                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                            People v. Liss, 2012 IL App (2d) 101191




Appellate Court            PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH
Caption                    P. LISS, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-10-1191


Filed                      March 28, 2012


Held                       On appeal from defendant’s conviction in absentia for forgery, the
(Note: This syllabus       appellate court rejected defendant’s contentions that his right to be
constitutes no part of     present in the courtroom was violated and that he was not properly
the opinion of the court   admonished that he would be waiving his constitutional right to confront
but has been prepared      witnesses, since the trial court substantially complied with section 113-
by the Reporter of         4(e) of the Code of Criminal Procedure in admonishing him that he could
Decisions for the          be tried in absentia, and no new trial is required merely because the
convenience of the         admonition does not refer to the loss of confrontation rights.
reader.)


Decision Under             Appeal from the Circuit Court of Kane County, No. 10-CF-798; the Hon.
Review                     Thomas E. Mueller, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  James K. Leven, of Chicago, for appellant.
Appeal
                            Joseph H. McMahon, State’s Attorney, of St. Charles (Stephen E. Norris
                            and Kelly M. Stacey, both 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 Bowman and Birkett concurred in the judgment and opinion.




                                              OPINION

¶1          On May 10, 2010, the defendant, Joseph P. Liss, was charged by indictment with one
        count of forgery (720 ILCS 5/17-3(a)(2) (West 2008)). Following a jury trial held in the
        defendant’s absence, he was found guilty and sentenced to seven years’ imprisonment. On
        appeal, the defendant argues that the trial, held in absentia, violated his constitutional right
        to be present in the courtroom. Alternatively, he argues that he was not properly admonished
        that, by failing to appear for trial, he would be waiving his constitutional right to confront
        witnesses. We affirm.

¶2                                         I. BACKGROUND
¶3          On May 10, 2010, the defendant was charged by indictment with one count of forgery
        (720 ILCS 5/17-3(a)(2) (West 2008)). The indictment alleged that the defendant, with the
        intent to defraud, knowingly delivered to Amcore Bank a document capable of defrauding
        another. Specifically, the defendant wrote a check payable to himself in the amount of $2,300
        from his father’s checking account and signed his father’s name (Gregg Liss). The defendant
        thereafter cashed the check at the bank.
¶4          At the defendant’s May 14, 2010, arraignment, the defendant was advised of the charge
        against him and the possible penalties. The trial court further advised the defendant as
        follows:
                “You will have the right to have this case tried either before a judge or a jury. If this
            case goes to trial, at the trial you will have the right to confront or cross-examine any
            witness that’s called to testify against you. You will have use of this court’s subpoena
            power to force any individual into court to testify at the trial on your behalf, and you will
            also have what’s called a privilege against self-incrimination, which means that if you
            and your lawyer decide that your case is going to go to trial but you are not going [to] get
            on the witness stand and testify at that trial, no one can make you testify.”
        The defendant indicated that he understood the foregoing admonition.

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¶5          Thereafter, the defendant pled not guilty to the forgery charge and stood on his right to
       a jury trial. The trial court entered the plea and further admonished the defendant as follows:
                “In the event, Mr. Liss, you do post bond sometime between now and the trial date,
            remember that it is your obligation to make every court date, and that if you miss a court
            date, a warrant will issue for your arrest.
                If this case gets set for trial and you elect not to come to court the day of trial, not
            only would a warrant issue, but then you would run the risk that the trial could go
            forward without you, which means that you could be tried in your absence, a jury could
            find you guilty, and a judge could sentence you, even though you are not here.
                Do you understand?”
       The defendant responded affirmatively. The next status date was set for May 19, 2010. The
       record indicates that the defendant remained in custody because he was unable to post bond.
¶6          On May 19, 2010, the defendant was present and requested that the matter be set for jury
       trial. The jury trial was set for July 26, 2010, with the final pretrial hearing to occur on July
       23, 2010. The record indicates that on July 22, 2010, a court order was entered, on a special
       bond call, releasing the defendant from jail on a personal recognizance bond subject to the
       supervision of the pretrial services division. This order was entered by a judge other than the
       judge assigned to the defendant’s case.
¶7          On July 23, 2010, the final pretrial hearing was held. The defendant was not present. The
       trial court checked the record and noted that trial in absentia had been explained to the
       defendant. The trial court denied defense counsel’s motion for continuance and issued a
       warrant for the defendant’s arrest.
¶8          On July 26, 2010, the trial commenced in the defendant’s absence. Defense counsel was
       present. In addition to presenting evidence related to the charged offense, the State presented
       evidence to establish that the defendant was willfully avoiding trial. Following the State’s
       case, defense counsel presented no evidence and rested. Following deliberations, the jury
       returned a guilty verdict on the charge of forgery. On September 1, 2010, the trial court
       denied the defendant’s motion for a new trial and proceeded to sentencing. At the time of
       sentencing, the defendant was present and in custody. After considering the parties’
       arguments and the defendant’s statement in allocution, the trial court sentenced the defendant
       to an extended term of seven years’ imprisonment. The defendant was eligible for an
       extended term as a result of his prior criminal record. On April 13, 2011, this court granted
       the defendant’s motion to file a late notice of appeal. On April 15, 2011, the defendant filed
       a notice of appeal.

¶9                                          II. ANALYSIS
¶ 10       On appeal, the defendant argues that, by conducting his trial in absentia, the trial court
       violated his federal constitutional right to be present during his trial. The defendant contends
       that under the circumstances in this case, where he was not present at the start of his trial, his
       constitutional right to be present cannot have been waived. Since the question of whether the
       defendant’s trial in absentia violated his constitutional right to be present at trial is a purely


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       legal one, involving no disputed facts, our standard of review is de novo. People v.
       Breedlove, 213 Ill. 2d 509, 512 (2004) (pure questions of law are reviewed de novo).
¶ 11        “A criminal defendant has a constitutional right to be present at all stages of trial and to
       confront all witnesses against the defendant.” People v. Smith, 188 Ill. 2d 335, 340 (1999)
       (citing U.S. Const., amend. VI, and Ill. Const. 1970, art. I, § 8). In Illinois, a defendant’s
       voluntary absence from trial may be construed as an effective waiver of his constitutional
       right to be present at trial. People v. Phillips, 242 Ill. 2d 189, 194-95 (2011). Nonetheless,
       a defendant in Illinois has a statutory right under section 113-4(e) of the Code of Criminal
       Procedure of 1963 (Code) (725 ILCS 5/113-4(e) (West 2008)) to be admonished as to the
       possible consequences of failing to appear in court when required. Phillips, 242 Ill. 2d at 195.
       Specifically, section 113-4(e) of the Code provides:
                “(e) 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 escapes from custody or 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 2008).
¶ 12        Furthermore, section 115-4.1(a) of the Code sets forth the circumstances in which a trial
       in absentia may be conducted:
            “(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.” 725 ILCS
            5/115-4.1(a) (West 2008).
       This section of the Code was enacted “ ‘to provide for a trial in absentia, within
       constitutional limits, if a defendant willfully and without justification absented himself from
       trial.’ ” Smith, 188 Ill. 2d at 341 (quoting People v. Maya, 105 Ill. 2d 281, 285 (1985)).
¶ 13        These two sections of the Code were designed to balance a defendant’s constitutional
       right to be present at trial with the State’s interest in the “ ‘expeditious administration of
       justice.’ ” Smith, 188 Ill. 2d at 342 (quoting People v. Partee, 125 Ill. 2d 24, 40 (1988)).
       When challenged as violating the state constitution, courts have upheld the constitutionality
       of this legislative scheme providing for a trial in absentia. People v. Collins, 109 Ill. App.
       3d 1076, 1079 (1982) (citing People v. Powell, 95 Ill. App. 3d 93 (1981), and People v.
       Clark, 96 Ill. App. 3d 491 (1981), abrogated on other grounds by People v. Ramirez, 214
       Ill. 2d 176 (2005)). The requirements of this legislative scheme must be satisfied regardless
       of whether the defendant flees before trial or during trial. Partee, 125 Ill. 2d at 41.
¶ 14        In arguing that his trial in absentia violated his federal constitutional rights, the defendant
       cites Crosby v. United States, 506 U.S. 255, 262 (1993), which held that Federal Rule of
       Criminal Procedure 43 prohibits trial in absentia of a defendant who was not present at the
       start of his trial. However, in the present case the defendant was tried in state court, not
       federal court, and Rule 43 governs only federal trials. Moreover, courts have recognized that
       the right to be present under Rule 43 is “broader than the confrontation protection of the sixth
       amendment.” United States v. Alikpo, 944 F.2d 206, 209 (5th Cir. 1991); see also United

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       States v. Reiter, 897 F.2d 639, 642 (2d Cir. 1990) (noting that “rule 43 encompasses the
       protections afforded by the sixth amendment confrontation clause, the due process clause of
       the fifth amendment, and the common law right of presence”). In addition, the Crosby Court
       specifically refrained from deciding whether a trial in absentia of a defendant who was not
       present at any point during his trial would violate the United States Constitution. Crosby, 506
       U.S. at 262.
¶ 15        In Clark, the Third District Appellate Court held that a trial in absentia of a defendant
       who is absent from all proceedings does not violate the United States Constitution. Clark,
       96 Ill. App. 3d at 495. The Clark court noted that in Taylor v. United States, 414 U.S. 17, 18-
       20 (1973), the United States Supreme Court held that a defendant who flees during trial
       waives his constitutional right to be present at the trial. The Clark court held that the Illinois
       trial in absentia statute was a logical extension of the waiver doctrine inherent in Taylor.
       Clark, 96 Ill. App. 3d at 495. We agree with the result in Clark. It is well settled that a
       defendant may waive a constitutional right as long as the waiver is knowing, voluntary, and
       “done with sufficient awareness of the relevant circumstances and likely consequences.”
       Brady v. United States, 397 U.S. 742, 748 (1970). Sections 113-4(e) and 115-4.1(a) of the
       Code ensure that these requirements are met. People v. Garner, 147 Ill. 2d 467, 483 (1992)
       (“the legislative scheme is designed to insure that trial in the defendant’s absence is not held
       unless defendant has made a valid waiver of his right to be present at trial and to confront
       witnesses against him”). Accordingly, the procedure in this case did not violate the
       defendant’s federal constitutional rights. See Smith v. Mann, 173 F.3d 73, 76 (2d Cir. 1999)
       (holding that “nothing in the Constitution prohibits a trial from being commenced in the
       defendant’s absence so long as the defendant knowingly and voluntarily waives his right to
       be present”); Jefferson v. State, 2000-KA-01788-SCT (¶ 17) (Miss. 2002) (finding no
       support for the defendant’s claim that his trial in absentia, where he had not been present at
       any point during the trial but was well aware of his trial date, violated the United States
       Constitution).
¶ 16        In so ruling, we note that the defendant cites Hopt v. Utah, 110 U.S. 574 (1884), and
       Lewis v. United States, 146 U.S. 370 (1892), as binding authority for the proposition that a
       defendant can never waive his right to be present at his trial. However, the language in those
       cases that supports this argument has been held to be no more than dicta. Snyder v.
       Massachusetts, 291 U.S. 97, 117 n.2 (1934), overruled on other grounds by Malloy v.
       Hogan, 378 U.S. 1 (1964). This broad dicta, that a trial can never continue in the defendant’s
       absence, has been expressly rejected. Illinois v. Allen, 397 U.S. 337, 342 (1970) (citing Diaz
       v. United States, 223 U.S. 442, 458 (1912)). It is well settled that a defendant’s right to be
       present at his trial may be lost by consent or misconduct. Taylor, 414 U.S. at 20; Allen, 397
       U.S. at 342-43; Snyder, 291 U.S. at 106.
¶ 17        The defendant’s final contention on appeal is that his trial in absentia was improper
       because the trial court failed to admonish him that he would be waiving his right to confront
       the witnesses against him by failing to appear. Pursuant to section 113-4(e) of the Code, if
       a defendant pleads not guilty at arraignment, the trial court shall advise him that if he fails
       to appear in court when required “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

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       5/113-4(e) (West 2008). The defendant acknowledges that only substantial compliance with
       the requirements of section 113-4(e) of the Code is required for a defendant’s trial to proceed
       in absentia. People v. Condon, 272 Ill. App. 3d 437, 442 (1995), overruled on other grounds
       by Phillips, 242 Ill. 2d at 200-01.
¶ 18        In the present case, the trial court complied with the requirements of section 113-4(e) of
       the Code. Despite the defendant’s contention to the contrary, the trial court did admonish him
       concerning his confrontation rights. Specifically, at the arraignment, prior to the defendant’s
       not-guilty plea, the trial court admonished him that if his case went to trial he would have the
       right to confront and cross-examine any witnesses who were called to testify against him. In
       addition, after the defendant’s plea of not guilty, the trial court admonished the defendant
       that, if he failed to appear in court as required, the trial could proceed in his absence. The
       defendant clearly indicated that he understood his rights of confrontation and to be present
       at trial. These admonishments were sufficient to put the defendant on notice that if he failed
       to appear for trial he would lose the ability to confront the witnesses against him. The fact
       that the two admonishments were separated by the defendant’s plea of not guilty does not
       change this result.
¶ 19        Moreover, even if the defendant were not admonished about his confrontation rights, as
       he contends, our result would not change. In People v. Broyld, 146 Ill. App. 3d 693, 697
       (1986), the defendant was admonished, at arraignment, that if she failed to appear at the time
       of trial the trial could proceed in her absence. However, the defendant was not admonished
       that in failing to appear she would be waiving the right to confront the witnesses against her.
       Id. The Broyld court found, nonetheless, that the admonishment substantially complied with
       the requirements of the in absentia statute. Id. at 698 (noting that existing precedent “holds
       that no new trial is required merely because the admonition does not refer to loss of
       confrontation rights”). Accordingly, in the present case, the trial court substantially complied
       with the statute when it advised the defendant that the trial could proceed in his absence. The
       defendant’s argument that he was improperly admonished is therefore without merit.

¶ 20                                  III. CONCLUSION
¶ 21      For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 22      Affirmed.




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