{
  "id": 3546147,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LYNN DEVOE, Defendant-Appellant",
  "name_abbreviation": "People v. Devoe",
  "decision_date": "1987-12-07",
  "docket_number": "No. 3\u201487\u20140081",
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  "last_updated": "2023-07-14T17:50:46.695850+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LYNN DEVOE, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE HEIPLE\ndelivered the opinion of the court:\nThe defendant, Lynn Devoe, was tried and convicted in absentia for delivery of 30 or more grams of a controlled substance. (Ill. Rev. Stat. 1985, ch. 56\u00bd, par. 1401(a).) He appeals from the court\u2019s denial of his motion to vacate the in absentia conviction. We affirm.\nThe defendant was arraigned and pleaded not guilty on December 2, 1982. At that time, he was admonished pursuant to section 113\u2014 4(e) of the Code of Criminal Procedure of 1963 (the Code) that if he was released on bond and failed to report in court as required, a trial could proceed in his absence. (Ill. Rev. Stat. 1985, ch. 38, par. 113\u20144(e).) Thereafter, the defendant appeared for each of the first four scheduled trial dates.\nOn the fifth date, July 9, 1984, however, the defendant failed to appear. He also failed to appear at the July 23 status call. The court ordered bond forfeiture and the defendant was sent, but did not claim, certified mail notice of a scheduled August 29 trial date. On August 29, the defendant\u2019s counsel was present; the defendant was absent. The cause was continued to September 20, 1984, without record explanation.\nOn September 20, the defendant did not appear. The prosecutor stated that he had unsuccessfully attempted to locate the defendant at the Will and Cook County jails and at local hospitals. Based on the prosecutor\u2019s statements, the court found that the - defendant was voluntarily absent. It held a jury trial in absentia. Following a guilty verdict, the court sentenced the defendant to 14 years\u2019 imprisonment and a $14,000 fine.\nIn October of 1986 the defendant was arrested by Chicago police. Thereafter, he filed a motion to vacate his conviction. This appeal is from denial of that motion.\nUnder section 113 \u2014 4(e) of the Code, if a defendant pleads not guilty, the court shall advise him that if he is released on bond and fails to make a required court appearance, his failure to appear constitutes waiver of the right to confront witnesses and trial could proceed in his absence. (Ill. Rev. Stat. 1985, ch. 38, par. 113\u20144(e).) Further, under section 115\u20144.1(a) of the Code, when the defendant fails to appear, the court may set the case for in absentia trial. When the date for such trial is set in open court \u201cwhen the defendant was not personally present,\u201d \u201cthe clerk shall send to the defendant, by certified mail at his last known address indicated on his bond slip, notice of the new date which has been set for trial.\u201d Ill. Rev. Stat. 1985, ch. 38, par. 115\u20144.1(a).\nThis court has held that the trial court\u2019s failure to comply with certified mail notice under section 115 \u2014 4.1 may be harmless, at least in a case where the defendant\u2019s counsel was aware of the trial date so that knowledge is imputed to the defendant. (People v. Clark (1981), 96 Ill. App. 3d 491, 421 N.E.2d 590.) The Fourth District questioned this court\u2019s finding of imputed knowledge and then held that the certified mailing procedure of section 115\u20144.1(a) is mandatory. People v. Williams (1987), 151 Ill. App. 3d 1010, 503 N.E.2d 1090; see also People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152.\nIn his first argument on appeal, the defendant asserts that the court failed to give him certified mail notice under section 115\u2014 4.1(a) for either of the August 29 or September 28 trial dates. He argues, then, that we should not impute knowledge based upon his counsel\u2019s presence in open court at the setting of those trial dates. He relies upon the Fourth District cases Watson and Williams.\nThis case is factually distinct both from our Clark and from the Fourth District cases of Watson and Williams. Under these facts, where certified mail notice in compliance with section 115 \u2014 4.1(a) was sent to the defendant, we need not reconsider Clark in light of the Fourth District cases. The record is clear that here proper certified notice was sent as a preliminary to trial in absentia on August 29. The court sent the defendant certified mail notice of the August 29 trial setting. Notice was sent to the address on the defendant\u2019s bond slip. That the certified mailing was returned unclaimed is of no statutory consequence; section 115 \u2014 4.1(a) merely requires such notice to be sent.\nWe are aware of no reason why, after a proper finding of voluntary absence, trial in absentia under section 115 \u2014 4.1 would have been improper on the properly noticed August 29 trial date. Further, we observe that section 115 \u2014 4.1 does not clearly require repeat certified mail notice for continued trial dates. We find that a reasonable reading of the section comprises no such requirement in this case. Notice under the section was given; and trial in absentia properly followed.\nThe defendant\u2019s remaining argument on appeal is that he is entitled to a new trial as the State failed to prove that his absence from trial was wilful. Under section 115 \u2014 4.1(a) of the Code, trial in absentia is allowed only where the defendant is wilfully absent from court. (Ill. Rev. Stat. 1985, ch. 38, par. 115\u20144.1(a).) Prior to holding trial in absentia, the State may establish a prima facia case that a defendant\u2019s absence is wilful by showing that the statutory requirements for trial in absentia have been met; more is not required unless the defendant introduces some evidence that he did not act wilfully. People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152.\nWith reference to our prior analysis, we note that prior to trial in absentia, the record showed both that the defendant had been given statutory admonishment under section 113 \u2014 4(e) of the Code and that certified mail notice of the trial had been sent in compliance with section 115 \u2014 4.1(a) of the Code. Further, the prosecutor had indicated to the court that after inquiry he had not located the defendant. The State\u2019s prima facie evidence of wilful absence was not rebutted, as the defendant presented no evidence.\nFurther, we find no reason to reverse the trial court\u2019s post-trial conclusion not to vacate the defendant\u2019s conviction: At the hearing on the defendant\u2019s motion to vacate, the defendant testified that his absence was justified by his attempt to avoid threats to his life. However, we find no reversible error in the court\u2019s conclusion that the defendant did not establish that his failure to appear was both without his fault and due to circumstances beyond his control. See Ill. Rev. Stat. 1985, ch. 38, par. 115\u20144.1(e); People v. Broyld (1986), 146 Ill. App. 3d 693, 497 N.E.2d 147.\nBased on the foregoing, the judgment of the circuit court of Will County is affirmed.\nAffirmed.\nBARRY, P.J., and WOMBACHER, J., concur.",
        "type": "majority",
        "author": "JUSTICE HEIPLE"
      }
    ],
    "attorneys": [
      "Thomas J. Royce, of Chicago, for appellant.",
      "Edward F. Masters, State\u2019s Attorney, of Joliet (John X. Breslin, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LYNN DEVOE, Defendant-Appellant.\nThird District\nNo. 3\u201487\u20140081\nOpinion filed December 7, 1987.\nThomas J. Royce, of Chicago, for appellant.\nEdward F. Masters, State\u2019s Attorney, of Joliet (John X. Breslin, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0855-01",
  "first_page_order": 877,
  "last_page_order": 880
}