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                                    Appellate Court                           Date: 2019.07.15
                                                                              08:51:14 -05'00'



                      People v. Gomez Moran, 2018 IL App (3d) 150754



Appellate Court         THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                 RUBEN GOMEZ MORAN, Defendant-Appellant.



District & No.          Third District
                        Docket No. 3-15-0754



Rule 23 order filed     April 25, 2018
Motion to
publish allowed         May 23, 2018
Opinion filed           May 23, 2018



Decision Under          Appeal from the Circuit Court of Will County, No. 05-CF-1476; the
Review                  Hon. Sarah-Marie Francis Jones and the Hon. Robert P. Livas, Judges,
                        presiding.



Judgment                Reversed, vacated, and remanded with directions.


Counsel on              Michael J. Pelletier, Peter A. Carusona, and Steven Varel, of State
Appeal                  Appellate Defender’s Office, of Ottawa, for appellant.

                        James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino,
                        Lawrence M. Bauer, and Thomas D. Arado, of State’s Attorneys
                        Appellate Prosecutor’s Office, of counsel), for the People.
     Panel                    JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                              Justices Holdridge and Lytton concurred in the judgment and opinion.


                                                OPINION

¶1         The trial court sentenced defendant in absentia to nine years’ imprisonment in the Illinois
       Department of Corrections. Approximately eight years later, defendant was arrested and filed a
       motion to vacate or reconsider the sentence imposed in his absence. The trial court struck
       defendant’s motion to vacate on October 28, 2015. Defendant appeals that 2015 ruling.

¶2                                                  FACTS
¶3          On July 20, 2005, the State charged Ruben Gomez Moran (defendant) with aggravated
       driving under the influence pursuant to sections 11-501(a)(1) and 11-501(d)(1)(C) of the
       Illinois Vehicle Code (625 ILCS 5/11-501(a)(1), (d)(1)(C) (West 2004)), reckless driving
       pursuant to section 11-503(c) of the Illinois Vehicle Code (id. § 11-503(c)), and failure to stop
       after having an accident involving personal injury or death pursuant to section 11-401(a) of the
       Illinois Vehicle Code (id. § 11-401(a)).
¶4          On July 11, 2006, defendant entered an open guilty plea to aggravated driving under the
       influence, reckless driving, and failure to stop after a personal injury accident. The trial court
       revoked defendant’s bond and ordered a presentence investigation report (PSI) for purposes of
       sentencing.
¶5          The next day, July 12, 2006, the trial court granted an agreed motion, allowing defendant to
       be released on a recognizance bond until July 26, 2006, in order to allow defendant to be
       present for the impending birth of defendant’s child. Defendant failed to return to custody on
       July 26, 2006, as agreed.
¶6          On September 20, 2006, the trial court received a letter from the Will County Probation
       Services Department, informing the court that the department could not complete defendant’s
       PSI because defendant’s whereabouts were unknown. On January 30, 2007, the trial court
       scheduled defendant’s sentencing hearing for March 15, 2007. A “certified letter to appear,”
       informing defendant of this court date, was mailed to defendant’s last known address on
       February 1, 2007.
¶7          On March 15, 2007, defendant failed to appear but his attorney was present in court. Both
       the prosecutor and defense counsel agreed to proceed with sentencing without the PSI. The
       court stated (1) “[defendant] chose voluntarily not to participate in the presentence
       investigation. So we are left—which is his right if he refuses” and (2) “Well, since he didn’t
       participate, we are left with kind of a lack of knowledge about the defendant, and without a
       presentence investigation, I will just listen to evidence in aggravation.” The defense presented
       no evidence in mitigation, and the trial court sentenced defendant to nine years’ imprisonment
       in the Illinois Department of Corrections for aggravated driving under the influence (id.
       § 11-501(a)(1), (d)(1)(C)). Defendant did not file any timely motions after the sentence was
       imposed in 2007 and did not file a direct appeal.
¶8          On July 22, 2015, defendant was arrested and returned to custody in Will County. On
       September 8, 2015, counsel for defendant filed a “Motion To Vacate Sentence And/Or In the

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       Alternative Motion To Reconsider Sentence” (2015 motion to vacate), pursuant to section
       115-4.1(e) of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-4.1(e) (West 2014)).
       Defendant’s 2015 motion to vacate incorporated his explanation for his absence in 2007.
       Defendant alleged his absence was “due to his fear of returning to jail and no one else being
       able to support his family.” In addition, defendant challenged the sentence imposed on the
       following three grounds: (1) the trial court violated defendant’s constitutional rights by failing
       to properly admonish defendant regarding sentencing in absentia, (2) the trial court
       erroneously sentenced defendant before receiving a PSI, and (3) the trial court imposed a
       sentence that was excessive.
¶9         In response, on the same day, the State filed a motion to strike defendant’s 2015 motion to
       vacate as untimely. On October 28, 2015, following a hearing on the 2015 motion to vacate,
       the trial court announced its ruling. The court stated that “[t]he State does not have to consent
       to revesting the Court with the jurisdiction,” therefore, “I don’t have the ability to grant the
       relief that you are seeking.” In addition, the trial court found that defendant received the proper
       admonitions about the possibility of proceedings in absentia.
¶ 10       On November 2, 2015, defendant filed a notice of appeal challenging several orders,
       including the March 15, 2007, order imposing defendant’s sentence and the October 28, 2015,
       order granting the State’s motion to strike defendant’s 2015 motion to vacate.

¶ 11                                          ANALYSIS
¶ 12       Before considering the merits of defendant’s appeal, we must address the jurisdictional
       peculiarities created by an eight-year gap between the date of defendant’s 2007 sentencing
       order and defendant’s 2015 motion to vacate. Questions of jurisdiction are legal matters
       reviewed de novo. People v. Marker, 233 Ill. 2d 158, 162 (2009).
¶ 13       The record reveals defendant’s 2015 motion to vacate was not labeled a section 115-4.1(e)
       motion (725 ILCS 5/115-4.1(e) (West 2014)). However, for purposes of the appeal, both
       parties have construed and treated the 2015 motion to vacate as a section 115-4.1(e) motion.
       Based on the posture adopted by both parties on appeal, our court will also view defendant’s
       2015 motion to vacate as a section 115-4.1(e) motion.
¶ 14       The portions of section 115-4.1 of the Code of Criminal Procedure of 1963 provide that:
               “When a defendant who in his absence has been either convicted or sentenced or both
               convicted and sentenced appears before the court, he must be granted a new trial or new
               sentencing hearing if the defendant can establish that his failure to appear in court was
               both without his fault and due to circumstances beyond his control. A hearing with
               notice to the State’s Attorney on the defendant’s request for a new trial or a new
               sentencing hearing must be held before any such request may be granted. At any such
               hearing both the defendant and the State may present evidence.” Id.
       Additionally, section 115-4.1(g) of the Code of Criminal Procedure of 1963 addresses the
       process for reviewing a ruling on a section 115-4.1(e) ruling. Section 115-4.1(g) states that:
               “A defendant whose motion under paragraph (e) for a new trial or new sentencing
               hearing has been denied may file a notice of appeal therefrom. Such notice may also
               include a request for review of the judgment and sentence not vacated by the trial
               court.” (Emphasis added.) Id. § 115-4.1(g).



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¶ 15        Our supreme court has previously provided guidance on the jurisdictional issue. Our
       supreme court has held that section 115-4.1(e) did not conflict with the time frame established
       for a direct appeal set forth in Illinois Supreme Court Rule 606 (eff. Dec. 11, 2014). See People
       v. Partee, 125 Ill. 2d 24, 35-38 (1988). In so holding, the Partee court explained that a section
       115-4.1(e) motion is considered a “collateral attack upon a final judgment.” Id. at 35. More
       recently, the reviewing court also held that no conflict exists between section 115-4.1(g) and
       Rule 606(b). People v. Williams, 274 Ill. App. 3d 793, 796 (1995). Further, the Williams court
       held that, “The legislature has engrafted the request for review of the conviction and sentence
       as a part of that appeal from the final order of the [section 115-4.1(e)] collateral proceeding” as
       long as the appeal of the collateral proceeding is “perfected within 30 days of the entry of the
       ruling on the section 115-4.1(e) motion.” Id. at 798.
¶ 16        In this case, the trial court struck defendant’s 2015 motion to vacate, and defendant had a
       30-day window to appeal from the October 28, 2015, order. Within 30 days of this court order,
       defendant filed a notice of appeal challenging the trial court’s ruling in the collateral attack on
       the judgment. Consequently, we conclude that defendant has perfected his right to appeal the
       2015 motion to vacate by filing a notice of appeal within 30 days of the entry of the ruling on
       that motion. Based on well-established case law, we conclude that this court has jurisdiction to
       review the trial court’s order striking defendant’s section 115-4.1(e) motion. Based on the
       statutory language approved by our legislators, we conclude that the scope of our review
       includes an examination of “the judgment and sentence not vacated by the trial court.” 725
       ILCS 5/115-4.1(g) (West 2014).
¶ 17        Section 5-3-1 of the Unified Code of Corrections provides that “[a] defendant shall not be
       sentenced for a felony before a written presentence report of investigation is presented to and
       considered by the court.” 730 ILCS 5/5-3-1 (West 2006). When looking back at defendant’s
       in absentia sentencing proceedings, we note that the court sentenced defendant without first
       receiving and then considering a written completed PSI.
¶ 18        The State recognizes that the trial court must strictly comply with the mandatory statutory
       requirements of section 5-3-1. See id.; People v. Harris, 105 Ill. 2d 290, 302-03 (1985).
       Consequently, the State understandably agrees that if this court reaches the merits of
       defendant’s substantive challenge to the sentence imposed, then defendant would be entitled to
       a new sentencing hearing with a properly completed PSI. The State’s concession is supported
       by case law establishing that a defendant’s voluntary absence from trial does not result in
       defendant’s waiver of the court-ordered PSI that the court “shall” consider before imposing a
       sentence. People v. Lynch, 122 Ill. App. 3d 121, 124 (1984). Therefore, we reverse the trial
       court’s order striking defendant’s section 115-4.1(e) motion as untimely, vacate defendant’s
       sentence, and remand the matter back to the trial court for new sentencing proceedings after the
       trial court receives a properly completed PSI.

¶ 19                                       CONCLUSION
¶ 20      The judgment of the circuit court of Will County is reversed, vacated, and remanded.

¶ 21      Reversed, vacated, and remanded with directions.




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