                         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

                                 2
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

                                  3
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).

                                  4
     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

                                  5
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

                                   6
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.



       1
        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.

                                               7
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

                                8
     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

                                   9
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

                                  10
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.




                                  11
