People v. Aguilar , 2020 IL App (1st) 161643 ( 2020 )

2020 IL App (1st) 161643No. 1-16-1643
Opinion filed June 16, 2020.
Second Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 89 CR 14118
)
JUAN AGUILAR, ) The Honorable
) Alfredo Maldonado
Defendant-Appellant. ) and Earl E. Strayhorn,
) Judges Presiding.
______________________________________________________________________________
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Justices Pucinski and Coghlan concurred in the judgment and opinion.
OPINION
¶1 Defendant Juan Aguilar was convicted of aggravated criminal sexual assault. Although a
Spanish interpreter assisted him during the presentation of evidence, the record does not show an
interpreter was present when the court announced its finding of guilt and advised defendant that
he could be sentenced in absentia if he failed to appear at sentencing. Defendant was later
sentenced in absentia to 30 years in prison and ultimately sought relief under the Post-
Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2016).
No. 1-16-1643
¶2 On appeal, defendant asserts that the summary dismissal of his petition filed under the
Act was improper because he alleged the gist of a constitutional claim that he was denied his due
process right to be present when the trial court, without the assistance of an interpreter,
pronounced him guilty and admonished him that he could be sentenced in absentia. He also
contends he was denied the right to be present at sentencing. Additionally, he contends that,
when he finally reappeared before the court more than a decade after being convicted and
sentenced, appointed counsel failed to advise him he could seek a new sentencing hearing
pursuant to the Code of Criminal Procedure of 1963 (725 ILCS 5/115-4.1(e) (West 2004)). We
find defendant alleged the gist of a constitutional claim that his right to be present was violated
when the trial court, without the assistance of an interpreter, pronounced him guilty.
Accordingly, we reverse and remand for further proceedings under the Act.
¶3 I. Background
¶4 Given the unusual circumstances that led up to the filing of the petition at issue on
appeal, we recite the facts of this case in some detail.
¶5 A. Trial
¶6 In 1989, defendant was charged with one count of aggravated criminal sexual assault,
three counts of criminal sexual assault, and one count of aggravated criminal sexual abuse. The
charges were based on contact between defendant’s penis and the vagina of R.M., a minor.
During pretrial proceedings, defense counsel, Ken Del Valle, told the trial court that defendant
did not speak English, although he occasionally waived the presence of an interpreter before trial
commenced. When trial began on January 8, 1991, Del Valle reiterated that defendant did not
speak English and stated that he needed an interpreter. That interpreter was present throughout
the presentation of evidence.
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¶7 The victim, R.M., also required assistance because she was “brain damaged” and had
developed her own language with her mother and sister. Del Valle initially objected to having
R.M.’s mother act as her interpreter, but the court overruled that objection. After R.M. was
questioned to ascertain her competency as a witness, Del Valle was satisfied that R.M. was
competent and had no problem “with her mother remaining by her side.” We note that, even with
the assistance of R.M.’s mother, the parties struggled to make a clear record.
¶8 R.M. testified that on June 13, 1989, she lived with her mother Cindy and her sister
Michelle, although R.M. did not know if Michelle was older or younger than her. That day, R.M.
was outside with her friend Melissa. When asked what they were doing outside, R.M. testified,
“[h]e humped me.” R.M. subsequently explained that Melissa took her to a house in the
neighborhood. 1 Additionally, a boy took R.M. inside while Melissa stayed outside. Downstairs, a
boy held R.M.’s arms tight while she lay on the floor. R.M.’s subsequent testimony was
inconsistent regarding the number of boys present and whether she was in a basement.
“Q. What happened to you, [R.M.]?
A. That boy here (indicating).
Q. What was he doing to you?
A. He hold me.
Q. He was holding you?
A. Yes.”
She testified that while defendant held her arms, “[t]hey humped.” She later testified, however,
that only one boy was with her.
1
We note it appears that the house had been divided into apartments.
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¶9 When R.M. went home, she encountered Michelle and her friend Charles. She then
brought them to the house where the incident occurred and saw the male who humped her as
well as the male who held her arms down. She told Michelle that “that was the guy.”
Subsequently, R.M. showed the police the house in question.
“Q. Did you show the police the guy who you said was there?
A. Yes.
Q. Now, the guy that you showed the police, is he in this courtroom now?
A. No.
Q. Did you tell the police officers who it was that held your arms down?
CINDY [(VICTIM’S MOTHER)]: She doesn’t know what courtroom is.
A. No. Yes.”
Neither the attorneys nor the court sought clarification.
¶ 10 On cross-examination, the following ensued:
“Q. Who took you into that basement?
A. That guy.
Q. But not that guy, right?
A. No.”
R.M. further testified that, when she returned to the house where the incident occurred, she told
Michelle “something about that man (indicating).” (Emphasis added.) Additionally, the second
time she went to the house was the first time she had seen “that man.” R.M. later reiterated that
she was with Michelle when she first saw defendant. Furthermore, Michelle had pointed him out
to R.M. and told her that “this is the guy.”
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¶ 11 On redirect examination, R.M. testified that she saw “him” when she brought Michelle to
the house and again when the police went to the house. When later asked if she had seen the
person who held her hands down, she answered, “Him (indicating).”
¶ 12 When the trial court asked R.M. who had hurt her, she answered, “The man that not
here.”
¶ 13 Michelle testified that, at the time of the incident, she was 15 years old and R.M. was 13
or 14 years old. R.M. had returned home looking scared and holding her underwear. She said she
was “humped” and indicated to her groin. Subsequently, R.M. showed Michelle and her friend
Charles the house where R.M. had been hurt. They ultimately gained entry when a male
individual walked down the stairs. As Charles spoke to him, Michelle and R.M. went to an
upstairs apartment, where R.M. looked around.
¶ 14 Michelle spoke to two males, who were playing dominos. She asked, “Where is the guy
that humped my sister?” R.M. asked, “Where is he?” One of the individuals answered in English
that the person Michelle was looking for was not present. Michelle testified that she and R.M.
had not been looking for the person who held R.M.’s arms down because R.M. had not yet
mentioned that this had occurred. During Michelle’s testimony, she initially indicated that only
one of the males had spoken. When the state’s attorney subsequently asked, “You spoke English
and they spoke English” (emphasis added), Michelle answered, “right.”
¶ 15 The sisters and Charles returned home to call the police. When at least one police officer
arrived, R.M. showed him the house and told him what happened. Eight to ten people were then
lined up on the porch, and R.M. pointed defendant out as someone who was present at the
incident.
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¶ 16 Nurse Loretta Bogolin testified that, when she examined R.M. at the hospital, R.M. said
she was sexually assaulted and pointed to her vaginal area. Her hymen was torn and bruised, and
semen was present.
¶ 17 Detective Kenneth De Falco testified that at about 10:15 p.m. on the night in question, he
interviewed Michelle and Charles. R.M. was also present. Subsequently, Detective De Falco
went to a two-story residence where seven or eight men were standing outside on their own
volition. According to De Falco, R.M. identified defendant as having been present during the
offense. Although Detective De Falco testified that R.M. was positive in her identification, R.M.
also identified defendant’s cousin as having been present and he was not charged. Additionally,
R.M. told Detective De Falco that defendant held her hands down while another Hispanic male
humped her.
¶ 18 Following Detective De Falco’s testimony, defense counsel moved to suppress evidence
of the identification at the scene because the State had never disclosed it and it was otherwise
improper. The court denied that motion as well as defendant’s motion for a directed verdict.
¶ 19 Defendant testified on his own behalf that on June 13, 1989, he had only just arrived in
the United States from Mexico two months before. On that day, he arrived home from work at
about 6 or 6:30 p.m. and did not leave his second-floor apartment again. He took a bath and
played dominos with Ramero Aguilar, his cousin. Jose Lopez and Roberto Sanchez joined them
from about 7:30 p.m. to 9:30 p.m. When defendant and Ramero were playing dominos at about
9:45 or 10 p.m., R.M. came in with her sister and a young man. The visitors “were asking for
something, but we didn’t know what it was,” as the visitors spoke only in English. Defendant
denied speaking to anyone in English. After 5 to 10 minutes, the visitors left. He had never seen
them before that encounter.
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¶ 20 Defendant and Ramero watched television until about 10:30 p.m., when the police
knocked on the door and ordered them in Spanish to come outside. Eight to ten men gathered on
the porch. Although defendant initially testified that everyone was on the porch because it was a
warm night, he subsequently testified that the police had ordered him to come downstairs. Both
R.M. and Michelle pointed to him, but he did not know what was being said because they spoke
in English. Furthermore, both he and Ramero were arrested.
¶ 21 Ramero testified that, on the day in question, he and defendant went to work together,
came home together at about 6 p.m. or 6:30 p.m., and then played dominos together. Lopez and
Sanchez joined them later. Between 9:30 and 10 p.m., two women and a man arrived. Ramero
did not understand their questions. Additionally, Jorge Orozco, who spoke a little English, came
upstairs when the visitors arrived. After the visitors left, Ramero and defendant played dominos
and watched television until about 10:30 p.m. The police then knocked on the door and asked
everyone in the house to come outside. Michelle pointed out Ramero and defendant, who were
arrested. The police released Ramero after 24 hours, however.
¶ 22 Orozco testified that at about 9:30 or 9:45 p.m. on June 13, 1989, he went upstairs
because two girls and a white male arrived and spoke loudly. Orozco, who spoke a little English,
testified that those individuals were looking for a man, but they never asked about defendant or
Ramero. After 8 to 10 minutes, the visitors left, and Orozco returned downstairs. At about 10:30
p.m., the police ordered everyone to come outside. The police, accompanied by the girls who had
been there earlier, were looking for a particular man.
¶ 23 Lopez testified that, on the day in question, he arrived home at about 6:30 p.m., saw
defendant and Ramero upstairs at about 7 p.m., and played dominos with them until 9:30 p.m.
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No. 1-16-1643
On his way back downstairs, he saw two females and a male. At about 10:30 p.m., the police
knocked on the door and ordered everyone to come outside.
¶ 24 At the close of evidence, the trial court indicated it was troubled because the State
charged defendant as a principal, rather than as an accomplice, but the evidence did not show he
inserted his penis into R.M.’s vagina. The court gave the State time to show that defendant could
nonetheless be found guilty under an accountability theory.
¶ 25 After several continuances, the parties appeared for the court’s ruling on May 13, 1991.
Del Valle argued that defendant was innocent and stated:
“When we were here at trial, I told [ASA] Evelyn Clay I know who did this, I
would testify against that man, I will be your witness. In my investigation of this case,
here is the guy who did it. Nothing happened.
Now, Judge, this is an innocent guy. When I told the State’s Attorney that during
the course of my investigation I know who the culprit is, that I will testify against the
culprit because my conversations with that individual were not attorney/client, I expect
some type of consideration, some type of response.”
Neither the State nor the court asked Del Valle any follow-up questions.
¶ 26 The trial court then found defendant guilty under an accountability theory. The court also
stated:
“I am going to let him remain at liberty on the bond, with the understanding that if
he does not return here on June 14th to receive the judgment of this Court or the sentence
of this Court, the Court will continue the matter for two court dates, and then thereafter
sentence him in his absence.”
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Although defendant was apparently present, the record does not indicate that an interpreter was
present.
¶ 27 Defendant failed to appear on subsequent court dates. On June 21, 1991, the court noted
that it had permitted defendant “to remain at liberty on his bail but advised him of the
requirement that he could subject himself to being sentenced in his absence if he failed to appear
in court on June 14th to receive the sentence of this Court.” Del Valle then stated, “I called my
client’s house and I talked to some of his relatives and they advised me that he had gone to
Mexico basically out of fear of going to jail.” Following argument, the court denied defendant’s
motion for a new trial and proceeded to sentencing:
“MR. DEL VALLE [(DEFENSE COUNSEL)]: The [fact that he’s] not here, I am
as disappointed. I am more disappointed than anybody else because I wasn’t doing this
for the CBR, but this is a kid who has always, always, always maintained his innocence;
not just that, they couldn’t find him guilty but innocent. It is not that they didn’t prove it.
This kid was innocent, innocent, innocent. And when I talked to him after the trial, I told
him I said, ‘Well, I am pretty sure we can probably win an appeal on various issues here
but you would have to do some time in jail a little bit and he said—his statement to me
was ‘if I had done it, I would go in, no problem.’ But he said, ‘I am not going to stick
around for something I didn’t do.’
MR. KELECIUS [(ASSISTANT STATE’S ATTORNEY)]: This is not
mitigation.
THE COURT: Overruled.
MR. DEL VALLE: You are right. It’s not mitigation but I am trying to explain to
you why he is not here. He felt very strongly about that and I told him I said ‘well, you
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No. 1-16-1643
have to be here. I think your best shot is to be here’ and I said—as a matter of fact, I
thought that we could probably get this reduced if he were here today and get something
probationable but I told him there was a very very good chance of that based on the facts
of this case and he is not here and I called his home on the day I left court and they told
me that he had probably gone to Mexico. They were very vague about it, but that’s
basically my understanding about it.”
The court then sentenced defendant to 30 years in prison for aggravated criminal sexual assault
and found the remaining counts merged. Defendant’s direct appeal was ultimately dismissed on
the State’s motion. 2
¶ 28 B. 2004 Proceedings
¶ 29 The warrant for defendant’s arrest was executed, and defendant found himself back in
court, with assistance from an interpreter, on October 21, 2004. When the case was called the
next day, the sheriff said, “Mr. Aguilar now claims he doesn’t speak English. And he’s been
speaking fine all day.” Notwithstanding the sheriff’s statement, the case was continued for an
interpreter to be present. Assistant Public Defender Margaret Domin and an interpreter
subsequently appeared on defendant’s behalf. On November 1, 2004, Domin stated, “defendant
informed me his father died. And that is why he did not appear for sentencing.” The trial court
then issued the mittimus and defendant was taken to the Department of Corrections.
¶ 30 C. Proceedings Under the Act
2
The order dismissing defendant’s direct appeal is not included in our record, but the State surmised at
oral arguments that the appeal was dismissed pursuant to the fugitive rule. Defendant’s postconviction
petition similarly alleges that the appeal was dismissed due to his absence. See People v. Parada, 2020 IL
App (1st) 161987, ¶ 25 (stating that dismissals under the fugitive rule are without prejudice and that an
appeal may be reinstated upon proper motion when the fugitive voluntarily returns to the appellate court’s
jurisdiction).
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¶ 31 In January 2016, defendant filed a pro se petition under the Act, alleging that no
interpreter was present on May 13, 1991, when (1) the court found defendant guilty, (2) the court
admonished him that he could be sentenced in absentia, and (3) Del Valle told the court he knew
the perpetrator’s identity. Defendant alleged that, as a result, his constitutional right to be present
was violated. He also alleged that Del Valle had given him permission to travel to Mexico to be
present for the death of his father. In addition, defendant’s attempts to contact Del Valle upon his
return to the United States were unsuccessful, and defendant later learned that Del Valle had
moved to Texas. Furthermore, Domin informed the court in 2004 that defendant said he did not
appear for sentencing due to his father’s death. In 2005, defendant hired Robert Louis Rascia to
represent him. After eight years, Rascia had filed nothing on defendant’s behalf. 3 Defendant
unsuccessfully sought representation from attorney Raul Villalobos in 2015. In a letter to
Villalobos, defendant said that his father died at about the time defendant was found guilty and
that “with the consent of the attorney I left for the Fun[e]ral.” He also told Villalobos he had
made the mistake of remaining in Mexico until 2002.
¶ 32 Attached to the petition was defendant’s affidavit, which alleged that in 2004 Domin
failed to advise him he could seek a new sentencing hearing because he was sentenced
in absentia (725 ILCS 5/115-4.1(e) (West 2004)). Defendant also attached what appears to be the
title for a burial tomb for Gregorio Aguilar Valencia, dated June 24, 1991, three days after
defendant was sentenced. 4 Defendant further provided character references from Mexican
officials and correspondence with various individuals, including the aforementioned attorneys,
3
We note that in 2006 Rascia’s license was suspended for three months because he “neglected
three criminal appeals and, while he was a partner at a law firm, failed to supervise a law firm associate in
connection with those appeals.”
4
The document is written in Spanish, and defendant has not provided a translation at this stage.
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the assistant public defender’s office, the Illinois Attorney Registration and Disciplinary
Commission (ARDC), and the Consulate General of Mexico.
¶ 33 On April 18, 2016, the trial court entered an eight-page order dismissing the petition as
frivolous and patently without merit. The court acknowledged that the record did not indicate
whether an interpreter was present when defendant was found guilty. Yet that proceeding did not
implicate his substantial rights. He failed to demonstrate how the lack of an interpreter caused
the proceeding to be fundamentally unfair, given that he could not have assisted defense
counsel’s legal arguments prior to the entry of the judgment. Additionally, the court found that
defendant “knowingly fled the country in order to avoid sentencing and the court did not violate
his constitutional rights by sentencing him in absentia.” Furthermore, defendant’s challenge to
the court’s statutory admonishments that he could be sentenced in absentia did not raise a
constitutional issue cognizable under the Act.
¶ 34 II. Analysis
¶ 35 On appeal, defendant asserts the trial court erroneously dismissed his petition because he
was denied his constitutional right to be present. He also contends that the public defender
appointed to represent him in 2004 provided ineffective assistance.
¶ 36 “The Post-Conviction Hearing Act provides a criminal defendant the means to redress
substantial violations of his constitutional rights in his original trial or sentencing.” People v.
Allen, 2015 IL 113135, ¶ 20. At the first stage of postconviction proceedings, the circuit court
must determine whether, taking the allegations as true, the petition is frivolous or patently
without merit. People v. Hodges, 234 Ill. 2d 1, 10 (2009). A petition is frivolous or patently
without merit where it lacks an arguable basis in law or fact. Id. at 11-12. “A petition which
lacks an arguable basis either in law or in fact is one which is based on an indisputably meritless
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legal theory or a fanciful factual allegation.” Id. at 16. For example, a legal theory contradicted
by the record is indisputably meritless. Id.¶ 37 Conversely, first-stage dismissal is inappropriate where the petition alleges facts
sufficient to state the gist of a constitutional claim, even if the petition lacks a formal legal
argument or legal citation. Allen, 2015 IL 113135, ¶ 24. In evaluating a petition’s allegations, the
trial court must take them as true and liberally construe them in the defendant’s favor. Id. ¶ 25.
The threshold to survive summary dismissal is low. People v. Parada, 2020 IL App (1st)
161987, ¶ 16. We review summary dismissal of a postconviction petition de novo. People v.
Buffer, 2019 IL 122327, ¶ 12.
¶ 38 “[B]oth the federal constitution and our state constitution afford criminal defendants the
general right to be present, not only at trial, but at all critical stages of the proceedings, from
arraignment to sentencing.” People v. Lindsey, 201 Ill. 2d 45, 55 (2002). Generally, courts abhor
trials in absentia due to their inherent unfairness. People v. Coppage, 187 Ill. App. 3d 436, 442
(1989).
¶ 39 The right granted by the federal constitution is implied from the due process clause of the
fourteenth amendment. Lindsey, 201 Ill. 2d at 55. A defendant’s presence is a condition of due
process, however, only to the extent that a fair and just hearing would be thwarted by the
defendant’s absence. People v. Bean, 137 Ill. 2d 65, 83 (1990). The United States Supreme Court
has never ruled “that the Fourteenth Amendment assures the privilege of presence when presence
would be useless, or the benefit but a shadow.” Snyder v. Massachusetts, 291 U.S. 97, 106-07
(1934). Even when a proceeding constitutes a critical stage entitling a defendant to be present, “a
defendant’s absence is not a per se constitutional violation. Rather, a defendant’s absence from
such a proceeding will violate his constitutional rights only if the record demonstrates that
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defendant’s absence caused the proceeding to be unfair or if his absence resulted in a denial of an
underlying substantial right.” Lindsey, 201 Ill. 2d at 57. Courts must consider the entire record
when determining whether the defendant’s exclusion was just or unjust. People v. Lofton, 194 Ill.
2d 40, 67 (2000) (citing Snyder, 291 U.S. at 115).
¶ 40 We begin by finding that the trial court’s pronouncement of guilt was arguably a critical
stage of trial. Case law is sparse concerning a defendant’s right to be present when the trial court
finds him guilty. People v. Smith, 6 Ill. 2d 414 (1955) (finding that the defendant’s absence from
the trial court’s pronouncement of guilt violated his right to be present but not addressing
whether his presence would have been useful); but see Bean, 137 Ill. 2d at 80, 84 (citing Smith
and recognizing that the United States Supreme Court had limited the situations in which a
defendant’s absence violates the constitution). That being said, cases have found that the
rendering of the jury’s verdict constitutes a critical stage. People v. Nelson, 18 Ill. 2d 313, 315,
319-20 (1960); People v. Nettles, 107 Ill. App. 2d 143, 151 (1969); see also Bell v. Cone, 535
U.S. 685, 695-96 (2002) (stating in the context of the sixth amendment right to counsel that a
critical stage means “a step of a criminal proceeding, such as arraignment, that held significant
consequences for the accused”); People v. Rainwater, 207 Ill. App. 3d 1096, 1100 (1991)
(stating in the context of the right to effective counsel that the return of the jury’s verdict
constitutes a critical stage of a criminal trial). At least one court has determined that the trial
court’s pronouncement of guilt at a bench trial similarly constitutes a critical stage of
proceedings.
¶ 41 In United States v. Canady, 126 F.3d 352, 354 (2d Cir. 1997), the defendant asserted that
the district court’s failure to announce the finding of guilt in open court at the end of the bench
trial violated his constitutional right to be present. The district court had mailed the decision to
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the parties, and the defendant learned of his convictions when reading a newspaper two weeks
later. Id. at 355. The court of appeals agreed that the district court violated the defendant’s right
to be present. Id. at 360-61. While the government argued that the defendant’s presence at the
district court’s pronouncement of its decision would have been useless, the court of appeals
disagreed. Id. at 361.
¶ 42 “There is a distinctly useful purpose in ensuring that the pronouncement of the
defendant’s guilt or innocence by the court is both face-to-face and public.” Id. “It assures that
the trial court is ‘keenly alive to a sense of [its] responsibility and to the importance of [its]
functions.’ ” Id. (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984) (finding the defendant’s
right to a public trial was violated)). Additionally, the court noted that, in the context of jury
trials, several courts rejected the argument that a defendant’s presence was useless, finding his
presence has a psychological influence on the jury. Id. at 362 “We see no reason why a
defendant’s presence is less critical when the court, instead of the jury, renders its decision as to
the ultimate issue of whether the defendant is guilty or innocent.” Id. at 361-62.
¶ 43 Based on the foregoing case law, the trial court’s pronouncement of defendant’s guilt was
arguably a critical stage of trial. Additionally, defendant’s petition shows that he was arguably
absent from that proceeding, notwithstanding his physical presence in the courtroom.
¶ 44 The right of a defendant to be present would ring hollow if a defendant who neither
speaks nor understands English is not assisted by an interpreter. People v. Raczkowski, 359 Ill.
App. 3d 494, 497 (2005). “The presence of an interpreter for a defendant who does not speak or
understand English ensures that the defendant will not ‘face the Kafkaesque spectre of an
incomprehensible ritual which may terminate in punishment.’ ” People v. Escalante, 256 Ill.
App. 3d 239, 246 (1994) (quoting United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973)
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(per curiam)). “Without the aid of an interpreter, [a defendant], though physically present in the
courtroom, is not ‘mentally’ there, and, thus, he cannot participate in or understand the
proceedings.” Raczkowski, 359 Ill. App. 3d at 498.
¶ 45 According to the petition, no interpreter appeared when the trial court found defendant
guilty. The record does not rebut this allegation. See also Lofton, 194 Ill. 2d at 66 (stating that an
attorney has no power to waive a defendant’s right to be present). Additionally, we are not
persuaded by the State’s assertion that the record shows defendant understood English.
Defendant’s willingness to proceed without an interpreter at largely inconsequential pretrial
hearings is immaterial. Furthermore, Michelle’s testimony that she spoke English with the men
she encountered creates a factual dispute at best. Even if defendant spoke enough English to tell
Michelle that the person she was looking for was not present, it does not follow that he could
understand criminal proceedings held in English. Moreover, while the presentence investigation
report indicates that, at some point, defendant understood he had been found guilty, that report
does not show he understood what was happening as it happened. The sheriff’s spontaneous
commentary in 2004 is even less compelling, as the record does not show that he was qualified to
determine whether defendant sufficiently spoke and understood English so as to be present at a
legal proceeding. Furthermore, 13 years had passed since the trial court found defendant guilty,
plenty of time in which he could have learned English.
¶ 46 We further find that defendant’s presence was arguably not useless. Id. at 67 (stating that
“a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is
critical to its outcome if his presence would contribute to the fairness of the procedure”). As
stated in Canady, a defendant’s presence may have a psychological impact on the trier of fact.
Additionally, the variance between the indictment and the evidence produced at trial arguably
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rendered it all the more important that defendant understand the basis for his conviction.
Furthermore, Del Valle’s pronouncement that he knew “who did this” and was willing to testify
against that individual rendered this proceeding particularly unusual. The record does not show
whether defendant was otherwise aware of Del Valle’s assertion. 5 By being absent for the
pronouncement of guilt, defendant would also have been absent when the trial court set the next
court date and statutorily admonished him about the prospect of being sentenced in absentia. Cf.
People v. Smith, 188 Ill. 2d 335, 341 (1999) (stating that “[a] defendant waives the right to be
present when the defendant voluntarily absents himself or herself from trial”); People v. Garner,
147 Ill. 2d 467, 475 (1992) (stating that section 113-4(e) of the Code of Criminal Procedure of
1963 (Ill. Rev. Stat. 1981, ch. 38, ¶ 113-4(e)) is designed to dissuade a defendant from
absconding at any time before or after trial and to achieve a formal waiver of his right to be
present). While the State correctly argues that the absence of statutory admonishments would not
itself raise a constitutional claim, it would nonetheless have been useful for defendant to be
present for those admonishments. Cf. People v. Partee, 125 Ill. 2d 24, 39 (1988) (recognizing
that, “[a]s a matter of constitutional law, it is clear that a defendant who flees during trial may be
tried and sentenced in his absence, even if he is not specifically informed that this is a possible
consequence of his flight”). 6
¶ 47 III. Conclusion
5
It is not entirely clear whether Del Valle was referring to the principal in the offense or a person
who held down R.M.’s arms.
6
We note that the State has not addressed how defendant waived the right to appear at the next
court date if he was not effectively informed of that date. Taking as true defendant’s allegation that Del
Valle said he could go to Mexico to be present for his father’s death, we also note that statutory
admonishments might have led him to question Del Valle’s advice.
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¶ 48 Here, defendant’s petition stated the gist of the constitutional claim that he was denied his
constitutional right to be present at trial. Consequently, the trial court erred in summarily
dismissing the petition, and we reverse and remand for further proceedings under the Act. Our
determination renders it unnecessary to consider defendant’s other claims at this juncture. People
v. White, 2014 IL App (1st) 130007, ¶ 33 (noting that partial dismissals are not permitted under
the Act).
¶ 49 For the foregoing reasons, we reverse the trial court’s judgment and remand for further
proceedings under the Act.
¶ 50 Reversed and remanded.
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No. 1-16-1643
No. 1-16-1643
Cite as: People v. Aguilar, 2020 IL App (1st) 161643Decision Under Review: Appeal from the Circuit Court of Cook County, No. 89-CR-14118; the Hon.
Alfredo Maldonado and the Hon. Earl E. Strayhorn, Judges, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Emily Hartman, of State Appellate
for Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg and
for Veronica Calderon Malavia, Assistant State’s Attorneys, of counsel), for the
Appellee: People.
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