                         ILLINOIS OFFICIAL REPORTS
                                      Appellate Court




                          People v. Lane, 2011 IL App (3d) 080858




Appellate Court          THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                  CHAD M. LANE, Defendant-Appellant.



District & No.           Third District
                         Docket No. 3–08–0858


Filed                    July 18, 2011


Held                       The trial court erred in trying defendant in absentia for predatory
(Note: This syllabus criminal sexual assault and aggravated criminal sexual abuse where
constitutes no part of the defendant was not given the admonishments as to a trial in absentia on
opinion of the court but the date that defendant’s plea of not guilty was entered or on any later
has been prepared by the date after the plea when defendant was present, as required by section
Reporter of Decisions for 113–4(e) of the Code of Criminal Procedure.
the convenience of the
reader.)


Decision Under           Appeal from the Circuit Court of Tazewell County, No. 07–CF–661; the
Review                   Hon. Richard D. McCoy, Judge, presiding.



Judgment                 Reversed and remanded.
Counsel on                  Kerry J. Bryson (argued), of State Appellate Defender’s Office, of
Appeal                      Ottawa, for appellant.

                            Stewart Umholtz, State’s Attorney, of Pekin (Terry A. Mertel and
                            Thomas D. Arado (argued), both of State’s Attorneys Appellate
                            Prosecutor’s Office, of counsel), for the People.


Panel                       JUSTICE LYTTON delivered the judgment of the court, with opinion.
                            Justices McDade and Wright concurred in the judgment and opinion.




                                               OPINION

¶1           Defendant, Chad M. Lane, was tried in absentia for predatory criminal sexual assault
        (720 ILCS 5/12–14.1(a)(1) (West 2006)) and aggravated criminal sexual abuse (720 ILCS
        5/12–16(c)(1)(i) (West 2006)). The jury found defendant guilty of all charges, and the trial
        court sentenced him to 30 years’ imprisonment. Defendant filed a motion to reconsider,
        which the trial court denied. On appeal, defendant argues that (1) he should not have been
        tried in absentia, (2) the trial court did not properly instruct the jurors as required by Illinois
        Supreme Court Rule 431(b) (eff. May 1, 2007), and (3) the evidence was insufficient to
        prove him guilty of predatory criminal sexual assault. We reverse and remand.
¶2           On August 31, 2010, we issued an opinion, reversing and remanding defendant’s
        conviction, finding that the trial court erred in trying defendant in absentia. People v. Lane,
        404 Ill. App. 3d 254 (2010). On May 25, 2011, the Illinois Supreme Court entered a
        supervisory order ordering us to vacate our judgment and reconsider in light of People v.
        Phillips, 242 Ill. 2d 189 (2011). We have reviewed Phillips and find that it supports our
        original decision in this case. Thus, we confirm our previous holding that the trial court erred
        in trying defendant in absentia.
¶3           The State filed a four-count information against defendant. Count I alleged that defendant
        committed predatory criminal sexual assault against his stepdaughter, S.M., by placing his
        finger in her vagina. Counts II through IV alleged that defendant committed aggravated
        criminal sexual assault against S.M. by kissing her neck and stomach and having her touch
        his penis with her hand.
¶4           On November 8, 2007, defendant was arrested. A court order from that date indicates that
        defendant was “called into open court” and “informed of the charge(s), right to counsel, right
        to bail and is furnished a copy of the Information.” The order also indicates that defendant
        was advised “as to trial in absentia pursuant to 725 ILCS 5/113–4(e).” The order does not
        indicate that defendant entered a plea at that time. Defendant’s arraignment was scheduled
        for a later date.

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¶5        On December 31, 2007, defendant was arraigned. The written order from that date
     indicates that defendant was advised “as to trial in absentia.” The order also indicates that
     “Defendant enters a plea of Not Guilty to the charge(s) and demands Jury Trial.” The
     transcript from this hearing date shows that defendant requested a jury trial but does not
     show that the trial court admonished defendant regarding trial in absentia.
¶6        Defendant’s jury trial was set for July 21, 2008. On that date, defendant failed to appear
     and was tried in absentia. Andrea Lane testified that she is defendant’s wife. She has four
     children with defendant and one child, S.M., from a previous marriage. On November 3,
     2007, S.M., who was 10 years old, was visiting for the weekend. At approximately 10 p.m.,
     Andrea fell asleep on the living room couch. When she woke up at about 11 p.m., she went
     upstairs and found defendant and S.M. in her son’s room. S.M. was lying on the bed with her
     feet dangling off. Defendant was on his knees in between S.M.’s legs. S.M.’s nightshirt was
     pulled up to her neck, and defendant was kissing her stomach. When defendant saw her, he
     left the room. After defendant left, Andrea asked S.M. if defendant was “fucking” with her.
     S.M. said “yes.” Andrea then went downstairs and talked to defendant. Defendant said that
     S.M. started it, and he did not want her to feel rejected. The next morning, Andrea talked to
     S.M. about what happened. At first, S.M. said that defendant was just kissing her but
     eventually said that defendant had his hand in her pants.
¶7        S.M. testified that she last saw defendant in the fall of 2007. After the other children went
     to bed, she, her mom and defendant were in the living room. Her mom fell asleep on the
     couch. Defendant was sitting on a chair and asked S.M. to sit on his lap. When she refused,
     he made her. While she was sitting on his lap, defendant put his hand inside her underwear
     and touched her “private” “in inappropriate ways.” She said that he moved his hand, but she
     did not feel his hand go inside of her. She denied that it hurt but said it felt “very
     uncomfortable.” Then he made her touch his “private part” under his clothes. After that, he
     picked her up and took her upstairs to her brother’s room. He put her on the bed and pulled
     up her shirt and started kissing her stomach and neck. He stopped when her mom came in
     the room.
¶8        Jennifer Norman, a forensic interviewer for the Children’s Advocacy Center, interviewed
     S.M. on November 6, 2007. That interview was recorded, and the DVD was played for the
     jury. During the interview, S.M. said that a few days earlier she was at her mom’s house.
     After her mom fell asleep, defendant starting sucking and kissing on her stomach and neck.
     He also touched her private area under her underwear. She said defendant touched her private
     “inside” with “his hand” and “his fingers.” She said it hurt. He also made her touch his
     private area.
¶9        Eric Goeken of the Tazewell County sheriff’s office testified that he interviewed
     defendant on November 6, 2007. That interview was recorded, and the DVD was played for
     the jury. During the interview, defendant claimed that on November 3, 2007, he was drunk
     and fell asleep. When he woke up, S.M. was sitting on his lap “doing things she shouldn’t
     have been doing *** to me and herself.” He walked upstairs with S.M. and asked her if she
     was okay with what she had been doing. She said “yes.” S.M. went into her brother’s room
     and laid down sideways on the bed. Andrea walked in the room when he was finishing his
     “conversation” with S.M. At the end of the interview defendant asked, “What is an adult

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       supposed to do when a 10-year-old touches him? *** Is there a right response for that?”
¶ 10       Defendant’s biological daughter, S.L., testified that she last saw defendant four years
       earlier, when she was nine years old. She visited him at his house for one month during the
       summer. Near the end of that month, she was sitting on the couch near defendant. Defendant
       told her to scoot over next to him. He put his arm around her and then moved his hand
       toward her breast area and touched her over her clothes. He placed his other hand on her knee
       and then moved it to her crotch area and touched her over her clothes. He continued to touch
       her for about 20 to 30 minutes.
¶ 11       On July 22, 2008, the jury found defendant guilty of all charges. On August 25, 2008,
       defendant filed a posttrial motion. The trial court denied the motion and sentenced defendant
       in absentia to 25 years’ imprisonment on the predatory criminal sexual assault conviction
       and 5 years on the remaining convictions, to be served concurrently with each other but
       consecutive to the predatory criminal sexual assault conviction. Defendant was apprehended
       in early October 2008.
¶ 12       On October 20, 2008, defendant filed a motion to reconsider his sentence and appeared
       in court for the first time following his trial and sentencing. On that date, the court expressed
       concern about whether the motion to reconsider the sentence was timely because it was filed
       more than 30 days after his sentence. The prosecutor stated that the statute did not
       specifically address when a posttrial motion must be filed following a trial and sentencing
       in absentia. She opined that it was “up to the Court’s interpretation.” The court suggested
       scheduling a hearing on defendant’s motion, but defense counsel stated that he had no
       additional argument and would rely on his written motion. The State argued that the sentence
       the trial court imposed on defendant was “appropriate.” The trial court denied the motion.

¶ 13                                         ANALYSIS
¶ 14                                               I
¶ 15       The State argues that we should dismiss defendant’s appeal because defendant’s motion
       to reconsider his sentence was untimely.
¶ 16       “A trial court loses jurisdiction to vacate or modify its judgment 30 days after entry of
       judgment unless a timely postjudgment motion is filed.” People v. Minniti, 373 Ill. App. 3d
       55, 65, 867 N.E.2d 1237, 1246 (2007). “However, under the revestment doctrine, litigants
       may revest a court that has general jurisdiction over the matter with both personal and subject
       matter jurisdiction over the particular cause after the 30-day period following final
       judgment.” Minniti, 373 Ill. App. 3d at 65, 867 N.E.2d at 1246. “Revestment applies when
       the parties (1) actively participate without objection (2) in further proceedings that are
       inconsistent with the merits of the prior judgment.” Minniti, 373 Ill. App. 3d at 65, 867
       N.E.2d at 1246.
¶ 17        In People v. Gargani, 371 Ill. App. 3d 729, 863 N.E.2d 762 (2007), the defendant was
       found guilty and sentenced in absentia. He filed a motion to reconsider his sentence more
       than 30 days after the judgment. The State did not object to the defendant’s motion but
       argued at the hearing on the motion that the defendant’s sentence was proper. The court held
       that “the State’s active participation in the proceedings revested the trial court with

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       jurisdiction.” Gargani, 371 Ill. App. 3d at 732, 863 N.E.2d at 766.
¶ 18       Similarly, in this case, defendant’s motion to reconsider his sentence was untimely.
       However, at the hearing on the motion, the State did not object. When the court expressed
       concern that the motion was untimely, the prosecutor stated that it was “up to the Court’s
       interpretation.” The prosecutor then went on to address the merits of defendant’s motion,
       arguing that defendant’s sentence was proper. By arguing against the substance of
       defendant’s motion to reconsider his sentence, the State revested the trial court with
       jurisdiction. See Gargani, 371 Ill. App. 3d at 732, 863 N.E.2d at 766. Thus, we have
       jurisdiction over this appeal.

¶ 19                                                II
¶ 20       Defendant’s first claim of error is that the trial court improperly tried him in absentia.
¶ 21       The right to be present at trial is of constitutional dimension. People v. Phillips, 242 Ill.
       2d 189, 194 (2011). In Illinois, defendants have a statutory right to be admonished as to
       possible consequences of failing to appear in court when required. Id. at 195. Section
       113–4(e) of the Code of Criminal Procedure of 1963 (Code) provides in relevant part:
                “If a defendant pleads not guilty, the court shall advise him at that time or at any later
           court date on which he is present that if he *** is released on bond and fails to appear in
           court when required by the court that his failure to appear would constitute a waiver of
           his right to confront the witnesses against him and trial could proceed in his absence.”
           725 ILCS 5/113–4(e) (West 2006).
       The plain language of section 113–4(e) requires that admonitions be given when a defendant
       enters a not guilty plea or at any later court date after the plea when the defendant is present.
       725 ILCS 5/113–4(e) (West 2006); Phillips, 242 Ill. 2d at 195.
¶ 22       A defendant may be tried in absentia if he (1) is properly admonished pursuant to section
       113–4(e), (2) has notice of his trial date, and (3) voluntarily fails to appear, offering no
       explanation for his absence. People v. Johnston, 160 Ill. App. 3d 536, 540, 513 N.E.2d 528,
       531 (1987). A defendant may not be tried in absentia if the trial court has not complied with
       section 113–4(e). Phillips, 242 Ill. 2d at 197, 201.
¶ 23       The supreme court has held that section 113–4(e) admonitions are particularly
       appropriate and most effective at arraignment because that is “the proceeding where the
       defendant is called to the bar, is advised of the charges against him, and is required to answer
       the accusation contained in the indictment.” People v. Garner, 147 Ill. 2d 467, 480, 590
       N.E.2d 470, 476 (1992). “[A] defendant’s plea can only be entered after he has been fully
       advised by the court of his rights and the consequences of his plea.” Garner, 147 Ill. 2d at
       480, 590 N.E.2d at 476. A defendant’s plea determines whether he proceeds to trial. Garner,
       147 Ill. 2d at 480, 590 N.E.2d at 476.
¶ 24       Also, a court will “presume that the common-law record is correct.” People v. Martinez,
       361 Ill. App. 3d 424, 427, 837 N.E.2d 479, 481 (2005). When a conflict exists between the
       common-law record and the report of proceedings, a court must give the report of
       proceedings precedence. Martinez, 361 Ill. App. 3d at 427, 837 N.E.2d at 481.


                                                  -5-
¶ 25       Here, defendant was not given his in absentia admonishments at the time he entered his
       not guilty plea or any court hearing thereafter.
¶ 26       The first written order contained in the common-law record is from November 8, 2007,
       the date of defendant’s arrest. The November 8 order indicates that the trial court gave
       defendant section 113–4(e) admonishments but does not indicate that defendant entered a
       plea on that date. This hearing was not transcribed. In the absence of any evidence to the
       contrary, we must presume that the written order showing that no plea was entered is correct.
       See Martinez, 361 Ill. App. 3d at 427, 837 N.E.2d at 481. Therefore, the court’s in absentia
       admonishments on that date did not comply with the section 113–4(e) requirement that a plea
       must be entered when the admonishments are given.
¶ 27       Defendant next appeared in court at his arraignment on December 31, 2007. The
       December 31 order indicates that defendant pled not guilty and the court gave him his section
       113–4(e) admonishments. The report of proceedings from that hearing, however, shows no
       section 113–4(e) admonishments. Because of the differences between the report of
       proceedings and common-law record, the report of proceedings must control. See Martinez,
       361 Ill. App. 3d at 427, 837 N.E.2d at 481. The transcript establishes that the trial court did
       not provide defendant with section 113–4(e) admonishments on December 31, 2007. Section
       113–4(e) admonishments are a prerequisite to trial in absentia. See Phillips, 242 Ill. 2d at
       197. Although the trial court could have admonished defendant about trial in absentia at a
       court hearing subsequent to his arraignment, there is no evidence in the record that it did so.
       Since the trial court did not provide admonishments in compliance with the statute, it erred
       in conducting defendant’s trial in absentia. See Phillips, 242 Ill. 2d at 197, 201. Thus, we
       must reverse defendant’s conviction and remand this matter for a new trial. See People v.
       Green, 190 Ill. App. 3d 271, 275, 546 N.E.2d 648, 650 (1989).

¶ 28                                              III
¶ 29       Since this case must be remanded for a new trial, we find it unnecessary to address
       defendant’s remaining contentions of error on appeal. However, to prevent the risk of
       exposing defendant to double jeopardy, we must consider whether the State presented
       sufficient evidence to prove defendant guilty beyond a reasonable doubt of predatory
       criminal sexual assault and aggravated criminal sexual abuse. See People v. Macon, 396 Ill.
       App. 3d 451, 458, 920 N.E.2d 1224, 1230 (2009). Based on our review of the record in the
       light most favorable to the State, we find the evidence presented at trial was sufficient for the
       jury to conclude that defendant was guilty beyond a reasonable doubt of the crimes with
       which he was charged.

¶ 30                                       CONCLUSION
¶ 31       The order of the circuit court of Tazewell County is reversed and the cause is remanded.
¶ 32       Reversed and remanded.




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