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FIFTH DIVISION
Filed: 12/31/03

In March 2001, defendant LeRoy Priest pled guilty to possession of a controlled substancewith intent to deliver in exchange for a four-year sentence in the Illinois Department ofCorrections pursuant to a plea agreement. In April 2001, when defendant failed to appear at hissentencing hearing, the trial court sentenced him in absentia to 15 years' imprisonment. InSeptember 2001, defendant filed a motion for a new sentencing hearing under section 115-4.1(e)of the Code of Criminal Procedure of 1963 (Criminal Code)(725 ILCS 5/115-4.1(e) (West 2000))which the trial court heard and denied in October 2001.

Defendant appeals, arguing that the trial court (1) violated Supreme Court Rule 402(d)(2)(177 Ill. 2d R. 402(d)(2)) when it sentenced defendant in absentia to 15 years' imprisonmentwithout affording defendant the opportunity to affirm or withdraw his plea and (2) abused itsdiscretion when it denied defendant's motion for a new sentencing hearing when defendantpresented evidence establishing that his absence at the April 2001 sentencing hearing was notwilful and where the court considered improper evidence in making its ruling. We affirm.

I. BACKGROUND

In March 2000, defendant was charged by information with two counts of possession of acontrolled substance with intent to deliver and one count of possession of a controlled substance.

On March 8, 2001, defendant appeared before the trial court to plead guilty to one countof possession of a controlled substance with intent to deliver following a Rule 402 conference. The court admonished defendant of the nature of the charge and the applicable sentencing rangeof four to fifteen years' imprisonment. The court further informed defendant that by pleadingguilty he had waived his right to a jury trial, his right against self-incrimination, and his right topresent and cross-examine witnesses. Defendant answered that he understood the charge, thepossible sentences, and the rights he was waiving. He signed a jury waiver and a waiver of hisright to a presentence investigation and report.

Prior to the entry of defendant's guilty plea, the trial court agreed to postpone sentencinguntil April 12, 2001, to permit defendant time to care for his ill mother and get his affairs in order. The court stated that it agreed to sentence defendant to four years' imprisonment. However, thecourt warned defendant that if he failed to appear at his sentencing hearing, the court wouldsentence him in his absence, to 15 years in prison. Following this admonishment, the courtentered defendant's plea of guilty.

On April 12, 2001, defendant failed to appear at his sentencing hearing, and the trial courtcontinued the case until April 23, 2001. Defendant failed to appear on that date as well. At thehearing, defendant's attorney informed the court that he had contacted defendant's family, but wasunable to locate defendant. Consequently, the court sentenced defendant in absentia to 15 yearsin prison.

On May 10, 2001, defendant's attorney filed two motions on defendant's behalf whiledefendant was still missing. His attorney filed a motion to withdraw defendant's guilty plea,contending that defendant did not understand (1) the nature of the charge against him, (2) theconsequences of entering his plea, and (3) that the court was not bound by the plea agreement. The second motion filed by defendant's attorney moved to reconsider the sentence, claiming thatthe sentence was excessive based on the facts of this case and the mitigating factors of "his lack ofprior criminal history, his mental and physical status, and his general upbringing and background." However, according to the record, the court never ruled on either motion.

On May 18, 2001, judgment was entered against the bond. On September 17, 2001,defendant was taken into custody. On September 24, 2001, defendant filed a motion for a newsentencing hearing pursuant to section 115-4.1(e) of the Criminal Code, which allows a defendantconvicted or sentenced in absentia to be granted a new trial or sentencing hearing if defendantcan establish that his failure to appear was both without his fault and due to circumstances beyondhis control. 724 ILCS 5/115-4.1(e) (West 2000). In his motion, defendant admitted that the trialcourt admonished him that he would be sentenced to 15 years in prison if he failed to appear. Defendant claimed that he failed to appear and to contact his attorney or the court because he wasthe sole caretaker for his ill mother and sister.

On October 11, 2001, the trial court conducted a hearing on defendant's motion. Defendant did not testify, but defendant's mother and sister testified. Defendant's mother,Georgia Priest, testified that in mid-April her heart condition flared up and left her bedridden. Shestated that defendant was the only person to take care of her and the household. She also testifiedthat her daughter and defendant's sister, Mildred Berry, was also bedridden at that time, becauseof her diabetes. On cross-examination, Georgia testified that she began to feel better in June. Shealso stated that she has a sister and a niece that live in the Chicago area and that defendant has a23-year-old son.

Defendant's sister, Mildred, testified that she was bedridden for about two months beforeshe eventually went to the hospital, where it was discovered she had kidney failure. She statedthat she was in the hospital for two months. She testified that defendant took care of her prior toher hospital admission because no one else was available to do so. Mildred stated that she is nowundergoing dialysis and that defendant's son came to Chicago from Mississippi to take care ofher. On cross-examination, she admitted that she did not know who asked her nephew to cometo Chicago.

Following this testimony, the trial court denied defendant's motion for a new sentencinghearing. In its ruling, the court noted that defendant not only failed to appear, but he failed tomake any attempt to contact the court or his attorney when his family situation improved. Thecourt found that defendant wilfully ignored his promise to appear at his sentencing hearing. Finally, the court observed that the 30-day period for moving to withdraw his guilty plea or toreconsider the sentence had expired, and that defendant could only appeal the denial of the section115-4.1(e) motion.

This appeal follows.

II. ARGUMENT

On appeal, defendant argues that the trial court (1) violated Supreme Court Rule402(d)(2) when it sentenced defendant in absentia to 15 years' imprisonment without givingdefendant the opportunity to affirm or withdraw his plea, and (2) abused its discretion when itdenied defendant's motion for a new sentencing hearing when defendant presented evidenceestablishing that his absence at the April 2001 sentencing hearing was not wilful and where thecourt considered improper evidence in making its ruling.

A. Rule 604(d) Compliance

As a threshold matter, we must determine whether this court has jurisdiction overdefendant's appeal. Defendant's notice of appeal states that he is appealing the April 23, 2001,sentence and judgment of guilty, and it does not appeal the denial of defendant's section 115-4.1(e) motion. The State contends that this court is without jurisdiction over the appeal ofdefendant's conviction and sentence because defendant failed to comply with Supreme Court Rule604(d) (188 Ill. 2d R. 604(d)).

Rule 604(d) provides, in part:

"No appeal from a judgment entered upon a plea of guiltyshall be taken unless the defendant, within 30 days of the date onwhich sentence is imposed, files in the trial court a motion toreconsider the sentence, if only the sentence is being challenged, or,if the plea is being challenged, a motion to withdraw the plea ofguilty and vacate the judgment. No appeal shall be taken upon anegotiated plea of guilty challenging the sentence as excessiveunless the defendant, within 30 days of the imposition of sentence,files a motion to withdraw the plea of guilty and vacate thejudgment." 188 Ill. 2d. R. 604(d).

Compliance with Rule 604(d) is a condition precedent to an appeal. People v. Wilk, 124 Ill. 2d93, 107, 529 N.E.2d 218, 223 (1988). Under Rule 604(d), the appellate court must dismiss theappeal of a defendant failing to file a written motion to withdraw his plea of guilty or toreconsider his sentence.

People v. Jamison, 181 Ill. 2d 24, 28-29, 690 N.E.2d 995, 997 (1998).

In the case at bar, defendant's counsel filed motions to withdraw defendant's guilty pleaand to reconsider the sentence while defendant was still missing⁽¹⁾, but never obtained a ruling onthese motions. The party filing a motion has the responsibility to bring it to the trial court'sattention. Unless circumstances indicate otherwise, where no ruling appears to have been madeon a motion, the presumption is that the motion was waived or abandoned. Twardowski v.Holiday Hospitality Franchising, Inc., 321 Ill. App. 3d 509,512-13, 748 N.E.2d 222, 227 (2001). Since the motions in this case were never ruled upon, defendant failed to strictly comply with Rule604(d) and this court is without jurisdiction to decide his appeal on the merits.

One exception from the automatic dismissal exists where the trial court failed to issueSupreme Court Rule 605(b) (188 Ill. 2d R. 605(b)) admonitions to the defendant. People v.Foster, 171 Ill. 2d 469, 473, 665 N.E.2d 823, 825 (1996). Rule 605(b) mandates that trial judgesadmonish defendants regarding the requirements of Rule 604(d), thus ensuring that theramifications of noncompliance comport with due process. 188 Ill. 2d R. 605(b); see also Foster,171 Ill. 2d at 472, 665 N.E.2d at 825.

Here, defendant was not present at his sentencing hearing, and, therefore, the trial courtwas unable to give him Rule 605(b) admonitions. It is impossible for a trial court to proceedunder the statute in the absence of the defendant and to simultaneously strictly comply with Rule605(b) requirement that the court advise the defendant. People v. Woolridge, 292 Ill. App. 3d788, 791, 686 N.E.2d 386, 388 (1997). "Rules 402, 604(d) and 605(b), which concern guiltypleas, are meant to mesh together not only to ensure that defendants' constitutional rights areprotected, but also to avoid abuses by defendants." Wilk, 124 Ill. 2d at 103, 529 N.E.2d at 221. Likewise, the statute concerning proceedings in absentia and the supreme court rules regardingguilty pleas must be read together in such a way as to give effect to each. Woolridge, 292 Ill.App. 3d at 791, 686 N.E.2d at 388. In this case, the failure to give Rule 605(b) admonitionscannot be applied when defendant failed to appear, leaving the court "to engage in the ineffectiveritual of advising an empty chair." Woolridge, 292 Ill. App. 3d at 791, 686 N.E.2d at 388. Defendant failed to comply with Rule 604(d) and we are without jurisdiction to considerdefendant's conviction and sentence.

B. Jurisdiction Under Section 115-4.1(g) of the Criminal Code

Defendant filed his notice of appeal within 30 days of the denial of his section 115-4.1(e)motion, but the State contends that this court does not have jurisdiction over defendant'sconviction and sentence. Instead, the State avers that at the time defendant filed his notice ofappeal in October 2001, he was only able to appeal the denial of the section 115-4.1(e) motion,which he did not specifically raise in his notice of appeal. We agree with the State.

Section 115-4.1(e) provides defendants who were convicted and/or sentenced in absentiarelief, if they can prove that they were not wilfully absent from court. 725 ILCS 5/115-4.1(e)(West 2000)). A defendant seeking relief in a section 115-4.1(e) motion must establish that "hisfailure to appear in court was both without his fault and due to circumstances beyond his control." 725 ILCS 5/115-4.1(e) (West 2000). If the defendant proves that he was not wilfully absent, thenthe trial court must grant him a new trial or sentencing hearing. 725 ILCS 5/115-4.1(e) (West2000).

The Illinois Supreme Court has held that a section 115-4.1(e) motion is a "collateral attackupon a final judgment" rather than part of the procedure for a direct appeal of that judgment. People v. Partee, 125 Ill. 2d 24, 35, 530 N.E.2d 460, 465 (1988). The supreme court consideredit analogous to an action for postjudgment relief under section 2-1401 of the Code of CivilProcedure (735 ILCS 5/2-1401 (West 2000)) or a postconviction petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West 2000)). Partee, 125 Ill. 2d at35, 530 N.E.2d at 465. Because a collateral attack upon a judgment is a case separate and apartfrom the case in which the judgment has been attacked, it has been held that the availability orpendency of a direct appeal will not affect the ripeness of a claim for postconviction orpostjudgment relief; conversely, the pendency or availability of the collateral remedy will notaffect the jurisdiction of the appellate court over a direct appeal. Partee, 125 Ill. 2d at 35-36, 530N.E.2d at 465.

Defendant's section 115-4.1(e) motion did not preserve his direct appeal rights that werelost when his attorney failed to comply with Rule 604(d). Nevertheless, we note that paragraph(g) of section 115-4.1 states that:

"[a] defendant whose motion under paragraph (e) for a new trial ornew sentencing hearing has been denied may file a notice of appealtherefrom. Such notice may also include a request for review of thejudgment and sentence not vacated by the trial court." Emphasisadded. 725 ILCS 5/115-4.1(g) (West 2000).

This language does not allow this court to assert jurisdiction over defendant's directappeal. Such an interpretation would create a conflict between the language of the statute andSupreme Court Rule 606 (188 Ill. 2d R. 606). This conflict would violate the separation ofpowers doctrine of the Illinois Constitution and would render section 115-4.1(g) unconstitutional.

Rule 606 provides that in order to perfect an appeal, a defendant must file a notice ofappeal within 30 days of the entry of the final judgment appealed therefrom or if a timely posttrialor postsentencing motion is filed, within 30 days after the entry of the order disposing of thatmotion. 188 Ill. 2d R. 606(b). However, the language of section 115-4.1(g), if interpreted toallow a defendant to raise his direct appeal issues following the denial of a section 115-4.1(e)motion, would open the door for defendants to assert the merits of their direct appeal wheneverthey return to the jurisdiction of the trial court. This could conceivably be months or years aftertheir direct appeal rights provided under the supreme court rules have been forfeited.

Instead, we are persuaded by the discussion in People v. Stark, 121 Ill. App. 3d 787, 460N.E.2d 47 (1984). In Stark, the Fifth District interpreted paragraph (g) to be a

"device to enable [a] defendant to consolidate into one appeal thedenial of his motion for new trial or new sentencing hearing basedon a reasonable excuse for being absent from the jurisdiction as wellas the denial of any traditional post[]trial motion. This statutoryscheme was not designed to preempt Supreme Court Rule 606(b)[188 Ill.2d R. 606(b)] which governs the manner in which criminalappeals from final judgments are perfected." Stark, 121 Ill. App. 3dat 790, 460 N.E.2d at 49.

The Stark court continued and found that this remedy under section 115-4.1(e) does not addressthe merits of the underlying conviction and sentence and that it should not control the proceduresin place for appealing the merits. Stark, 121 Ill. App. 3d at 791, 460 N.E.2d at 50. Rather, thelast sentence of paragraph (g) of section 115-4.1 recognizes that parallel proceedings may occurwhen a defendant directly attacks the merits of the conviction or sentence and also files a section115-4.1 motion. By providing a mechanism for consolidating such proceedings for review uponthe filing of a single notice of appeal, the statute by its very terms gives respect to the vitality of adirect appeal on the merits. Thus, this section does not operate to preempt Rule 606(b). Stark,121 Ill. App. 3d at 791-92, 460 N.E.2d at 50.

We agree with this interpretation and find that paragraph (g) of section 115-4.1 enablesjudicial economy in circumstances where a defendant is appealing both the merits of his convictionand sentence simultaneously with the appeal of his section 115-4.1(e) motion. This interpretationallows section 115-4.1(g) to work with Rule 606 and not create a constitutional conflict.

Here, defendant's direct appeal rights were not concurrent with his section 115-4.1(e)motion, and, therefore, he cannot use that denial to maneuver around the supreme court rulesdictating his appeal rights. Defendant's appeal of his conviction and sentence are dismissed, andsince defendant failed to specifically raise the denial of section 115-4.1(e) motion in his notice ofappeal (see People v. Pontillo, 267 Ill. App. 3d 27, 33-34, 640 N.E.2d 990, 995 (1994) ("[a]nappellate court has jurisdiction of only those matters raised in the notice of appeal")), no issueremains before this court.

III. CONCLUSION

For the foregoing reasons, we dismiss defendant's appeal.

Appeal dismissed.

QUINN and REID, JJ., concur.

1.  It is proper for defense counsel, in defendant's absence, to file notice of appeal. Approval is not required when counsel exercises professional judgment. People v. Stark, 121 Ill. App. 3d 787, 789, 460 N.E.2d 47, 48 (1984); People v. Partee, 125 Ill. 2d 24, 34, 530 N.E.2d 460, 464 (1988) (recognizing the holding of Stark).