                             2018 IL App (2d) 160674 

                                  No. 2-16-0674

                           Opinion filed August 28, 2018 

______________________________________________________________________________

                                            IN THE


                             APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS                            ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 15-CF-2791
                                       )
EDWARD JOHNSON,                        ) Honorable
                                       ) Daniel B. Shanes,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       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
2018 IL App (2d) 160674


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



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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 to

pay $1000 in costs, which included a $354 fine to support the drug court. Following the denial

of his motion to reconsider his 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:



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        “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, admonished of his constitutional right to be

present at trial, and 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




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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

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



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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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