Find Legal Information

Docket No. 97620-Agenda 4-November 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
MARCO RAMIREZ, Appellee.

Opinion filed January 21, 2005.
 

JUSTICE THOMAS delivered the opinion of the court:

Defendant, Marco Ramirez, was charged with unlawfulpossession of cocaine with the intent to deliver (720 ILCS570/401(a)(2)(B) (West 1992)). After being tried in absentia by ajury, defendant was convicted and sentenced to 21 years in prison. Helater moved for a new trial, arguing that the trial in absentia was heldin violation of the notice requirement set forth in section 115-4.1(a)of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS5/115-4.1(a) (West 1992)). The circuit court of Boone County deniedthe motion, and the appellate court reversed and remanded for a newtrial (344 Ill. App. 3d 296). We allowed the State's petition for leaveto appeal. 177 Ill. 2d R. 315(a).

BACKGROUND

On March 28, 1994, defendant was charged with unlawfulpossession of cocaine with the intent to deliver (720 ILCS570/401(a)(2)(B) (West 1992)). He appeared in court the next day,and the trial court advised him that he could be tried in absentia if hefailed to appear for future court dates. A trial date was set for January3, 1995. The State later moved for a continuance, and that motionwas heard on November 18, 1994, with defendant present in opencourt. At the hearing, defense counsel stated that, although he had noobjection to the State's request for a continuance, he would not beavailable for trial until after February 1995. According to the reportof proceedings, the trial court responded, "Set it for March, then, butno continuances. So it will be a year old by then, and I would like toget it resolved." The trial court then set the case for status onFebruary 24, 1995.

Defendant failed to appear for the February 24, 1995, statushearing, as well as for a hearing held on February 28, 1995. Whendefendant failed to appear for trial on March 6, 1995, the trial courtset the case for trial in absentia on April 3, 1995. On April 3, 1995,defendant again failed to appear. Although the State answered readyfor trial, defense counsel argued that the trial in absentia could notvalidly proceed because defendant was not sent notice of the April 3,1995, trial date by certified mail, as specifically required by section115-4.1(a). Instead, notice was sent to defendant by regular mail. Thetrial court rejected defense counsel's argument and commenced a jurytrial in absentia. Defendant was convicted and sentenced to 21 yearsin prison.

Defendant remained at large until June 2002. Following hisarrest, defendant moved for a new trial on the grounds that he had notbeen sent notice of the April 3, 1995, trial date by certified mail, asrequired by section 115-4.1(a). The trial court denied the motion, anddefendant appealed. The appellate court reversed and remanded for anew trial, holding that "[t]he trial court erred in conducting a trial inabsentia without notice by certified mail as required by section115-4.1(a)." 344 Ill. App. 3d at 301. We allowed the State's petitionfor leave to appeal. 177 Ill. 2d R. 315(a).

DISCUSSION

The question before us is whether strict compliance with thecertified mailing provision of section 115-4.1(a) is a mandatoryprerequisite to conducting a trial in absentia, where the defendant wasnot personally present in open court when the trial date was set. Thisis a question of statutory construction, and the rules for addressingsuch questions are familiar. The fundamental rule of statutoryconstruction is to ascertain and give effect to the legislature's intent.Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493,503-04 (2000). The best indication of legislative intent is the statutorylanguage, given its plain and ordinary meaning. Illinois Graphics Co.v. Nickum, 159 Ill. 2d 469, 479 (1994). Where the language is clearand unambiguous, we will apply the statute without resort to furtheraids of statutory construction. Davis v. Toshiba Machine Co.,America, 186 Ill. 2d 181, 184-85 (1999). The construction of a statuteis a question of law that is reviewed de novo. In re Estate of Dierkes,191 Ill. 2d 326, 330 (2000).

At the time of defendant's trial, section 115-4.1(a) provided asfollows:

"When a defendant after arrest and an initial courtappearance for a non-capital felony, fails to appear for trial,at the request of the State and after the State hasaffirmatively proven through substantial evidence that thedefendant is willfully avoiding trial, the court may commencetrial in the absence of the defendant. *** The court may setthe case for a trial which may be conducted under thisSection despite the failure of the defendant to appear at thehearing at which the trial date is set. When such trial date isset the clerk shall send to the defendant, by certified mail athis last known address indicated on his bond slip, notice ofthe new date which has been set for trial. Such notificationshall be required when the defendant was not personallypresent in open court at the time when the case was set fortrial." 725 ILCS 5/115-4.1(a) (West 1992).

Over the years, a conflict has developed in the appellate court overwhether strict compliance with the certified mailing provision of thissection is a mandatory prerequisite to commencing a trial in absentia.One view is represented by the Third District's opinion in People v.Clark, 96 Ill. App. 3d 491 (1981). In Clark, the defendant was triedin absentia, convicted, and sentenced to two years in prison. Onappeal, the defendant challenged her conviction in part on the groundsthat she was neither present in open court when the trial date was setnor sent notice of that date by certified mail, as required by115-4.1(a). In affirming, the court held that lack of compliance withthe certified mailing requirement was harmless error because defensecounsel was present in open court when the trial date was set. Clark,96 Ill. App. 3d at 496. According to Clark, "such knowledge on thepart of the attorney is deemed constructively to be imparted to thedefendant." Clark, 96 Ill. App. 3d at 496. See also People Haywood,183 Ill. App. 3d 212, 213-14 (1989); People v. Voight, 178 Ill. App.3d 933, 936 (1989).

The opposite view is represented by the Fourth District's decisionin People v. Watson, 109 Ill. App. 3d 882 (1982), which the appellatecourt below specifically endorsed. 344 Ill. App. 3d at 300-01. InWatson, the defendant was present in open court when his case was"set for jury trial on the January jury call." Although the defendantwas later sent two notices of the specific trial date (January 11, 1982),those notices were sent by regular mail and nothing in the recordconfirmed that he received them. When the defendant failed to appearfor the January 11 trial, he was tried and convicted in absentia. Inreversing, the appellate court first held that the defendant was entitledto notice of the January 11, 1982, trial date by certified mail becausehe was not present in open court when that date was set. Accordingto the court, "[t]he trial court's statement at Watson's arraignmentthat the case was 'set for jury trial on the January jury call' wasinsufficient to set the date in open court in defendant's presence."Watson, 109 Ill. App. 3d at 882-83. The court then rejected Clarkoutright and held that defense counsel's knowledge of the trial datecould not be constructively imparted to the defendant. According tothe court, "Clark ignores the fact that section 115-4.1(a) requiresnotice by certified mail and emasculates the clear statutoryprotections." Watson, 109 Ill. App. 3d at 883. The court furtherexplained that the "exception" created in Clark completely swallowsthe rule:

"[T]he only way defendant can be said to have known ofhis trial date and the consequences of his failure to appear isif the knowledge of his counsel is imputed to him. We declineto do so because such a holding would amount to ruling thattrial in absentia is proper whenever defendant is representedby counsel." Watson, 109 Ill. App. 3d at 883.

Accordingly, the court declined to follow Clark, reversed defendant'sconvictions, and remanded for a new trial. Watson, 109 Ill. App. 3dat 883-84.

In this case, defendant is in virtually the same position as Watson.Although he was present in open court on November 18, 1994, whenthe trial court set his case "for March," he was not present when theactual March 6, 1995, trial date was set.⁽¹⁾ Nor was he personallypresent when the April 3, 1995, trial date was set. Although he wassent notice of the April 3, 1995, trial date, that notice was sent byregular mail rather than by certified mail, and nothing in the recordconfirms that he actually received it. And when he failed to appear onApril 3, 1995, he was tried and convicted in absentia. The questionfor us is what to do about this. Defendant urges us to adopt Watsonand hold that, under these facts, the failure to send notice by certifiedmail necessitates a new trial. The State urges us to adopt Clark andhold that, under these facts, the failure to comply with the certifiedmailing requirement was harmless error because defense counsel'sknowledge of the March 6, 1995, and April 3, 1995, trial dates can beconstructively imputed to defendant.

We elect to adopt the Watson approach. Unlike Clark, whichinjects into section 115-4.1(a) an exception that does not exist,Watson applies the plain language of section 115-4.1(a) as written.Section 115-4.1(a) makes clear that a trial court may set a case fortrial in absentia despite the defendant's absence from the hearing atwhich such date is set. When this occurs, however, "the clerk shallsend to the defendant, by certified mail at his last known addressindicated on his bond slip, notice of the new date which has been setfor trial." (Emphasis added.) 725 ILCS 5/115-4.1(a) (West 1992).Moreover, "[s]uch notification shall be required when the defendantwas not personally present in open court at the time when the casewas set for trial." (Emphasis added.) 725 ILCS 5/115-4.1(a) (West1992). It is well established that, by employing the word "shall," thelegislature evinces a clear intent to impose a mandatory obligation.People v. O'Brien, 197 Ill. 2d 88, 93 (2001); People v. Thomas, 171Ill. 2d 207, 222 (1996). Thus, under the plain language of section115-4.1(a), the clerk's obligation to send notice by certified mail ismandatory, and the requirement that such notice be sent to anydefendant who was not personally present in open court when the casewas set for trial is mandatory. As importantly, section 115-4.1(a)contains no exceptions, whether for knowledge of defense counsel orfor anything else. Had the legislature intended such an exception, iteasily could have included it in the statutory language. It did not, andwe therefore are constrained to apply the plain language as writtenand without exception. Accordingly, we hold that strict compliancewith section 115-4.1(a)'s certified mailing requirement is a mandatoryprerequisite to conducting a criminal trial in absentia, where thedefendant was not personally present in open court when the case wasset for trial.

Aside from vindicating section 115-4.1(a)'s plain language, theWatson approach also has the benefit of easy administration. AsWatson correctly explained, section 115-4.1(a) is part of a largerlegislative scheme that allows a trial to proceed in the defendant'sabsence while ensuring that the accused's constitutional right to bepresent at trial and confront his accusers is not compromised in theprocess. See Watson, 109 Ill. App. 3d at 882-83. The first half of thisscheme is found in section113-4(e) of the Code, which requires thetrial court to advise the defendant in open court that "if he escapesfrom custody or is released on bond and fails to appear in court whenrequired by the court that his failure to appear would constitute awaiver of his right to confront the witnesses against him and trialcould proceed in his absence." 725 ILCS 5/113-4(e) (West 1992).The second half of the scheme is section 115-4.1(a), which explainshow to proceed when a properly admonished defendant willfullyabsents himself from the proceedings.

Under section 115-4.1(a), the trial court may not commence atrial in absentia unless "the State has affirmatively proven throughsubstantial evidence that the defendant is wilfully avoiding trial." 725ILCS 5/115-4.1(a) (West 1992). In People v. Smith, 188 Ill. 2d 335(1999), this court held that the State may satisfy section 115-4.1(a)'s"substantial evidence" burden by establishing a prima facie case thatthe defendant's absence is willful. To establish a prima facie case, theState must show that 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, 188Ill. 2d at 343. Of course, demonstrating that the defendant wasadvised of the trial date is not a problem when the record shows thatthe defendant was personally present in open court when the case wasset for trial. The harder case is one such as this, where the defendantwas not present in open court when the case was set for trial. We nowhold that, under such circumstances, the State may demonstrate thatthe defendant was advised of the trial date by demonstrating strictcompliance with section 115-4.1(a)'s certified mailing requirement.We believe that this rule, like section 115-4.1(a) itself, "balance[s] thedefendant's right to be present at trial, the State's interest in theexpeditious administration of justice, and our traditional distrust oftrials in absentia." See People v. Partee, 125 Ill. 2d 24, 40 (1988).Indeed, by requiring the State to show strict compliance with thecertified mailing requirement, we ensure that the absent defendant'simportant constitutional rights are afforded all of the necessarystatutory safeguards. At the same time, we relieve the State of provingon a case-by-case basis whether the lack of compliance with section115-4.1(a)'s certified mailing requirement amounted to harmlesserror.

In opposition to this result, the State argues that construing thecertified mailing requirement as mandatory would violate importantseparation of powers principles.⁽²⁾ In support, the State relies upon thiscourt's decision in People v. Flores, 104 Ill. 2d 40 (1984). In Flores,the court examined a version of section 115-4.1 that required a courtto wait two days before continuing a trial from which the defendantwillfully absents himself. See Ill. Rev. Stat. 1977, ch. 38, par. 115-4.1.On separation of powers grounds, the court refused to construe theprovision as mandatory. In so doing, we explained that "to allow thelegislature to mandate how long a trial judge must wait beforeproceeding with a trial, when a defendant has wilfully absented himselffrom his trial once it has commenced, unconstitutionally infringesupon a trial judge's authority to control his docket." Flores, 104 Ill.2d at 49-50. According to the State, Flores and the present case are"not distinguishable," as "the type of mail that a court uses to notifyan absent defendant is part of judicial administration and hence solelyunder judicial power."

With respect to the State, Flores is entirely distinguishable fromthe present case. To be sure, the court in Flores stated that thelegislature may not "unconstitutionally infringe[ ] upon a trial judge'sauthority to control his docket." Flores, 104 Ill. 2d at 49-50. In doingso, however, the court emphasized that not all statutes regulatingjudicial procedure are invalid. Flores, 104 Ill. 2d at 49-50. Asexamples of valid statutes, the court cited a provision of the IllinoisMarriage and Dissolution of Marriage Act mandating a bifurcated trialseparated by at least 48 hours in contested marital dissolutions (see Ill.Rev. Stat. 1977, ch. 40, par. 403(e)), as well as the 120-day speedy-trial provision of the Code (see Ill. Rev. Stat. 1983, ch. 38, par.103-5)). In distinguishing those statutes from the two-day waitingperiod, the court explained:

"We believe that both the bifurcated-trial and 120-dayspeedy-trial provisions are distinguishable from section115-4.1. A trial judge is aware in advance of the bifurcated-trial situation and the speedy-trial provision. A trial judge canplan ahead to accommodate those cases on his call. However,with the instant case, the court cannot plan ahead. If thedefendant chooses to walk out once his trial has commenced,his act can cause complete disruption of the court's docket.A judge would not know from case to case whether thedefendant would appear or walk out during trial. A defendantshould not benefit from his own defiance of the criminaljustice system. We believe that if the statute is mandatory itunduly infringes upon the inherent powers of the judiciary."Flores, 104 Ill. 2d at 50.

Thus, the lesson of Flores is that, while the legislature mayconstitutionally enact statutes relating to judicial procedure, it may notinterfere with a trial court's ability to plan and manage its docket. Inthis regard, the certified mailing provision, like the bifurcated-trial andspeedy-trial provisions, is perfectly valid. The trial court "is aware inadvance" of the certified mailing requirement, and nothing about thatrequirement interferes with the court's ability to plan ahead. In fact,the certified mailing requirement preserves the court's ability to planahead. If the trial court sets a case for trial in absentia, strictcompliance with the certified mail provision ensures that trial mayproceed as scheduled despite the defendant's continued absence. Thedocket remains firmly within the trial court's control and whollyimmune from last-minute hijacking by defiant defendants.

CONCLUSION

Where the defendant is not personally present in open court whenthe trial date is set, strict compliance with section 115-4.1(a)'scertified mailing provision is a mandatory prerequisite to conductinga criminal trial in absentia. Here, defendant was not personally presentin open court when the March 6, 1995, and April 3, 1995, trial dateswere set, and he was not sent notice of those dates by certified mail,as required by section 115-4.1(a). The trial court therefore erred inconducting a trial in absentia.

For these reasons, we affirm the judgment of the appellate court,which reversed defendant's conviction and remanded for a new trial.

Affirmed.

1.  It should be noted that, in the appellate court, the State argued that defendant was present in open court when the March 6, 1995, trial date was set. In support, the State pointed not to the report of proceedings from November 18, 1994, which states only that the case was "set for March," but to the docket entry for that date, which states that the case was "set for jury trial on 3-6-95 at 9 a.m." The appellate court found that the report of proceedings controlled (344 Ill. App. 3d at 300), and the State accepts that finding for purposes of the present appeal

2. Defendant insists that this argument is waived, as the State failed to raise it in the appellate court or include it in its petition for leave to appeal. The State, however, was the appellee in the appellate court. As the appellant now in this court, the State may raise any argument properly presented by the record to sustain the judgment of the trial court, whether or not that argument was raised below or included in the petition for leave to appeal. People v. Donoho, 204 Ill. 2d 159, 169 (2003).