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Docket No. 94823-Agenda 12-September 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
BENNIE STROUD, Appellee.

Opinion filed January 23, 2004.
 

JUSTICE THOMAS delivered the opinion of the court:

This case presents the question of whether defendant's constitutionalright to be present at his guilty plea hearing was violated when the circuitcourt accepted his plea via closed circuit television. Under the factspresented by this case, we hold that it was.

BACKGROUND

On March 23, 1998, defendant, Bennie Stroud, entered a negotiatedplea of guilty in the circuit court of Kankakee County to the offense ofpossession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West1998)), case No. 97-CF-621. When defendant entered his plea, he wasnot physically present in the courtroom; rather, he appeared via closedcircuit television. Defendant was represented by counsel at the time theplea was taken, and defendant made no objection to his absence from thecourt or to the fact that the plea was taken through closed circuittelevision. Pursuant to agreement, defendant was sentenced to two years'probation. Before accepting the plea, the court advised defendant that anywilful violation of his probation could result in revocation, with a prisonsentence of between three and seven years imposed. Followingacceptance of the plea, the court advised defendant of his appeal rights,including the necessity of compliance with the requirements of SupremeCourt Rule 604(d) (188 Ill. 2d R. 604(d)).

On July 1, 1998, the State filed a petition to revoke probation,alleging that subsequent to the above-mentioned case, defendantcommitted the offense of unlawful possession of a controlled substance,as reflected in case No. 98-CF-374.⁽¹⁾ On November 3, 1998, defendantwas found guilty of unlawful delivery of a controlled substance (720 ILCS570/401(d) (West 1998)), case No. 98-CF-374. On December 1,1998, defendant's probation for his initial conviction in No. 97-CF-621was revoked because of the subsequent offense, and defendant wassentenced to seven years in prison for each offense, the sentences to runconcurrently. Thereafter, defendant appealed the conviction in No.98-CF-374 and the probation revocation in No. 97-CF-621. Theappeals were consolidated.

The appellate court dismissed defendant's direct appeal in No.97-CF-621 for lack of jurisdiction, finding that because defendant hadnot filed a timely motion to withdraw his guilty plea pursuant to Rule604(d), he could not attack the guilty plea in the appeal of his probationrevocation. People v. Stroud, Nos. 3-98-0981, 3-98-0982 cons.(2000) (unpublished order under Supreme Court Rule 23).

On November 22, 2000, defendant filed a postconviction petition,again arguing that the original guilty plea should be vacated because heentered it via closed circuit television, rather than in person. The State fileda motion to dismiss, arguing that because defendant had not filed a timelymotion to withdraw the guilty plea in No. 97-CF-621, he was barredfrom moving to vacate the plea through his postconviction petition. Thetrial court granted the State's motion to dismiss, and defendant appealed.

On review, the appellate court vacated both convictions andremanded for further proceedings in No. 97-CF-621 and forresentencing in No. 98-CF-374. 333 Ill. App. 3d 416. The appellatecourt found that, although defendant was barred from challenging his guiltyplea on direct appeal, nothing prevented him from collaterally attacking hisplea in a postconviction proceeding on constitutional grounds. 333 Ill.App. 3d at 419. The court then found that defendant's plea of guilty overclosed circuit television violated his constitutional right to be present at acritical stage of the proceeding. 333 Ill. App. 3d at 419.

We allowed the State's petition for leave to appeal (see 177 Ill. 2dR. 315) and now affirm the appellate court.

ANALYSIS

The State initially argues before this court that defendant waived hisright to challenge his guilty plea. It notes that defendant did not file amotion to withdraw his guilty plea and vacate the judgment as is normallyrequired by Rule 604(d) to bring an appeal. Relying on the rule that " ' "aconstitutional right, like any other right of an accused, may be waived, anda voluntary plea of guilty waives all errors or irregularities that are notjurisdictional" ' " (People v. Peeples, 155 Ill. 2d 422, 491 (1993),quoting People v. Del Vecchio, 105 Ill. 2d 414, 433 (1985), quotingPeople v. Brown, 41 Ill. 2d 503, 505 (1969)), the State maintains thatdefendant cannot attack his guilty plea for the first time in a postconvictionproceeding.

In response, defendant argues that he can attack his guilty plea in apostconviction petition even though he did not first move to withdraw theplea or attempt to file a direct appeal because the plea itself was notvoluntary. Specifically, defendant contends that the plea was involuntarybecause he was not advised of his right to be physically present in thecourtroom at the plea proceeding.

We agree with defendant that the State's waiver arguments must berejected. " 'Waivers of constitutional rights not only must be voluntary butmust be knowing, intelligent acts done with sufficient awareness of therelevant circumstances and likely consequences.' " People v. Johnson,75 Ill. 2d 180, 187 (1979), quoting Brady v. United States, 397 U.S.742, 748, 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463, 1469 (1970). Thus,a guilty plea does not waive a contention that the plea itself wasinvoluntary because of faulty admonishments. People v. Gosier, 145 Ill.2d 127, 141-42 (1991); People v. Beronich, 334 Ill. App. 3d 536, 540(2002). Moreover, such claims may be raised for the first time in apostconviction petition. Beronich, 334 Ill. App. 3d at 540. As we willexplain more fully below, this case involves whether and to what extent atrial judge must admonish a defendant of his right to be physically presentprior to accepting a guilty plea by closed circuit television. Accordingly,we conclude that the State's waiver arguments do not apply.

We now turn to the merits of the question of whether defendant hada constitutional right to be physically present at the guilty plea hearing andwhether his physical absence requires that his guilty plea be vacated. Tosupport his position, defendant relies upon People v. Guttendorf, 309 Ill.App. 3d 1044 (2000), where the appellate court vacated a defendant'sguilty plea because he was not physically present in court for the pleaproceeding, but instead appeared by closed circuit television. Defendantattempts to distinguish this court's recent decision in People v. Lindsey,201 Ill. 2d 45 (2002), on the basis that it involved an appearance byclosed circuit television at an arraignment and jury waiver hearing, not aguilty plea proceeding. The State in response argues that Lindsey iscontrolling and the appellate court's decision should therefore be reversed.

In Lindsey, this court found that arraignment and jury waiver were"critical stages" at which a defendant generally has a right to be present,but the right is not absolute. Lindsey, 201 Ill. 2d at 56. This courtrecognized that both the federal and state constitutions afford criminaldefendants the general right to be present, not only at trial, but at all criticalstages of the proceedings from arraignment to sentencing. Lindsey, 201Ill. 2d at 55, 57, citing Kentucky v. Stincer, 482 U.S. 730, 745, 96 L.Ed. 2d 631, 647, 107 S. Ct. 2658, 2667 (1987); Illinois v. Allen, 397U.S. 337, 338, 25 L. Ed. 2d 353, 356, 90 S. Ct. 1057, 1058 (1970);People v. Bull, 185 Ill. 2d 179 (1998). Arraignment amounts to theinitiation of formal criminal proceedings and, as such, is " 'far from a mereformalism.' " Lindsey, 201 Ill. 2d at 55, quoting Kirby v. Illinois, 406U.S. 682, 689, 32 L. Ed. 2d 411, 418, 92 S. Ct. 1877, 1882 (1972).Because of the importance of arraignment, a defendant's right to counselattaches at that time. Brewer v. Williams, 430 U.S. 387, 398, 51 L. Ed.2d 424, 436, 97 S. Ct. 1232, 1239 (1997); Lindsey, 201 Ill. 2d at 55.

A defendant can plead guilty at arraignment: " 'Arraignment' meansthe formal act of calling the defendant into open court, informing him of theoffense with which he is charged, and asking him whether he is guilty ornot guilty." 725 ILCS 5/102-4 (West 2000). Moreover, section 113-4of the Code of Criminal Procedure of 1963 (the Code) provides that"[w]hen called upon to plead at arraignment the defendant *** shall pleadguilty, guilty but mentally ill, or not guilty" and if defendant pleads guiltysuch plea shall not be accepted until defendant is fully admonished. But ifdefendant understandably persists in his plea, it shall be accepted by thecourt and recorded. 725 ILCS 5/113-4 (West 2000).

Lindsey reviewed the holdings of the United States Supreme Courtin Stincer and of this court in People v. Bean, 137 Ill. 2d 65 (1990), andconcluded the following:

"[E]ven where a defendant has the general right to be presentbecause the proceeding is a 'critical' stage, a defendant'sabsence is not a per se constitutional violation. Rather, adefendant's absence from such a proceeding will violate hisconstitutional rights only if the record demonstrates thatdefendant's absence caused the proceeding to be unfair or if hisabsence resulted in a denial of an underlying substantial right."Lindsey, 201 Ill. 2d at 57.

Applying the above-quoted standard, Lindsey then found that therecord did not demonstrate that the defendant's physical absence from thecourtroom contributed to the unfairness of the proceedings or caused himto be denied any underlying constitutional right. Lindsey, 201 Ill. 2d at 58.Lindsey observed that, while the defendant was not physically present inthe courtroom for his arraignment and jury waiver, he was not entirelyabsent from the proceedings either. The defendant participated in theproceedings by the closed circuit system, allowing him to interact with thecourt with relative ease. The overall solemnity of the proceedings waspreserved, and the defendant's ability to defend against the charges wasunaffected by his physical absence from the courtroom. Lindsey, 201 Ill.2d at 58-59. This court concluded by stating its holding as follows:

"In sum, we hold that defendant's appearances via closedcircuit television at arraignment and jury waiver did not renderthose proceedings unconstitutional. To show a constitutionalviolation of the right to be present, there must be evidence thatdefendant's due process rights were violated by his absencefrom the courtroom, i.e., that defendant's physical absence fromthe proceedings caused the proceedings to be unfair or that hisphysical absence from the proceedings resulted in the denial ofan underlying constitutional right. There has been no showing onthis record. Consequently, we find no constitutional violation."Lindsey, 201 Ill. 2d at 60.

We find Lindsey instructive, but not determinative of the outcome,because, unlike the present case involving the constitutionality of a closedcircuit television procedure for taking a plea of guilty at a plea proceeding,Lindsey only considered the propriety of a jury waiver and entry of a not-guilty plea at arraignment by closed circuit television. The number andgravity of the rights at stake at a guilty plea hearing are greater than whena defendant intends to plead not guilty at arraignment. In Guttendorf, theappellate court addressed the precise issue here, concluding that atelevised guilty plea is not constitutionally permitted. Guttendorf, 309 Ill.App. 3d at 1047. The court stated the following in explaining theimportance of a guilty plea hearing:

"A guilty plea is a critical stage because its direct result isdefendant's conviction. See Boykin v. Alabama, 395 U.S. 238,242, 23 L. Ed. 2d 274, 279, 89 S. Ct. 1709, 1711-12 (1969).It is an admission of guilt of the criminal acts charged as well asof all material facts alleged in the charging instrument. SeePeople v. Johnson, 28 Ill. 2d 531, 533-34 (1963). Thisadmission rebuts the presumption of innocence. See People v.Page, 38 Ill. 2d 611, 612-13, 232 N.E.2d 689, 690-91 (1967).The entry of a guilty plea results in a waiver of a defendant's'right to a trial by jury and the right to be confronted with thewitnesses against him.' 177 Ill. 2d R. 402. A guilty plea alsowaives other constitutional rights, such as the fundamental rightto present evidence and to raise the privilege against self-incrimination. See Boykin, 395 U.S. at 243, 23 L. Ed. 2d at279, 89 S. Ct. at 1712.

A guilty plea is a decisive moment for the defendant in thecriminal process. The plea obviates the prosecution's burden ofproof. ' "It supplies both evidence and verdict, endingcontroversy." ' Boykin v. Alabama, 395 U.S. 238, 242 n.4, 23L. Ed. 2d 274, 279 n.4, 89 S. Ct. 1709, 1712 n.4 (1969),quoting Woodward v. State, 42 Ala. App. 552, 558, 171 So.2d 462, 469 (1965). It carries the same finality as a jury verdict.The atmosphere of the courtroom can play a critical, albeitintangible, role in the proceedings, including a hearing on a plea.A courtroom 'is more than a location with seats for a judge, jury,witnesses, defendant, prosecutor, defense counsel and publicobservers; the setting that the courtroom provides is itself animportant element in the constitutional conception of trial,contributing a dignity essential to "the integrity of the trial"process.' Estes v. Texas, 381 U.S. 532, 561, 14 L. Ed. 2d543, 561, 85 S. Ct. 1628, 1642 (1965) (Warren, C.J.,concurring, joined by Douglas and Goldberg, JJ.), quoting Craigv. Harvey, 331 U.S. 367, 377, 91 L. Ed. 2d 1546, 1553, 67 S.Ct. 1249, 1256 (1947).

In a televised appearance, crucial aspects of a defendant'sphysical presence may be lost or misinterpreted, such as theparticipant's demeanor, facial expressions and vocal inflections,the ability for immediate and unmediated contact with counsel,and the solemnity of a court proceeding. In a guilty plea hearing,as in a trial, these components may be lost if a defendant'sappearance is through closed circuit television." Guttendorf,309 Ill. App. 3d at 1046-47.

The only other reported case to directly address the constitutionalityof a plea other than not guilty by closed circuit television is State v.Peters, 237 Wis. 2d 741, 615 N.W.2d 655 (2000). There, the courtfound that the defendant's voluntary plea of no contest by closed circuittelevision to the offense of driving with a revoked license did not violatehis due process rights under the United States Constitution, even thoughhe did not specifically waive his right to be physically present. It noted that"courts have recognized that 'the presence of the defendant is required asa *** condition of due process to the extent that a fair and just hearingwould be thwarted by his absence, and to that extent only.' " Peters, 237Wis. 2d at 747, 615 N.W.2d at 659, quoting May v. State, 97 Wis. 2d175, 186, 293 N.W.2d 478, 483 (1980), citing Snyder v.Massachusetts, 291 U.S. 97, 78 L. Ed. 674, 54 S. Ct. 330 (1934). Thecourt concluded that the defendant's right to a fair and just hearing wasnot thwarted by his physical absence. Peters, 237 Wis. 2d at 749, 615N.W.2d at 660.

Because of its rather scant analysis and because it involved a plea ona misdemeanor charge, we do not find Peters to be persuasive. Petersdid not discuss Snyder in any detail, nor did it address the decisions of theSupreme Court in United States v. Gagnon, 470 U.S. 522, 526, 84 L.Ed. 2d 486, 490, 105 S. Ct. 1482, 1484 (1985), and Kentucky v.Stincer, 482 U.S. 730, 745, 96 L. Ed. 2d 631, 647, 107 S. Ct. 2658,2667 (1987), the three cases that have adumbrated a defendant's dueprocess right to be present for a trial proceeding. In Gagnon, the UnitedStates Supreme Court observed:

"We think it clear that respondent's rights *** were notviolated by the in camera discussion with a juror. '[T]he mereoccurrence of an ex parte conversation between a trial judgeand a juror does not constitute a deprivation of any constitutionalright. The defense has no constitutional right to be present atevery interaction between a judge and a juror, nor is there aconstitutional right to have a court reporter transcribe every suchcommunication.' [Citation.]

The constitutional right to presence is rooted to a large extentin the Confrontation Clause of the Sixth Amendment, e.g.,Illinois v. Allen, 397 U.S. 337 (1970), but we have recognizedthat this right is protected by the Due Process Clause in somesituations where the defendant is not actually confrontingwitnesses or evidence against him. In Snyder v. Massachusetts,291 U.S. 97 (1934), the Court explained that a defendant has adue process right to be present at a proceeding 'whenever hispresence has a relation, reasonably substantial, to the fulness ofhis opportunity to defend against the charge.' " Gagnon, 470U.S. at 526, 84 L. Ed. 2d at 490, 105 S. Ct. at 1484.

In Stincer, the Court added that "a defendant is guaranteed the right to bepresent at any stage of the criminal proceeding that is critical to itsoutcome if his presence would contribute to the fairness of the procedure."Stincer, 482 U.S. at 745, 96 L. Ed. 2d at 647, 107 S. Ct. at 2667.

Unlike the present case, Snyder, Gagnon and Stincer involved shortabsences from minor portions of trial. In each of the three cases, the Courtheld that the defendant's due process rights were not thwarted. In Snyder,the defendant was absent from a jury view of the scene of the crime; inGagnon, the defendant was absent from a brief in camera discussionbetween the trial judge and a juror; and in Stincer, defendant was notpresent at the competency hearing of a witness where no substantiveevidence was addressed. Here, in contrast, defendant was physicallyabsent from the most decisive moment of the criminal proceedings againsthim. We recognize that he was not entirely absent from the proceedingseither, however, because of his closed circuit television appearance.Nevertheless, the importance of the courtroom itself in " 'contributing adignity essential to "the integrity of the trial" process' " (Guttendorf, 309Ill. App. 3d at 1046-47, quoting Estes v. Texas, 381 U.S. 532, 561, 14L. Ed. 2d 543, 561, 85 S. Ct. 1628, 1642 (1965) (Warren, C.J.,concurring, joined by Douglas and Goldberg, JJ.)) leads us to concludethat a defendant's appearance at a guilty plea proceeding via closed circuittelevision is constitutionally permissible only if the defendant waives theright to physical presence on the record after being advised of his right tobe present. Defendant did not specifically waive his right to be bodily inthe courtroom. We believe that defendant's physical presence would havecontributed to the fairness of the proceeding. Accordingly, we concludethat defendant's due process right to be present at the proceeding wasviolated.

While not dispositive of the constitutional issue, we find support forour conclusion in the legislative stances of the various states on guilty pleasvia closed circuit television. The approaches of the states fall into threedistinct camps: (1) those that allow defendants to plead guilty by closedcircuit television (see, e.g., Mich. Stat. Ann.