People v. Link
State: Illinois
Court: 3rd District Appellate
Docket No: 3-96-0163
Case Date: 07/22/1997
No. 3--96--0163
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 9th Judicial Circuit,
) Henderson County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 95--CF--10
)
JAMES E. LINK, ) Honorable
) David R. Hultgren
Defendant-Appellant. ) Judge, Presiding
_________________________________________________________________
JUSTICE HOMER delivered the opinion of the court:
_________________________________________________________________
Following a jury trial, defendant James E. Link was convict-
ed of driving while his license was revoked (625 ILCS 5/6--303
(West 1996)). Because of the defendant's driving record, the
present offense constituted a Class 4 felony. 625 ILCS 5/6--
303(d)(West 1996). He was sentenced in absentia to six years'
imprisonment. The defendant then filed a post-trial motion
alleging that: (1) he was entitled to a new sentencing hearing
because he was not "willfully" absent from sentencing; and (2)
his sentence was excessive. Following a hearing, the defendant's
motion was denied. The defendant appeals from the denial of that
motion. We affirm.
At trial it was established that on March 18, 1995, the
defendant was driving his girlfriend's truck and was involved in
an accident. The defendant's brother was injured and was taken
by ambulance to the hospital. The defendant's license was re-
voked at the time of the incident. Based upon this evidence, the
defendant was found guilty of driving while his license was
revoked.
Following the verdict, the trial judge scheduled the sen-
tencing hearing for 9 a.m. on September 18, 1995, and expressly
informed the defendant in open court that if he failed to appear
he could be sentenced in absentia and lose his right to partici-
pate in the hearing. The judge took special care to warn the
defendant that "it is important for you to be here" and asked the
defendant if he understood that he could be sentenced in absen-
tia. The defendant responded, "Yes, sir, I do."
However, the defendant failed to appear for his September 18
sentencing hearing. Defense counsel requested a continuance but
admitted that he had sent the defendant notice of the hearing.
The trial court denied the request for a continuance, noting that
the defendant had previously been notified of the sentencing
hearing, both in open court and by notice from defense counsel.
The court then reviewed the pre-sentence investigation report and
heard arguments by the parties.
The State noted that the defendant was eligible for an
extended-term sentence because he had previously been convicted
of the same or a similar class felony within the past 10 years.
730 ILCS 5/5--5--3.2(b)(1) (West 1996). The State emphasized
that the defendant had an extensive criminal record, including a
number of previous convictions for driving with a revoked li-
cense. Finally, the State noted that the defendant had just
served two years in prison for a similar offense. The State
requested an increase in the penalty so that the defendant "gets
the message." Defense counsel, on the other hand, requested
probation, urging that this was "an isolated and unusual circum-
stance."
Following the arguments of counsel, the court sentenced the
defendant to the maximum extended term of six years' imprison-
ment. The defendant subsequently filed a motion to reconsider
sentence. The defendant alleged that he was entitled to a new
sentencing hearing because he had not been informed he could be
sentenced in absentia. The defendant also claimed that his
sentence was excessive. Following a hearing, the trial court
denied the defendant's motion. The defendant appeals.
The defendant first argues that the trial court should have
granted him a new sentencing hearing because he was not "willful-
ly" absent from his sentencing hearing. At the hearing on his
motion to reconsider sentence, the defendant testified that he
could not recall being provided with a sentencing date at trial.
Further, he could not recall receiving any notice from his
attorney. At the time of his trial, he was living in Oquawka,
but he subsequently moved in order to work for his brother-in-law
in Peoria. Because he was out of town, defendant did not receive
notice from his attorney. Additionally, maintained the defen-
dant, he never before failed to appear for a court date.
A defendant may be tried or sentenced in absentia if the
defendant willfully absents himself from the trial or the sen-
tencing hearing. 725 ILCS 5/115--4.1 (West 1996). To establish
a prima facie case of willful absence, the State must prove: (1)
the defendant was informed of the date of the proceeding; (2) the
defendant was warned his failure to appear may result in the
proceedings continuing in absentia; and (3) the defendant failed
to appear. People v. Nivens, 239 Ill. App. 3d 1, 603 N.E.2d 1275
(1992).
Here, the defendant was notified in open court that sen-
tencing was scheduled for September 18, 1995. He was also
advised that if he failed to appear on that date, sentencing
might proceed in absentia. When asked if he understood that he
could be sentenced in absentia if he failed to appear, the
defendant responded, "Yes, sir, I do." Nevertheless, the defen-
dant failed to appear for the scheduled sentencing hearing.
Under these circumstances, there is no doubt that the State
established a prima facie case of willful absence.
The defendant argues that the State's prima facie case of
willful absence was overcome by evidence that his failure to
appear was not "willful." Specifically, the defendant argues
that a defendant is not willfully absent where he "fails to
appear for his sentencing hearing due to forgetfulness or confu-
sion about the court date." The defendant provides no case law
in support of this claim. Moreover, our review of the case law
reveals the defendant's claim is contrary to the prevailing law.
It is the defendant's duty to keep track of his court dates
and to appear when required. Nivens, 239 Ill. App. 3d 1, 603
N.E.2d 1275. Accepting forgetfulness or confusion as an excuse
for failing to appear would result in virtually every in absentia
proceeding being subject to reversal. People v. Canal, 210 Ill.
App. 3d 733, 569 N.E.2d 233 (1991). Therefore, absences result-
ing from forgetfulness or confusion will not warrant new pro-
ceedings. Nivens, 239 Ill. App. 3d at 7, 603 N.E.2d at 1280.
Accordingly, the trial court properly denied the defendant's
request for a new sentencing hearing.
The defendant next argues that the six-year extended-term
sentence imposed by the trial court was excessive.
We initially note that our review of this issue is greatly
hampered by the defendant's failure to incorporate into the
appellate record a copy of the defendant's pre-sentence investi-
gation report. We believe the defendant's failure to include
that report in the appellate record provides, in and of itself, a
sufficient basis for affirming the sentence imposed by the trial
court. See People v. Smith, 214 Ill. App. 3d 327, 574 N.E.2d 784
(1991). However, even without that report it appears the sen-
tence imposed by the trial court was justified.
When sentencing the defendant, the trial court expressly
stated:
"I find that the defendant has a history
of prior delinquency, and in fact specifical-
ly find this is one of the most egregious
histories of delinquency that I believe this
Court has seen. *** This is a defendant who
has an extensive record of driving while
revoked, apparently simply ignoring the legal
requirements in that respect.
I find in aggravation that a sentence
here to the Department of Corrections is
necessary to deter others and frankly to get
this defendant's attention. In argument, it
was suggested this was an isolated circum-
stance arising out of a unique set of facts.
Maybe a unique set of facts, but I don't
think it is an isolated circumstance based
upon defendant's record[.] I think the de-
fendant had his chance in 1989, 1991, in
1993, and even two years in the Department of
Corrections was not enough to get this de-
fendant's attention that without a license
you are not entitled to drive.
***
*** [T]he defendant's conduct in this
case was enhanced from a misdemeanor to a
felony by the traffic conviction 91--TR--411.
I think because of felony convictions 93--CF-
-2 in Warren County, 93--CF--1 in Henderson
County, 93--CF--41 in Mercer County, I think
extended term is applicable here, and for all
of the preceding reasons, I sentence the de-
fendant to a maximum term of six years in the
Department of Corrections."
It is clear that the defendant received a severe sentence.
However, based upon the trial judge's comments at sentencing it
appears that such a sentence was justified by the defendant's
criminal history. Therefore, we are unable to say that the six-
year term of imprisonment constituted an abuse of discretion.
For the foregoing reasons, the judgment of the circuit court
of Henderson County is affirmed.
Affirmed.
MICHELA and MCCUSKEY, JJ., concur.
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