delivered the opinion of the court:
The ultimate issue we reach in this case is this: may a defendant tried in absentia obtain a review of his conviction and sentence under section 115—4.1(g) of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115—4.1(g) (West 2000)) even though he has failed to establish that his absence from trial was without fault and due to circumstances beyond his control? We conclude the answer may be “yes,” but only if the record on appeal establishes that the trial conducted in the defendant’s absence violated principles of fundamental fairness and due process under the cause and prejudice test adopted by our supreme court. See generally People v. Jackson, 205 Ill. 2d 247 (2001); People v. Simpson, 204 Ill. 2d 536 (2001); People v. Jimerson, 166 Ill. 2d 211, 652 N.E.2d 278 (1995). We conclude that defendant here failed to establish that his trial violated fundamental fairness and due process and, accordingly, affirm the conviction and sentence. On our way to this conclusion, we reject an argument raised by the State that section 115—4.1(g) of the Code is unconstitutional, as an encroachment on the rule-making powers of our supreme court, or in the alternative, that defendant cannot ask for review of his conviction or sentence without first establishing that his absence from trial was without fault and due to circumstances beyond his control.
Defendant was charged with theft by deception in February 1997. A jury was selected on June 18, 1997. Defendant was told by the trial court judge that he was required to appear in court when his case was on trial. Defendant was also told that he could be tried and sentenced in his absence should he choose not to attend. The jury trial began on June 19. Defendant failed to appear. All attempts to find or contact defendant failed. The trial court then found that defendant’s absence was willful. Defendant was tried in absentia under section 115—4.1(a) of the Code (725 ILCS 5/115 — 4.1(a) (West 2000)). The jury returned a guilty verdict on June 19,1997. The court then issued a bond forfeiture warrant and continued the case until July 21, 1997, for sentencing. A posttrial motion filed on defendant’s behalf was argued and denied on July 21. Defendant did not appear. He was then sentenced in absentia to 10 years in prison. Defendant never filed a notice of appeal from his conviction or sentence.
Defendant was arrested 11 months later, on June 23, 1998. He filed a posttrial motion on September 8, 1998, asking for a new trial or, alternatively, a new sentencing hearing under section 115—4.1(e) of the Code (725 ILCS 5/115—4.1(e) (West 2000)). Defendant alleged that his absence was not willful but that he feared being wrongfully convicted. Defendant also argued that his sentence was excessive. The trial court denied defendant’s posttrial motion after a hearing on September 9, 1998. The court said:
“[Defendant] is well, well beyond the 30 days from the date of conviction from which to file post trial motions. The only issue at this juncture is whether the defendant’s failure to appear in trial was due to circumstances beyond his control.
It appears what you’re trying to do in this motion entitled post trial motion is bootstrap post trial motion issues that might have been valid had they been filed in a timely manner.
Sentencing issues are also not before this Court because he only had 30 days within which to file a motion to reconsider his sentence. So those are not validly before this court.
The only issue which I will consider in your post trial motion is whether the defendant’s failure to appear for trial was due to circumstances beyond his control. And I would submit that in the motion the allegation that he did not appear due to fear of being wrongfully convicted. He’s admitting that he willfully absented himself and his failure to appear was indeed not due to circumstances beyond his control.”
Defendant filed a notice of appeal on September 29, 1998. The notice sought review of the several orders dating from June 19, 1997, through September 9, 1998. Defendant’s notice of appeal based jurisdiction on both Supreme Court Rule 603 (134 Ill. 2d R. 603) and section 115—4.1(g) of the Code (725 ILCS 5/115—4.1(g) (West 2000)). Sections 115—4.1(e) and (g) read:
“(e) 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. At any such hearing both the defendant and the State may present evidence.
(g) A defendant whose motion under paragraph (e) for a new trial or new sentencing hearing has been denied may file a notice of appeal therefrom. Such notice may also include a request for review of the judgment and sentence not vacated by the trial court.” 725 ILCS 5/115—4.1(e), (g) (West 2000).
The State filed a motion to dismiss, challenging defendant’s claim that section 115—4.1(e) vests us with appellate jurisdiction. We took the motion with the case. The State argues that section 115—4.1(g) is unconstitutional or, alternatively, that section 115—4.1(g) does not apply to this case. The State also notes the absence of a timely notice of appeal under Supreme Court Rule 606 (134 Ill. 2d R. 606).
The State’s constitutional argument suggests that section 115—4.1(g) supplants the direct appeal requirements set out in Rule 606 and creates appellate jurisdiction where none would otherwise exist. The State concludes that this legislative encroachment violates the separation of powers doctrine. We disagree.
The interplay between Rule 606 and section 115—4.1(g) was analyzed by our supreme court in People v. Partee, 125 Ill. 2d 24, 530 N.E.2d 460 (1988). The issue in Partee was whether a defendant convicted in absentia could file a timely direct appeal of his conviction without first filing a motion under section 115—4.1(e) to establish that his absence was not willful. Partee, 125 Ill. 2d at 28. The defendant in Partee was convicted and sentenced in absentia. A timely notice of appeal was filed on the defendant’s behalf. Partee, 125 Ill. 2d at 28. The State moved to dismiss for lack of jurisdiction.
The State in Partee interpreted section 115—4.1(e) motions as a prerequisite to an appeal of a judgment in absentia and argued that, until a defendant prevailed in a section 115— 4.1(e) hearing, a conviction and sentence in absentia are not final and appealable under subsection (g). Partee, 125 Ill. 2d at 28. Our supreme court rejected this argument and found no language in the in absentia statute that deprives the appellate court of jurisdiction over an absent defendant’s timely direct appeal of his sentence and conviction. Partee, 125 Ill. 2d at 30. In finding that a conviction and sentence in absentia are immediately final and appealable under Rule 606, the Partee court noted that even a willfully absent defendant “retains some of the procedural rights of a present defendant.” Partee, 125 Ill. 2d at 31. See, e.g., 725 ILCS 5/115—4.1(a) (West 2000) (“All procedural rights guaranteed by the United States Constitution, Constitution of the State of Illinois, statutes of the State of Illinois, and rules of court shall apply to the proceedings the same as if the defendant were present ***”).
The Partee court then set out an additional reason for rejecting the State’s interpretation: a section 115—4.1(e) motion to vacate the underlying judgment and a sentence in absentia are not part of the same case. Partee, 125 Ill. 2d at 35. Instead, a section 115—4.1(e) motion is
“more akin to a collateral attack upon a final judgment than it is to a procedural step in the direct appeal of that judgment. In other words, a section 115—4.1(e) motion is analogous to an action for post-judgment relief under section 2—1401 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401) or an action for post-conviction relief under section 122—1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 122—1 et seq.)” (Emphasis added.) Partee, 125 Ill. 2d at 35.
The availability or pendency of a direct appeal does not affect the ripeness of a claim for postconviction or postjudgment relief. Partee, 125 Ill. 2d at 35. A trial court may hear a section 115—4.1(e) motion without affecting the appellate court’s jurisdiction over a timely filed direct appeal of an in absentia judgment. Partee, 125 Ill. 2d at 36.
The Partee court also noted that the State’s interpretation of section 115—4.1(e) would place defendants in an “intolerable dilemma.” Partee, 125 Ill. 2d at 31. A willfully absent defendant who wishes to challenge the fairness of his in absentia conviction for reasons unrelated to his absence would be prevented from doing so until he moved for a new trial under section 115—4.1(e) in which he made the unwarranted allegation that his absence was not willful. Partee, 125 Ill. 2d at 31.
Despite the procedural difference between Partee and the case before us (the conscientious trial lawyer in Partee filed a timely post-judgment motion and notice of appeal even though his client had vanished), the supreme court’s analysis is our best guide to resolve the issues in this case.
As in Partee, the State’s argument here that the legislature created a loophole through which appellate jurisdiction is improperly vested implies that a motion under section 115— 4.1(g) is a continuation of the in absentia proceedings. But Partee makes clear that an absent defendant retains the same constitutional rights and guarantees afforded a present defendant, including a fair trial free from procedural defects. Section 115—4.1(g) is the means by which an absent defendant may collaterally attack an in absentia judgment he believes is fundamentally unfair. Contrary to the State’s claim, there is no legislative encroachment or conflict with Rule 606 given the collateral nature of a section 115—4.1(g) motion. People v. Williams, 274 Ill. App. 3d 793, 655 N.E.2d 470 (1995), reached a similar conclusion. But Williams presents us with another issue.
The defendant in Williams was convicted and sentenced in absentia. Williams, 274 Ill. App. 3d at 794-95. The defendant filed a motion under section 115 — 4.1(e) to vacate the in absentia judgment nine years after he was sentenced. Williams, 274 Ill. App. 3d at 795. The motion was denied and the defendant appealed. The denial was affirmed on appeal in an unpublished order but the court later allowed a petition for rehearing. Williams, 21A Ill. App. 3d at 795. The Williams court found that the notice of appeal was sufficient to request review of the judgment and sentence under section 115—4.1(g) of the Code. The defendant had raised issues relating to his conviction and sentence, but not to the trial court’s finding that the defendant’s absence was his own fault. Williams, 214 Ill. App. 3d at 795.
The Williams court then considered whether section 115 — 4.1(g), which allows review of the in absentia conviction and sentence, conflicted with Rude 606, which governs direct appeals. Williams, 274 Ill. App. 3d at 796. In finding that no conflict exists, the Williams court followed the Partee reasoning that an appeal under section 115—4.1(g) is a collateral proceeding that is independent of and has no effect on a direct appeal under Rule 606. Williams, 274 Ill. App. 3d at 797-98. But Williams took one step further and referred to an appeal under section 115 — 4.1(g) as a “general review.” Williams, 274 Ill. App. 3d at 798. The court noted that a “general review” created some tension between our supreme court and the legislature, but concluded that, because review under section 115—4.1(g) was a “matter of procedure,” the conflict was only indirect. The court did not elaborate on this statement. Williams, 274 Ill. App. 3d at 798-99. The court then addressed the merits of the appeal. Williams, 274 Ill. App. 3d at 799.
Defendant cites Williams as support for what he now seeks: the functional equivalent of a Rule 606 direct appeal under section 115—4.1(g). The State urges us to reject Williams. Defendant’s and the State’s readings are based on an assumption that Williams compels the appellate court to reach the merits of every appeal under section 115—4.1(g). We do not believe Williams stands for such a broad proposition. First, a timely direct notice of appeal may be filed on a fugitive defendant’s behalf (Partee, 125 Ill. 2d at 31), and there is authority for the proposition that such an appeal may be briefed, alleged trial errors addressed, and a resolution reached. But the appellate court retains discretion not to grant relief if the defendant remains a fugitive. See People v. Estep, 413 Ill. 437, 109 N.E.2d 762 (1952). So, too, under section 115—4.1(g) a returned fugitive may “request” an appeal, but we do not believe that the appellate court must entertain it unless issues of fundamental fairness and due process are apparent.
A better reading, we believe, and one more in line with Partee, is that an appeal under section 115—4.1(g) that raises issues of fundamental fairness and due process overrides the waiver analysis usually applied to defendants who fail to file a timely notice of appeal. This principle reconciles the Partee rationale, that a section 115—4.1(g) appeal is a collateral proceeding designed to protect “procedural” rights of absent defendants, with the result in Williams. An analysis of Williams shows that two of the issues raised on appeal in that case related to the defendant’s fitness to stand trial and the lack of a proper admonishment that the defendant could be tried in absentia. Williams, 274 Ill. App. 3d at 795. These are alleged procedural errors in the underlying proceeding which, under Partee, are not forfeited by the absent defendant.
Were we to read Williams broadly, as mandating review of all trial issues that could be raised under a timely direct appeal, we would in effect be granting a fugitive defendant greater protection than we allow a defendant under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122—1 et seq. (West 2000)). A defendant seeking relief under the Act must show that substantial violations of his constitutional rights occurred at trial that could not have been raised on direct appeal. 725 ILCS 5/122—1(a) (West 2000); People v. Smith, 195 Ill. 2d 179, 745 N.E.2d 1194 (2000). A postconviction petition is also subject to time limits (725 ILCS 5/122—1(c) (West 2000)). Here defendant is arguing for an unfettered right to raise all alleged errors at trial whenever he is arrested on a fugitive warrant or when he chooses to resurface and argue them. To the extent that Williams may be read to support this position, we choose not to follow it.
We read section 115—4.1(g) as investing the appellate court with a certain amount of discretion: “Such notice may also include a request for review of the judgment and sentence not vacated by the trial court.” (Emphasis added.) 725 ILCS 5/115—4.1(g) (West 2000). The language does not compel the appellate court to undertake such a review unless, as we read Partee, the defendant raises procedural issues that implicate fundamental fairness and due process. We recognize, as the dissent points out, that Williams did not require a fundamental fairness analysis to reach the substantive issues. We recognize that Williams was relevant authority at the time this appeal was filed. For that reason, and to address one of the concerns of the opinion, we will address each of the substantive issues.
Defendant’s challenge to the admission of other crimes evidence is unsupported by the record. Defendant did not file a motion in limine to bar evidence of other crimes. Defendant only made an oral motion to bar testimony that defendant stole his girlfriend’s car. Defendant withdrew his oral motion when the State explained that the evidence would not be used to show theft of the car, only that defendant used the car when he stole money from another victim. Waiver aside, defendant’s argument fails on the merits.
Defendant claims that other crimes evidence was introduced to establish intent, knowledge, identification and absence of mistake. Defendant contends that none of these grounds was proper as these factors were established by the criminal act itself. Defendant also claims that resort to other crimes evidence to establish identification was unnecessary since the witnesses identified defendant as the offender.
The State posits that the evidence was used to establish modus operandi. People v. Illgen, 145 Ill. 2d 353, 364-65, 583 N.E.2d 515 (1991). We agree with defendant that modus operandi evidence is not proper where identity is not at issue. People v. Biggers, 273 Ill. App. 3d 116, 123, 652 N.E.2d 474 (1995). Identity is at issue where a defendant denies he was the offender. Biggers, 273 Ill. App. 3d at 124. Defendant here did not deny he took the victim’s money. He only claimed that he did not take the money under a deception as charged by the State.
We note that the trial court instructed the jury to limit its consideration of the other crimes evidence to intent, knowledge, identity and absence of mistake. Even if such an instruction may have been improper under this record, the instruction did reduce the likelihood that the jury would consider the other crimes evidence as probative of defendant’s propensity to commit crimes — the major concern associated with such evidence. See People v. Allen, 335 Ill. App. 3d 773, 780 N.E.2d 1133 (2002). The claimed error is harmless. People v. Nieves, 193 Ill. 2d 513, 530, 739 N.E.2d 1277 (2000) (improper admission of other crimes evidence is harmless error when a defendant is neither prejudiced nor denied the right to fair trial).
Defendant next contends that the trial court erred in refusing to instruct the jury to give no weight to defendant’s absence at trial. Defendant reasons that his absence was nothing more than “an exercise of his constitutional right not to appear at trial” and that the jury should have been instructed that his absence was not an inference of his guilt. Defendant attempts to equate a willful absence from trial with a defendant’s right not to testify The latter is a constitutional right, the former is not. See U.S. Const., amend V; People v. McDonald, 227 Ill. App. 3d 92, 97, 590 N.E.2d 1003 (1992). The trial court’s refusal to instruct the jury on defendant’s absence was not error.
Defendant’s next argument, that the trial court improperly allowed witnesses to testify as to their opinions, relates to three statements by State witnesses that defendant was posing as an attorney. Defendant claims that the statements amount to improper opinion testimony from lay witnesses. We disagree.
Setting aside the fact that defendant failed to object to the three statements and failed to raise them in his motion for a new trial, defendant overlooks that a lay witness is allowed to express an opinion based on personally observed facts. People v. Terrell, 185 Ill. 2d 467, 497, 708 N.E.2d 309 (1998). Here, the witnesses testified to defendant’s demeanor, the contents of his briefcase and the documents they signed which identified defendant as an attorney. These observations reasonably caused the witnesses to recount at trial that defendant acted like an attorney. There was no error.
Defendant’s next two arguments relate to the State’s closing argument. Defendant claims that the State improperly used defendant’s flight from the scene as a demonstration of his guilt and misstated the evidence.
We have already determined that the trial court was not required to instruct the jury relating to defendant’s absence. The State’s reference to defendant’s absence is also not error as it was a proper comment based on evidence adduced at trial. People v. Emerson, 189 Ill. 2d 436, 490, 727 N.E.2d 302 (2000).
Defendant also mischaracterizes the record and quotes the State’s closing argument out of context to argue that he was prejudiced by misstatements of evidence. Our review of the arguments in context shows no misstatement, prejudicial or otherwise, was made. There is no error.
Defendant next argues that the evidence against him does not support his conviction. This challenge to the sufficiency of the evidence requires reversal if a rational trier of fact cannot find the essential elements of the offense beyond a reasonable doubt. People v. Williams, 193 Ill. 2d 306, 338, 739 N.E.2d 455 (2000).
A defendant commits theft by deception when he knowingly obtains control over another’s property by deception with the intent to keep that property. 720 ILCS 5/16—1(a)(3) (West 2000). The evidence here showed that defendant, while posing as an attorney, was paid a $300 retainer fee and given $500 to bond a person out of jail. Defendant never bonded anyone out of jail and never returned the $800 paid by the victim. A rational trier of fact could find the essential elements of theft by deception beyond a reasonable doubt under this record.
Defendant last argues that his sentence is excessive. Sentencing is left to the wide discretion of the trial court, and we will not reverse absent an abuse of that discretion. People v. Perruquet, 68 Ill. 2d 149, 154, 368 N.E.2d 882 (1977). There is no abuse of that discretion here where defendant was sentenced within the proper statutory range. Defendant’s earlier convictions made him eligible for an extended term of up to 10 years. 730 ILCS 5/5—5—3.2, 5—8—2(5) (West 2000). A sentence within the statutory range is not excessive unless it is at variance with the spirit and purpose of the law or manifestly disproportionate to the offense. People v. Fern, 189 Ill. 2d 48, 54, 723 N.E.2d 207 (1999).
There remains one other issue we choose to address, although the parties have not directly raised it. Although we read Partee as limiting a returned fugitive’s right to appellate review to those issues that implicate fundamental fairness and due process (see Partee, 125 Ill. 2d at 31), a disparity remains between the rights afforded a defendant who has been present for trial and a returned fugitive. The former is always subject to time limits. A defendant must establish a lack of culpable negligence to justify a delay in accessing the Act (725 ILCS 5/122—1(c) (West 2000); People v. Wright, 189 Ill. 2d 1, 10, 723 N.E.2d 230 (1999)). A returned fugitive, however, may use section 115—4.1(g) to seek appellate review without establishing that his absence from trial was not willful. Partee, 125 Ill. 2d at 31-32. We conclude that this difference between the Act and section 115—4.1(g) of the Code must be based on a legislative policy decision that trials in absentia are entitled to heightened scrutiny. See People v. Stark, 121 Ill. App. 3d 787, 790, 460 N.E.2d 47 (1984) (statutory scheme of in absentia statute provides a defendant with additional means of securing a new trial). We believe we have complied with the spirit of Stark in our review of the record.
Finally, we reject the State’s alternative argument that section 115—4.1(g) does not apply unless a defendant first establishes that his absence is without fault and due to circumstances beyond his control. Partee has answered this question. Partee, 125 Ill. 2d at 28-29.
Should there be a showing on review that a defendant’s absence was without fault and due to circumstances beyond his control, review of the issues raised by the defendant with respect to the underlying trial is unnecessary. The remedy for a defendant prevailing on a section 115—4.1(e) motion is a new trial, not a review of the errors occurring in the first trial. See 725 ILCS 5/115—4.1(e) (West 2000) (a defendant must be granted a new trial if he shows that his absence was without fault and due to circumstances beyond his control).
Last, we agree with the State that there is no jurisdiction under Rule 606. 134 Ill. 2d R. 606. Defendant concedes as much in his jurisdictional statement which, unlike the notice of appeal, invokes only section 115—4.1(g).
The State’s motion to dismiss is denied. None of the substantive issues raised in defendant’s brief challenges the fundamental fairness of the in absentia trial. There is no jurisdiction under Rule 606. Defendant’s conviction and sentence are affirmed.
Affirmed; motion denied.