People v. Smith

2021 IL App (4th) 190045-UNOTICE FILED
This Order was filed under
NO. 4-19-0045 May 28, 2021
Supreme Court Rule 23 and is not
Carla Bender
precedent except in the limited
IN THE APPELLATE COURT 4th District Appellate
circumstances allowed under Rule
23(e)(1).
Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
DOMINIQUE D. SMITH, ) No. 15CF1601
Defendant-Appellant. )
) Honorable
) Roger B. Webber,
) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court.
Justices Turner and Harris concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, holding the trial court did not err in trying defendant
in absentia; the trial court did not err when restoring defendant to fitness; the trial
court did not err in not holding a retrospective fitness hearing; the trial court did
not err in sentencing; defendant received assistance from counsel of his choice;
and defense counsel provided reasonable assistance.
¶2 In November 2015, the State charged defendant, Dominique D. Smith, with
armed robbery, a Class X felony, subject to a mandatory additional 15 years’ incarceration (720
ILCS 5/18-2(a)(2) (West 2014)), alleging “defendant, or someone for whose conduct he was
legally responsible, took property, a pizza, from the person or presence of Yang Lu by
threatening the imminent use of force, and *** defendant or one for whose conduct he was
legally responsible carried on or about his/her person a firearm, namely: a handgun.” After the
defendant failed to appear at consecutive pretrial hearings, the State moved to try him
in absentia, which the trial court granted. The matter proceeded to jury trial without defendant in
January 2017, where the jury found him guilty. Defendant reappeared for sentencing, but, in
April 2017, his counsel expressed doubts as to defendant’s fitness and moved for appointment of
a psychiatrist to examine defendant. Following the examination, the trial court found defendant
unfit for sentencing and ordered he be placed in the custody of the Illinois Department of Human
Services (DHS).
¶3 Once defendant was restored to fitness, in November 2018, he filed a “Motion for
Acquittals or in the Alternative Motion for a New Trial.” Following a hearing, the trial court
denied defendant’s posttrial motion. In January 2019, the trial court sentenced defendant to 25
years in the Illinois Department of Corrections (DOC) followed by 3 years’ mandatory
supervised release (MSR). Defendant filed a motion to reconsider the sentence, which the trial
court denied.
¶4 On appeal, defendant’s argument is sixfold: (1) the trial court erred in proceeding
to trial in absentia; (2) the trial court erred in twice restoring defendant to fitness based upon
stipulations from the parties; (3) once defendant was found unfit for sentencing, the trial court
erred in not holding a retroactive fitness hearing to determine whether defendant was fit to stand
trial; (4) the trial court abused its discretion at sentencing by committing two errors, namely,
failing to give due consideration to defendant’s youth and rehabilitative potential and using an
inherent factor in the offense as an aggravating factor; (5) defendant was denied his sixth
amendment right to counsel of his choice; and (6) defendant received ineffective assistance of
counsel. We disagree and affirm the trial court’s judgment.
¶5 I. BACKGROUND
¶6 In November 2015, the State charged defendant with armed robbery, a Class X
felony, subject to mandatory additional 15 years’ incarceration (720 ILCS 5/18-2(a)(2) (West
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2014)), alleging “defendant, or someone for whose conduct he was legally responsible, took
property, a pizza, from the person or presence of Yang Lu by threatening the imminent use of
force, and *** defendant or one for whose conduct he was legally responsible carried on or about
his/her person a firearm, namely: a handgun.” The facts of this case are more fully set forth in
People v. Gaines, 2018 IL App (4th) 160442-U, his codefendant’s case. As defendant’s case
progressed toward trial, he alternated between being represented by the public defender and by
privately retained counsel. Those changes in counsel, along with other reasons, caused the
defense to file several motions for continuances, which the trial court granted. In August 2016,
defendant posted a $10,000 bond and was released from the Champaign County jail.
¶7 In October 2016, once the trial court granted the public defender’s motion to
continue and set the matter for a final pretrial hearing, defendant’s uncle, Benny Smith (Smith),
hired Harvey Welch as defendant’s third privately retained attorney. Smith represented to Welch
that the trial court granted a final continuance, and the trial would commence in a matter of days.
Welch did not meet defendant the day Benny hired him because Smith claimed defendant was
working. Noting the “time crunch” of imminent trial and not wanting to enter the case on the first
day of trial, Welch agreed to take the case but wanted to enter his appearance immediately.
Consequently, Smith signed a bond assignment to Harvey Welch on defendant’s behalf. Welch
filed, the same day, a motion to continue on defendant’s behalf, contending (1) defendant was
not in custody, (2) he had just been retained, and (3) he needed more time to investigate and
prepare the case.
¶8 On October 11, 2016, Welch followed that up with a formal substitution of
attorney form in which the public defender withdrew its appearance and Welch entered his
appearance in defendant’s case. Defendant did not appear for the pretrial hearing held that same
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day. Neither the public defender nor defense counsel knew defendant’s whereabouts. Per the
State’s motion, and over the defense’s objection, the trial court issued a bench warrant and bond
forfeiture.
¶9 On November 14, 2016, the trial court held another pretrial hearing, and
defendant again did not appear. Upon the State’s renewed request, the trial court entered
judgment on the prior order of bond forfeiture. Next, noting defendant was “on his fourth
attorney” and that “[t]his case is very old,” the State asked that the case “be set for trial in
absentia because it’s pretty clear that [defendant] is not going to return anytime soon.” The trial
court noted the State’s motion for trial in absentia but set the matter for another pretrial hearing.
¶ 10 At the December 13, 2016, status hearing, defendant did not appear. When the
trial court asked about defendant, Welch responded: “he has been missing *** at the last several
hearings, and so no, I don’t expect him.” The trial court noted the State’s pending motion for trial
in absentia and scheduled a hearing for argument the next day.
¶ 11 At the next hearing, the State confirmed, “defendant was in fact admonished as to
trial in absentia” at his November 2, 2015, arraignment. The State asked the trial court to set a
trial date so it could mail proper notice to defendant. The court turned to Welch for argument,
who said: “Just show objection for the record, but no, I don’t have anything to add.” The trial
court gave its decision on the record, allowing the State’s motion for trial in absentia and setting
the cause for trial on January 30, 2017. The trial court stated: “Circuit Clerk is directed to send
notice to the defendant by certified mail at the last address in the file provided by him.” The
circuit clerk, via certified mail, sent notice of the January 30, 2017, hearing to defendant’s
addresses in Memphis, Arkansas, and Urbana, Illinois.
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¶ 12 On January 30, 2017, the State and Welch appeared before the trial court and both
answered ready for trial. The State “put on the record that the Clerk’s office sent certified
mailings to the address [defendant] used when he was arrested in Arkansas, as well as the
address that was attached to the bond when he was bonded out, so they sent it to two separate
places ***.” The State argued: “we can proceed in absentia since [we] have diligently sent the
certified mailings as required by law.” Welch responded: “Would you just continue to show my
objection, Your Honor, but I have no representations to make regarding [defendant’s]
whereabouts.” The trial court allotted the case for trial, acknowledging the State’s evidence of
notice and defendant’s objection. Welch asked the trial court to “instruct [jurors] that they are not
to make any inferences from the fact of [defendant’s] absence[.]”
¶ 13 Though neither the trial court nor the parties knew it, at almost this exact moment
defendant presented to the emergency room (ER) at Sarah Bush Lincoln Hospital, claiming he
relapsed on methamphetamine. Defendant was cooperative. His mood was “fine.” He denied
suicidal or homicidal ideation. Toxicology screens were negative for drugs or alcohol. When
confronted with the toxicology reports, defendant said: “I guess I did not relapse.” As the
hospital prepared to discharge defendant home, he called his family. After that phone call,
defendant began complaining of hot flashes and suicidal thoughts. The doctor noted defendant
did not voice those complaints during the examination 10 minutes prior. Defendant refused to
say what he talked to his family about, answering inquiries with, “I don’t know.” Nevertheless,
the doctor canceled the planned discharge and admitted defendant for inpatient treatment. Once
hospital staff learned that defendant arrived in the ER at the exact time his trial was scheduled to
begin, the doctor expressed “some concern for secondary gain.” Likewise, the doctor expressed
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similar “concerns that [defendant] is trying to avoid his court date and repercussions from
missing it.”
¶ 14 Defendant’s hospitalization was unremarkable. The doctor noted: “When
[defendant] is on the unit during the day he is bright of affect and joking laughing and talking
with other peers. He only endorses suicidal ideations when talking about legal problems or
potential discharge.” The hospital’s social work staff spoke with defendant over the course of his
hospitalization and encouraged “him to begin dealing with some of his legal problems.” The
social worker offered to make calls to the state’s attorney or defense counsel to help defendant
resolve his legal problems, but defendant refused to sign any releases. He also refused to make
any phone calls related to his legal charges. The hospital discharged defendant on February 2,
2017.
¶ 15 Meanwhile, back at the courthouse, during its case-in-chief, the State presented
evidence of the armed robbery through testimony from the victim, testimony from responding
police officers, various photographs, and a video of defendant’s police interview where he
described his encounter with the victim and admitted holding the gun. The defense presented no
evidence but moved for a directed verdict, which the trial court denied. While the jury
deliberated, the trial court then took this opportunity to note on the record that after the jury left
the courtroom a man who identified himself as defendant’s uncle approached the bench and gave
the court a package of documents. The court informed the parties it put the documents in the
court file and it did not “intend to do anything else with this information.”
¶ 16 After deliberating for less than 30 minutes, the jury found defendant guilty as
charged. The trial court, therefore, “enter[ed] a judgment on the verdicts of guilty for the People
and against the defendant on the offense of armed robbery, and on the special allegation of
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committing the offense while armed with a firearm.” The trial court directed court services “to
conduct a presentence investigation and prepare a report” and scheduled a sentencing hearing for
March 2017.
¶ 17 Meanwhile, on February 9, 2017, defendant presented to court services for the
presentence investigation and interview. On February 13, 2017, Welch filed a posttrial motion
seeking to vacate defendant’s conviction on several grounds, including, among other claims, the
trial court erred in allowing defendant to be tried in absentia.
¶ 18 Defendant appeared at the March 14, 2017, sentencing hearing. When the trial
court called defendant’s name and case number, defendant answered, “Yes, sir.” The court
directed defendant, “Do you want to come up here and join your attorney, sir?” Defendant sat
next to Welch at counsel’s table. When the court asked the State to respond to the defense’s
posttrial motion, counsel answered: “I’m ready to proceed, your Honor, but given that the
defendant has finally arrived, I don’t know if defense counsel wants to proceed.” Welch stated:
“Your Honor, I would ask for a short continuance on the post-trial motion, and the sentencing if
we reach that.” The trial court granted a continuance and rescheduled the hearing. The following
exchange then occurred:
“MR. LARSON [(STATE’S ATTORNEY)]: Your Honor,
the defendant was convicted of a Class X felony and there’s a no-
bond warrant, so I’d ask he be remanded into custody.
THE COURT: Any argument you want to make on that,
Mr. Welch?
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MR. WELCH: Well, your Honor, I would just object.
That’s an accurate recitation of where, where we are from the
procedural posture, but I would object.
THE COURT: Any representations you can make as to
where the defendant was during the trial?
MR. WELCH: No, not at this time.
THE COURT: All right. Then I will show your objection
for the record, but it’s overruled. State’s motion for service of
no-bond warrant and remand of the defendant’s allowed. You’ll
need to go with the deputy, sir.
THE DEFENDANT: Yes, sir, thank you.”
At this point, an unidentified male interjected himself into the proceedings, asking to give
documents to the trial court. When the trial court asked, “[W]ho are you, sir?” the man answered:
“UNIDENTIFIED MALE SPEAKER: I’m the uncle. I had
the letter from the Supreme Court, which we filed. He never was
his attorney, and he—he filed two contracts to take the bond—
bond money from my mother, *** and he wrote another contract
and said I’ll show you all for 3700. *** He never signed for him,
never seen this man as attorney. He’s been in the state institution in
Charleston. *** [W]e’re going to appeal it, because he don’t want
to appeal the case. Number one, he never was hired by him.
***
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THE COURT: All right. I’m going to suggest that whatever
documents you’ve got from the court you turn over to Mr. Welch,
or copies of those. And if there are grounds for motions, he can file
that motion.
THE DEFENDANT: Why would I turn it over to an
attorney that’s not my attorney.
UNIDENTIFIED MALE SPEAKER: But what if he’s—
he’s not his attorney.
THE DEFENDANT: I never hired him. I don’t even—this
is my first time seeing this man.
THE COURT: He is—he’s the attorney of record in this
case, sir. There are lots of ways that you can bring up issues
concerning his performance, but this is not one of them. All right,
you need to go with the bailiff.
THE DEFENDANT: Okay.”
¶ 19 On March 21, 2017, the parties appeared before the trial court for a status hearing.
Welch requested another continuance on the posttrial motion, saying: “I met with [defendant].
There’s some other issues that have come up so I’m asking for some more time.” Since the State
did not object, the trial court set the matter for a hearing on the defense’s posttrial motion.
Defendant then raised his hand and requested a public defender. He said he did not hire Welch as
his attorney. Welch informed the trial court he would talk with defendant and “prepare the
necessary paperwork.” On March 24, 2017, Welch filed a motion to withdraw as counsel, saying
he began representing defendant on October 7, 2016, but “irreconcilable differences have arisen
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between the defendant and his attorney” and “the defendant wants new counsel.” At the March
31, 2017, hearing, the trial court allowed Welch’s motion to withdraw and reappointed the public
defender to the case.
¶ 20 While housed in the Champaign County jail on April 13, 2017, defendant threw a
lunch tray at a correctional officer and then began hitting him. Defendant then began hitting and
kicking other officers who came to help subdue him. The State eventually charged him under a
new case number and that case proceeded concurrently with the underlying armed robbery
matter.
¶ 21 On April 27, 2017, defense counsel filed a “Motion for Appointment of
Psychiatrist” and accompanying affidavit, affirming counsel had met with and spoke to
defendant and “has a bona fide doubt as to the defendant’s fitness and sanity in that he cannot
cooperate with his attorney and cannot understand the proceedings.” The trial court granted the
motion the same day. Dr. Albert Lo, M.D., evaluated defendant and found him “too
uncooperative to fully assess.” Dr. Lo, nevertheless, diagnosed defendant with probable
unspecified psychotic disorder, rule out malingering, history of opiate and cocaine use, and
probable antisocial personality disorder. Ultimately, Dr. Lo opined defendant was unfit. On July
7, 2017, the trial court issued an order finding defendant not fit to plead, stand trial, or be
sentenced. The trial court’s order placed defendant in DHS’s custody, noting, “there is a
probability that the defendant will attain fitness within one (1) year.”
¶ 22 DHS issued a report dated January 31, 2018, detailing defendant’s diagnoses and
his response to treatment. In the report, Dr. Terrence Casey, M.D., opined defendant was fit to
stand trial or be sentenced. The parties appeared before the trial court for a fitness hearing on
February 7, 2018. The court noted it had a copy of Dr. Casey’s report and the prosecutor and
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public defender stipulated “to the report’s author’s expertise in the area of forensic psychiatry.”
Neither party presented additional evidence. The court stated on the record:
“Okay. We’ll show then the appearances. By stipulation and
agreement of the parties the Court will consider the report dated
January 31st, 2018, and authored by Doctor Terrence Casey,
psychiatrist, as if Doctor Casey had testified in person here in
court. Based upon the opinions, facts summarized and conclusions
of that report the Court finds that the Defendant has been restored
to fitness.”
The trial court also made the following docket entry:
“Chester Mental Health Center report dated January 31, 2018 on
file and placed in 2015-CF-1601. [The parties] indicate they have
received and reviewed said report. The parties stipulate that the
Court may consider the report of Chester Mental Health Center in
lieu of testimony. The Court has fully considered all of the reports
of Chester Mental Health Center/DHS, including the expert
opinions and bases for the opinions, the Court’s observations of the
defendant in court, and all relevant evidence, including but not
limited to evidence of all relevant factors pursuant to 725 ILCS
5/104-16. The court finds that the defendant is fit to stand trial or
plead.”
The trial court ordered defendant discharged from DHS’s custody and remanded to the Sheriff’s
Department, although defendant was still subject to mental health examinations.
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¶ 23 At a March 16, 2018, hearing, defense counsel requested the trial court conduct
another fitness hearing, citing a recent psychological examination conducted by Dr. Jeckel.
Counsel noted she would “stipulate to [Dr. Jeckel’s] expertise and that he would testify with the
contents of that—as to the contents of that report, and I would suggest that [defendant] be again
found unfit.” The State likewise stipulated to Dr. Jeckel’s expertise and made no objection to the
court finding defendant unfit. Based the expert reports, the court’s observations of defendant, and
all relevant evidence, the trial court found defendant unfit and ordered him “placed in the
custody of [DHS] which shall determine appropriate placement and treatment.”
¶ 24 On October 12, 2018, the trial court held a fitness hearing, where it confirmed the
parties “received a copy of the report dated August 29th from the Chester Mental Health
Service,” and both parties stipulated that the court could consider the contents of the report.
Neither party presented additional evidence as to defendant’s fitness. The trial court then found:
“Then we will show based on the contents of the report and
the stipulation that the Court can consider the report dated August
29, 2018. The Court, considering the contents of the report as if the
author of the report were to testify in person to those findings and
recommendations, the Court finds that the Defendant has been
restored to fitness. Order for restoration of fitness signed and
entered.”
The trial court likewise made following docket entry:
“Fitness evaluation/progress reported dated August 23, 2018
received and filed in 2015-CF-1601. *** The parties stipulate that
the Court may consider the fitness evaluation/progress report in
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lieu of testimony. The Court has fully considered all of the reports
of DHS, including the expert opinions and bases for the opinions,
the Court’s observations of the defendant in court, and all relevant
evidence, including but not limited to evidence of all relevant
factors pursuant to 725 ILCS 5/104-16. The court finds that the
defendant is fit to stand trial or plead.”
The trial court set a hearing to consider the anticipated posttrial motion from the defense.
¶ 25 In November 2018, defense counsel filed a “Motion for Acquittals or in the
Alternative Motion for a New Trial,” arguing the trial court committed several errors, but
relevant to this appeal, that proceeding to trial in absentia over the defense’s objection was error.
Defendant’s motion further alleged his attorney, “Harvey Welch[,] entered his appearance ***
without the Defendant’s knowledge or consent” and then rendered ineffective assistance of
counsel. At a November 20, 2018, hearing, the trial court heard testimony from defendant’s trial
counsel, Harvey Welch, about Benny Smith hiring him for defendant and his lack of interactions
with defendant. The trial court took the matter under advisement but ordered a new presentence
investigation in case the court denied defendant’s posttrial motion and the case advanced to
sentencing.
¶ 26 The trial court ultimately denied defendant’s posttrial motion at a January 3, 2019,
hearing. Rendering its decision from the bench, the trial court discussed each issue individually.
As for the trial in absentia issue, the trial court observed how defendant delayed the case by
changing attorneys several times and seeking continuances. The trial court also noted how
defendant voluntarily admitted himself to the hospital based upon feigned concerns he relapsed
on drugs at “almost exactly the same minute that we started jury selection.” The trial court
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concluded: “So I find that collectively the medical records against the pattern of changing
attorneys and the requests for continuances do not overcome the state’s prima facie case and I
find defendant’s failure to appear was willful and it was not error to proceed to trial in absentia.”
Concerning defendant’s allegation he was denied his sixth amendment right to counsel of his
choice, the trial court distilled the issue to the following query: “So the question is did
[defendant] impliedly or explicitly approve the entry of appearance of Mr. Welch?” The trial
court detailed how defendant’s uncle “appeared numerous times throughout these proceedings”
and attempted to file documents with the court, “including a document purporting to create a
short term guardianship of the defendant in the uncle, Benny Smith.” The court observed: “I
think on those facts it’s reasonable to believe that [defendant] had authorized his uncle, Benny
Smith, to attempt to hire or actually hire Mr. Welch. He either authorized it or requested it.” The
court elaborated: “The defendant at no time objected to Mr. Welch’s appearance until after the
trial was over and he initially appeared—and, when he initially appeared, he seemed to acquiesce
in Mr. Welch’s continued representation until his uncle started to interject suggestions that the
defendant had not actually hired him.”
¶ 27 The matter proceeded to a sentencing hearing the next day, January 4, 2019.
Before sentencing, the trial court, acknowledging it had overlooked an additional
ineffective-assistance-of-counsel claim in defendant’s posttrial motion, proceeded to address it.
The court found defendant failed to present sufficient evidence he was prejudiced by counsel’s
deficient performance, meaning defendant did not establish a valid claim for ineffective
assistance of counsel. The State presented evidence of defendant’s attack on correctional officers
in April 2017 as evidence in aggravation. The State asked the trial court to impose a 30-year
sentence while the defense countered by asking for the minimum sentence available, 21 years.
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The court began by labeling this “a very unusual case” because “[i]t is very, very rare that I see
persons before me convicted of such a serious offense that have absolutely no prior criminal
history.” The trial court “commended” defendant “for getting to his age without any prior
criminal convictions, particularly in light of the rough start that he had in life.” In reviewing the
statutory factors in aggravation, the court observed defendant’s crime “threatened serious harm.
He received compensation. That’s the whole point of an armed robbery. Although, from my
recollection of the testimony, the compensation that he received was groceries, which he
promptly discarded.” The trial court opined, “[s]ome sentence is necessary for a deterrent effect
*** [because] gun violence has become an outrageous problem in this community and something
needs to be done to tell particularly young males that gun violence will not be tolerated.” In
reviewing factors in mitigation, the trial court referenced defendant’s mental health and noted
defendant had “no history of prior delinquency and has led a law-abiding life for his entire life
up until the point of this incident.” The trial court finally noted defendant apologized for his
actions and “accepts some responsibility.” In announcing the sentence, the trial court stated:
“The question ultimately then becomes where within the
range of 21 to 45 years the final sentence should be and I think,
considering all of the factors in aggravation, particularly the
deterrent effect, I believe a sentence of 25 years is the most
appropriate sentence in this case, so that will be the sentence of
court.”
Defendant filed a motion to reconsider the sentence, alleging the trial court gave too much
weight to deterrence and insufficient weight to factors in mitigation, including defendant’s
rehabilitative potential. The trial court denied the motion.
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¶ 28 This appealed followed.
¶ 29 II. ANALYSIS
¶ 30 Defendant challenges the trial court’s order on six grounds. First, he argues the
trial court erred in trying defendant in absentia, alleging the record does not show he heard and
understood the absentia warnings and, alternatively, he did not willfully absent himself from
trial. Second, he argues the trial court erred in twice restoring him to fitness based solely on
stipulations from the parties. Third, he argues the trial court erred in failing to conduct a hearing
inquiring into defendant’s fitness to stand trial after defendant was found unfit for sentencing.
Fourth, the trial court abused its discretion in sentencing defendant—specifically, the court
placed too little weight on defendant’s youth and rehabilitative potential and it considered a
factor inherent in the offense as an aggravating factor. Fifth, defendant argues he was denied his
sixth amendment right to the counsel of his choice. Sixth, he argues trial counsel rendered
ineffective assistance, specifically counsel failed to inform the court about defendant’s
whereabouts as part of the objection to trial in absentia. Taking each argument in turn, we
disagree and affirm the trial court’s order.
¶ 31 A. Trial in Absentia
¶ 32 Criminal defendants enjoy a “constitutional right to be present at all stages of
trial.” People v. Smith, 188 Ill. 2d 335, 340, 721 N.E.2d 553, 557 (1999) (citing U.S. Const.,
amend. VI; Ill. Const. 1970, art. 1, § 8). But the right to be present carries with it the concomitant
responsibility to attend all court proceedings, “ ‘especially where [the] [defendant] has been
released on bail.’ ” Smith, 188 Ill. 2d at 340 (quoting People v. Steenbergen, 31 Ill. 2d 615, 618,
203 N.E.2d 404, 406 (1964)). Accordingly, defendants who voluntarily absent themselves from
trial waive their constitutional right to be present. Smith, 188 Ill. 2d at 341. Though disfavored
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and therefore limited to circumscribed situations, trial courts may proceed with trials without
defendants present—trials in absentia. Illinois’s Code of Criminal Procedure of 1963 (Code)
codifies “the circumstances in which a trial in absentia may be conducted.” Smith, 188 Ill. 2d at
341. The Code first requires the trial court to admonish defendants that failure to appear at trial
could result in the trial proceeding in the defendants’ absence. 725 ILCS 5/113-4(e) (West 2016).
The Code next outlines the showing necessary for trial in absentia:
“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
2016).
Only when these two statutory requirements are met should a trial court proceed with trial
in absentia.
¶ 33 1. Absentia Admonishments
¶ 34 “[A] defendant in Illinois has a statutory right under section 113-4(e) of the Code
to be admonished as to the possible consequences of failing to appear in court when required.”
People v. Phillips, 242 Ill. 2d 189, 195, 950 N.E.2d 1126, 1130 (2011). Per the statute governing
pleas:
“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
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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 2016).
Written warnings on various forms, like bond slips, informing defendants they could be tried
in absentia for failing to appear cannot substitute for oral admonishments from the court. Indeed,
our supreme court previously explained “section 113-4(e) unambiguously requires the trial court
to admonish a defendant in open court.” Phillips, 242 Ill. 2d at 199. The Phillips court then went
on to hold that “reversible error occurs when the trial court fails to admonish a defendant as
required under section 113-4(e) at the time of his arraignment, or at a later court date that he is
present.” Phillips, 242 Ill. 2d at 201.
¶ 35 Defendant concedes he received section 113-4(e) admonishments at his
November 2, 2015, arraignment. He acknowledges he was in the courtroom when the trial court
gave an en masse admonishment, stating:
“If your case is set for trial and if you did not appear at
your trial, trial could proceed in your absence. You would then
give up your right to confront and cross-examine witnesses and
your right to testify. You could be found guilty. You could be
sentenced in your absence. Please make sure you understand when
you are required to be in court.
Thanks for your attention.”
Indeed, the record shows defendant was arraigned following this admonishment. Defendant does
not quibble with the en masse admonition, and rightly so. This court has approved of trial courts
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giving a one-time admonition of rights to a group of defendants assembled in the courtroom,
calling the general admonition “a useful tool in the expedition of judicial business.” People v.
Penermon, 108 Ill. App. 3d 73, 75, 438 N.E.2d 946, 947 (1982). Defendant argues “the trial
court failed to ensure that [he] heard the absentia admonitions or that he understood them.” But
he fails to direct us to an on-point case that says after giving en masse absentia admonishments
the trial court must address defendants individually to verify they understood those warnings.
While defendant cites Phillips to support his claim that “the court must also verify that the
defendant understands those rights and obligations,” the case does not state such a rule. The
Phillips court held a trial court must provide absentia admonishments in open court. In dicta, the
supreme court expressed its belief that oral absentia admonishments are preferable to written
warnings because they “provide[ ] the trial court with an opportunity to *** verify that [the
defendant] understands this important right and duty.” Phillips, 242 Ill. 2d at 200. But Phillips
does not address en masse absentia admonishments and does not require a court to follow up
with defendants individually to ensure they understand their right and obligation to be present.
Defendant also cites People v. Stevenson, 2020 IL App (4th) 180143, ¶ 17, 156 N.E.3d 1275, for
the proposition that a trial court must address defendants individually following an en masse
absentia admonishment. But, again, the Stevenson court did not impose such an obligation.
Stevenson did not address absentia admonishments, but, rather, it discussed the pitfalls of
en masse admonishments generally and gave examples of how trial courts might avoid those
pitfalls. Stevenson, 2020 IL App (4th) 180143, ¶ 17. Coupling the dicta from Phillips and
Stevenson leads us to conclude that while it is certainly best practice for trial courts to verify
individually if defendants understand the oral en masse absentia admonishments, such individual
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follow up is not required. The group admonishment is sufficient. See Penermon, 108 Ill. App. 3d
at 75.
¶ 36 Although defendant does not claim he did not hear or understand the absentia
warnings, he implies the trial court was burdened with the responsibility to ensure he did, so we
will address that question. Generally, if an ordinary person in the circumstances would
understand the information in an admonishment, then the trial court has properly admonished the
defendant. People v. Sutherland, 128 Ill. App. 3d 415, 419, 470 N.E.2d 1210, 1214 (1984).
“[T]he entire record may be considered in determining whether or not there was an
understanding by the accused of admonishments.” Sutherland, 128 Ill. App. 3d at 419. Our
review of the record indicates defendant heard and understood the trial in absentia
admonishment. The transcript shows no interruptions during the group admonishments and the
trial court thanked the defendants for their attention. During his arraignment, defendant showed
no difficulty in hearing, understanding, or communicating with the trial court, and he did not
seem to see the need to inquire of the court regarding the admonishments he had just heard.
Furthermore, defendant’s uncle submitted documents to the court, which became part of the
record, confirming defendant graduated high school and was an honor-roll student. We have no
doubt defendant heard and understood the court’s warning that failure to appear could result in
trial in absentia. Since the trial court gave the required statutory admonishment and there is no
indication in the record that defendant did not hear or understand it, we find no reversible error.
¶ 37 2. Willful Absence
¶ 38 Defendant also attacks the trial court’s decision to proceed with trial in absentia
or, alternatively, attacks the trial court’s decision dismissing his posttrial motion seeking a new
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trial, by arguing he rebutted the presumption that he willfully absented himself from trial with
evidence proving he was hospitalized during trial. We disagree.
¶ 39 “Willful absence is a prerequisite for trial in absentia.” Smith, 188 Ill. 2d at 342.
As we noted supra, the trial court may proceed with trial in absentia when “the State has
affirmatively proven through substantial evidence that the defendant is willfully avoiding trial.”
725 ILCS 5/115-4.1(a) (West 2016). The State makes “a prima facie case of a defendant’s
willful absence within the meaning of that statutory provision” when it shows “the defendant:
(1) was advised of the trial date; (2) was advised that failure to appear could result in trial
in absentia; and (3) did not appear for trial when the case was called.” Smith, 188 Ill. 2d at
342-43. Defendant does not challenge the State’s prima facie showing because the record
confirms defendant received notice of the trial date, he received the required absentia warnings,
and he did not appear for trial. Defendant, instead, contends he should have been granted a new
trial because, pursuant to the Code, he rebutted the State’s prima facie case when he
“establish[ed] that his failure to appear in court was both without his fault and due to
circumstances beyond his control.” (Emphases added.) 725 ILCS 5/115-4.1(e) (West 2016).
“The trial court’s denial of a new trial to a defendant convicted in absentia will not be reversed
unless a manifest abuse of discretion is shown.” People v. Reyna, 289 Ill. App. 3d 835, 838, 682
N.E.2d 1191, 1193 (1997).
¶ 40 Citing People v. Johnson, 293 Ill. App. 3d 915, 689 N.E.2d 179 (1997), defendant
contends that since he was hospitalized during the trial, he did not willfully absent himself from
the proceedings. Defendant directs our attention to the Johnson court’s observation that
“hospitalization, at least in the absence of a voluntary act like a suicide attempt, shows the
defendant’s absence [at trial] is not voluntary.” Johnson, 293 Ill. App. 3d at 919. The Johnson
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court ultimately held that the defendant’s hospitalization in a cardiac unit did not amount to a
voluntary absence from trial and reversed the trial court’s decision to proceed with a trial
in absentia. Johnson, 293 Ill. App. 3d at 920.
¶ 41 The record here does in fact confirm that defendant presented to Sarah Bush
Lincoln Hospital in Charleston, Illinois, at 1:30 p.m. on January 30, 2017—the exact date and
time his trial was scheduled to begin in Urbana. But unlike Johnson, the record does not show
defendant’s absence from trial was involuntary; or, in the words of the statute, the record does
not show “his failure to appear in court was both without his fault and due to circumstances
beyond his control.” 725 ILCS 5/115-4.1(e) (West 2016).
¶ 42 The convenient timing of defendant’s hospitalization did not escape the trial
court’s attention, and it does not escape ours. Defendant, an Urbana resident scheduled to appear
at the courthouse in Urbana, drove an hour to the ER at Sara Bush Lincoln Hospital in
Charleston, Illinois, for treatment of a drug relapse when he could have gone to an ER in
Champaign-Urbana. He presented to the hospital in Charleston just as trial commenced in
Urbana, causing the trial court to observe that “defendant’s admission to Sarah Bush Lincoln ***
was almost exactly the same minute that we started jury selection.” Though defendant claimed
he relapsed on methamphetamine, a toxicology screen was negative. The medical records report
defendant described his mood as good until he talked to his family on the phone. Only then did
he claim to be suicidal. His medical records reveal defendant was bright, friendly, laughing, and
joking when in the hospital and would only endorse suicidal ideation when hospital staff talked
to him about his legal problems or discharging him home. Similarly, the record shows defendant
would not cooperate with hospital staff’s efforts to help him contact someone about his ongoing
trial. He refused to sign releases and refused to make any phone calls related to his legal issues.
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Defendant’s behavior and comments led the hospital staff to question whether defendant was
malingering or using the hospitalization for “secondary gain.”
¶ 43 Based on this information from defendant’s medical records—which he presented
to prove that his hospitalization made his absence at trial involuntary—the trial court concluded
defendant did “not overcome the [S]tate’s prima facie case and [it found] defendant’s failure to
appear was willful.” We see no manifest abuse of discretion in these conclusions. See Reyna, 289
Ill. App. 3d at 838. It is in no way unreasonable or arbitrary to read these records and infer
defendant’s hospitalization was not only voluntary but a planned ruse to avoid trial. Defendant
traveled to another town and lied about relapsing on methamphetamine. Once confronted with
his lie, faced with discharge, and talking with family on the phone, defendant began endorsing
suicidal thoughts. Upon admission to the hospital, defendant refused to allow anyone to contact
the court, the state’s attorney, or his own defense counsel. Given these voluntary acts, and the
opinions from the hospital staff, we cannot say defendant was without fault for his absence or
that his absence was due to circumstances beyond his control. If anything, the medical records
show defendant controlled the circumstances to ensure he missed trial. The trial court, therefore,
did not manifestly abuse its discretion in denying defendant’s motion for a new trial. See Reyna,
289 Ill. App. 3d at 838.
¶ 44 B. Restoring Defendant to Fitness
¶ 45 Defendant argues the trial court erred in twice restoring him to fitness based
solely on stipulations from the parties. Defendant contends the trial court erroneously relied on
the stipulations rather than making a record or providing factual bases for its findings, thereby
abdicating its duty “to conduct a constitutionally acceptable fitness hearing.” We observe, as
does the State, that defendant failed to raise this issue during the fitness hearings or in his motion
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for a new trial. However, the plain-error doctrine allows us to review defendant’s claim because
“[f]itness for trial *** involves a fundamental right.” People v. Gipson, 2015 IL App (1st)
122451, ¶ 28, 34 N.E.3d 560.
¶ 46 “Due process bars the prosecution of a defendant who is unfit to stand trial.”
People v. Shaw, 2015 IL App (4th) 140106, ¶ 24, 44 N.E.3d 665. After a defendant undergoes a
fitness examination, the trial court must conduct a fitness hearing within 45 days of receiving the
examiner’s final report. Shaw, 2015 IL App (4th) 140106, ¶ 25 (quoting 725 ILCS 5/104-16(a)
(West 2012)). At the fitness hearing, the trial court must decide whether the defendant is fit to
stand trial or plead based on the evidence before it. 725 ILCS 5/104-16(d) (West 2016). Such
evidence may come in the form of stipulations from the parties. Indeed, the parties may stipulate
to the content of the examining expert’s testimony (i.e., he or she will testify in conformity with
the submitted report), but parties cannot stipulate to the examining expert’s conclusions (i.e., the
defendant is fit or unfit). People v. Cook, 2014 IL App (2d) 130545, ¶ 14, 25 N.E.3d 717.
Though stipulations are allowed, “[a] trial court’s determination of fitness may not be based
solely upon a stipulation to the existence of psychiatric conclusions or findings.” (Emphasis
added and internal quotation marks omitted.) Cook, 2014 IL App (2d) 130545, ¶ 14. A trial
court’s fitness determination comports with due process when it considers the parties stipulations
along with “ ‘the court’s review of a psychological report and the court’s own observations of the
defendant.’ ” Shaw, 2015 IL App (4th) 140106, ¶ 26 (quoting Gipson, 2015 IL App (1st) 122451,
¶ 30).
¶ 47 The trial court twice restored defendant to fitness following hearings on February
7, 2018, and October 13, 2018. At both hearings, the State and the defense stipulated that the
doctor who examined defendant was an expert and would testify consistently with his or her
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report. Neither party presented additional evidence. At the February 2018 hearing, the trial court
stated:
“By stipulation and agreement of the parties the Court will
consider the report dated January 31st, 2018, and authored by
Doctor Terrence Casey, psychiatrist, as if Doctor Casey had
testified in person here in court. Based upon the opinions, facts
summarized and conclusions of that report the Court finds that the
Defendant has been restored to fitness.”
The court made a similar statement on the record during the October 2018 hearing, stating:
“Then we will show based on the contents of the report and
the stipulation that the Court can consider the report dated August
29, 2018. The Court, considering the contents of the report as if the
author of the report were to testify in person to those findings and
recommendations, the Court finds that the Defendant has been
restored to fitness. Order for restoration of fitness signed and
entered.”
Defendant contends these statements show the trial court relied solely on the parties’ stipulations
when restoring defendant to fitness, which means the hearings did not comport with due process.
Defendant bases this argument on the following language found in Cook, the trial court “must
state on the record the factual basis for its [fitness] finding.” Cook, 2014 IL App (2d) 130545,
¶ 20. We see two problems with defendant’s argument, one legal and one factual.
¶ 48 Taking the legal problem first, we note Cook’s mandate that the trial court must
state a factual basis on the record for the fitness finding is not supported by authority. The Cook
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court wrote the statement in effort “to clarify what a court should do when presented with a
stipulation as to fitness.” (Emphasis added.) Cook, 2014 IL App (2d) 130545, ¶ 20. Curiously,
the Cook court transitioned from “should” to “must” in the course of three sentences. But more
importantly, the court provided no citation to authority (statutory or case law) as a basis for its
belief that trial courts must state on the record a factual basis for the finding. The statute
governing fitness hearings requires the trial court base its fitness determination on “the evidence
before it,” but it imposes no obligation for the court to state a factual basis on the record. 725
ILCS 5/104-16(d) (West 2016). Likewise, the statute governing 90-day hearings for reexamining
a defendant’s fitness does not require a trial court to state on the record a factual basis for the
fitness finding. See 725 ILCS 5/104-20 (West 2016).
¶ 49 Taking the factual problem second, we note the trial court entered lengthy docket
entries showing it considered evidence other than the parties’ stipulations each time it restored
defendant to fitness. At the February 2018 hearing, the trial court’s docket entry noted it “fully
considered all of the reports from Chester Mental Health Center/DHS, *** the Court’s
observations of the defendant in court, and all relevant evidence” in restoring defendant to
fitness. The court’s October 2018 docket entry outlined that the court “fully considered all the
reports of DHS, including expert opinions and bases for the opinions, the Court’s observations of
the defendant in court, and all relevant evidence” before restoring defendant to fitness. In sum,
these docket entries confirm the trial court did not restore defendant to fitness based solely on the
parties’ stipulation. Consequently, we find no constitutional deficiencies in these two fitness
hearings. We see the trial court’s fitness determination was based, at least in part, “ ‘on the
court’s review of a psychological report and the court’s own observations of the defendant,’ ”
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thereby satisfying due process. Shaw, 2015 IL App (4th) 140106, ¶ 26 (quoting Gipson, 2015 IL
App (1st) 122451, ¶ 30).
¶ 50 C. Retrospective Fitness Hearing
¶ 51 Defendant next contends that once the trial court learned he had been hospitalized
on a psychiatric ward during trial and was then found unfit for sentencing, the court should have
held a fitness hearing to retroactively determine if defendant was fit to stand trial. Put differently,
defendant believes his hospitalization and unfitness for sentencing provided a bona fide doubt he
was fit to stand trial. We observe, again, how defendant also forfeited this issue by failing to
raise it during trial, sentencing, or in the posttrial motion. But since a defendant’s fitness involves
due process, there is a “constitutional dimension” that allows us to address this issue “under the
‘plain error doctrine’ of Supreme Court Rule 615(a).” People v. Thomas, 246 Ill. App. 3d 708,
712, 616 N.E.2d 695, 697 (1993).
¶ 52 “The due process clause prohibits the prosecution of a defendant who is unfit to
stand trial.” People v. Westfall, 2018 IL App (4th) 150997, ¶ 52, 115 N.E.3d 1148. According to
the Code, “[a] defendant is unfit if, because of his mental or physical condition, he is unable to
understand the nature and purpose of the proceedings against him or to assist in his defense.” 725
ILCS 5/104-10 (West 2016). We presume a defendant is fit (Westfall, 2018 IL App (4th) 150997,
¶ 52), but the Code allows the court or any party to raise “[t]he issue of the defendant’s fitness
*** at any appropriate time before a plea is entered or before, during, or after trial.” 725 ILCS
5/104-11(a) (West 2016). In other words, when the court or a party believes a defendant may be
unfit, it should request further inquiry into defendant’s fitness.
¶ 53 “When a bona fide doubt of the defendant’s fitness is raised, the court shall order
a determination of the issue before proceeding further.” 725 ILCS 5/104-11(a) (West 2016). “A
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bona fide doubt exists when the facts raise a real, substantial, and legitimate doubt regarding a
defendant’s mental capacity to meaningfully participate in his defense.” Westfall, 2018 IL App
(4th) 150997, ¶ 54. There are three relevant factors for a court to consider when assessing
whether a bona fide doubt exists as to defendant’s fitness. They are: “(1) the defendant’s
behavior and demeanor, (2) prior medical opinions regarding the defendant’s competence, and
(3) defense counsel’s representations about the defendant’s competence.” Westfall, 2018 IL App
(4th) 150997, ¶ 54. If there is no bona fide doubt the defendant may be unfit, then no fitness
hearing is required. “Whether a bona fide doubt exists is an objective and fact-specific inquiry
left to the discretion of the trial court.” Westfall, 2018 IL App (4th) 150997, ¶ 54. We, therefore,
review the trial court’s bona fide-doubt determination for an abuse of that discretion. “A trial
court abuses its discretion when its ruling is arbitrary, fanciful, unreasonable, or when no
reasonable person would take the view adopted by the trial court.” Westfall, 2018 IL App (4th)
150997, ¶ 54.
¶ 54 Defendant alleges: “Under the circumstances of this case, there was a bona fide
doubt as to [defendant’s] fitness at the time of his trial, and a hearing should have been held to
determine if [he] had been fit at the time of his trial in absentia.” The circumstances of this case,
however, require that any hearing to determine defendant’s fitness to stand trial be retrospective
because defendant stopped appearing at hearings in October 2016, and no one (not the State, the
defense, or the trial court) knew conclusively where defendant was during the January 2017 trial,
so there could be no bona fide doubt as to his fitness before or during trial. Defendant directs our
attention to People v. Brown, 131 Ill. App. 3d 859, 864, 476 N.E.2d 469, 473 (1985), which
expressly allows for retrospective fitness hearings, providing: “[I]f facts become known to a trial
court subsequent to a defendant’s conviction on the issue of the defendant’s fitness to have stood
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trial, it is incumbent upon the trial court to exercise its discretion to determine whether there is a
bona fide doubt that the defendant was unfit to have stood trial.”
¶ 55 The facts that eventually became known to the trial court are these: defendant was
hospitalized on the psychiatric unit at Sarah Bush Lincoln Hospital from January 30, 2017, to
February 2, 2017; defendant appeared for the presentence interview on February 9, 2017;
defendant returned to court for sentencing on March 14, 2017, where he did not display any signs
of unfitness; defendant attacked a corrections officer in April 2017; and defendant underwent
psychological testing and was found unfit in May 2017. The question before us now is whether
these facts, considered as a whole, raised a real, substantial, legitimate doubt about defendant’s
fitness to stand trial in January 2017, requiring the trial court to hold a retrospective fitness
hearing. Taking Westfall’s three factors in turn, we answer no.
¶ 56 First, we consider defendant’s demeanor and behavior. Westfall, 2018 IL App
(4th) 150997, ¶ 54. Prior to trial in January 2017, defendant’s behavior did not suggest he lacked
the mental capacity to understand the proceedings against him or participate in his defense. The
same proved true immediately after trial, too. For example, defendant participated in the
presentence interview and provided information without any indication he did not understand his
situation. Similarly, when defendant appeared in court during March 2017, he displayed he
understood the proceedings because he knew he could request a different attorney like he did
pretrial. Not until several months after trial did defendant begin to display questionable, even
obstreperous, behavior that called into question his mental capacity. By contrast, defendant
demonstrated normal behavior and demeanor immediately before and after trial. And even
though he was hospitalized during trial, those records reveal defendant exhibited normal
behavior in the hospital.
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¶ 57 Second, we consider prior medical opinions regarding defendant’s competence.
Westfall, 2018 IL App (4th) 150997, ¶ 54. Defendant underwent two evaluations in summer
2017 and both doctors (Drs. Lo and Jeckel) opined defendant was unfit to stand trial at that time.
Nether commented on defendant’s fitness to stand trial in January 2017. Dr. Lo opined defendant
showed no sign of active mental illness at the time of the armed robbery offense on October 31,
2015. By contrast, Dr. Jeckel could not form an opinion as to defendant’s mental state at the time
of the offense. Defendant’s medical records from Sarah Bush Lincoln Hospital from January 30
to February 2, 2017, likewise, do not raise a legitimate doubt as to defendant’s mental capacity to
understand the proceedings or assist with his defense at that time. Multiple mental status
examinations revealed defendant had normal mood and affect, he was calm and cooperative, his
thought processes were linear and goal oriented, his thought content was normal (no mania or
psychosis), he displayed fair insight and judgment, and he was alert and oriented. Indeed, Dr.
Yost and the hospital staff questioned defendant’s motives for the hospitalization because he
only complained of suicidal thoughts when someone brought up his ongoing trial or discharging
him home. Otherwise, the medical records confirmed defendant displayed normal, appropriate
behavior while hospitalized. He seemed to understand exactly what he was doing.
¶ 58 Finally, we consider defense counsel’s representations about defendant’s
competence. Westfall, 2018 IL App (4th) 150997, ¶ 54. At a May 1, 2017, hearing, in requesting
the trial court to order a psychiatric evaluation of defendant, defense counsel said she “had
extreme difficulty in communicating with [defendant].” Counsel explained she did not want to
“proceed with the post-trial motion until I can effectively communicate with my client.”
Tellingly, the record does not show any of defendant’s past attorneys raised concerns about
defendant’s fitness prior to April 2017.
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¶ 59 Filtering these facts through Westfall’s three factors, we do not find the trial
court’s decision not to hold a retroactive fitness hearing to be unreasonable, arbitrary, or fanciful.
Westfall, 2018 IL App (4th) 150997, ¶ 54. The facts before the trial court did not raise a
bona fide doubt that defendant was unfit to stand trial from January 30, 2017, to February 2,
2017. The very medical records that established defendant was hospitalized during trial also
suggested he was feigning a drug relapse and suicidal ideations for the purpose of avoiding trial.
Moreover, defendant’s behavior and demeanor before and after trial did not indicate he lacked
the mental capacity to participate in his defense. Not until April 2017, months after trial, did
anyone question defendant’s fitness. We see no abuse of discretion in the trial court not holding a
retrospective fitness hearing.
¶ 60 D. No Abuse of Discretion in Sentencing
¶ 61 Defendant argues the trial court committed two sentencing errors that warrant
remand for resentencing. First, defendant contends the trial court abused its discretion in
imposing the 25-year sentence because it failed to fully consider defendant’s youth and
rehabilitative potential. Second, he contends the trial court erred in considering as a factor in
aggravation a factor inherent in the offense of armed robbery, namely compensation. We
disagree on both points.
¶ 62 Trial courts enjoy broad discretion in sentencing matters, and we afford those
sentencing decisions “great deference.” People v. Coleman, 166 Ill. 2d 247, 258, 652 N.E.2d
322, 327 (1995). Consequently, “[a] sentence within the statutory limits will not be disturbed
absent an abuse of discretion.” Coleman, 166 Ill. 2d at 258.
¶ 63 1. Abuse of Discretion in Sentencing
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¶ 64 Having been convicted of armed robbery while armed with a handgun (720 ILCS
5/18-2(a)(2) (West 2014)), defendant faced a possible sentence between 21 and 45 years. The
trial court ultimately imposed a sentence of 25 years in DOC followed by 3 years’ MSR.
Defendant’s sentence, therefore, falls within the statutory range and we will not disturb the trial
court’s decision absent an abuse of discretion.
¶ 65 Pulling from case law, defendant argues “an abuse of discretion may be found
even when a sentence is within the statutory limitations, particularly where the defendant is
young and has rehabilitative potential.” People v. Margentina, 261 Ill. App. 3d 247, 249, 634
N.E.2d 29, 31 (1994). Defendant cites a line of cases discussing how young people are immature
and tend to act impulsively or recklessly and how young people have greater rehabilitative
potential. Defendant reasons these cases instruct that a young defendant’s age should result in a
lesser sentence. But the cases he cites involve crimes committed by juveniles who received
sentences ranging from life without parole to de facto life sentences or death sentences. See
Miller v. Alabama, 567 U.S. 460, 471-72 (2012); Graham v. Florida, 560 U.S. 48, 68-69 (2010);
Roper v. Simmons, 543 U.S. 551, 574 (2005); People v. Reyes, 2016 IL 119271, ¶ 9, 63 N.E.3d
884. We acknowledge the helpful discussions of youth in these cases, but we find them
unpersuasive here. First, those cases addressed defendants who committed their offenses when
they were juveniles, which is not the case here. Defendant was an adult, albeit a young adult,
when he committed the instant offense. Second, those cases involved defendants getting the
maximum sentences allowed under law, which, again, does not compare to this case where
defendant received a sentence (25 years) near the minimum sentence possible (21 years).
¶ 66 Highlighting the specific facts of his case, defendant notes he was only 18 years
old when he committed this offense and showed rehabilitative potential. He points out he
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graduated from high school and began training to be a certified emergency medical technician
and volunteer firefighter. Defendant further noted he had no prior criminal history. But the trial
court noted most of these facts during sentencing. It referenced how unusual it was for a person
of defendant’s age, with his rough upbringing, to have no prior criminal history. The trial court
even commended defendant for staying out of trouble during his childhood. However, as is clear
from the transcript, the trial court found the need to deter other young males from serious gun
violence outweighed the defendant’s own youth or rehabilitative potential, which is not an abuse
of discretion. See Coleman, 166 Ill. 2d at 261 (“A defendant’s rehabilitative potential *** is not
entitled to greater weight than the seriousness of the offense.”). We will not “reweigh the factors
involved in [the trial court’s] sentencing decision.” Coleman, 166 Ill. 2d at 262.
¶ 67 We find no abuse of discretion in the trial court’s decision sentencing defendant
to 25 years in DOC. The trial court properly considered defendant’s youth and rehabilitative
potential under the circumstances of this particular case.
¶ 68 2. Improper Aggravating Factor
¶ 69 Defendant next contends the trial court committed another sentencing error by
considering conduct inherent in the offense of armed robbery (receiving compensation) as an
aggravating factor. Defendant acknowledges he neither objected to this issue during sentencing,
nor did he raise this issue in the posttrial motion. He, therefore, invokes the plain-error doctrine.
“[T]o warrant plain-error review, an error at sentencing must be ‘sufficiently grave that it
deprived the defendant of a fair sentencing hearing.’ ” People v. Scott, 2015 IL App (4th)
130222, ¶ 52, 25 N.E.3d 1257 (quoting People v. Ahlers, 402 Ill. App. 3d 726, 734, 931 N.E.2d
1249, 1256 (2010)). We find the trial court committed no error, let alone plain error.
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¶ 70 “The Unified Code of Corrections *** (730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2014))
sets forth mitigating and aggravating factors that the trial court must consider when determining
an appropriate sentence.” People v. Hibbler, 2019 IL App (4th) 160897, ¶ 65, 129 N.E.3d 755.
One such statutory aggravating factor is that “the defendant received compensation for
committing the offense.” 730 ILCS 5/5-5-3.2(a)(2) (West 2014). While “[a] circuit court has
wide latitude in both determining and weighing factors in mitigation and aggravation when
exercising its discretion and imposing sentence” (People v. Solis, 2019 IL App (4th) 170084,
¶ 23, 138 N.E.3d 247), the “court should not consider as an aggravating factor an element that is
inherent in the crime for which the defendant is being sentenced.” People v. O’Toole, 226 Ill.
App. 3d 974, 992, 590 N.E.2d 950, 962 (1992) (citing People v. Saldivar, 113 Ill. 2d 256, 269,
497 N.E.2d 1138, 1143 (1986)). Because a “strong presumption exists the circuit court based its
sentencing determination on proper legal reasoning” (Solis, 2019 IL App (4th) 170084, ¶ 26),
“[t]he defendant bears the burden to affirmatively establish that the sentence was based on an
improper factor.” Hibbler, 2019 IL App (4th) 160897, ¶ 65. “Whether the circuit court relied on
an improper factor in imposing the defendant’s sentence presents a question of law, which we
review de novo.” Solis, 2019 IL App (4th) 170084, ¶ 26.
¶ 71 Defendant fails to cite a single case that expressly holds compensation is an
inherent factor in the offense of armed robbery and, therefore, cannot be used as an aggravating
factor. He cites, instead, People v. Conover, 84 Ill. 2d 400, 405, 419 N.E.2d 906, 909 (1981),
which addressed burglary and theft, where our supreme court said: “[W]e believe receiving
compensation for committing the offense under the statute applies only to a defendant who
receives remuneration, other than proceeds from the offense itself, to commit a crime.”
(Emphasis added.) Simply put, the Conover court held the aggravating factor of compensation
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should be applied in a burglary or theft case or any case “where proceeds may be taken” only if
the defendant was paid to commit the offense. Conover, 84 Ill. 2d at 405. If the defendant was
not paid to commit the burglary, theft, or a crime where proceeds are taken, like robbery, then
using compensation as an aggravating factor is inappropriate. Regardless of whether or not the
proceeds of an armed robbery are compensation, they are still proceeds of the armed robbery and
not properly considered an aggravating factor.
¶ 72 In arguing the trial court improperly considered that he received compensation for
the robbery, i.e., the proceeds from the robbery, defendant highlights the State’s argument at
sentencing, where the State claimed: “He did this for $20 ***. *** He’s here ‘cause he took a
loaded gun down the street and pointed it at a man for no reason, for $20, that’s why he’s here.”
Defendant reasons the trial court must have heeded the State’s argument because, when
discussing statutory factors in aggravation, the court said:
“He received compensation. That’s the whole point of an armed
robbery. Although from my recollection of the testimony, the
compensation that he received was groceries, which he promptly
discarded.”
The record, therefore, conclusively shows the trial court briefly mentioned compensation within
the context of proceeds of the armed robbery when discussing aggravating factors; however,
merely mentioning an inherent factor does not amount to reversible error. To be sure, “a
sentencing court need not unrealistically avoid any mention of such inherent factors, treating
them as if they did not exist.” O’Toole, 226 Ill. App. 3d at 992. Rather, a trial court errs by
affording the inherent factor significant weight where a reviewing court can determine the trial
court relied on the inherent factor or based the sentence on that factor. See Solis, 2019 IL App
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(4th) 170084, ¶ 26 (stating a defendant must “establish[ ] his or her sentence was based on
improper considerations” (Emphasis added.)); People v. Bourke, 96 Ill. 2d 327, 332, 449 N.E.2d
1338, 1340 (1983) (“[W]here it can be determined from the record that the weight placed on the
improperly considered aggravating factor was so insignificant that it did not lead to a greater
sentence, remandment is not required.”). This record does not indicate the trial court placed any
weight on the fact that defendant received compensation—a pizza—from the robbery. Once the
court mentioned compensation within the context of its discussion of aggravating factors, it
immediately acknowledged it is implicit in armed robbery. More importantly, the trial court
diminished the compensation defendant received, saying it “was groceries, which [defendant]
promptly discarded.” By contrast, the court emphasized deterrence as a factor in aggravation—
“the sentence is necessary to deter others from committing the same crime.” 730 ILCS 5/5-5-
3.2(a)(7) (West 2014). The court stated:
“Some sentence is necessary for a deterrent effect and, as
*** both [parties] acknowledge, gun violence has become an
outrageous problem in this community and something needs to be
done to tell particularly young males that gun violence will not be
tolerated. I believe [defendant’s] family has suffered as a result of
the gun violence in this community.”
When rendering the sentence, the court said again, “considering all of the factors in aggravation,
particularly the deterrent effect, I believe a sentence of 25 years is the most appropriate sentence
in this case.” (Emphasis added.) Based on the record, we find the trial court simply mentioned
compensation and did not give it any weight in determining an appropriate sentence. Since
defendant failed to “affirmatively establish that [his] sentence was based on an improper factor”
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(Hibbler, 2019 IL App (4th) 160897, ¶ 65), he did not rebut the “strong presumption” that the
trial court’s sentencing decision rests on “proper legal reasoning.” Solis, 2019 IL App (4th)
170084, ¶ 26. We hold the trial court committed no sentencing errors here.
¶ 73 E. Sixth Amendment: Right to Counsel of Choice
¶ 74 Next, defendant argues he was denied his sixth amendment right to the attorney of
his choice. According to defendant, attorney Harvey Welch entered his appearance and
represented defendant at trial even though no one—neither defendant nor defendant’s family—
hired him. Again, we disagree.
¶ 75 The sixth amendment provides criminal defendants the right to counsel. United
States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). This right to counsel includes “the right of a
defendant who does not require appointed counsel to choose who will represent him.” Gonzalez-
Lopez, 548 U.S. at 144; see also People v. Baez, 241 Ill. 2d 44, 104-05, 946 N.E.2d 359, 395
(2011). Defendants can choose their counsel by either “positive action or by acquiescence.”
People v. Herrera, 96 Ill. App. 3d 851, 855, 422 N.E.2d 95, 98 (1981). Courts generally hold a
defendant “exercised [the] right [to counsel of choice] when he appears in court with an
attorney[ ] and treats the attorney as his retained counsel.” (Emphases added.) Herrera, 96 Ill.
App. 3d at 855. Indeed, “[w]hen a privately retained counsel appears in court for a defendant”
there arises a rebuttable presumption the defendant authorized counsel to appear and is the
defendant’s attorney of choice. Herrera, 96 Ill. App. 3d at 855; see also Lydon v. Eagle Food
Centers, Inc., 297 Ill. App. 3d 90, 93-94, 696 N.E.2d 1211, 1214 (1998).
¶ 76 Our supreme court has held: “Violations of the right to counsel of choice are
structural errors,” meaning defendants need not show they were prejudiced by the violations.
Baez, 241 Ill. 2d at 105; see also Gonzalez-Lopez, 548 U.S. at 150 (stating “erroneous
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deprivation of the right to counsel of choice, *** unquestionably qualifies as structural error”
(Internal quotation marks omitted.)). We review de novo a defendant’s claim that he was denied
his sixth amendment right to retained counsel of his choice. See People v. Hale, 2013 IL 113140,
¶ 15, 996 N.E.2d 607.
¶ 77 The record shows Harvey Welch entered his appearance on October 11, 2016, by
filing a “Substitution of Attorney” containing defendant’s signature. He filed a bond assignment
on October 7, 2016, providing for payment out of defendant’s bail bond. That also bore the
apparent signature of defendant. Welch later testified defendant’s uncle, Benny Smith, hired him
and signed the substitution form on defendant’s behalf because Smith said defendant was
working at the time. It is reasonable to conclude that Benny also signed defendant’s name on the
October 7, 2016, bond assignment. Smith informed Welch that it “was [defendant’s] desire to
change counsel” and move on from the public defender. Welch testified that he maintained
“frequent contact” with defendant’s uncle, Benny Smith, before and during trial. Defendant,
however, had disappeared and had no contact with Welch or the court until March 14, 2017,
when he reappeared for sentencing. At that sentencing hearing, when the trial called defendant’s
name and case number, defendant answered, “Yes, sir.” The trial court directed defendant, “Do
you want to come up here and join your attorney, sir?” Defendant sat next to Welch at counsel’s
table during the hearing and began to leave with the sheriff after the court granted the State’s
request that he be taken into custody. Defendant did not raise any objection to Welch as his
attorney during this brief hearing. Only when Benny Smith interrupted the proceedings and said
defendant never hired Welch and claimed Welch stole money from the family did defendant
claim that Welch was not his attorney.
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¶ 78 The trial court also recounted its perspective of these events during the hearing on
defendant’s posttrial motion. The court described the March 14, 2017, hearing in minute detail. It
noted how defendant sat next to Welch at counsel’s table. The court observed defendant “did not
question who Mr. Welch was” and “[h]e didn’t say anything about him or object to his
appearance at that time.” The trial court then recounted how it heard arguments from the parties
and eventually granted Welch’s request for a continuance on the posttrial motion and sentencing.
The court even documented on the record the parties’ discussion of possible dates for the next
hearing. The trial court stated defendant followed its order “to go with the deputy” and
“[defendant] was heading towards the door to the holding cell with the deputy when” Benny
Smith interrupted the proceedings and began making claims about Welch. The trial court
observed, “That’s the very first time during that proceeding when the defendant personally made
any suggestion that Mr. Welch was not his attorney and it came only after the uncle, who
apparently orchestrated the trip to Sarah Bush Lincoln [Hospital] in Charleston, had started to
make comments to the effect that Mr. Welch was never hired by the defendant.” In finding
defendant exercised his right to counsel of choice and denying defendant’s posttrial motion, the
trial court later stated: “The defendant at no time objected to Mr. Welch’s appearance until after
the trial was over and he initially appeared—and, when he initially appeared, he seemed to
acquiesce in Mr. Welch’s continued representation until his uncle started to interject suggestions
that the defendant had not actually hired him.”
¶ 79 Though brief, we find defendant acquiesced to (and even ratified) Welch’s
representation by appearing with him at the sentencing hearing and treating Welch as his
attorney during that hearing. See Herrera, 96 Ill. App. 3d at 855; see also People v. Assenato,
257 Ill. App. 3d 1026, 1029, 629 N.E.2d 166, 169 (1994) (“Where a defendant does not object to
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his counsel’s representation, he is deemed to have acquiesced in that representation,” and “ ‘is
deemed to constitute a ratification of defendant’s employment of that attorney and the exercise of
his right to counsel of his choice.’ ”) (quoting People v. Smalley, 178 Ill. App. 3d 314, 318, 533
N.E.2d 428, 431 (1988)). Alternatively, we find defendant authorized his uncle to hire Welch.
The record shows Benny Smith tried several times to act on defendant’s behalf, attempting to
submit documents for defendant and obtain a guardianship over him. The record further shows
defendant lived with Smith. We find credible Welch’s testimony that Benny hired him with
defendant’s approval.
¶ 80 F. Ineffective Assistance of Counsel
¶ 81 Finally, defendant argues attorney Welch rendered ineffective assistance when
opposing and objecting to the trial in absentia because “Welch knew [defendant] was in the
psychiatric ward of the hospital on the day of trial but failed to notify the trial court.”
¶ 82 The sixth amendment to the United States constitution guarantees criminal
defendants the right to counsel and mandates “ ‘the right to counsel is the right to the effective
assistance of counsel.’ ” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann
v. Richardson, 397 U.S. 759, 771 n. 14 (1970)); U.S. Const., amends. VI, XIV. When presented
with a defendant’s ineffective-assistance-of-counsel claim, we apply the well-established,
two-part Strickland test. The defendant must prove (1) counsel rendered deficient performance,
meaning counsel’s representation fell below an objective standard of reasonableness as gauged
by prevailing professional norms and (2) counsel’s deficient performance prejudiced the
defendant, i.e., but for counsel’s errors the result of the proceeding would have been different.
See People v. Young, 341 Ill. App. 3d 379, 383, 792 N.E.2d 468, 472 (2003) (citing Strickland,
466 U.S. at 687); People v. Peck, 2017 IL App (4th) 160410, ¶ 26, 79 N.E.3d 232. If a defendant
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fails to prove deficient performance, the court need not consider the prejudice prong, and vice
versa. People v. Torres, 228 Ill. 2d 382, 395, 888 N.E.2d 91, 100 (2008); People v. Graham, 206
Ill. 2d 465, 476, 795 N.E.2d 231, 238 (2003).
¶ 83 Defendant believes Welch’s failure to oppose the trial in absentia by informing
the court of defendant’s hospitalization amounts to ineffective assistance because Welch
abdicated his “ ‘overarching duty to advocate the defendant’s cause’ and ‘[his] duty to bring to
bear such skill and knowledge as will render the trial a reliable adversarial testing process.’ ”
People v. Jackson, 318 Ill. App. 3d 321, 326, 741 N.E.2d 1026, 1030 (2000) (quoting Strickland,
466 U.S. at 688). In terms of the two-part Strickland test, defendant reasons Welch’s decision not
to tell the court that defendant was hospitalized was objectively unreasonable and, therefore,
deficient performance. Likewise, defendant claims the deficient performance prejudiced him
because, had Welch informed the court of defendant’s whereabouts, he would not have been
tried in absentia. We disagree.
¶ 84 The record shows Welch was unsure of defendant’s whereabouts before and
during trial. Welch testified he was unable to meet with defendant before trial. When asked if
defendant’s uncle told Welch why defendant had not met with him or appeared at hearings,
Welch responded: “I was told, I think, he was in several different places.” Welch testified Benny
Smith eventually told him defendant was hospitalized and he attempted to confirm that
information by calling hospitals. Welch testified he “made several calls to hospitals trying to
locate [defendant]” and even called Sarah Bush Lincoln Hospital, but he “could not locate
[defendant].” Coupled with defendant’s refusal to permit hospital staff to contact his lawyer for
him or give them authority to acknowledge his presence when Welch called, defendant’s
argument borders on the disingenuous and warrants as much credence as his claim he was absent
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from trial involuntarily due to his hospitalization. In light of these facts, we cannot endorse
defendant’s claim that “Welch knew [defendant] was in the psychiatric ward of the hospital on
the day of trial.” (Emphasis added).
¶ 85 Contrary to defendant’s claim, “[t]he proper measure of an attorney’s
performance is not what is in the best interest of his client but what a reasonable attorney would
do under the circumstances.” People v. Leuze, 282 Ill. App. 3d 126, 128, 668 N.E.2d 232, 234
(1996). Our analysis of “[w]hat a reasonable attorney would do is guided by, among other things,
the Rules of Professional Conduct.” Leuze, 282 Ill. App. 3d at 128. Rule 3.3 of the Illinois Rules
of Professional Conduct of 2010 (Ill. R. Prof’l Conduct (2010) R. 3.3(a)(1)(eff. Jan. 1, 2010))
commands that attorneys owe a duty of candor to the court, meaning they cannot make a false
statement or present evidence they know to be false. In light of this duty, we cannot fault Welch
for not relaying speculative information to the court. At best, Welch knew Benny was telling him
that defendant was hospitalized but without specifying where defendant had been admitted. Even
if Welch had a hunch where defendant was, we do not think it objectively unreasonable for him
to try and verify that hunch before revealing it to the trial court, especially given his duty of
candor. The record confirms Welch twice objected to proceeding with the trial in absentia,
though at neither time did he offer an explanation of defendant’s location. But Welch could not
tell the court something he did not know to be true. Because Welch could not conclusively
confirm defendant’s whereabouts and possessed only unverified information, we cannot
conclude he provided deficient performance—his conduct did not fall below an objective
standard of reasonableness based on prevailing professional norms, i.e., the Rules of Professional
Conduct. Since we find no deficient performance, we need not consider Strickland’s prejudice
prong. Torres, 228 Ill. 2d at 395.
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¶ 86 III. CONCLUSION
¶ 87 For the reasons stated, we affirm the trial court’s judgment.
¶ 88 Affirmed.
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