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2023 IL App (5th) 220667-U 

NO. 5-22-0667 

IN THE 

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

 ) Circuit Court of

Plaintiff-Appellee, ) Champaign County. 

 ) 

v. ) No. 21-CF-1396 

 ) 

DAMON L. GENTRY, ) Honorable 

 ) Roger B. Webber, 

Defendant-Appellant. ) Judge, presiding.

______________________________________________________________________________ 

JUSTICE MOORE delivered the judgment of the court. 

 Presiding Justice Vaughan and Justice Barberis concurred in the judgment. 

 

 ORDER

¶ 1 Held: We affirm the denial of the defendant’s postplea motion where we do not agree 

that the defendant’s due process rights were violated by his absence from the 

hearing on that postplea motion, because, inter alia, under the standards set forth 

 in existing precedent, there was no requirement that he be present at the hearing. 

¶ 2 In this direct appeal, the defendant, Damon L. Gentry, argues that his due process rights 

were violated by his absence from the hearing on his postplea motion, because he contends that 

the hearing was a critical stage of the criminal proceedings against him, at which he had a right to 

be present. He asks this court to reverse the denial of his postplea motion, and to remand for further 

proceedings on that motion, at which he is either present, or has knowingly and voluntarily waived 

his presence. For the reasons that follow, we affirm.

NOTICE

This order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1).

NOTICE

Decision filed 12/14/23. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
2 

¶ 3 I. BACKGROUND

¶ 4 Much in this case is undisputed. Accordingly, we recite only those facts necessary to our 

disposition of the narrow issue raised in this appeal. On June 15, 2022, the defendant entered a 

plea of guilty to the charge of aggravated domestic battery, a Class 2 felony, in exchange for the 

State dropping a felony charge of unlawful possession of a stolen vehicle, as well as dropping a 

DUI charge and several traffic offenses. On July 25, 2022, the defendant was sentenced to serve a 

term of incarceration of six years in the Illinois Department of Corrections. On August 18, 2022, 

the defendant filed a motion to reconsider sentence in which he argued that his sentence was 

excessive.

¶ 5 On September 2, 2022, the defendant filed an amended motion to reconsider sentence, 

along with an exhibit thereto, in which he argued that his sentence was excessive because the 

sentence (1) was “not in keeping with the [d]efendant’s past history of criminality, mental history, 

family situation, economic status, education, occupational or personal habits,” (2) “put too much 

weight on [the] defendant’s prior convictions,” (3) “put too much weight on the 911 recording and 

its impact on [the] defendant’s credibility,” (4) “did not put enough weight on [the] defendant’s 

rehabilitative potential,” and (5) “improperly considered a factor inherent in the offense.” In 

addition, he argued that his plea and sentencing counsel—who was different from counsel who 

filed the postplea motion—should have argued at sentencing, but did not argue, “that the bloody 

fingerprints on the door could have come from [the] defendant because he was also injured and 

bleeding,” and “that the fact that [the] defendant turned himself in should be considered in 

mitigation.” The defendant’s name was not included on the service list for either the initial motion, 

or the amended motion. On September 16, 2022, counsel for the defendant filed a certificate of 

compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). The defendant’s name 

was not included on the service list for this filing either.
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¶ 6 Also on September 16, 2022, a hearing on the amended motion was held. It is undisputed 

that the defendant was not present at the hearing, and that no explanation was given for his absence, 

other than the circuit court’s statement at the outset of the hearing: “Show no appearance by [the 

defendant]. [Defense counsel] appears on his behalf.” The transcript of the hearing consists of 13 

pages, just over 10 of which are a verbatim transcription of the substance of the hearing. During 

the hearing, defense counsel was offered the opportunity to present evidence, but declined, stating 

that he “would simply argue” because he did not “have any additional evidence to present,” and 

would instead “stand essentially on the motion as written.”

¶ 7 Defense counsel then presented argument in support of what he termed his “strongest 

contention,” which was that in rendering its sentence, the circuit court “placed weight on a factor 

inherent in the offense.” Specifically, he argued that the “position of trust” factor was inherent in 

a domestic battery conviction, and that “by considering that [as] a factor in sentencing, this court 

essentially counted it twice.” He did not discuss the other arguments that were contained in his 

written motion. He asked that the defendant’s sentence be reduced. The State responded to 

counsel’s argument, as well as to the other arguments made in counsel’s written motion. The State 

concluded its response by stating that it believed that the circuit “court carefully and appropriately 

considered the evidence that was presented at the sentencing hearing,” that the State did not 

“believe that the mere household relationship was the central factor in the court’s analysis,” and 

that it believed “the previous sentence [should] stand.”

¶ 8 In rebuttal, defense counsel candidly stated, with regard to “the issue with bloody 

handprints,” that “[t]he position of the handprints I don’t think supports one contention or another.” 

He returned to the argument he initially made, regarding the “position of trust” as a factor inherent 

in the offense, stating that “[b]y counting that again, even if it influenced the sentence by a small 

amount, it did influence the sentence.” The circuit court noted that it had reread the transcript of 
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the sentencing hearing, then stated that the court did consider the defendant’s prior criminal history 

“and gave that some—not insignificant weight,” but that the court “also considered that [the 

defendant] had gone for a substantial period of time without committing any new offenses, roughly 

10 to 12 years.” The court discussed the other factors it considered in aggravation and mitigation, 

as those factors related to the allegations in the defendant’s amended postplea motion, then stated 

that although the court “did inadvertently mention that [the defendant] held a position of trust, 

overlooking that that is inherent in the offense,” the State was correct that “that was not a 

significant factor in the sentence that the court ultimately imposed.” Thereafter, the circuit court 

denied the defendant’s amended postplea motion. This appeal was timely filed on October 4, 2022. 

¶ 9 II. ANALYSIS

¶ 10 On appeal, the defendant’s sole contention is that his due process rights were violated by 

his absence from the hearing on his postplea motion, which he contends represented a critical stage 

of the criminal proceedings against him, at which he had a right to be present. He argues that his 

“absence from the hearing denied him a meaningful opportunity to be heard regarding facts outside 

the record,” which in turn denied him due process. He does not specify what the “facts outside the 

record” are. In support of this argument, he notes that both the federal and state constitutions 

provide that for due process purposes, a defendant has the right to be present at all critical stages 

of the criminal proceedings against that defendant. He argues that case law from a panel of this 

court—People v. Brasseaux, 254 Ill. App. 3d 283, 288 (1996)—holds that a hearing on a postplea 

motion to challenge a sentence is a critical stage of the criminal proceedings against a defendant. 

He notes that although in his case, the circuit court noted his absence, “nothing in the record 

affirmatively shows that he waived his presence.” Without citation to authority, he posits that 

“[c]onducting the hearing in [his] absence was reversible error.” The defendant notes the holding 

of the Brasseaux court that “if a motion to reconsider sentence alleges facts outside of the record 
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or raises issues which may not be resolved without an evidentiary hearing, the defendant’s 

presence should be required” (see id. at 291-92), and contends that “[s]uch is the case here” 

because “his post-plea motion raised issues that could not be resolved without an evidentiary 

hearing.” He argues that because his sentence was based “upon a series of factual findings made 

by the judge,” if he had “been present for the hearing on his post-plea motion, he could have 

testified or provided other evidence that was necessary to substantiate the claims in his pleading 

that the [circuit] court’s assessment of the aggravation and mitigation was incorrect and resulted 

in an excessive sentence.” He acknowledges that his due process claim was not preserved in the 

circuit court, but asks this court to overlook this, or to consider the claim under the plain-error 

doctrine. He notes that in cases involving a circuit court’s private in-chambers review—outside 

the presence of the defendant—of evidence to be presented during a trial, the plain-error doctrine 

has been found to apply. See People v. Lucas, 2019 IL App (1st) 160501; People v. Flagg, 2021 

IL App (1st) 191692-U.

¶ 11 Before proceeding, it is important to note several things that the defendant does not contend 

in his opening brief on appeal. First, the defendant does not take issue with his plea proceedings, 

or ask to withdraw his guilty plea, and he does not claim on appeal that his sentence was excessive. 

Second, the defendant does not contend that he received ineffective assistance of counsel as a 

result of the fact that his postplea counsel (1) failed to include him on the service list for the initial 

motion, the amended motion, and/or the certificate of compliance with Rule 604(d), (2) failed to 

note and object to the defendant’s absence from the hearing in question, and/or (3) failed to insist 

upon an evidentiary hearing, and/or present evidence at the hearing, even though he was given the 

opportunity to present evidence and by doing so could have assured the hearing became an 

evidentiary hearing at which the defendant’s presence was required. Third, the defendant does not 

contend that the circuit court (1) took steps to actively prevent the defendant’s presence at the 
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hearing, such as by barring the defendant from attending the hearing, or (2) denied postplea 

counsel the opportunity to present evidence at the hearing, if counsel so desired. Fourth, the 

defendant does not claim—and certainly provides no citation to authority for any such claim—that 

the circuit court had a sua sponte duty to investigate why the defendant was not present in person, 

and/or to otherwise ensure the defendant’s presence at the hearing, or a sua sponte duty to insist 

on an evidentiary hearing, even after counsel stated that he did not desire to present evidence. 

Accordingly, the defendant has forfeited consideration of any such claims. See Ill. S. Ct. R. 

341(h)(7) (eff. Oct. 1, 2020) (argument must contain the contentions of the appellant, the reasons 

therefor, and the citation of authorities; points not argued in an opening brief are forfeited and shall 

not be raised in the reply brief, in oral argument, or in a petition for a rehearing). 

¶ 12 The State responds to the arguments made by the defendant in his opening brief on appeal 

by contending that although it is true that a hearing on a motion to reconsider sentence is a critical 

stage of criminal proceedings, under existing precedent a defendant’s presence “should not be 

required” at such a hearing if the motion in question “does not allege facts outside of the record 

and does not raise issues which may not be resolved without an evidentiary hearing.” The State 

points out that the purpose of a motion to reconsider is not to relitigate facts that have already been 

determined at sentencing, but is “to bring to the [circuit] court’s attention changes in the law, errors 

in the court’s previous application of existing law, and newly discovered evidence that was not 

available at the time of the hearing.” Thus, according to the State, only on rare occasions would a 

defendant’s presence be required at such a hearing, and this case does not represent one of those 

rare occasions. The State further argues that under any analysis, under any line of cases addressing 

this issue, the absence of the defendant at the hearing in this case was not reversible error.

¶ 13 In reply, the defendant argues that reversible error did occur, because the defendant’s 

absence from the hearing meant that the defendant “could not offer evidence or consult with his 
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attorney,” which in turn “deprived him of due process.” He argues that because his amended 

motion sought to challenge his sentence following his entry of a plea of guilty, Illinois Supreme 

Court Rule 604(d) and its strict compliance requirement is applicable to this case, rather than the 

cases cited by the State, most of which do not involve challenges to a sentence following a guilty 

plea. He acknowledges that two of the State’s cases do involve guilty pleas, but attempts to 

distinguish them, and the State’s proposed framework for resolving this case, on the basis that in 

this case his “post-plea motion raised issues that could not be resolved without an evidentiary 

hearing.” In support of this proposition, the defendant argues, in essence, that he needed to present 

new evidence and/or “confer with counsel” to change the circuit court’s mind about the defendant’s

sentence, and that accordingly, an evidentiary hearing was a necessity. He further argues that his 

absence from the hearing undermined his ability to perfect this appeal, although he does not allege 

that any prejudice resulted from this purported undermining, as he does not identify any issues that 

he has been unable to raise in this appeal as a result of his absence from the hearing, for which, as 

noted above, a full transcript exists. 

¶ 14 There are a number of problems with the defendant’s arguments on appeal. First, as noted 

above, the defendant has made no allegation of ineffective assistance of postplea counsel as a result 

of the fact that postplea counsel (1) failed to include him on the service list for the initial motion, 

the amended motion, and/or the certificate of compliance with Rule 604(d), (2) failed to note and 

object to the defendant’s absence from the hearing in question, and/or (3) failed to insist upon an 

evidentiary hearing, and/or present evidence at the hearing, even though he was given the 

opportunity to present evidence and by doing so could have assured that the hearing became an 

evidentiary hearing at which the defendant’s presence was required. Moreover, the defendant has 

not alleged that the circuit court (1) took steps to actively prevent the defendant’s presence at the 

hearing, such as by barring the defendant from attending the hearing, (2) denied postplea counsel 
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the opportunity to present evidence at the hearing, if counsel so desired, (3) had a sua sponte duty 

to investigate why the defendant was not present in person, and/or to otherwise ensure the 

defendant’s presence at the hearing, and/or (4) had a sua sponte duty to insist upon an evidentiary 

hearing on counsel’s motion, even after counsel stated that he did not “have any additional 

evidence to present” and would instead present only argument. Accordingly, as also noted above, 

the defendant has forfeited consideration of all of these claims. See Ill. S. Ct. R. 341(h)(7) (eff. 

Oct. 1, 2020) (argument must contain the contentions of the appellant, the reasons therefor, and 

the citation of authorities; points not argued in an opening brief are forfeited and shall not be raised 

in the reply brief, in oral argument, or in a petition for a rehearing). 

¶ 15 Thus, although the defendant claims that he has been denied due process, he has not 

developed and preserved any argument that his counsel was responsible for that alleged denial, or 

that the circuit court was responsible for it. If counsel did not deny the defendant his due process 

rights, and the circuit court did not, one is left to wonder who did. Put another way, although the 

defendant insists that an evidentiary hearing on the motion was necessary in this case, he does not 

allege that counsel, or the circuit court, had any kind of duty or responsibility to ensure that one 

was held, or that they failed in that duty. 

¶ 16 In addition, these problems notwithstanding, the State is correct that the purpose of a 

hearing on “a motion to reconsider sentence is not to conduct a new sentencing hearing, but rather 

to bring to the circuit court’s attention changes in the law, errors in the court’s previous application 

of existing law, and newly discovered evidence that was not available at the time of the hearing.” 

People v. Burnett, 237 Ill. 2d 381, 387 (2010). Moreover, although certain decisions ultimately 

belong to a criminal defendant, whether to argue a postsentence motion is not one of them. Id. at 

388. In this case, the defendant has not alleged that his presence would have helped to bring to the 

circuit court’s attention changes in the law, errors in the court’s previous application of existing 
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law, or newly discovered evidence that was not available at the time of the hearing, rendering even 

more dubious his claim that an evidentiary hearing—and his attendance at that hearing—was 

required in this case. To the contrary, the arguments he presents on appeal are regarding facts that 

were already presented to the circuit court at the sentencing hearing, and amount to an attempt to 

relitigate that hearing. 

¶ 17 Finally, even if we were to ignore, arguendo, all of the foregoing problems with the 

defendant’s arguments on appeal, and address this appeal under the framework the defendant 

wishes, the defendant fares no better. We turn to the principal case upon which the defendant relies: 

People v. Brasseaux, 254 Ill. App. 3d 283 (1996). Brasseaux, like this case, involved a defendant 

who entered a plea of guilty, was sentenced, and then filed a motion to reconsider sentence. Id. at 

285-86. Unlike this case, one of the arguments preserved and presented by the defendant on appeal 

was that his counsel was ineffective with regard to his handling of the motion to reconsider 

sentence, an argument with which the Brasseaux court ultimately agreed. Id. at 290. With regard 

to a defendant’s due process right to be present at a hearing on a motion to reconsider sentence, 

the Brasseaux court ruled that “if a motion to reconsider sentence alleges facts outside of the record 

or raises issues which may not be resolved without an evidentiary hearing, the defendant’s 

presence should be required,” but that if “a motion to reconsider sentence does not allege facts 

outside of the record and does not raise issues which may not be resolved without an evidentiary 

hearing, his presence should not be required.” Id. at 291-92. 

¶ 18 We agree with the State that in this case, the amended motion does not allege facts outside 

of the record and does not raise issues which may not be resolved without an evidentiary hearing, 

and that accordingly, the defendant’s presence was not required at the hearing on that motion, 

which means that his arguments on appeal fail. As explained above, the amended motion 

contended that the defendant’s sentence was excessive because the sentence (1) was “not in 
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keeping with the [d]efendant’s past history of criminality, mental history, family situation, 

economic status, education, occupational or personal habits,” (2) “put too much weight on [the] 

defendant’s prior convictions,” (3) “put too much weight on the 911 recording and its impact on 

[the] defendant’s credibility,” (4) “did not put enough weight on [the] defendant’s rehabilitative 

potential,” and (5) “improperly considered a factor inherent in the offense.” In addition, he argued 

that his plea and sentencing counsel—who as noted above was different from counsel who filed 

the postplea motion—should have argued at sentencing, but did not argue, “that the bloody 

fingerprints on the door could have come from [the] defendant because he was also injured and 

bleeding,” and “that the fact that [the] defendant turned himself in should be considered in 

mitigation.”

¶ 19 Although in his reply brief on appeal, the defendant contends that had he been present at 

the hearing, he would have been able “[t]o provide *** clarifying information to the court and 

confer with counsel” about some of the issues that were raised in the amended motion, we find 

that this speculative contention falls far short of what must be shown to prove that an evidentiary 

hearing, with the defendant in attendance, was required in this case. As the Brasseaux court set 

forth, the test is whether the motion to reconsider sentence alleges facts outside of the record or 

raises issues which may not be resolved without an evidentiary hearing. 254 Ill. App. 3d at 291-

92. The defendant’s motion, on its face, does not allege facts outside of the record or raise issues 

which may not be resolved without an evidentiary hearing. The mere fact that the defendant 

believes an evidentiary hearing at which he was present might have benefited him does not 

transform the nature or contents of the motion itself, and at no time during this appeal has the 

defendant contended that the motion was defective or did not sufficiently raise the issues he wished 

the circuit court to address, just as at no time has the defendant alleged, with any type of specificity, 

that facts outside the record exist that should have been included in the motion and presented to 
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the circuit court. Accordingly, both of those contentions are forfeited as well. See Ill. S. Ct. R. 

341(h)(7) (eff. Oct. 1, 2020) (argument must contain the contentions of the appellant, the reasons 

therefor, and the citation of authorities; points not argued in an opening brief are forfeited and shall 

not be raised in the reply brief, in oral argument, or in a petition for a rehearing). 

¶ 20 III. CONCLUSION

¶ 21 For all of the foregoing reasons, we affirm the denial of the defendant’s postplea motion.

¶ 22 Affirmed.