People v. D.W. (In re D.W.)

2023 IL App (1st) 211006

221 N.E.3d 1144

468 Ill.Dec. 922

IN RE D.W., a minor,

(The People of the State of Illinois, Petitioner-Appellee,

v.D.W., Respondent-Appellant).

Nos. 1-21-1006

1-21-1007

1-21-1008

1-21-1009

1-21-1010

1-21-1011

1-21-1012

1-21-1013 (cons.)

Appellate Court of Illinois, First District, FOURTH DIVISION.

Filed April 13, 2023

Rehearing denied May 3, 2023

JAMES E. CHADD, State Appellate Defender, DOUGLAS R. HOFF, Deputy Defender, DEEPA PUNJABI, Assistant Appellate Defender, Office of the State Appellate Defender, First Judicial District, 203 N. LaSalle St., 24th Floor, Chicago, IL 60601, Phone: (312) 814-5472

KIMBERLY M. FOXX, State's Attorney, County of Cook, ENRIQUE ABRAHAM, DOUGLAS P. HARVATH, TASHA-MARIE KELLY, Asst State's Attorneys, Of Counsel, Room 309 - Richard J. Daley Center, Chicago, Illinois 60602, Phone: (312) 603-5496

OPINION

JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 In this consolidated appeal, the respondent, D.W., appeals circuit court judgments revoking the stays of adult sentences in eight separate extended juvenile jurisdiction (EJJ) proceedings. The respondent asserts that the judgments must be vacated because the hearing on the State's petitions to revoke the stays was conducted in his absence, without the court having given him in absentia admonishments and without the State having provided him with sufficient notice of the hearing. The respondent also contests the evidentiary support for the court's determination that he committed a new offense warranting the revocation of the stays of his adult sentences. We agree with the respondent in part and conclude that, for five of the eight cases at issue, the lack of in absentia admonishments requires vacation of the respondent's sentences. However, for the remaining three cases, in which he was properly admonished, we find that notice was sufficient and that the court's finding that the respondent committed a new offense was not against the manifest weight of the evidence. Accordingly, we affirm the other three sentences.

¶ 2 In June and July 2018, the State filed 11 petitions for adjudication of wardship charging the respondent with a variety of offenses. Eight of those are relevant to this appeal, and they included the following charges: one count of Class X aggravated vehicular hijacking (18JD925), two counts of Class X armed robbery (18JD926 and 18JD929), and five counts of Class 2 possession of a stolen motor vehicle (PSMV) (18JD927, 18JD928, 18JD1163, 18JD1174, and 18JD1175). The respondent was 17 years old at the time of these offenses. The parties agree that, at his arraignments on these charges, the respondent received admonishments that he could be tried in absentia only in cases 18JD1163, 18JD1174, and 18JD1175. The respondent did not receive in absentia admonishments when he was arraigned in cases 18JD925, 18JD926, 18JD927, 18JD928, and 18JD929.

¶ 3 On a motion from the State, the prosecutions of each of these cases were designated EJJ proceedings under section 5-810 of the Juvenile Court Act of 1987 (Act) ( 705 ILCS 405/5-810 (West 2018) ). In October 2019, the parties reached a plea agreement under which the respondent would plead guilty to the top offense in each of the eight cases in exchange for a juvenile sentence of commitment to the Illinois Department of Juvenile Justice (IDJJ) for a period not to exceed his twenty-first birthday and an adult sentence of 15 years in prison for case 18JD929, which would be stayed pending the respondent's compliance with the conditions of his juvenile sentence. Under the plea agreement, the remaining seven cases would result in a "finding to stand," case closed. The circuit court accepted the respondent's guilty pleas and later held a sentencing hearing in December 2019, following which the court sentenced the respondent in all eight cases to commitment to IDJJ for a period not to exceed his twenty-first birthday. For the conditional adult sentences, the court found that the State's recommendation of 15 years was not enough to respect the harm to the victims, so it set the adult sentences at 21 years in prison for each of the three Class X cases, of which the court noted the respondent would need to serve 85%, and 3 years in prison for each of the five Class 2 cases, with all eight sentences running concurrently. The court explained to the respondent that the adult sentences would be stayed and would not take effect unless he committed a new offense or otherwise violated the conditions of his juvenile sentences.

¶ 4 The respondent was released from IDJJ in January 2020 and was then due to serve a 1½-year aftercare term expiring in July 2021. However, in October 2020, the respondent was arrested and charged with a new PSMV offense. Accordingly, in March 2021, in each of the respondent's eight cases, the State filed a petition to revoke the stay of the respondent's adult sentence. When the respondent failed to appear for a hearing on the petitions, the court issued a warrant for the respondent's arrest.

¶ 5 At the next hearing on the matter, the respondent's counsel objected to the case proceeding in absentia as a violation of the respondent's right to due process. The court continued the matter to allow the State to attempt to locate and serve the respondent with notice of the proceeding. At the subsequent evidentiary hearing on the State's petitions, the respondent again did not appear. The State informed the court that it had attempted to serve summonses for all eight cases on the respondent, the respondent's parents, and the respondent's sister, and that it was only able to complete service on the respondent's father. The State averred that it then provided notice to all parties via publication in the newspaper. Based on those efforts on the part of the State, the court found that service was complete. The respondent's counsel stated that he had no objection to that finding.

¶ 6 Although the respondent's counsel did not object to the court's finding that notice had been accomplished, counsel did renew his objection to the matter proceeding in absentia. Counsel pointed out that the respondent had not received in absentia admonishments in five of the eight cases at issue and that the respondent had a due process right to be present at the evidentiary hearing on the State's petitions. Counsel further argued that, based on the discovery that he had received, he had concerns about the respondent's fitness for prosecution and that, because of the respondent's absence, he was unable to evaluate the respondent to make a determination about the respondent's fitness. The State replied that the respondent had been admonished several times in several different cases that he could be tried in absentia. Therefore, the State contended, even if the admonishment had not been given in each case individually, the respondent was generally aware that he could be tried in absentia.

¶ 7 After hearing the arguments of the parties, the court ruled that the proceeding could continue with the respondent in absentia. The court reasoned that, while a respondent must be admonished that a trial can proceed in his or her absence, the hearing on the State's petitions is not a trial. Rather, the court characterized the proceeding as

"a ministerial matter of whether or not I have the ability to lift the stay of mittimus. I deny the Defense's motion and I believe I do have the ability to ministerially manage my case and ministerially if I want to do it before his 21st birthday, I think I have the right to do it."

The court then proceeded to take testimony on the State's petitions, specifically on the question of whether the State could show by a preponderance of the evidence that the respondent had committed a new PSMV offense.

¶ 8 Officer Efrain Carreno testified that on the evening of October 17, 2020, he and two other officers were on patrol when they observed a black sedan driving without its headlights on. One of Carreno's partners ran the sedan's plate, and the partner informed Carreno that the vehicle had been reported stolen. Defense counsel objected to the testimony concerning the sedan being stolen on the grounds that it was hearsay, but the court overruled the objection on the basis that the information was not offered for the truth of the matter but rather as a course of investigation.

¶ 9 Carreno explained that he notified dispatch of the location of the reportedly stolen sedan and then continued to follow it. While following the vehicle, an Audi SUV that had been in front of the black sedan "jerked" out to the side and let the sedan past, before pulling back behind the sedan. The Audi and the sedan soon stopped on the side of the road, at which point Carreno noticed that the Audi appeared to be reversing. As Carreno positioned his vehicle behind the Audi, the driver of the Audi got out of the vehicle while it was still in reverse. The then-driverless Audi continued reversing and eventually hit the front of Carreno's vehicle. Carreno then saw the driver of the Audi look back at him before getting into the passenger side of the black sedan, which then drove away. Carreno was able to see the driver's face, and the driver was wearing a distinctive hooded jacket with white fur around the hood.

¶ 10 Carreno testified that his vehicle was then blocked by the Audi, which was still in reverse. According to Carreno, the Audi did not have any license plates and had the type of "wrapping" that new cars have when they are being transported between a factory and a dealership. Defense counsel objected to the characterization of the type and purpose of the wrapping as speculation, and the court sustained the objection, ruling that "[i]t had wrapping on it, but I'll leave it at that."

¶ 11 A few minutes later, Carreno received a call over the radio that the black sedan had hit another vehicle. When Carreno and his partners arrived at the scene of the crash, he saw that a person whom he recognized as the...