2022 IL App (2d) 200292-U 

No. 2-20-0292 

Order filed February 17, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 

except in the limited circumstances allowed under Rule 23(e)(l).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Lake County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 15-CF-2791 

) 

EDWARD L. JOHNSON, ) Honorable 

) Daniel B. Shanes, 

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________ 

JUSTICE SCHOSTOK delivered the judgment of the court.

Justices Zenoff and Birkett concurred in the judgment.

ORDER

¶ 1 Held: Defendant forfeited his argument, raised for the first time on appeal from the 

summary dismissal of his postconviction petition, that defense counsel was 

ineffective for failing to ask the trial court for a hearing on whether defendant’s 

absence at trial was willful. Also, there was no reasonable probability that the trial 

court would have found that defendant’s absence was not willful.

¶ 2 Following a jury trial that he did not attend, defendant, Edward L. Johnson, was found 

guilty of being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2014)) and of unlawful 

possession of a weapon by a felon (id. § 24-1.1(a)). He filed a petition under the Post-Conviction 

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). The trial court summarily dismissed 
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the petition, and defendant appealed. He contends that he stated the gist of a constitutional claim 

that his counsel was ineffective for failing to request a hearing to determine whether his absence 

from trial was willful. We affirm.

¶ 3 I. BACKGROUND

¶ 4 The State charged defendant following a traffic stop where police officers found a gun and 

ammunition in his car. At the arraignment, the trial court admonished defendant that, if he did not 

appear for trial, he could be tried and sentenced in his absence. 

¶ 5 On March 21, 2016, defendant requested a conference per Illinois Supreme Court Rule 402 

(eff. July 1, 2012). He rejected the State’s plea-bargain offer and requested a jury trial. The court 

set a tentative trial date of March 28, 2016, and again informed defendant that, if he did not appear, 

he could be tried and sentenced in absentia. 

¶ 6 On March 28, 2016, defendant appeared for trial but requested a continuance to May 9, 

2016, which was granted. The court called the case on that date, and defendant did not appear. 

Defense counsel, noting that defendant had previously attended all court proceedings, requested a 

continuance. The court paused the case briefly while counsel unsuccessfully attempted to locate 

his client. 

¶ 7 The court noted that it had informed defendant multiple times of the consequences of not 

appearing for trial. The court cited numerous cases permitting trial in absentia under similar 

circumstances. The court found nothing in the record suggesting “that there is something beyond 

the [d]efendant’s desire not to be here that causes him not to be here.” Finding that defendant was 

willfully absent, the court proceeded with a trial in absentia.
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¶ 8 A jury was selected after the court disposed of some pending motions in limine. Following 

a recess, defendant still had not arrived. The court released the jurors, telling them to return at 9 

a.m. the next day—May 10, 2016—to be sworn. The court continued the case to May 10, 2016.

¶ 9 On May 10, 2016, defense counsel suggested that perhaps defendant was in Milwaukee, 

where his daughter reportedly had been involved in a serious car accident. The court declined to 

grant a continuance based on counsel’s “third hand information” and proceeded with the trial. The 

jury found defendant guilty of being an armed habitual criminal and unlawful possession of a 

weapon by a felon.

¶ 10 On July 7, 2016, with defendant still absent, the court denied defense counsel’s motion for 

a new trial. The case proceeded to sentencing. Defense counsel argued in mitigation that 

defendant’s offenses were nonviolent and that his failure to appear at trial was due to his feeling 

of hopelessness. The court sentenced defendant to 17 years in prison. The court cited defendant’s 

absence from trial as one reason for the severity of the sentence, though the court agreed with 

counsel’s theory of why defendant was absent. Counsel stated that he intended to file a motion to 

reconsider sentence. The court suggested to counsel that, if defendant contacted him, he should 

inform defendant that his appearance would “probably help [the] motion to reconsider sentence.” 

On August 2, 2016, counsel filed a motion to reconsider the sentence. Defendant was still absent. 

The trial court denied the motion.

¶ 11 Counsel filed a notice of appeal. While the appeal was pending, defendant was taken into 

custody. He appeared in court represented by the public defender. On October 6 2017, he was 

remanded to the Department of Corrections to begin serving his sentence.

¶ 12 On direct appeal, defendant argued that the trial court did not comply with the statutory 

requirements for a trial in absentia, because the State did not request a trial in absentia or present 
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evidence that defendant’s absence was willful. We noted that the relevant statute provides that, 

when a defendant fails to appear for trial, “ ‘at the request of the State and after the State has 

affirmatively proven through substantial evidence that the defendant is willfully avoiding trial,’ ” 

the court may proceed with a trial in absentia. People v. Johnson, 2018 IL App (2d) 160674, ¶ 11 

(quoting 725 ILCS 5/115-4.1(a) (West 2014)). We further observed, however, that to establish a 

prima facie case of willful absence, the State must show only that the defendant (1) was advised 

of the trial date, (2) was advised that the failure to appear could result in being tried in absentia, 

and (3) did not appear. Id. ¶ 12. We held that, where these elements are present, the State need 

not expressly request a trial in absentia or formally present evidence of willful absence. Rather, 

if the State does not request a continuance, it will be deemed to have acquiesced in a trial 

in absentia. Id. ¶¶ 13-14. We thus held that, in this case, the trial court complied with the 

procedure for a trial in absentia. Id. ¶ 15.

¶ 13 Defendant filed a pro se postconviction petition. His only argument was that, if a defendant 

is absent when the court sets a trial date, the State must provide certified-mail notice before the 

defendant can be tried in absentia. He asserted that, when the trial resumed on May 10, 2016, this 

was a “new trial date” yet the State failed to notify him. The trial court summarily dismissed the 

petition, and defendant appeals.

¶ 14 II. ANALYSIS

¶ 15 On appeal, defendant contends that the public defender, who represented him after he was 

taken into custody in September 2017, was ineffective for failing to request a hearing to prove that 

defendant’s absence from trial was not willful. Citing People v. Cobian, 2012 IL App (1st) 

980535, he contends that such a hearing is mandatory when requested and, therefore, counsel was 

ineffective for failing to make such a request.
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¶ 16 Section 115-4.1(e) of the Code of Criminal Procedure of 1963 provides as follows:

“When a defendant who in his absence has been either convicted or sentenced or both 

convicted and sentenced appears before the court, he 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. A hearing with notice to 

the State’s Attorney on the defendant’s request for a new trial or a new sentencing hearing 

must be held before any such request may be granted.” 725 ILCS 5/115-4.1(e) (West 

2016). 

¶ 17 In Cobian, the appellate court held that the defendant was not prejudiced by his counsel’s 

failure to argue, during a hearing on the defendant’s posttrial motion, that the defendant’s absence 

at trial was not his fault. Cobian, 2012 IL App (1st) 980535, ¶ 19. The appellate court noted that, 

at the hearing, the defendant himself had a colloquy with the trial court in which the defendant 

claimed that he was absent because he feared for his life. Id. Nevertheless, the appellate court

held that the defendant was statutorily entitled to a section 115-4.1(e) hearing on whether his 

absence at trial was willful. Id. ¶ 21. The court remanded for such a hearing. Id. ¶ 22.

¶ 18 A defendant has the right to the effective assistance of counsel. People v. Veach, 2017 IL 

120649, ¶ 29. “To prevail on a claim of ineffective assistance of counsel, a defendant must 

demonstrate that counsel’s performance was deficient and that the deficient performance 

prejudiced the defendant.” People v. Domagala, 2013 IL 113688, ¶ 36 (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)). Specifically, “a defendant must show that counsel’s 

performance was objectively unreasonable under prevailing professional norms and that there is a 

‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.’ ” Id. (quoting Strickland, 466 U.S. at 694). “A ‘reasonable 
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probability’ is defined as ‘a probability sufficient to undermine confidence in the outcome.’ ” 

People v. Simpson, 2015 IL 116512, ¶ 35 (quoting Strickland, 466 U.S. at 694).

¶ 19 The Act provides a remedy to a criminal defendant whose constitutional rights were 

substantially violated in his or her original trial or sentencing hearing. People v. Pitsonbarger, 

205 Ill. 2d 444, 455 (2002). To survive dismissal, a postconviction petition need only present the 

gist of a constitutional claim. People v. Edwards, 197 Ill. 2d 239, 244 (2001). Because it is a 

collateral proceeding, a postconviction proceeding allows inquiry only into issues that were not, 

and could not have been, adjudicated on direct appeal. Pitsonbarger, 205 Ill. 2d at 455-56. Thus, 

issues decided on direct appeal are barred by res judicata, and issues that could have been raised, 

but were not, are forfeited. Id. at 456. We review de novo the court’s summary dismissal of a 

postconviction petition. Edwards, 197 Ill. 2d at 247.

¶ 20 As the State points out, the issue defendant argues on appeal is different from the one raised 

in his petition. A postconviction petitioner may not raise for the first time on appeal an issue not 

raised in his petition. People v. Jones, 213 Ill. 2d 498, 504-05 (2004). Because defendant’s 

petition did not contend that counsel was ineffective for failing to request a section 115-4.1(e) 

hearing, he may not do so here.

¶ 21 Even if we overlooked the forfeiture, defendant’s petition contains no facts suggesting that 

he had a valid reason for missing court. Based on the circumstances known at the time, the trial 

court had already found (on May 9, 2016) that defendant was willfully absent. Without any facts 

showing that defendant’s absence was involuntary, there is no reasonable probability that the 

court’s ruling would have been different had counsel requested a hearing. Thus, such a request 

would have been futile. See People v. Gallardo, 112 Ill. App. 3d 764, 769 (1983) (effective 
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assistance means competent, not perfect, representation; therefore, we will not require counsel to 

perform a futile act).

¶ 22 Defendant also perfunctorily argues the merits of the issue raised in his petition: that the 

resumption of the trial on May 10, 2016, required the State to provide him certified-mail notice. 

Defendant cites People v. Ramirez, 214 Ill. 2d 176 (2005), for the proposition that the provisions 

of section 115-4.1 must be complied with strictly.

¶ 23 As noted, we held on direct appeal that the trial court complied with the procedures for 

holding a trial in absentia. Defendant cited Ramirez there, too, but we distinguished it. We noted 

that Ramirez “considered whether [section 115-4.1’s] certified-mailing procedure is mandatory 

when the defendant was not present in open court when the trial date was set.” Johnson, 2018 IL 

App (2d) 160674, ¶ 17. We noted that “defendant was present when the trial date was set, and the 

certified-mailing procedure is not at issue.” Id. Thus, we implicitly rejected any contention that 

May 10, 2016, was a “new” trial date of which the State owed defendant notice. But, even if 

defendant did not raise this claim in his first appeal, he could have. Issues that a defendant did 

raise, and issues he could have raised, on direct appeal are forfeited for postconviction review. 

Pitsonbarger, 205 Ill. 2d at 455. Significantly, defendant does not argue that his direct-appeal 

counsel was ineffective for not raising the issue. Moreover, defendant cites no authority for the 

proposition that each continuance is a “new” trial date requiring the State to prove certified notice.

¶ 24 III. CONCLUSION

¶ 25 For the reasons stated, we affirm the judgment of the circuit court of Lake County. 

¶ 26 Affirmed.