People v. Jones, 2018 IL App (1st) 151307 (March). Episode 478 (Duration 11:04)

Defendant didn’t make a clear unequivocal demand for trial so it counts as a date by agreement.

Gist

Defendant was convicted of raping a 12 year old when he was 17 years old. He got 10 years for it.

Issue

On appeal he argued he was brought to trial in 152 days. The statute required he be brought to trial in 120 days.

The parties where in disagreement about how to count 36 days which if they counted against the state would have broken the speedy trial requirement. 

Defendant argues that the court’s ruling that the State was not ready and that the hearing was continued on the State’s motion show that this time was attributable to the State, not defendant.

725 ILCS 5/103-5(a)

Section 103-5(a) (in custody) provides in relevant part:

Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***. Delay shall be considered to be agreed to by the defendant unless he or she objects to the delay by making a written demand for trial or an oral demand for trial on the record.

725 ILCS 5/103-5(a).

725 ILCS 5/103-5(b)

Section 103-5(b) (out on bail) provides in relevant part:

 (b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant…Any demand for trial made under this subsection (b) shall be in writing; and in the case of a defendant not in custody, the demand for trial shall include the date of any prior demand made under this provision while the defendant was in custody. 

725 ILCS 5/103-5(b).

725 ILCS 5/103-5(f)

Section 103-5(f) speaks about delay:

(f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subsections (a), (b), or (e) of this Section and on the day of expiration of the delay the said period shall continue at the point at which it was suspended. 

725 ILCS 5/103-5(f).

In Custody Is Different

The last line quoted above, requiring a defendant to make a written or oral demand for trial, was added in 1999. As a result of the 1999 amendment, we must consider any delay to be agreed to by a defendant “unless he or she object[ed] to the delay by making a written demand for trial or an oral demand for trial on the record.” 725 ILCS 5/103-5(a).

Interpreting the 1999 amendment, our supreme court has held that it requires a defendant to make a demand for trial after the delay is proposed. People v. Cordell, 223 Ill. 2d 380, 391 (2006). 

A prior demand by defendant for trial is not enough to qualify as an objection. Our supreme court explained why:

“As amended, section 103-5(a) places the onus on a defendant to take affirmative action when he becomes aware that his trial is being delayed. To allow basic requests for trial, made before any delay was even proposed, to qualify as objections to ‘delays’ not yet proposed would provide defendants with another sword to use after the fact to overturn their convictions. This does not comport with the intent of section 103-5(a).” Cordell, 223 Ill. 2d at 391-92.

Qualified Objections

Thus, to qualify as an objection, there must be, first, a proposed delay and then a written or oral demand for trial by the defense.

While the amendment does not mandate any magic words constituting a demand for trial, it does require some affirmative statement in the record requesting a speedy trial.

The provisions of section 103-5 are to be liberally construed in favor of the defendant, and *** the State cannot improperly manipulate criminal proceedings or purposefully evade the operation of the section’s provisions.

Disputed Days

The State informed the court that its witnesses were still unavailable, and the court stated that “[t]he record is going to reflect the State’s not ready.” The trial court then asked defense counsel what her position was, and defense counsel responded,

“Well, [the prosecutor] did advise me this morning as to the unavailability of the witnesses, so …”

The court then stated,

“The matter is going to continue, motion State.”

There was also a discussion between the judge, the defense attorney and the prosecutor as to the other trials that were set that day. During this discussion over the rescheduling not once did defense counsel assert a demand for trial as the amended statute explicitly requires.

Analysis

While no magic words are required, some affirmative statement is required to assert a trial demand under the amended statute, and defense counsel failed to utter any words resembling a trial demand before the court ruled or during the subsequent discussion about rescheduling. See also People v. Phipps, 238 Ill. 2d 54, 65 (2010) (requiring “a written demand for trial or an oral demand for trial on the record”).

Thus, this 36-day period was excluded from the speedy-trial clock, and no speedy-trial violation occurred. In addition, defense counsel’s statements after the trial court’s ruling could be interpreted as agreeing. While we do not rest our opinion on this point, we cite it only as some additional support for our finding. 

The whole point of the amended statute is to remove any need for courts to scour the record to determine whether defense counsel implicitly or arguably did or did not agree. Only an affirmative demand for trial, in writing or on the record, will do. 725 ILCS 5/103-5(a). 

Holding

Trial counsel was not ineffective for not moving to dismiss on speedy-trial grounds because there was no speedy-trial violation.

Affirmed.

See Also

• Other Problems That Can Come During A Criminal Trial
• Episode 173 – People v. Lilly, 2016 IL App (3d) 140286 (April) (in custody defendant continues to file motions after his demand)
• Episode 205 – People v. Smith, 2016 IL App (3d) 140235 (June) (in custody defendant was held for more than one offense, state blows the speedy)
• Episode 241 – People v. Kilcauski, 2016 IL App (5th) 140526 (August) (state blows speedy when they transfer defendant to Missouri)
• Episode 354 – People v. Pettis, 2017 IL App (4th) 151006 (May) (no speedy trial violation because the state properly relied on the DNA extension)
• Episode 384 – People v. Dalton, 2017 IL App (3d) 150213 (June) (speedy trial rights and compulsory joinder combine to reach a finding of speedy violation)
• Episode 404 – People v. Connors, 2017 IL App (1st) 162440 (September) (the due diligence to obtain evidence exception)