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                                                                           document
                                                                           Date: 2019.07.18
                                Appellate Court                            14:53:18 -05'00'




                   People v. Johnson, 2018 IL App (2d) 160674



Appellate Court     THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption             EDWARD JOHNSON, Defendant-Appellant.



District & No.      Second District
                    Docket No. 2-16-0674



Filed               August 28, 2018
Rehearing denied    November 7, 2018



Decision Under      Appeal from the Circuit Court of Lake County, No. 15-CF-2791; the
Review              Hon. Daniel B. Shanes, Judge, presiding.



Judgment            Affirmed in part and vacated in part.


Counsel on          James E. Chadd, Thomas A. Lilien, and Richard Dvorak, of State
Appeal              Appellate Defender’s Office, of Elgin, for appellant.

                    Michael G. Nerheim, State’s Attorney, of Waukegan (Patrick Delfino,
                    David J. Robinson, and David A. Bernhard, of State’s Attorneys
                    Appellate Prosecutor’s Office, of counsel), for the People.



Panel               JUSTICE SCHOSTOK delivered the judgment of the court, with
                    opinion.
                    Justices Zenoff and Jorgensen concurred in the judgment and opinion.
                                              OPINION

¶1       On May 10, 2016, the defendant, Edward Johnson, was convicted in absentia of being an
     armed habitual criminal and of unlawful possession of a weapon by a felon. He was sentenced
     to 17 years’ imprisonment. On appeal, the defendant argues that the trial court erred in
     conducting his trial in absentia and in assessing a fine to support the drug court. We affirm in
     part and vacate in part.

¶2                                          I. BACKGROUND
¶3        On October 30, 2015, Officer Jeffrey Petersen initiated a traffic stop, for speeding, of a
     vehicle driven by the defendant. Officer Petersen noticed that the defendant was reaching
     toward the passenger seat and floorboard of his car. When the officer approached, the
     defendant opened the door of his car because his window was broken. Officer Petersen noted
     the smell of burnt cannabis coming from the car. Officer Petersen asked the defendant for his
     driver’s license, proof of insurance, and concealed-carry-license information and then called
     for backup.
¶4        Officer Anthony Baratti arrived at the scene, and Officer Petersen searched the defendant,
     but nothing was recovered. Officer Baratti stood with the defendant while Officer Petersen
     searched the defendant’s car. Officer Petersen found 10 rounds of 9-millimeter ammunition
     and a 9-millimeter handgun. Officer Petersen instructed the defendant to put his hands behind
     his back. The defendant proceeded to run away from the traffic stop and was pursued on foot
     by Officers Baratti and Petersen, who ultimately apprehended and arrested him.
¶5        On November 18, 2015, the defendant was charged with one count of being an armed
     habitual criminal (720 ILCS 5/24-1.7(a) (West 2014)), four counts of unlawful possession of a
     weapon by a felon (id. § 24-1.1(a)), and four counts of aggravated unlawful use of a weapon
     (id. § 24-1.6(a)). Prior to trial, the State nol-prossed two counts of unlawful possession of a
     weapon by a felon and all four counts of aggravated unlawful use of a weapon. On November
     25, 2015, the defendant appeared at his arraignment and was admonished that, if he did not
     appear for trial, he could be tried and sentenced in his absence.
¶6        On March 21, 2016, the defendant requested a conference pursuant to Illinois Supreme
     Court Rule 402 (eff. July 1, 2012). The State offered him a plea bargain, which he rejected. The
     defendant requested a jury trial. The trial court set a tentative trial date of March 28, 2016, and
     admonished the defendant again that, if he did not appear for trial, he could be tried and
     sentenced in his absence. On March 28, 2016, the defendant appeared for trial but requested a
     continuance to May 9, 2016. On that date, the defendant did not appear for trial, and defense
     counsel moved for a continuance. The State was silent on the matter. The trial court denied the
     motion and instructed the State and defense counsel to continue with the motions in limine and
     jury selection. At the completion of jury selection, the defendant had still not arrived, so the
     trial court released the jury and instructed them to return the next day.
¶7        On May 10, 2016, the defendant did not appear for trial, and defense counsel again moved
     for a continuance. The State again stood silent. The trial court denied the request for a
     continuance and proceeded with the trial in absentia. The defendant was subsequently found
     guilty of being an armed habitual criminal and unlawful possession of a weapon by a felon. On
     July 7, 2016, the defendant was sentenced in absentia to 17 years’ imprisonment and ordered


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       to pay $1000 in costs, which included a $354 fine to support the drug court. Following the
       denial of his motion to reconsider sentence, the defendant filed a timely notice of appeal.

¶8                                             II. ANALYSIS
¶9          On appeal, the defendant first argues that the trial court erred in conducting his trial
       in absentia because the State did not comply with the applicable statute. Specifically, the
       defendant contends that his trial in absentia was improper because the State neither
       (1) requested to proceed in absentia nor (2) affirmatively proved that he was willfully avoiding
       trial. Second, the defendant argues that the trial court erred in assessing the $354 fine to
       support the drug court.
¶ 10        A trial court’s decision to proceed with a trial in absentia will not be reversed unless the
       trial court abused its discretion. People v. Smith, 188 Ill. 2d 335, 341 (1999). A trial court
       abuses its discretion only when its ruling is arbitrary, fanciful, or unreasonable; when no
       reasonable person would take the view adopted by the trial court; or when its ruling rests on an
       error of law. People v. Olsen, 2015 IL App (2d) 140267, ¶ 11.
¶ 11        Section 115-4.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-4.1
       (West 2014)) provides:
                “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.”
¶ 12        A defendant has a duty to appear at the place and time designated for trial. Smith, 188 Ill.
       2d at 345. “When a defendant breaches this duty and fails to appear, notwithstanding that the
       defendant has been previously informed of the time and date of trial and has been personally
       admonished by the trial court that a failure to appear could result in trial in absentia, a ‘very
       strong inference is raised that the defendant has elected not to appear.’ ” Id. (quoting People v.
       Broyld, 146 Ill. App. 3d 693, 699 (1986)). Accordingly, to establish a prima facie case of
       willful absence, the State must demonstrate that the defendant (1) was advised of his or her
       trial date, (2) was advised that the failure to appear could result in him or her being tried
       in absentia, and (3) did not appear for trial. Id. at 343.
¶ 13        In People v. Stanley, 116 Ill. App. 3d 532, 533 (1983), the defendant, Gerald Stanley, was
       charged with theft. Stanley did not appear for his first court date, and his case was continued
       for a week. Id. at 533-34. When he again failed to appear, the trial court held a trial in absentia
       and Stanley was found guilty and sentenced to three years’ imprisonment. Id. at 534. On
       appeal, Stanley argued that the trial in absentia was improper because the State did not
       formally request a trial in absentia. The reviewing court held that the statutory requirements
       had been met because the defendant was advised of his trial date, was admonished of his
       constitutional right to be present at trial, and was advised that if he failed to appear, the trial
       could proceed in his absence, and he would forfeit his right to confront the witnesses against
       him. Id. The reviewing court further held that “[a]ll the State must show to prima facie
       establish wilful avoidance is that it complied with the statutory requirements and the defendant
       was not present.” Id. at 534-35.
¶ 14        The Stanley court further held that “the statute does not require a formal motion (only a
       request) or a hearing.” Id. at 534. The Stanley court noted that a trial court has inherent


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       authority to control its own docket, which cannot be abrogated by the legislature. Id. at 535.
       Accordingly, the Stanley court concluded that, since the State made no motion for a
       continuance when Stanley failed to appear for trial, the trial court properly interpreted the
       State’s acquiescence as a request for a trial in absentia. Id.
¶ 15       In the present case, the defendant argues that the State must explicitly move for a trial
       in absentia before such a trial may commence. However, Stanley establishes that this is
       unnecessary. Further, as noted in both Stanley and Smith, the trial court has inherent authority
       to control its own docket. In this case, when the defendant failed to appear, defense counsel
       moved for a continuance, and the State stood silent. As such, as in Stanley, the trial court did
       not err in interpreting the State’s silence as a request for a trial in absentia. Id.
¶ 16       The defendant also argues that the trial in absentia was improper because the State did not
       prove that he was willfully avoiding trial. This argument is without merit because the evidence
       established a prima facie case of willful absence. The defendant was advised of his trial date
       after the Rule 402 conference. The defendant was admonished at his arraignment and after the
       Rule 402 conference that if he did not appear for trial, he could be tried in absentia. Finally, the
       defendant did not appear for trial. The State thus presented a prima facie case of willful
       absence. Smith, 188 Ill. 2d at 345.
¶ 17       The defendant cites Smith and People v. Ramirez, 214 Ill. 2d 176 (2005), for the
       proposition that section 115-4.1 should be strictly construed. However, those cases considered
       whether the statute’s certified mailing procedure is mandatory when the defendant was not
       present in open court when the trial date was set. In the present case, the defendant was present
       when the trial date was set, and the certified-mailing procedure is not at issue. As such, the
       defendant’s reliance on those cases is misplaced.
¶ 18       The defendant’s second contention on appeal is that the trial court erred in assessing a $354
       fine to support the drug court. Under the circumstances in this case, the defendant contends that
       this fine was not statutorily authorized. The State confesses error on this point. After reviewing
       the record, we accept the State’s confession of error and vacate the $354 fine.

¶ 19                                        III. CONCLUSION
¶ 20       For the reasons stated, the judgment of the circuit court of Lake County is affirmed in part
       and vacated in part. As part of our judgment, we grant the State’s request that the defendant be
       assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v.
       Nicholls, 71 Ill. 2d 166, 178 (1978).

¶ 21      Affirmed in part and vacated in part.




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