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SECOND DIVISION
May 20, 2003

No. 1-98-3931

The ultimate issue we reach in this case is this: may a defendant tried in absentia obtain areview of his conviction and sentence under section 115-4.1(g) of the Code of CriminalProcedure of 1963 (the Code) (725 ILCS 5/115-4.1(g) (West 2000)) even though he has failed toestablish that his absence from trial was without fault and due to circumstances beyond hiscontrol? We conclude the answer may be "yes," but only if the record on appeal establishes thatthe trial conducted in the defendant's absence violated principles of fundamental fairness and dueprocess under the cause and prejudice test adopted by our supreme court. See generally People v.Jackson, No. 88474 (December 20, 2001); People v. Simpson, Nos. 85084, 86926 cons.(September 27, 2001); People v. Jimerson, 166 Ill. 2d 211, 652 N.E.2d 278 (1995). We concludethat defendant here failed to establish that his trial violated fundamental fairness and due processand, accordingly, affirm the conviction and sentence. On our way to this conclusion, we reject anargument raised by the State that section 115-4.1(g) of the Code is unconstitutional, as anencroachment on the rule-making powers of our supreme court, or in the alternative, thatdefendant cannot ask for review of his conviction or sentence without first establishing that hisabsence from trial was without fault and due to circumstances beyond his control.

Defendant was charged with theft by deception in February 1997. A jury was selected onJune 18, 1997. Defendant was told by the trial court judge that he was required to appear in courtwhen his case was on trial. Defendant was also told that he could be tried and sentenced in hisabsence should he choose not to attend. The jury trial began on June 19. Defendant failed toappear. All attempts to find or contact defendant failed. The trial court then found thatdefendant's absence was willful. Defendant was tried in absentia under section 115-4.1(a) of theCode (725 ILCS 5/115-4.1(a) (West 2000)). The jury returned a guilty verdict on June 19, 1997. The court then issued a bond forfeiture warrant and continued the case until July 21, 1997, forsentencing. A posttrial motion filed on defendant's behalf was argued and denied on July 21. Defendant did not appear. He was then sentenced in absentia to 10 years in prison. Defendantnever filed a notice of appeal from his conviction or sentence.

Defendant was arrested 11 months later, on June 23, 1998. He filed a posttrial motion onSeptember 8, 1998, asking for a new trial or, alternatively, a new sentencing hearing undersection 115-4.1(e) of the Code (725 ILCS 5/115-4.1(e) (West 2000)). Defendant alleged that hisabsence was not willful but that he feared being wrongfully convicted. Defendant also arguedthat his sentence was excessive. The trial court denied defendant's posttrial motion after ahearing on September 9, 1998. The court said:

"[Defendant] is well, well beyond the 30 days from the date of convictionfrom which to file post trial motions. The only issue at this juncture is whetherthe defendant's failure to appear in trial was due to circumstances beyond hiscontrol.

It appears what you're trying to do in this motion entitled post trial motionis bootstrap post trial motion issues that might have been valid had they been filedin a timely manner.

Sentencing issues are also not before this Court because he only had 30days within which to file a motion to reconsider his sentence. So those are notvalidly before this court.

The only issue which I will consider in your post trial motion is whetherthe defendant's failure to appear for trial was due to circumstances beyond hiscontrol. And I would submit that in the motion the allegation that he did notappear due to fear of being wrongfully convicted. He's admitting that he willfullyabsented himself and his failure to appear was indeed not due to circumstancesbeyond his control."

Defendant filed a notice of appeal on September 29, 1998. The notice sought review ofthe several orders dating from June 19, 1997, through September 9, 1998. Defendant's notice ofappeal based jurisdiction on both Supreme Court Rule 603 (134 Ill. 2d R. 603) and section 115-4.1(g) of the Code (725 ILCS 5/115-4.1(g) (West 2000)). Sections 115-4.1(e) and (g) read:

"(e) When a defendant who in his absence has been either convicted orsentenced or both convicted and sentenced appears before the court, he must begranted a new trial or new sentencing hearing if the defendant can establish thathis failure to appear in court was both without his fault and due to circumstancesbeyond his control. A hearing with notice to the State's Attorney on thedefendant's request for a new trial or a new sentencing hearing must be heldbefore any such request may be granted. At any such hearing both the defendantand the State may present evidence.

***

(g) A defendant whose motion under paragraph (e) for a new trial or newsentencing hearing has been denied may file a notice of appeal therefrom. Suchnotice may also include a request for review of the judgment and sentence notvacated by the trial court." 725 ILCS 5/115-4.1(e), (g) (West 2000).

The State filed a motion to dismiss, challenging defendant's claim that section 115-4.1(e)vests us with appellate jurisdiction. We took the motion with the case. The State argues thatsection 115-4.1(g) is unconstitutional or, alternatively, that section 115-4.1(g) does not apply tothis case. The State also notes the absence of a timely notice of appeal under Supreme CourtRule 606 (134 Ill. 2d R. 606).

The State's constitutional argument suggests that section 115-4.1(g) supplants the directappeal requirements set out in Rule 606 and creates appellate jurisdiction where none wouldotherwise exist. The State concludes that this legislative encroachment violates the separation ofpowers doctrine. We disagree.

The interplay between Rule 606 and section 115-4.1(g) was analyzed by our supremecourt in People v. Partee, 125 Ill. 2d 24, 530 N.E.2d 460 (1988). The issue in Partee was whethera defendant convicted in absentia could file a timely direct appeal of his conviction without firstfiling a motion under section 115-4.1(e) to establish that his absence was not willful. Partee, 125Ill. 2d at 28. The defendant in Partee was convicted and sentenced in absentia. A timely noticeof appeal was filed on the defendant's behalf. Partee, 125 Ill. 2d at 28. The State moved todismiss for lack of jurisdiction.

The State in Partee interpreted section 115-4.1(e) motions as a prerequisite to an appealof a judgment in absentia and argued that, until a defendant prevailed in a section 115-4.1(e)hearing, a conviction and sentence in absentia are not final and appealable under subsection (g). Partee, 125 Ill. 2d at 28. Our supreme court rejected this argument and found no language in thein absentia statute that deprives the appellate court of jurisdiction over an absent defendant'stimely direct appeal of his sentence and conviction. Partee, 125 Ill. 2d at 30. In finding that aconviction and sentence in absentia are immediately final and appealable under Rule 606, thePartee court noted that even a willfully absent defendant "retains some of the procedural rights ofa present defendant." Partee, 125 Ill. 2d at 31. See, e.g., 725 ILCS 5/115-4.1(a) (West 2000)("All procedural rights guaranteed by the United States Constitution, Constitution of the State ofIllinois, statutes of the State of Illinois, and rules of court shall apply to the proceedings the sameas if the defendant were present *** ").

The Partee court then set out an additional reason for rejecting the State's interpretation: asection 115-4.1(e) motion to vacate the underlying judgment and a sentence in absentia are notpart of the same case. Partee, 125 Ill. 2d at 35. Instead, a section 115-4.1(e) motion is

"more akin to a collateral attack upon a final judgment than it is to a proceduralstep in the direct appeal of that judgment. In other words, a section 115-4.1(e)motion is analogous to an action for post-judgment relief under section 2-1401 ofthe Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401) or an action forpost-conviction relief under section 122-1 of the Code of Criminal Procedure (Ill.Rev. Stat. 1987, ch. 38, par. 122-1 et seq.)" (Emphasis added.) Partee, 125 Ill. 2dat 35.

The availability or pendency of a direct appeal does not affect the ripeness of a claim forpostconviction or postjudgment relief. Partee, 125 Ill. 2d at 35. A trial court may hear a section115-4.1(e) motion without affecting the appellate court's jurisdiction over a timely filed directappeal of an in absentia judgment. Partee, 125 Ill. 2d at 36.

The Partee court also noted that the State's interpretation of section 115-4.1(e) wouldplace defendants in an "intolerable dilemma." Partee, 125 Ill. 2d at 31. A willfully absentdefendant who wishes to challenge the fairness of his in absentia conviction for reasonsunrelated to his absence would be prevented from doing so until he moved for a new trial undersection 115-4.1(e) in which he made the unwarranted allegation that his absence was not willful. Partee, 125 Ill. 2d at 31.

Despite the procedural difference between Partee and the case before us (theconscientious trial lawyer in Partee filed a timely postjudgment motion and notice of appeal eventhough his client had vanished), the supreme court's analysis is our best guide to resolve theissues in this case.

As in Partee, the State's argument here that the legislature created a loophole throughwhich appellate jurisdiction is improperly vested implies that a motion under section 115-4.1(g)is a continuation of the in absentia proceedings. But Partee makes clear that an absent defendantretains the same constitutional rights and guarantees afforded a present defendant, including afair trial free from procedural defects. Section 115-4.1(g) is the means by which an absentdefendant may collaterally attack an in absentia judgment he believes is fundamentally unfair. Contrary to the State's claim, there is no legislative encroachment or conflict with Rule 606 giventhe collateral nature of a section 115-4.1(g) motion. People v. Williams, 274 Ill. App. 3d 793,655 N.E.2d 470 (1995), reached a similar conclusion. But Williams presents us with anotherissue.

The defendant in Williams was convicted and sentenced in absentia. Williams, 274 Ill.App. 3d at 794-95. The defendant filed a motion under section 115-4.1(e) to vacate the inabsentia judgment nine years after he was sentenced. Williams, 274 Ill. App. 3d at 795. Themotion was denied and the defendant appealed. The denial was affirmed on appeal in anunpublished order but the court later allowed a petition for rehearing. Williams, 274 Ill. App. 3dat 795. The Williams court found that the notice of appeal was sufficient to request review of thejudgment and sentence under section 115-4.1(g) of the Code. The defendant had raised issuesrelating to his conviction and sentence, but not to the trial court's finding that the defendant'sabsence was his own fault. Williams, 274 Ill. App. 3d at 795.

The Williams court then considered whether section 115-4.1(g), which allows review ofthe in absentia conviction and sentence, conflicted with Rule 606, which governs direct appeals. Williams, 274 Ill. App. 3d at 796. In finding that no conflict exists, the Williams court followedthe Partee reasoning that an appeal under section 115-4.1(g) is a collateral proceeding that isindependent of and has no effect on a direct appeal under Rule 606. Williams, 274 Ill. App. 3d at797-98. But Williams took one step further and referred to an appeal under section 115-4.1(g)as a "general review." Williams, 274 Ill. App. 3d at 798. The court noted that a "general review"created some tension between our supreme court and the legislature, but concluded that, becausereview under section 115-4.1(g) was a "matter of procedure," the conflict was only indirect. Thecourt did not elaborate on this statement. Williams, 274 Ill. App. 3d at 798-99. The court thenaddressed the merits of the appeal. Williams, 274 Ill. App. 3d at 799.

Defendant cites Williams as support for what he now seeks: the functional equivalent of aRule 606 direct appeal under section 115-4.1(g). The State urges us to reject Williams.Defendant's and the State's readings are based on an assumption that Williams compels theappellate court to reach the merits of every appeal under section 115-4.1(g). We do not believeWilliams stands for such a broad proposition. First, a timely direct notice of appeal may be filedon a fugitive defendant's behalf (Partee, 125 Ill. 2d at 31), and there is authority for theproposition that such an appeal may be briefed, alleged trial errors addressed, and a resolutionreached. But the appellate court retains discretion not to grant relief if the defendant remains afugitive. See People v. Estep, 413 Ill. 437, 109 N.E.2d 762 (1952). So, too, under section 115-4.1(g) a returned fugitive may "request" an appeal, but we do not believe that the appellate courtmust entertain it unless issues of fundamental fairness and due process are apparent.

A better reading, we believe, and one more in line with Partee, is that an appeal undersection 115-4.1(g) that raises issues of fundamental fairness and due process overrides the waiveranalysis usually applied to defendants who fail to file a timely notice of appeal. This principlereconciles the Partee rationale, that a section 115-4.1(g) appeal is a collateral proceedingdesigned to protect "procedural" rights of absent defendants, with the result in Williams. Ananalysis of Williams shows that two of the issues raised on appeal in that case related to thedefendant's fitness to stand trial and the lack of a proper admonishment that the defendant couldbe tried in absentia. Williams, 274 Ill. App. 3d at 795. These are alleged procedural errors in theunderlying proceeding which, under Partee, are not forfeited by the absent defendant.

Were we to read Williams broadly, as mandating review of all trial issues that could beraised under a timely direct appeal, we would in effect be granting a fugitive defendant greaterprotection than we allow a defendant under the Post-Conviction Hearing Act (the Act) (725 ILCS5/122-1 et seq. (West 2000)). A defendant seeking relief under the Act must show thatsubstantial violations of his constitutional rights occurred at trial that could not have been raisedon direct appeal. 725 ILCS 5/122-1(a) (West 2000); People v. Smith, 195 Ill. 2d 179, 745N.E.2d 1194 (2000). A postconviction petition is also subject to time limits (725 ILCS 5/122-1(c) (West 2000)). Here defendant is arguing for an unfettered right to raise all alleged errors attrial whenever he is arrested on a fugitive warrant or when he chooses to resurface and arguethem. To the extent that Williams may be read to support this position, we choose not to followit.

We read section 115-4.1(g) as investing the appellate court with a certain amount ofdiscretion: "Such notice may also include a request for review of the judgment and sentence notvacated by the trial court." (Emphasis added.) 725 ILCS 5/115-4.1(g) (West 2000). Thelanguage does not compel the appellate court to undertake such a review unless, as we readPartee, the defendant raises procedural issues that implicate fundamental fairness and dueprocess. We recognize, as the dissent points out, that Williams did not require a fundamentalfairness analysis to reach the substantive issues. We recognize that Williams was relevantauthority at the time this appeal was filed. For that reason, and to address one of the concerns ofthe opinion, we will address each of the substantive issues.

Defendant's challenge to the admission of other crimes evidence is unsupported by therecord. Defendant did not file a motion in limine to bar evidence of other crimes. Defendantonly made an oral motion to bar testimony that defendant stole his girlfriend's car. Defendantwithdrew his oral motion when the State explained that the evidence would not be used to showtheft of the car, only that defendant used the car when he stole money from another victim. Waiver aside, defendant's argument fails on the merits.

Defendant claims that other crimes evidence was introduced to establish intent,knowledge, identification and absence of mistake. Defendant contends that none of thesegrounds was proper as these factors were established by the criminal act itself. Defendant alsoclaims that resort to other crimes evidence to establish identification was unnecessary since thewitnesses identified defendant as the offender.

The State posits that the evidence was used to establish modus operandi. People v.Illgen, 145 Ill. 2d 353, 364-65, 583 N.E.2d 515 (1991). We agree with defendant that modusoperandi evidence is not proper where identity is not at issue. People v. Biggers, 273 Ill. App. 3d116, 123, 652 N.E.2d 474 (1995). Identity is at issue where a defendant denies he was theoffender. Biggers, 273 Ill. App. 3d at 124. Defendant here did not deny he took the victim'smoney. He only claimed that he did not take the money under a deception as charged by theState.

We note that the trial court instructed the jury to limit its consideration of the other crimesevidence to intent, knowledge, identity and absence of mistake. Even if such an instruction mayhave been improper under this record, the instruction did reduce the likelihood that the jurywould consider the other crimes evidence as probative of defendant's propensity to commitcrimes-the major concern associated with such evidence. See People v. Allen, 335 Ill. App. 3d773, 780 N.E.2d 1133 (2002). The claimed error is harmless. People v. Nieves, 193 Ill. 2d 513,530, 739 N.E.2d 1277 (2000) (improper admission of other crimes evidence is harmless errorwhen a defendant is neither prejudiced nor denied the right to fair trial).

Defendant next contends that the trial court erred in refusing to instruct the jury to give noweight to defendant's absence at trial. Defendant reasons that his absence was nothing more than"an exercise of his constitutional right not to appear at trial" and that the jury should have beeninstructed that his absence was not an inference of his guilt. Defendant attempts to equate awillful absence from trial with a defendant's right not to testify. The latter is a constitutionalright, the former is not. See U.S. Const., amend V; People v. McDonald, 227 Ill. App. 3d 92, 97,590 N.E.2d 1003 (1992). The trial court's refusal to instruct the jury on defendant's absence wasnot error.

Defendant's next argument, that the trial court improperly allowed witnesses to testify asto their opinions, relates to three statements by State witnesses that defendant was posing as anattorney. Defendant claims that the statements amount to improper opinion testimony from laywitnesses. We disagree.

Setting aside the fact that defendant failed to object to the three statements and failed toraise them in his motion for a new trial, defendant overlooks that a lay witness is allowed toexpress an opinion based on personally observed facts. People v. Terrell, 185 Ill. 2d 467, 497,708 N.E.2d 309 (1998). Here, the witnesses testified to defendant's demeanor, the contents of hisbriefcase and the documents they signed which identified defendant as an attorney. Theseobservations reasonably caused the witnesses to recount at trial that defendant acted like anattorney. There was no error.

Defendant's next two arguments relate to the State's closing argument. Defendant claimsthat the State improperly used defendant's flight from the scene as a demonstration of his guiltand misstated the evidence.

We have already determined that the trial court was not required to instruct the juryrelating to defendant's absence. The State's reference to defendant's absence is also not error as itwas a proper comment based on evidence adduced at trial. People v. Emerson, 189 Ill. 2d 436,490, 727 N.E.2d 302 (2000).

Defendant also mischaracterizes the record and quotes the State's closing argument out ofcontext to argue that he was prejudiced by misstatements of evidence. Our review of thearguments in context shows no misstatement, prejudicial or otherwise, was made. There is noerror.

Defendant next argues that the evidence against him does not support his conviction. This challenge to the sufficiency of the evidence requires reversal if a rational trier of fact cannotfind the essential elements of the offense beyond a reasonable doubt. People v. Williams, 193 Ill.2d 306, 338, 739 N.E.2d 455 (2000).

A defendant commits theft by deception when he knowingly obtains control overanother's property by deception with the intent to keep that property. 720 ILCS 5/16-1(a)(3)(West 2000). The evidence here showed that defendant, while posing as an attorney, was paid a$300 retainer fee and given $500 to bond a person out of jail. Defendant never bonded anyoneout of jail and never returned the $800 paid by the victim. A rational trier of fact could find theessential elements of theft by deception beyond a reasonable doubt under this record.

Defendant last argues that his sentence is excessive. Sentencing is left to the widediscretion of the trial court, and we will not reverse absent an abuse of that discretion. People v.Perruquet, 68 Ill. 2d 149, 154, 368 N.E.2d 882 (1977). There is no abuse of that discretion herewhere defendant was sentenced within the proper statutory range. Defendant's earlier convictionsmade him eligible for an extended term of up to 10 years. 730 ILCS 5/5-5-3.2, 5-8-2(5) (West2000). A sentence within the statutory range is not excessive unless it is at variance with thespirit and purpose of the law or manifestly disproportionate to the offense. People v. Fern, 189Ill. 2d 48, 54, 723 N.E.2d 207 (1999).

There remains one other issue we choose to address, although the parties have not directlyraised it. Although we read Partee as limiting a returned fugitive's right to appellate review tothose issues that implicate fundamental fairness and due process (see Partee, 125 Ill. 2d at 31), adisparity remains between the rights afforded a defendant who has been present for trial and areturned fugitive. The former is always subject to time limits. A defendant must establish a lackof culpable negligence to justify a delay in accessing the Act (725 ILCS 5/122-1(c) (West 2000);People v. Wright, 189 Ill. 2d 1, 10, 723 N.E.2d 230 (1999)). A returned fugitive, however, mayuse section 115-4.1(g) to seek appellate review without establishing that his absence from trialwas not willful. Partee, 125 Ill. 2d at 31-32. We conclude that this difference between the Actand section 115-4.1(g) of the Code must be based on a legislative policy decision that trials inabsentia are entitled to heightened scrutiny. See People v. Stark, 121 Ill. App. 3d 787, 790, 460N.E.2d 47 (1984) (statutory scheme of in absentia statute provides a defendant with additionalmeans of securing a new trial). We believe we have complied with the spirit of Stark in ourreview of the record.

Finally, we reject the State's alternative argument that section 115-4.1(g) does not applyunless a defendant first establishes that his absence is without fault and due to circumstancesbeyond his control. Partee has answered this question. Partee, 125 Ill. 2d at 28-29.

Should there be a showing on review that a defendant's absence was without fault and dueto circumstances beyond his control, review of the issues raised by the defendant with respect tothe underlying trial is unnecessary. The remedy for a defendant prevailing on a section 115-4.1(e) motion is a new trial, not a review of the errors occurring in the first trial. See 725 ILCS5/115-4.1(e) (West 2000) (a defendant must be granted a new trial if he shows that his absencewas without fault and due to circumstances beyond his control).

Last, we agree with the State that there is no jurisdiction under Rule 606. 134 Ill. 2d R.606. Defendant concedes as much in his jurisdictional statement which, unlike the notice ofappeal, invokes only section 115-4.1(g).

The State's motion to dismiss is denied. None of the substantive issues raised indefendant's brief challenges the fundamental fairness of the in absentia trial. There is nojurisdiction under Rule 606. Defendant's conviction and sentence are affirmed.

Affirmed; motion denied.

GORDON, J., specially concurs.

COUSINS,⁽¹⁾ J., dissents.

JUSTICE GORDON, specially concurring:

I concur with the ultimate result of the majority's decision. However, my concurrencerests solely upon the analysis of the substantive issues on their merits. I disagree with themajority, however, and fully align myself with the position of the dissent with respect to definingthe scope of review obtainable under section 115-4.1(g) of the Code of Criminal Procedure of1963 (hereinafter, Code) (725 ILCS 5/115-4.1(g) (West 2000)). Along with the dissent, I cannotfind any basis in the language of the statute to narrow its application solely to errors invokingquestions of constitutional due process or fundamental fairness. To effect such a statutoryalteration would require legislative intervention and a repudiation of our previously establishedprecedents, including our decisions in People v. Williams, 274 Ill. App. 3d 793, 655 N.E.2d 470(1995), and People v. Stark, 121 Ill. App. 3d 787, 460 N.E.2d 47 (1984), upon which oursupreme court relied in People v. Partee, 125 Ill. 2d 24, 34, 530 N.E.2d 460, 464 (1988).

The majority, with impressive ingenuity, attempts to harness Partee to support its positionwhen, if anything, in the clear light of day, its position is wholly inconsistent with the tenor ofPartee. The majority focuses upon the statement in Partee that section 115-4.1(g) analogizes asection 115-4.1(e) motion to "an action for postconviction relief under section 122-1 of theCode." Partee, 125 Ill. 2d at 35, 530 N.E.2d at 465. The majority attempts to extrapolate thatanalogy far beyond the limited use for which the analogy was intended in Partee and beyond thepermissible range of judicial statutory construction. The majority contends that since a collateralattack by postconviction petition is restricted to matters of constitutional dimensions, so too incomparing section 115-4.1(g) to section 122-1, Partee intended to cloak a section 115-4.1(g)procedure with the same restrictions. This contention by the majority is untenable. Apostconviction petition under section 122-1 is not confined to constitutional issues merelybecause it constitutes a collateral attack on a judgment, but, rather, it is confined to constitutionalissues by the express statutory provisions of its enabling act. The statute that provides forpostconviction petitions explicitly limits its availability to "a substantial denial of *** rightsunder the Constitution of the United States or the State of Illinois or both." 725 ILCS 5/122-1(a)(West 2000). Section 115-4.1(g) contains no such limitation and the statutory language of thatprovision does not provide a matrix to warrant or justify imposition of such restrictions byjudicial fiat.

Viewed in context, the analogy drawn by Partee between section 115-4.1(g) and section122-1 is to establish that section 115-4.1(g) should be viewed as if it were a collateral attack asunder section 122-1 and therefore parallel to Rule 606 without displacing it. As pointed out,there is nothing in the nature of a collateral attack that would limit the scope of such attack toconstitutional issues except where, as under section 122-1, the statute expressly articulates andprovides for such limitation. To hold otherwise would constitute a usurpation of a legislativeprerogative.

Ironically, the majority attempts to use Partee to diminish the appellate rights of a fugitivewhen in fact its manifest thrust is to expand those rights by providing two distinct but parallelroutes for obtaining appellate recourse, the first, under Supreme Court Rule 606(a) and thesecond under section 115-4.1(g). As pointed out, the analogy between sections 115-4.1(g) and122-1 is deployed in Partee to provide a theoretical basis to explain why section 115-4.1(g)should not be construed to supersede and preclude the right of a fugitive to appellate recoursethrough Supreme Court Rule 606 as well, but does not purport to limit the scope of review undereither route.

In fact, if anything, the holding and reasoning in Partee militate precisely the oppositeconclusion. If, as the majority contends, Partee had considered the scope of review under section115-4.1(g) to be limited to constitutional issues only, it could have readily pointed out thatdifference between a so limited section 115-4.1(g) appeal and an unrestricted Rule 606 appeal inresponse to the contention that the concomitant availability of both gives a fugitive two bites atthe same appellate apple. Instead, Partee fields the "two bites at the same apple" contention bypointing out that a fugitive who deploys both appellate routes to file two appeals, one in absentiaunder Rule 606 and the other upon his return under section 115-4.1(g), would not be permitted inthe second appeal to relitigate issues already subsumed in the earlier appeal under the doctrinesof res judicata, collateral estoppel, waiver and law of the case. See Partee, 125 Ill. 2d at 36-37. This would in and of itself denote that appeals under both provisions would otherwise share thesame breadth and scope, except that when a Rule 606 appeal is first deployed a second appealunder section 115-4.1(g) would be bound by determinations made in the earlier appeal.

Moreover, the fallacy in the majority's interpretation of Partee is further reflected in thefact that Partee upholds the rule that although an appeal may be taken by a fugitive in absentiaunder Supreme Court Rule 606, the appellate court is not compelled to hear it while the appellantremains a fugitive. In that regard, Partee states "[w]e adhere to the century-old rule that anappellate court has the discretionary power to refuse to hear a fugitive's appeal unless and untilthe fugitive returns to the [court's] jurisdiction. People v. Estep (1952), 413 Ill. 437, [109 N.E.2d762]; McGowan v. People (1882), 104 Ill. 100." Partee, 125 Ill. 2d at 37, 530 N.E.2d at 466. Under Estep and McGowan upon which Partee relies, the appellate court may refuse to hear theappeal while the appellant remains a fugitive, and may dismiss such an appeal if the fugitive doesnot physically appear within a reasonable time. See Estep, 413 Ill. at 440-41, 109 N.E.2d at 764-65; McGowan 104 Ill. 100.

If the majority in this case were correct in its reading of Partee, then instead of two bitesat the appellate apple, a fugitive could be left with far less than a single bite, since as a fugitivehis Rule 606 appeal could be dismissed and what would remain to the fugitive would be a limitedappeal under section 115-4.1(g) restricted solely to constitutional issues. Thus, the support thatthe majority seeks to draw from the decision in Partee is illusory and inconsistent with whatPartee actually sets forth.

I further note that the policy concerns that apparently trigger the majority's effort tonarrowly confine the scope of the section 115-4.1(g) appeal are less than compelling. Theseemingly undue largess extended to a fugitive by availing him of two avenues of appeal istemporized by the fact already noted that an appeal under Rule 606 may be rejected at theappellate court's discretion if the appellant chooses to remain a fugitive. On the other hand, if aRule 606 appeal is allowed to go forward, it would preclude a second appeal of those issuessubsumed in his earlier appeal under the doctrines of res judicata, collateral estoppel, waiver andlaw of the case. See Partee, 125 Ill. 2d at 36-37, 530 N.E.2d at 465-66.

Moreover, whatever advantage the fugitive may receive to facilitate his right to appeal iscountervailed by the fact that he could be tried in absentia in the first instance, notwithstandingthe incursion of a defendant's otherwise inherent right to be present at his trial. This too wasarticulated in Partee noting the existence "of a complex series of tradeoffs [in the legislationinvolved here] designed to balance the defendant's right to be present at trial, the State's interestin the expeditious administration of justice, and our traditional distrust of trials in absentia."Partee, 125 Ill. 2d at 40, 530 N.E.2d at 467. See Williams, 274 Ill. App. 3d at 795.

Accordingly, I can find no encouragement in Partee to warrant abandonment andrepudiation of our previous decisions in Williams, Stark, People v. Pontillo, 267 Ill. App. 3d 27,640 N.E.2d 990 (1994), and People v. Manikowski, 288 Ill. App. 3d 157, 679 N.E.2d 840 (1997),which are discussed extensively in the dissent. In each of these cases, we held that the scope ofreview under section 115-4.1(g) was unfettered and coextensive with the review generallyavailable under Supreme Court Rule 606. A look at Manikowski is of particular interest. Aspointed out by the dissent, the court in Manikowski specifically contrasted the scope of reviewunder section 115-4.1(g) with the scope of review in a postconviction proceeding under section122-1 of the Code, stating "[p]ostconviction petitions must demonstrate a process flawed by errorof constitutional magnitude. Such petitions do not subject trial error to judicial review. Asection 115-4.1(e) motion, however, opens the entire underlying judgment and sentence tofurther scrutiny. See 725 ILCS 5/115-4.1(g) (West 1992); People v. Partee, 125 Ill. 2d 24, 530N.E.2d 460 (1988)." Manikowski, 288 Ill. App. 3d at 161, 679 N.E.2d at 843.

Thus, for the foregoing reasons, I must align myself with the dissent with regard to theprocedural issue pertaining to the scope of review. However, as indicated, I concur with themajority in its ultimate affirmance based upon its analysis of the merit of the substantive issues.

JUSTICE COUSINS, dissenting:

While I concur in part with the majority's answer regarding the ultimate issue in the case,I disagree with the majority's view that the answer to the ultimate issue "may be 'yes,' but only ifthe record on appeal establishes that the trial conducted in the defendant's absence violatedprinciples of fundamental fairness and due process under the cause and prejudice test adopted byour supreme court." Slip op. at 1. The majority cites to People v. Simpson, Nos. 85084, 86926cons. (September 27, 2001), People v. Jackson, No. 88474 (December 20, 2001), and People v.Jimerson, 166 Ill. 2d 211, 652 N.E.2d 278 (1995). However, these cases are inapposite.

The majority's rationale conflicts with the reasoning in analogous cases previouslydecided by this court. In People v. Williams, the court held that a defendant appealing from adenial of a section 115-4.1(e) motion to vacate the conviction and sentence was allowed to have adisposition on the merits of the conviction and sentence in the appeal under section 115-4.1(g) ofthe Code. Williams, 274 Ill. App. 3d at 795. The Williams court concluded that claims relativeto the proceedings in absentia could be reviewed on the merits because section 115-4.1(e) makesthe appeal on the merits part of the appeal on the ruling of the collateral attack. Williams, 274Ill. App. 3d at 799. See also Partee, 125 Ill. 2d. 24 at 33-34 (citing to People v. Stark 121 Ill.App. 3d 787, 790, 460 N.E.2d 47 (1984), that section 115-4.1 merely provides defendant withadditional means of securing a new trial). The review, however, must be brought within the timeframe required by Supreme Court Rule 606(b) from the final order of the collateral proceeding. Williams, 274 Ill. App. 3d at 799.

In Stark, this court recognized the possibility that, when properly requested, a defendanttried in absentia may receive review on the merits of the underlying judgment in a section 115-4.1 motion. The court stated:

"While it may well be *** that a defendant is given a second bite of theapple when pursuing a motion under section 115-4.1 and, if successful, willundermine an otherwise valid conviction and sentence, this section is in harmonywith article I, section 4 of our constitution which confers upon a defendant theright to appear and defend himself in person. Section 115-4.1 is a statutorymechanism to protect this constitutional right. By predicating the granting of anew trial or sentencing hearing exclusively upon defendant's excusable absencefrom the jurisdiction, it is apparent that the legislature distinguishes between adirect criminal appeal on the merits and an appeal based upon an alleged violationof defendant's right to be present at all criminal proceedings. This section was notintended to set forth the appropriate procedure for appealing from a conviction orsentence obtained in absentia; rather, it merely provides an additional means ofattacking the conviction or sentence." Stark, 121 Ill. App. 3d at 792-93.

In People v. Pontillo, 267 ll. App. 3d 27, 640 N.E.2d 990 (1994), this court again concluded thatthe collateral remedy under section 115-4.1 of the Code will support an appeal separate from thedirect appeal of the underlying judgment. Pontillo, 267 Ill. App. 3d at 33. In Pontillo, thedefendant did not file an appeal from the judgment and sentence entered in absentia. Six yearslater defendant timely filed an appeal from an order denying his motion under section 115-4.1 ofthe Code. Pontillo, 267 Ill. App. 3d at 28. The Pontillo court noted the following:

"Although defendant filed no notice of appeal within 30 days of the denialof his 1986 motion for new trial, he filed a timely notice of appeal from the trialcourt's November 17, 1992, denial of his motion for new trial or new sentencinghearing under section 115-4.1(e), which allows for the consideration of adefendant's claim that his absence from trial was both without his fault and due tocircumstances beyond his control. Section 115-4.1(g) provides for an appeal fromsuch denial:

'A defendant whose motion under paragraph (e) for a newtrial or new sentencing hearing has been denied may file a notice ofappeal therefrom. Such notice may also include a request forreview of the judgment and sentence not vacated by the trial court.' (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1(g)(now 725 ILCS 5/115-4.1(g) (West 1992)).

Our supreme court has characterized section 115-4.1(e) as a collateralremedy which, under appropriate circumstances, may be utilized by a defendantwho has been convicted in absentia as a method of securing review of hisconviction. It is analogous to an action for post-judgment relief under section 2-401 of the Code of Civil Procedure (735 ILCS 5/2-401 (West 1992)) or an actionfor post-conviction relief under section 122-1 of the Code of Criminal Procedureof 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 (now codified, as amended, at 725ILCS 5/122-1 (West 1992))) and will support an appeal separate from a directappeal of the underlying judgment. People v. Partee, (1988) 125 Ill. 2d 24, 31-38.

Because a section 115-4.1(e) proceeding focuses solely upon issuesrelating to a defendant's absence from trial at the time of his conviction, it isevident that an appeal from the court's denial of a motion under that section wouldordinarily be confined to the same issues. However, section 115-4.1(g) expresslyprovides a separate device enabling the defendant to obtain, in addition, a reviewof allegations of error relating to the underlying conviction. Specifically, he mustinclude in his notice of appeal 'a request for review of the judgment and sentencenot vacated by the trial court.' (Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1(g) (now725 ILCS 5/115- 4.1(g) (West 1992)).) Without such a request, the notice ofappeal would necessarily pertain only to issues relating to the order denying hissection 115-4.1(e) motion for a new trial or new sentencing hearing, i.e., whetherhis absence from court was without his fault and due to circumstances beyond hiscontrol. An appellate court has jurisdiction of only those matters raised in thenotice of appeal. [Citations.]" Pontillo, 267 Ill. App. 3d at 33-34.

It appears that the rule proposed by the majority requires the same showing necessary foran evidentiary hearing under section 5/122-1(a) of the Code (725 ILCS 5/122-1(a) (West 2000))be made before a review of merits of an underlying judgment and sentence in a section 115-4.1motion. This court has drawn a distinction between the two sections of the Code when apostconviction motion was filed instead of a section 115-4.1 motion in People v. Manikowski,288 Ill. App. 3d 157, 679 N.E.2d 840 (1997). In that case we stated:

"The petition presents a serious question of timeliness. It is clearly filedbeyond the time constraints imposed on postconviction relief under section 122-1of the Code of Criminal Procedure of 1963. 725 ILCS 5/122-1 (West 1992). Thequestion is joined by the allegation that delay was not due to defendant's culpablenegligence. Such a question does not arise under section 115-4.1(e). Thepotential relief it provides is not limited by the passage of time. Moreover,section 115-4.1(e) requires the precise evidentiary hearing unsuccessfully pursuedby the petition.

These obvious advantages are overshadowed, however, by the fact that asection 115-4.1(e) motion clears a path to test error that occurred in the conduct ofdefendant's trial. Postconviction petitions must demonstrate a process flawed byerror of constitutional magnitude. Such petitions do not subject trial error tojudicial review. A section 115-4.1(e) motion, however, opens the entireunderlying judgment and sentence to further scrutiny. See 725 ILCS 5/115-4.1(g)(West 1992); People v. Partee, 125 Ill. 2d 24, 530 N.E.2d 460 (1988). Sincedefendant's conviction and sentence have never been reviewed, even anunsuccessful effort pursued under section 115- 4.1(e) harbors an advantage. Itprovides a direct appeal of the conviction and sentence." (Emphasis in original.) Manikowski, 288 Ill. App. 3d at 160-61.

To the extent that the majority's opinion in the instant case purports to require defendantto make a showing in the record that the trial violated principles of fundamental fairness and dueprocess under the cause and prejudice tests, it is inconsistent with Williams, Manikowski, Starkand Pontillo. The majority cites to no authority that is apposite to support the holding that adefendant tried in absentia must first allege due process violations supported by the record beforea review of the merits of the underlying judgment and sentence.

Because of the analysis requiring that the trial conducted in a defendant's absence violatedprinciples of fundamental fairness and due process before a defendant tried in absentia mayobtain a review of his conviction and sentence under section 115-4.1 of the Code, the majoritydeclines to address the substantive issues raised in defendant's brief. In my view, we shouldaddress the substantive issues raised in defendant's brief. Perforce, I dissent.

1. Justice Cousins participated in the disposition of this case before his retirement.