{ "id": 2547316, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK D. BURCHAM, Defendant-Appellant", "name_abbreviation": "People v. Burcham", "decision_date": "1991-01-29", "docket_number": "No. 4\u201490\u20140158", "first_page": "939", "last_page": "943", "citations": [ { "type": "official", "cite": "208 Ill. App. 3d 939" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "546 N.E.2d 658", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "660" } ], "opinion_index": 0 }, { "cite": "190 Ill. App. 3d 171", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2519718 ], "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/0171-01" ] } ], "analysis": { "cardinality": 511, "char_count": 9929, "ocr_confidence": 0.765, "pagerank": { "raw": 1.7412034333925652e-07, "percentile": 0.707059176036904 }, "sha256": "8f3fa2b0caa25e62c17e150c7c718c799136d16c6b5a4560b230cc37b8235995", "simhash": "1:c74e1f906a447778", "word_count": 1679 }, "last_updated": "2023-07-14T21:36:42.825942+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK D. BURCHAM, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nAfter a jury trial in Macon County, defendant, Mark D. Burcham, was convicted in absentia of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 \u2014 1). The jury was unable to reach a verdict on the second charge against defendant, possession of burglary tools, and the court declared a mistrial as to that charge. The court also held a sentencing hearing in absentia at which the State submitted certified copies of defendant\u2019s convictions for armed robbery (committed in 1981) and burglary (committed in 1984) and requested that the court sentence defendant as a Class X offender pursuant to section 5 \u2014 5\u20143(cX8) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 5\u20143(c)(8)). The court agreed that defendant should be sentenced as a Class X offender, and he was sentenced to 12 years in prison.\nDefendant\u2019s sole argument on appeal is that his 12-year sentence violated his right to due process because he had been informed by the court that he was subject to a sentence of three to seven years in prison. We disagree and affirm.\nOn October 3, 1989, the State filed an information in Macon County charging defendant with burglary and possession of burglary tools. On October 4, 1989, defendant and Ms codefendant appeared in court in the custody of the sheriff and both defendants were told the following:\n\u201cYou are each charged in Count I with the offense of Burglary wMch is a Class 2 Felony.\nYou are charged in Count II with the offense of Possession of\nBurglary Tools which is a Class 4 Felony.\nA Class 2 Felony carries a possible penitentiary term of a minimum of 3 years, a maximum of 7, and a period of mandatory supervised release or parole of 2 years.\nClass 4 Felony carries a possible penitentiary term of a minimum of 1 year, a maximum of 3, and a period of mandatory supervised release or parole of 1 year.\u201d\nThe court further explained to the defendants their right to a preliminary hearing and their right to be represented by counsel. After these admonitions, the court appointed the Macon County public defender to represent both defendants and then asked the prosecutor if he had a recommendation as to bond. The prosecutor replied as follows: \u201cAs to Mr. Burchman, Your Honor, the People recommend a bond in the sum of $5,000. He has prior convictions for Criminal Trespass to Land, Burglary, second conviction for Burglary, and Residential Burglary.\u201d Neither the dates those offenses were committed nor the dates defendant was convicted were provided by the prosecutor. No clarification of the prosecutor\u2019s representations was requested by defendant\u2019s counsel, and no suggestions were made by anyone that the provisions of section 5 \u2014 5\u2014 3(cX8) of the Code might be applicable.\nAt defendant\u2019s in absentia sentencing hearing, the State presented the court with certified copies of defendant\u2019s convictions for armed robbery and burglary. The State then argued that because the requirements of section 5 \u2014 5\u20143(cX8) of the Code were met, the court was required to sentence defendant as a Class X offender. The State noted that the sentencing range for a Class X offender is not less than 6 nor more than 30 years (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u20141(a)(3)) and argued that a 14-year sentence would be appropriate because defendant had been sentenced to prison for felony convictions four separate times in the previous 12 years. The court agreed that defendant had to be sentenced as a Class X offender and sentenced him to 12 years in prison.\nOn appeal, defendant argues that he was denied his right to due process of law under the fourteenth amendment to the United States Constitution because he had been informed that if convicted of burglary he could be sentenced to imprisonment for three to seven years, yet he was subsequently sentenced as a Class X offender to 12 years. Defendant concedes that absent a guilty plea, the trial court was under no duty to advise him of his eligibility for an enhanced sentence. (See Ill. Rev. Stat. 1989, ch. 38, pars. 109-1(b), 113-1, 113-4(c); see also 107 Ill. 2d R. 402(a)(2).) However, defendant argues that once the trial court chose to inform defendant of the possible sentences, due process requires that the information be accurate and complete. Defendant concludes his argument as follows: \u201cIt was fundamentally unfair to inform the defendant that he faced 3 to 7 years imprisonment upon conviction, and later to sentence him to a Class X sentence of 12 years, especially where at the arraignment the State informed the court of the defendant\u2019s prior convictions.\u201d We are unpersuaded.\nThe first difficulty with defendant\u2019s argument is that were we to accept it, we would be placing defendants who wilfully fail to appear at their sentencing hearings in a better position that those who do appear. This dichotomy is shown by noting that had defendant appeared at his sentencing hearing, he would have had no basis to argue against his being sentenced as a Class X offender to 12 years. As previously stated, Illinois law requires detailed admonitions of the minimum and maximum sentences defendants face only when they plead guilty; a defendant who pleads not guilty and who is convicted at trial may receive whatever sentence the trial court chooses to impose at the sentencing hearing as long as it is within accordance with the sentencing range provided in the Code for the offense of which the defendant stands convicted.\nWe use the term \u201cwilfully\u201d advisedly when describing a defendant who fails to appear for his trial or sentencing hearing and, as a result, is tried or sentenced in absentia pursuant to the provisions of section 115 \u2014 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 4.1). Section 115 \u2014 4.1(e) states that when such a defendant next appears before the court, \u201che must be granted a new trial or new sentencing hearing if the defendant can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control.\u201d (Ill. Rev. Stat. 1989, ch. 38, par. 115\u2014 4.1(e).) Thus, we can presume a defendant\u2019s absence to be wilful because, if it were not, the hearing required by subsection (e) would result in the sentencing hearing being vacated and defendant\u2019s being sentenced anew. Only if a court has determined at a subsection (e) hearing that defendant\u2019s failure to appear was not without his fault or not due to circumstances beyond his control \u2014 in other words, his failure to appear was \u201cwilful\u201d \u2014 would the earlier action of the court in trying or sentencing defendant in absentia be permitted to stand.\nDefendant seems to be arguing some theory of \u201cdetrimental reliance\u201d based upon the court\u2019s representations as to what his sentencing range might be, suggesting that this \u201creliance\u201d was a factor in defendant\u2019s wilfully choosing not to appear at his sentencing hearing. We are not prepared to recognize such reliance as either reasonable or detrimental; nor are we prepared to place defendants who choose not to appear at their sentencing hearings in a better position than those who do appear. To hold otherwise would make a mockery of the criminal law.\nOur decision is not affected by the State\u2019s representations of defendant\u2019s prior criminal record at a defendant\u2019s first appearance before the court (here, the day after criminal charges were filed), when bail bond is being set. We are not going to require the State, at its peril, to know with precision defendant\u2019s prior record and whether that record permits or requires the imposition of an enhanced sentence in the event of defendant\u2019s conviction. We hold that any representations made by the State regarding a defendant\u2019s record of convictions can be no support for the kind of claim now before us.\nDefendant also makes the following argument before this court: \u201cA defendant who is tried, convicted, and sentenced in absentia is particularly vulnerable to excesses by the State because he is not present to challenge the accuracy of the evidence or to inform his attorney that evidence is inaccurate.\u201d We reject this argument and add that defendants who wilfully choose to disregard court orders to appear at trial or sentencing hearings are entitled to no succor or sympathy from the trial courts or this court. Simply put, if defendants are concerned about the \u201cexcesses of the State\u201d or the accuracy of the evidence that might be presented at their sentencing hearings, it is a good idea for them to show up. The law provides the means for a defendant to be heard in order to fully protect his rights at the sentencing hearing, and his wilful failure to appear ought properly be viewed as a self-inflicted wound.\nAs this court wrote in the case of another defendant who was tried in absentia and complained on appeal about being deprived of some statutory benefits available to defendants who appear as directed, \u201cThe loss to the defendant of benefits otherwise available [such as challenging the accuracy of the evidence at the sentencing hearing or informing his attorney that the evidence is inaccurate] may be viewed as one additional cost of his wilful failure to appear for trial as directed.\u201d People v. Emery (1989), 190 Ill. App. 3d 171, 174, 546 N.E.2d 658, 660.\nFor the reasons stated, the judgment of the circuit court imposing a 12-year sentence upon the defendant is affirmed.\nAffirmed.\nLUND, P.J., and SPITZ, J., concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Lawrence R. Fichter, State\u2019s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Amy K. Schmidt, all 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. MARK D. BURCHAM, Defendant-Appellant.\nFourth District\nNo. 4\u201490\u20140158\nOpinion filed January 29, 1991.\nDaniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nLawrence R. Fichter, State\u2019s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Amy K. Schmidt, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0939-01", "first_page_order": 961, "last_page_order": 965 }