FIRST DIVISION

October 20, 2008

No. 1-06-3288

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

) Circuit Court of

Plaintiff-Appellee, ) Cook County.

)

v. )

)

JONATHAN BURNETT, ) Honorable

) Joseph M. Claps,

Defendant-Appellant. ) Judge Presiding.

JUSTICE WOLFSON delivered the opinion of the court:

Jonathan Burnett raises several constitutional issues

concerning his sentence for residential burglary. We concentrate

primarily on his motion to reconsider that sentence. 

The trial court sentenced Jonathan Burnett to ten years in

prison. His only issues concern the sentence and his motion to

reconsider the sentence. He contends: the court should have

ordered medical examinations before sentencing; the court denied

Burnett his constitutional rights by deciding the motion for

reconsideration of the sentence following a hearing that neither

Burnett nor his attorney attended; and his counsel provided

ineffective assistance both at sentencing and on the motion to

reconsider the sentence. We affirm.

BACKGROUND

On November 1, 2005, a man crawled in a window of a vacant

house on the south side of Chicago. A few minutes later he
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lowered a vanity sink from the window. When he dropped the sink

to the ground it shattered. The man walked away from the house. 

Police detained Burnett a few minutes later, two blocks away, and

arrested him after an eyewitness identified him as the person who

entered the vacant house. The arresting officer found a wrench,

pliers, and a screwdriver in Burnett's pockets. The trial court

found Burnett guilty of burglary and possession of burglary

tools.

Burnett had three prior burglary convictions, one

residential burglary conviction, one conviction for retail theft

and one conviction for possession of a controlled substance. The

prior crimes required the court to sentence Burnett as a Class X

offender. 730 ILCS 5/5-5-3(c)(8); 720 ILCS 5/19-1(b) (West

2004). The sentencing statute restricted the available sentence

for burglary to 6 to 30 years in prison. 730 ILCS 5/5-8-1(d)(3)

(West 2004).

The presentence investigator found that Burnett had

longstanding addictions to heroin and cocaine. Burnett had taken

cocaine prior to the offense at issue. When he was about 18 he

experimented with phencyclidine (PCP). The experiment, together

with an altercation with his father, resulted in Burnett's

hospitalization for his mental health. He suffered from a

learning disability, but he had "excellent mechanical and
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artistic skills." He held no steady job. At the time of the

investigation, Burnett complained of chest pains and a pinched

nerve. 

At the sentencing hearing, the prosecutor pointed out

Burnett's drug history and suggested treatment for Burnett in

prison. Defense counsel requested a minimal sentence, arguing

that Burnett had burglarized a vacant house, and he had strong

family support and no history of violent crimes. Burnett himself

added that he had joined a drug treatment program. The court

sentenced Burnett to concurrent terms of ten years for burglary

and three years for possession of burglary tools, with a

recommendation for drug treatment in prison.

Burnett, through counsel, moved to reconsider the sentence. 

In the motion defense counsel wrote:

"3. In light of the evidence presented to the

Court, the sentence imposed in this case is excessive.

4. In sentencing the Defendant, the Court failed

to follow Article I, Section 2 of the Illinois

Constitution, which states as follows: 'All penalties

shall be determined both according to the seriousness

of the offense and with the objective of restoring the

offender to useful citizenship.'

5. Further, the Court failed to consider the
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following factors in mitigation within 730 ILCS 5/5-5-

3.1: [sic]

6. The sentence imposed is not in keeping with

alternatives available to the Court to assist the

Defendant in his rehabilitation."

The court originally scheduled the motion for hearing on

September 20, 2006. The court granted defense counsel a

continuance, resetting the motion for hearing on September 27,

2006. Burnett remained in prison during the proceeding. His

attorney failed to appear on September 27. The court did not

inquire on the record into the reasons for the absence of Burnett

and his attorney. The court denied the motion to reconsider the

sentence. Burnett timely appealed.

DECISION

I. Sentencing

 A. Medical examinations

Burnett contends that in light of his physical problems, 

his learning disability, his drug addiction, and his history of

mental health treatment, the trial court abused its discretion in

failing to order physical and mental examinations pursuant to

sections 5-3-2(b) (730 ILCS 5/5-3-2(b) (West 2006)) and 5-3-3

(730 ILCS 5/5-3-3 (West 2006)) of the Unified Code of Corrections

(Code). 
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Section 5-3-2(b) of the Code provides, in relevant part,

that a presentence investigation

"shall include a physical and mental

examination of the defendant when so ordered

by the court. If the court determines that

such an examination should be made, it shall

issue an order that the defendant submit to 

examination at such time and place as

designated by the court and that such

examination be conducted by a physician,

psychologist or psychiatrist designated by

the court. *** " (Emphasis added.) 730 ILCS

5/5-3-2(b) (West 2006). 

Section 5-3-3 of the Code provides, in relevant part, that:

"(a) In felony cases where the court is of

the opinion that imprisonment may be

appropriate but desires more information as a

basis for determining the sentence than has

been or may be provided by a presentence

report under Section 5-3-1, the court may

commit for a period not exceeding 60 days a

convicted person to the custody of the court

clinic or the Department of Corrections if
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the Department has certified to the court

that it can examine such persons under this

Section." 730 ILCS 5/5-3-3 (West 2006). 

Section 5-3-3 of the Code allows the trial court to conduct

a study if the court "desires" more information than has been

provided by the presentence investigation (PSI) report. 730 ILCS

5/5-3-3 (West 2006). Accordingly, we review a trial court’s

failure to order an examination or study pursuant to section 5-3-

2(b) and 5-3-3 of the Code for an abuse of discretion. People v.

Burton, 184 Ill. 2d 1, 29, 703 N.E.2d 49, 62 (1998); People v.

Stewart, 101 Ill. 2d 470, 489, 463 N.E.2d 677 (1984).

Burnett's drug experiments led to hospitalization in a

mental health facility, but the incident occurred more than 20

years before the burglary. The PSI report adequately recounted

Burnett’s history of drug abuse and his present physical

condition. The minor physical problems do not demonstrate any

special need for further investigation. Nothing in the record

indicates that complete medical and physical examinations would

have uncovered any facts not already shown in the PSI report. We

will not vacate a sentence based on speculation of what a medical

examination may have indicated. See Stewart, 101 Ill. 2d at 490. 

Although a trial court may order a section 5-3-3 study if it

"desires" more information than has been provided by the PSI
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report, we see nothing in the facts before us that should have

compelled the court to order such a study in this case. We find

the trial court did not abuse its discretion by deciding not to

order a mental examination and study pursuant to sections 5-3-

2(b) and 5-3-3 of the Code. 

 B. Ineffective assistance at sentencing

Burnett contends counsel provided ineffective assistance at

sentencing because counsel did not request medical examinations,

and he failed to argue Burnett's learning disability and his drug

dependency in mitigation.

A defendant who seeks relief from a judgment due to

ineffective assistance of counsel must convince this court that,

but for counsel's incompetence, the defendant stood a reasonable

chance of achieving a better result. People v. Ward, 371 Ill.

App. 3d 382, 434, 862 N.E.2d 1102, 1150 (2007). The record on

appeal includes no evidence that a complete physical and

psychological examination would have revealed any facts that

should have inclined the court to impose a lesser sentence. In

this case, as in Burton, 184 Ill. 2d at 30, defendant "can only

speculate that an additional evaluation would have produced

significant new evidence concerning his mental health, rather

than cumulative evidence." 

The PSI report and arguments at sentencing brought to the
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court's attention all of the factors Burnett now claims his

attorney should have raised. Burnett has not shown a reasonable

probability that further emphasis on these factors would have

changed the sentence. We find Burnett has not met his burden of

proving ineffective assistance of counsel at sentencing.

II. Motion to Reconsider Sentence

 A. Ineffective assistance with written motion

Burnett contends counsel provided ineffective assistance

when he filed an incomplete written motion to reconsider the

sentence. Counsel prepared only a perfunctory, boilerplate

motion, without specifying sentencing alternatives or the

mitigating factors that would have persuaded the court to impose

a lesser sentence. Burnett suggests counsel should have

identified as mitigating factors his psychological problems and

the fact that he neither caused nor contemplated causing any

physical harm. At the sentencing hearing defense counsel

mentioned only the lack of harm. The prosecutor spoke of

Burnett's drug addiction; the PSI report indicated Burnett's

minor history of psychological treatment partly related to drug

abuse. The trial court apparently took these factors into

account in sentencing Burnett to a term near the minimum

available, despite his substantial criminal history and his

failure to respond to previous efforts at rehabilitation. Ten
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years is hardly a draconian sentence under the circumstances. We

see no reasonable probability that the suggested additions to the

written motion would have changed the trial court's judgment. See

People v. Brasseaux, 254 Ill. App. 3d 283, 287-89, 660 N.E.2d

1321, 1323-25 (1996). 

The written motion serves to preserve sentencing issues for

appellate review. People v. Reed, 177 Ill. 2d 389, 395, 686

N.E.2d 584, 586 (1997). While Burnett complains that the motion

here lacks sufficient detail to preserve meritorious issues, he

does not specify any new or additional issues he would have

raised on this appeal had counsel better prepared the motion. 

Burnett has not shown inadequate preparation of the written

motion had any prejudicial effect. We find the written motion

did not show ineffective assistance of counsel.

 B. Absence of defendant and counsel from hearing

1. Due process and the right to appear

The trial court decided the motion to reconsider sentence in

the absence of Burnett and his counsel. Burnett contends that by

so proceeding the court violated his right to due process under

both the federal and state constitutions (U.S. Const., amend.

XIV; Ill. Const. 1970, art. I, §2), and his right to appear in

person and by counsel, expressly protected by the state

constitution (Ill. Const. 1970, art. I, §8). Every defendant in
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a criminal proceeding

"has a due process right ' "to be present in his own

person whenever his presence has a relation, reasonably

substantial, to the fulness of his opportunity to

defend against the charge." ' [Citation.] Although the

Court has emphasized that this privilege of presence is

not guaranteed 'when presence would be useless, or the

benefit but a shadow' (citation), due process clearly

requires that a defendant be allowed to be present 'to

the extent that a fair and just hearing would be

thwarted by his absence' (citation). [Citation.]

Therefore, a defendant is guaranteed the right to be

present at any stage of the criminal proceeding that is

critical to its outcome if his presence would

contribute to the fairness of the procedure." People

v. Lofton, 194 Ill. 2d 40, 66-67, 740 N.E.2d 782, 797

(2000).

Our supreme court has not addressed the issue of whether the

motion to reconsider the sentence counts as a critical stage of

criminal proceedings, but several appellate courts have. 

The case that opens the door to our critical stage analysis

is Reed, 177 Ill. 2d at 389, where our supreme court construed a

1993 amendment to section 5-8-1 of the Unified Code of
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Corrections (730 ILCS 5/5-8-1(c) (West 1994)). The court held

defendants forfeit appellate review of all sentencing issues not

raised in post-sentencing motions in the trial court. Reed, 177

Ill. 2d at 393. Because the motion to reconsider sentence now

involves the defendant's substantial right to preserve sentencing

issues for appeal, the motion to reconsider sentence forms a

critical stage of the criminal proceedings, where the defendant

has a right to counsel. Brasseaux, 254 Ill. App. 3d at 288;

People v. Williams, 358 Ill. App. 3d 1098, 1105, 833 N.E.2d 10,

16 (2005); People v. Owens, No. 3-06-0740 (Aug. 28, 2008), slip

op. at 2.

The trial court ruled at a critical stage of criminal

proceedings despite the absence of Burnett and his counsel, with

no apparent attempt to learn the reasons for their absence. We

must now decide whether their absence requires reversal. We have

searched for a principled path to the right result.

Illinois Supreme Court cases appear to fall in two separate

lines of analysis for deciding whether this court must reverse a

judgment due to an alleged violation of the defendant's right to

appear in person and by counsel at all critical stages of

criminal proceedings. None involves a motion to reconsider

sentence. 

In People v. Childs, 159 Ill. 2d 217, 636 N.E.2d 534 (1994),
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the trial court had responded ex parte to a question from the

jury. Our supreme court held:

"Because an ex parte communication between a judge and

a jury deprives a defendant of his constitutional

rights to be present at and to participate for his

protection in a critical stage of trial, the burden is

on the State to prove beyond a reasonable doubt that

the error was harmless." Childs, 159 Ill. 2d at 228.

Following the reasoning of Childs, some courts have

concluded that a trial court that conducts a critical stage of

criminal proceedings in the absence of the defendant or his

counsel, when the defendant has not waived the right to appear,

has violated that defendant's constitutional rights. Once the

defendant has shown such a violation, the burden shifts to the

prosecution to prove beyond a reasonable doubt that the violation

caused no harm. Our supreme court reaffirmed Childs in People v.

Kliner, 185 Ill. 2d 81, 162, 705 N.E.2d 850, 890-91 (1998), which

also involved an ex parte communication between a judge and a

jury.

On the other hand, in People v. Bean, 137 Ill. 2d 65, 560

N.E.2d 258 (1990), our supreme court held that the right of an

accused to appear in person at critical stages of criminal

proceedings 
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"is not itself a substantial right under the Illinois

Constitution. [Citation.] Instead, it is a lesser right

the observance of which is a means to securing the

substantial rights of a defendant. Thus a defendant is

not denied a constitutional right every time he is not

present during his trial, but only when his absence

results in a denial of an underlying substantial right,

in other words, a constitutional right ***. *** Some of

these substantial rights are the right to confront

witnesses, the right to present a defense, and the

right to an impartial jury." Bean, 137 Ill. 2d at 80-

81.

The court held the trial court did not violate any of the

defendant's constitutional rights by hearing part of the voir

dire in camera in defendant's absence. Bean, 137 Ill. 2d at 81.

Our supreme court affirmed the vitality of the Bean analysis

in People v. Lindsey, 201 Ill. 2d 45, 56, 772 N.E.2d 1268, 1276

(2002). In that case the court found that the defendant's

appearance by closed-circuit television for his arraignment did

not violate his constitutional rights:

"[E]ven where a defendant has the general right to

be present because the proceeding is a 'critical'

stage, a defendant's absence is not a per se
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constitutional violation. Rather, a defendant's

absence from such a proceeding will violate his

constitutional rights only if the record demonstrates

that defendant's absence caused the proceeding to be

unfair or if his absence resulted in a denial of an

underlying substantial right." Lindsey, 201 Ill. 2d at

57.

Thus, under Bean and Lindsey, a trial court that rules

against a defendant in the absence of that defendant or his

counsel, at a critical stage of the proceedings, may not have

violated the defendant's constitutional rights, even if the

defendant has not waived his right to appear. To show a

violation of his constitutional rights, the defendant must meet

his burden of proving that his absence resulted in unfair

proceedings that denied him substantial rights. That is, the

defendant must show that his presence or his counsel's presence

at the critical stage would have benefitted him. Lindsey, 201

Ill. 2d at 57-58.

The appellate court considered the defendant's

constitutional right to appear for the motion to reconsider

sentence in two cases that arose after the 1993 amendment to

section 5-8-1. In Brasseaux, 254 Ill. App. 3d at 286, the

defendant filed a document titled "Motion to Reconsider
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Sentence." Defense counsel appeared at the hearing and made no

effort to argue in favor of the motion. The appellate court

reversed the denial of the motion to reconsider because defense

counsel was ineffective. The defendant also contended that the

trial court erred by hearing the motion in defendant's absence. 

While noting that the contention need not be decided, the court

proceeded to discuss the issue:

"[I]f 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. [Citation.] 

If, however, 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." 

Brasseaux, 254 Ill. App. 3d at 292.

A situation similar to that in Brasseaux arose in People v.

Lambert, 364 Ill. App. 3d 488, 847 N.E.2d 136 (2006), where the

trial judge heard a motion to reconsider a sentence without

bringing the defendant to court. The court cited Childs for the

proposition that the defendant had a constitutional right to

appear at the hearing, and that the prosecution bore the burden

of proving beyond a reasonable doubt that the constitutional
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error caused no harm. Lambert, 364 Ill. App. 3d at 491. Because

the prosecution met its burden of proving the constitutional

error harmless beyond a reasonable doubt, the court affirmed

denial of the motion to reconsider the sentence. The court did

not mention Lindsey or Bean.

If we were to follow the Bean, Lindsey, and Brasseaux line

of reasoning, we would find Burnett has not shown a violation of

his constitutional rights. The motion raised no new factual

allegations. Burnett points to his drug addiction, his learning

disability, and the lack of any threat of violence as grounds for

reducing his sentence. The PSI report and the arguments at

sentencing had brought these factors to the trial court's

attention. The court apparently considered these factors when it

sentenced defendant to a term at the lower end of the available

range. Defendant does not now claim he would have presented

additional evidence at the motion to reconsider sentence, nor

does he explain what other steps he would have taken to better

protect his rights had he appeared at the proceeding. No

evidentiary hearing was required. By hearing the motion in the

absence of Burnett and his counsel, the trial court in these

circumstances did not violate Burnett's federal or state

constitutional rights.

Under Childs and Lambert, on the other hand, the trial court
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violated Burnett's constitutional right to appear at a critical

stage when the court decided the motion to reconsider sentence in

the absence of Burnett and his attorney. It is a critical stage

because legal rights on appeal -- the right to challenge the

sentence -- can be lost or limited. See Mempa v. Rhay, 389 U.S.

128, 134-36, 19 L. Ed. 2d 336, 340-41, 88 S. Ct. 254, 257 (1967).

The burden then shifts to the prosecution to establish, beyond a

reasonable doubt, that the error caused no harm. 

In Lambert the court explained its holding that the

prosecution met its burden of proving the constitutional error

harmless:

"[D]efendant has not attempted to show how his

presence at the proceeding would have improved his

chances of persuading the trial court that his motion

was meritorious. *** [The motion] merely asked the

court to reevaluate the evidence in aggravation and

mitigation and to consider various legal arguments. 

The trial court evidently believed that it had

sufficient information to rule on the motion without

further input from either side, and defendant does not

challenge this conclusion. Defendant does not claim

that he would have adduced evidence at the proceeding." 

Lambert, 364 Ill. App. 3d at 492.
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In his motion to reconsider, Burnett did not rely on any new

facts, and nothing in the record demonstrates that he could have

proved other facts that might have inclined the court to reduce

his sentence to a level even closer to the minimum the law

allows. As was true in Lambert, if Burnett had made the

arguments raised on appeal in the trial court, he simply would

have asked the trial court to reevaluate the evidence in

aggravation and mitigation and to reconsider various legal

arguments already raised at sentencing. Nothing more. Nothing

new. If Childs and Lambert present the proper analysis, the

prosecution has established, beyond a reasonable doubt, that the

constitutional error here caused defendant no harm. Under either

line of precedent, we end up in the same place. We find that

defendant has not shown constitutional grounds for reversal of

the sentence.

2. Ineffective assistance

Finally, Burnett claims counsel provided ineffective

assistance by failing to appear at the hearing on the motion to

reconsider the sentence. To show grounds for reversal, Burnett

must show that because counsel failed to appear, Burnett

forfeited some significant right for his appeal from the

sentence. See Roe v. Flores-Ortega, 528 U.S. 470, 483, 145 L. Ed.

2d 985, 998-99, 120 S. Ct. 1029, 1038 (2000); People v. Edwards,
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197 Ill. 2d 239, 251-52, 757 N.E.2d 442, 449-50 (2001). We see

no such forfeiture.

A question that arises but need not be decided concerns just

what it is a defense lawyer can do when he or she appears at the

hearing on the motion to reconsider. Lambert, 364 Ill. App. 3d

at 494, holds counsel has no right to oral argument on the

motion. The proposition that the defense lawyer must observe the

critical stage proceedings in silence if the trial court so

decrees is troublesome. But the question is not raised in this

case and we see no need to comment on it further.

At the least, defense counsel preserved Burnett's right to

appeal from his sentence by filing the motion to reconsider. 

Burnett does not claim he was deprived of his right to consult

with his lawyer concerning the motion to reconsider. See Owens,

No. 3-06-0740, slip op. at 2. In sum, Burnett makes no showing

that his lawyer's failure to appear at the hearing or that his

own absence from it caused him any harm.

We find nothing in this record to support Burnett's claims

that he was denied effective assistance of counsel. Our holding

in this case, however, should not be taken as approval of the

procedure the trial court followed when it denied the motion to

reconsider in the absence of both defendant and his lawyer.

For the reasons stated above, no matter which line of
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Illinois Supreme Court cases we follow, we find the trial court's

sentence and ruling on the motion to reconsider sentence must be

affirmed.

Affirmed.

R. GORDON, P.J., and GARCIA, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

(Front Sheet to be Attached to Each Case)

 Please use THE PEOPLE OF THE STATE OF ILLINOIS,

following form:

Plaintiff-Appellee,

 

 Complete v.

 TITLE

 of Case JONATHAN BURNETT, 

Defendant-Appellant.

 Docket Nos. No. 1-06-3288 

 COURT Appellate Court of Illinois

 First District, 1st Division

 Opinion 

 Filed October 20, 2008

 (Give month, day and year) 

 JUSTICES JUSTICE WOLFSON delivered the opinion of the court: 

 

R. GORDON, P.J., and GARCIA, J., concur.

APPEAL from the Lower Court and Trial Judge(s) in form indicated in margin:

Circuit Court of

Cook County; the Appeal from the Circuit Court of Cook County.

Hon.___________,

Judge Presiding. The Hon. Joseph M. Claps, Judge Presiding.

For APPELLANTS, Indicate if attorney represents APPELLANTS or APPELLEES and

John Doe, of include attorneys of counsel. Indicate the word NONE if

Chicago. not represented.

For APPELLEES, For Appellant, Michael J. Pelletier, Deputy Defender,

Smith and Smith, and Shawn O'Toole, Assistant Appellate Defender,

of Chicago Office of the State Appellate Defender, of Chicago. 

 

 For Appellee, Richard A. Devine, State's Attorney 

Joseph Brown, of Cook County, of Chicago. (James E. Fitzgerald, 

of counsel). Michele Grimaldi Stein and Karisa F. Flores, of Counsel).

Also add attorneys for thirdparty appellants

and/or appellees.

(USE REVERSE SIDE IF NEEDED)