsel pursuant to People v. Krankel, 2 102 Ill. 2d 181 (1984). As such, the
2
Pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), and refined by its progeny, a trial court
must, at a minimum, conduct a preliminary inquiry into the factual and legal basis of a defendant’s pro se
posttrial claim of ineffective assistance of counsel to determine whether the claim lacks merit or pertains
only to matters of trial strategy. See In re Johnathan T., 2022 IL 127222, ¶ 47.
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defendant argues that the trial court should have continued the proceedings until he could
be present or personally waive his right to appear.
¶ 15 The first step in a plain error analysis is to determine whether the trial court
committed a clear and obvious error. Sebby, 2017 IL 119445, ¶ 49. A criminal defendant
has the general right to be present at all critical stages of the proceedings, from arraignment
to sentencing. See People v. Lindsey, 201 Ill. 2d 45, 55 (2002); U.S. Const., amend. XIV,
§ 1; Ill. Const. 1970, art. I, § 8. A defendant’s right to be present at a critical stage, however,
does not embrace a right to be present at the arguments of motions prior to trial or
subsequent to the verdict. People v. Woods, 27 Ill. 2d 393, 395 (1963). While a motion to
reconsider sentence is subsequent to the verdict, Illinois courts have found that a hearing
on a motion to reconsider sentence is a critical stage of the criminal proceedings since the
substantial rights of a defendant may be affected. See People v. Owens, 384 Ill. App. 3d
670, 671 (2008); People v. Williams, 358 Ill. App. 3d 1098, 1105 (2005); People v.
Brasseaux, 254 Ill. App. 3d 283, 288 (1996).
¶ 16 The Illinois Supreme Court cases that have addressed whether reversal is required
due to an alleged violation of a defendant’s right to appear at a critical stage of a criminal
proceeding appear to fall into two separate lines of analysis. People v. Burnett, 385 Ill.
App. 3d 610, 616 (2008). In People v. Childs, 159 Ill. 2d 217 (1994), concerning an ex parte
communication between a judge and the jury, the supreme court found that the defendant
had a constitutional right to be present since jury deliberations were a critical stage and that
the burden was on the State to prove beyond a reasonable doubt that the error was harmless.
Id. at 228; see also People v. Kliner, 185 Ill. 2d 81, 162 (1998).
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¶ 17 In People v. Bean, 137 Ill. 2d 65 (1990), however, our supreme court held that the
right to be present is a lesser right as a means to securing the substantial rights of a
defendant. Id. at 81. As such, a defendant was “not denied a constitutional right every time
he is not present during his trial, but only when his absence results in a denial of an
underlying substantial right, in other words, a constitutional right; and it is only in such a
case that plain error is committed.” Id. As such, the defendant had the burden to
demonstrate the denial of an underlying constitutional right in order to establish plain error.
The supreme court has further stated that a defendant is only guaranteed the right to be
present at any stage of the criminal proceeding that is critical to its outcome if his or her
presence would contribute to the fairness of the procedure. People v. Lofton, 194 Ill. 2d 40,
66 (2000). We further note that Illinois courts, when analyzing a defendant’s absence at a
motion to reconsider sentence hearing, have held that unless a motion to reconsider
sentence alleged facts outside of the record, or raised issues that may not be resolved
without an evidentiary hearing, the defendant’s presence at the hearing on the motion was
not required. Brasseaux, 254 Ill. App. 3d at 291-92; People v. Burke, 226 Ill. App. 3d 798,
804 (1992).
¶ 18 In this matter, under either line of precedent, we come to the same conclusion. The
defendant’s motion to reconsider sentence failed to allege any facts outside of the record
and failed to raise any factual issues that would have required an evidentiary hearing. The
defendant also fails to demonstrate that his presence at the hearing would have contributed
to the fairness of the procedure concerning the issues raised in his motion to reconsider
sentence. As such, on its face, the defendant’s motion to reconsider sentence did not raise
8
a constitutional right to be present at the hearing and did not affect the defendant’s
substantive rights or the outcome of the hearing.
¶ 19 The defendant argues, however, that his absence at the hearing denied him the last
opportunity to present any potential claims of ineffective assistance of trial counsel to the
trial court and, as such, the ability to vindicate his constitutional sixth amendment right to
counsel. Although a defendant’s sixth amendment right to counsel is a substantial
constitutional right of the criminal proceeding, we find this argument unpersuasive.
¶ 20 The final hearing of a criminal proceeding, regardless of the nature of the underlying
motion, is the last opportunity for a defendant to present any potential claims to the trial
court. There is always the potential that a defendant may raise an additional claim,
including a claim of ineffective assistance of counsel, at a final hearing. A finding by this
court that a defendant is entitled to be present at a hearing on a motion to reconsider
sentence simply because there is the potential, however remote, that he may make a claim
of ineffective assistance of counsel would go against stare decisis and, in essence, create a
bright line rule that would mandate the presence of a defendant at any final posttrial motion
hearing, which would be inconsistent with the precedent set forth above.
¶ 21 Further, unlike most issues that are forfeited if not brought to the attention of the
lower court, a claim of ineffective assistance of counsel is not forfeited on appeal if it is
not raised in the lower court and may be raised on direct appeal when the basis for the
claim can be ascertained from the record. People v. Schaefer, 2020 IL App (5th) 180461,
¶ 16; People v. Veach, 2017 IL 120649, ¶ 46. Claims of ineffective assistance of counsel
9
may also be raised in postconviction proceedings unless the issue could have been raised
on direct appeal, but was not. People v. Moore, 402 Ill. App. 3d 143, 145-46 (2010).
¶ 22 Here, the defendant argues that he was denied a substantial right, yet the only
support for his argument of a potential claim of ineffective assistance of counsel is his
comments at the final pretrial hearing. The defendant fails to allege that he had intended to
bring an ineffective assistance of trial counsel claim at the hearing on his motion to
reconsider sentence, nor has he raised an issue of ineffective assistance of trial counsel on
appeal. The defendant also does not argue that the trial court erred in failing to conduct an
inquiry to determine whether the defendant’s pretrial statement regarding counsel fell
within an exception to the prejudice requirement of Strickland v. Washington, 466 U.S.
668 (1984), 3 or that the trial court erred in failing to conduct a posttrial Krankel inquiry.
As such, any potential claims of ineffective assistance of trial counsel that the defendant
argues may have been brought at the hearing are purely speculative. Therefore, we find no
error where the defendant had no constitutional right to appear at the hearing and has failed
to demonstrate the denial of an underlying substantial right or that his absence affected the
outcome of the hearing.
¶ 23 We do, however, find error in the basis for the defendant’s absence at the hearing.
The trial court held that the defendant’s right to be present at the hearing was “waived by
agreement.” Although a defendant is bound by the acts or omissions of his counsel (Kliner,
3
When a defendant makes a pretrial pro se filing or oral representation claiming ineffective
assistance of counsel, the trial court, at a minimum, must review the defendant’s assertions to assess whether
or not the court must consider the possible prejudicial effect on the outcome of the proceeding. People v.
Washington, 2012 IL App (2d) 101287, ¶ 22.
10
185 Ill. 2d at 118), counsel has no power to waive a defendant’s right to be present in
person (Lofton, 194 Ill. 2d at 66). A defendant may knowingly and intelligently waive a
statutory right, such as the right to a preliminary hearing or the right to be present at trial,
but it must be clearly established that there was an intentional relinquishment or
abandonment of a known right or privilege for a waiver to be effective. See People v.
Jackson, 105 Ill. App. 3d 750, 758 (1982); People v. Campbell, 208 Ill. 2d 203, 211 (2003).
Through our analysis above, we have determined that the defendant had no constitutional
right to be present at the hearing, but there is no indication within the record that the trial
court conducted the same analysis or came to the same conclusion.
¶ 24 It is clear from the report of proceedings that a discussion between the trial court
and defense counsel was held prior to the commencement of the hearing since the first
statement on the record was “you’re asking for me to consider this motion without your
client being present; is that correct?” We do not have a record of what defense counsel
presented to the trial court as the basis for the request or why, given that the defendant had
previously requested to attend the hearing via videoconferencing, his presence could not
have been arranged given that he was in the custody of the IDOC.
¶ 25 An insufficient record on appeal is generally construed against the appellant, and
the trial court is presumed to have had an adequate legal basis for the decision that was
rendered. Foutch v. O’Bryant, 99 Ill. 2d 389, 394 (1984). Here, however, we find that it
would be unjust to hold the defendant accountable for an insufficient record regarding a
hearing that he was prohibited from attending. The record reflects no reasoning or basis for
the defendant’s absence at the hearing other than it was “waived by agreement.” We hold
11
that such a finding was in error. We further find, however, that since the defendant had no
constitutional right to be present at the hearing, the trial court’s error did not affect the
defendant’s substantive rights or the outcome of the hearing and was therefore harmless
error.
¶ 26 Based on the above, we have determined that the defendant’s motion to reconsider
sentence did not rise to a constitutional right to be present at the hearing and, as such, no
plain error occurred based on the defendant’s absence from the hearing. Therefore, we do
not need to address the second step of the plain error doctrine. We have further found that
the trial court’s holding that the defendant’s presence at the hearing was “waived by
agreement” to be in error, but that the error was harmless.
¶ 27 III. CONCLUSION
¶ 28 For the foregoing reasons, we affirm the judgment of the trial court denying the
defendant’s motion to reconsider sentence.
¶ 29 Affirmed.
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