People v. Bowman

• Court: Appellate Court of Illinois
• Writing for the Court: KASSERMAN
• Citation: People v. Bowman, 420 N.E.2d 1132, 96 Ill.App.3d 136, 51 Ill.Dec. 574 (Ill. App. 1981)
• Decision Date: 06 May 1981
• Docket Number: No. 79-205,79-205
• Parties: , 51 Ill.Dec. 574 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gregory BOWMAN, Defendant-Appellant.

Page 1132

420 N.E.2d 1132

96 Ill.App.3d 136, 51 Ill.Dec. 574

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gregory BOWMAN, Defendant-Appellant.

No. 79-205.

Appellate Court of Illinois, Fifth District.

May 6, 1981.

John H. Reid, Deputy State Appellate Defender, Gary D. Duncan, Asst. State Appellate Defender, Mount Vernon, for defendant-appellant.

Clyde Kuehn, State's Atty., Belleville, Martin N. Ashley, Deputy Director, Raymond F. Buckley, Jr., Staff Atty., State's Atty. Appellate Service Commission, Mount Vernon, for plaintiff-appellee.

KASSERMAN, Presiding Justice:

Defendant, Gregory Bowman, was convicted of kidnaping and unlawful restraint and was sentenced to an extended term of imprisonment of 14 years on the kidnapping offense. No judgment was entered on the unlawful restraint conviction.

Defendant raises the following issues on review: (1) whether defendant wasdenied his right to a speedy trial; (2) whether defendant was denied effective assistance of counsel; (3) whether the State improperly bolstered the complaining witness's in-court identification of defendant through the use of prior consistent statements; (4) whether the State improperly introduced evidence of defendant's prior criminal history; and (5) whether defendant's sentence to an extended prison term violated defendant's right to equal protection under the law.

The pertinent aspects of the evidence adduced at trial are as follows. At approximately 10:30 on the evening of July 20, 1978, Jeanne Taylor was seated in the Helpee Selfee Laundromat in Belleville, Illinois, reading a book. A man approached her, requesting change for a dollar. He stood as close as two feet from her and she had an unobstructed view of his face in a room illuminated by fluorescent lights. After she informed him that she had no change, the man remained standing in front of her for about a minute until she told him to keep trying the change machine. Finally, Ms. Taylor volunteered to make change for him. She made several attempts before she succeeded in getting the machine to accept his wrinkled dollar bill. After the machine made the change, the man grabbed her around the neck from behind, placed a knife against her throat and told her to be quiet or she would get hurt. The man forced her outside of the laundromat into an automobile and sped off. The fleeing vehicle was observed by several persons, including Mark Penseneau, who was able to identify the make, model, color, and approximate year of the vehicle. Ms. Taylor repeatedly struggled with the man in an effort to escape. He held her down and proceeded to drive through the streets of Belleville, apparently without a specific destination. At one point the man changed lanes and narrowly missed striking a motorcycle driven by Darl Lipps, who then gave chase. Eventually Lipps caught up with the vehicle when it was held up in traffic at a stop light. As Lipps approached the vehicle, a woman, who he later learned was Ms. Taylor, leaped out of the passenger side and ran. Sensing her to be in trouble, Lipps took the woman to a nearby bowling alley where she summoned the police. Lipps' description of the automobile was similar to Penseneau's. In addition, Lipps told the police that the license number of the vehicle he followed was AD 6752. Ms. Taylor viewed a photographic array on July 22, 1978, and, from a group of ten photographs, selected defendant as the man who accosted her. Two days later she identified defendant at a lineup on the basis of his appearance and high-pitched voice.

Defendant was taken into custody on July 22, 1978, and charged by criminal complaint with kidnaping and armed violence. The charges were amended by a bill of indictment to kidnaping and unlawful restraint. On September 22, 1978, defendant filed a motion for change of venue to a county other than St. Clair. On November 27, 1978, the motion was granted and the trial was transferred to Perry County. Defendant appeared at trial but then entered a negotiated plea of guilty to Count I of the indictment charging him with kidnaping. In exchange for the plea, the State agreed to dismiss Count II, the unlawful restraint charge, and agreed not to seek an extended term sentence, which was available. During the course of the proceedings, the court, in commenting on the fact that defendant was already on parole for a prior conviction, referred to its understanding as to the policies of the Parole Board concerning revocation of defendant's parole. The trial court then accepted the plea and directed, without objection by defendant or his counsel, that the sentencing hearing and all other proceedings in the case be conducted in St. Clair County.

At the sentencing hearing on January 5, 1979, in St. Clair County, the trial court indicated that previously it had misunderstood the policy of the Parole Board with respect to parole revocation. The court stated that at the time the plea was accepted, it had been under the impression that the guilty plea would result in an automatic revocation of parole, requiring defendant to serve the 25 years remaining on his prior conviction. The court stated that it now understood that it was not a certainty that the Board would require defendant to serve out the complete unexpired term on his prior conviction but instead would look to the sentence imposed for the current offense before determining the sentence to be imposed on the revocation. The trial court thereupon vacated defendant's guilty plea sua sponte, and a new trial day was set for January 16, 1979, in St. Clair County. The trial judge then recused himself from the case.

When the case was called for trial, the State announced ready, but defendant moved for another change of venue outside of St. Clair County. The motion was granted and trial commenced February 5, 1979, in Randolph County. However, prior to the start of trial, defendant petitioned for discharge, alleging a violation of his right to a speedy trial within 120 days as required by section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat. 1979, ch. 38, par. 103-5(a)). The motion was denied, which defendant now urges was error.

The record discloses that defendant was incarcerated from July 22, 1978, up to his trial date of February 5, 1979, a period of 198 days. Defendant concedes that 66 days of the delay in bringing the case to trial are attributable to him as a result of his initial motion for a change of venue; however, he urges that the remaining 132 days delay must be charged against the State, thereby entitling him to discharge under the 120-day rule (Ill.Rev.Stat. 1979, ch. 38, par. 103-5(a)). The State contends that the guilty plea waived any delay occasioned during the 39 days the plea was in effect between November 27, 1978, and January 5, 1979. According to the State, this delay, when added to the 66 days admittedly attributable to defendant, would reduce the delay chargeable to the State to 93 days, a period well within the 120-day limitation.

Although we are aware of no case addressing this specific issue, it is well settled that a guilty plea waives the right of an accused to have his conviction reversed for want of a speedy trial. (People v. DeCola (1959), 15 Ill.2d 527, 155 N.E.2d 622; People v. Ike (5th Dist. 1973), 10 Ill.App.3d 933, 295 N.E.2d 250.) Left unanswered by these decisions, however, is the question of the consequence of the subsequent vacation of the plea which resulted in the waiver.

We conclude that defendant's plea of guilty operated to toll the running of the 120-day rule during the period that elapsed between the entry of such plea and the order vacating it. Our primary consideration for such determination of this issue is best illustrated by the dictum of the court in People v. Hickman (2d Dist. 1971), 3 Ill.App.3d 919, 280 N.E.2d 787, rehearing denied April 17, 1972; rev. on other grounds 56 Ill.2d 175, 306 N.E.2d 32), in which the court stated:

"This court is of the opinion that where a defendant has plead guilty he waives the 120 day rule and cannot avail himself of it by changing his plea to not guilty a day or two before the expiration of the 120 days." 3 Ill.App.3d at page 930, 280 N.E.2d at page 794.

We agree.

We therefore conclude that defendant's waiver of the benefits of the 120-day rule, referred to in Hickman, is operative so long as defendant's plea of guilty remains in effect as his plea to the charge. Were we to hold otherwise, the rationale of the cases involving waiver of the 120-day rule by a defendant who has pleaded guilty would be circumvented on all occasions in which, after the expiration of the 120-day period, a plea of guilty entered before the expiration of 120 days was withdrawn or vacated or the proceedings surrounding its entry were reversed on appeal. Consequently, in the instant case, any delay in defendant's prosecution was waived by the entry of his plea of guilty on November 27, 1978, and such waiver would continue until such plea was vacated on January 5, 1979, thereby tolling the 120-day rule during the period between the entry of his plea of guilty and its vacation. Trial was held 31 days later on February 5, 1979. Assuming that the 31 days were completely attributable to the State, there was full compliance with the provisions of section 103-5(a).

Next, defendant contends that he was denied effective assistance of counsel where defense counsel's law partner was a former assistant State's Attorney who participated in the preliminary stages of the prosecution of this case.

The State informed the trial court at defendant's arraignment that defense counsel's law partner, Stephen Rice, was a former assistant State's Attorney who took part in the early stages of the prosecution. Stephen Rice was present when defendant was initially interviewed by the police, and he personally drafted a warrant for the search of defendant's automobile. Stephen Rice is currently a partner in the law...