People v. Bowman

• Citation: 149 Ill.Dec. 263,561 N.E.2d 633,138 Ill.2d 131
• Decision Date: 26 September 1990
• Docket Number: No. 68539,68539
• Parties: , 149 Ill.Dec. 263 The PEOPLE of the State of Illinois, Appellant, v. Ricky BOWMAN, Sr., Appellee.
• Court: Supreme Court of Illinois

Page 633

561 N.E.2d 633

138 Ill.2d 131, 149 Ill.Dec. 263

The PEOPLE of the State of Illinois, Appellant, v. Ricky BOWMAN, Sr., Appellee.

No. 68539.

Supreme Court of Illinois.

Sept. 26, 1990.

Neil F. Hartigan, Atty. Gen., Springfield, and Marshall E. Douglas, State's Attorney, Rock Island (Kenneth R. Boyle, John X. Breslin and Gary F. Gnidovec, Office of the State's Attys. App. Pros., Ottawa, of counsel), for people.

Patrick J. Hughes, Jr., Office of the State App. Defender, Springfield, for appellee.

Justice STAMOS delivered the opinion of the court:

On April 29, 1987, defendant, Ricky Bowman, Sr., was charged by complaint with residential burglary. Defendant was arrested and taken into custody on August 6, 1987. On that same day, defendant made his initial appearance on this charge in the circuit court of Rock Island County. The public defender was appointed to represent defendant and made a demand for a speedy trial. (See Ill.Rev.Stat.1985, ch. 38, par. 103-5.) Because of a conflict of interest, the public defender was allowed to withdraw. Attorney Fred Kopp, under contract with the county to handle cases in which the public defender had a conflict, was appointed to represent defendant on August 11, 1987.

On October 8, 1987, the circuit court entered a pretrial order setting defendant's trial date as November 23, 1987. However, Kopp resigned as conflict attorney for the county on October 1, effective November 1, 1987. On November 1, attorney Alex Jarrin became the new conflict attorney for Rock Island County.

When Jarrin took over the conflict attorney's position, he faced a large case backlog. Kopp had informed Jarrin that defendant was aware that Jarrin could not try the case on its scheduled date because of Jarrin's lack of time to prepare, and that defendant understood why a continuance would be sought. Based on Kopp's representations, Jarrin believed that a continuance would not be adverse to defendant's interests. Both Kopp and Jarrin testified that defendant had expressed a preference for a continuance because defendant wanted to spend as much time as possible in the Rock Island County jail. Defendant believed that any time he spent in the county jail would be credited toward time he was due to spend in the Iowa penitentiary for a conviction in that State. Jarrin testified that at no time prior to the original trial date did defendant express aversion to a continuance or a desire to go to trial on November 23. As a result, on November 18, Jarrin had the case generally continued without having the court set a certain trial date. Jarrin and the assistant State's Attorney stipulated that the delay caused by the continuance would be attributable to defendant. Jarrin then informed defendant that the case would probably be placed on the December or January trial calendar.

On January 15, 1988, defendant sent a letter to the chief judge, claiming that his right to a speedy trial had been violated because he had been in custody for 197 days without a trial. This letter stated that defendant had not wanted a continuance but had wanted the trial to occur on November 23, 1987. The letter also stated that defendant was unaware that Jarrin needed a continuance to prepare the case for trial, and that defendant was never informed that the continuance would waive his right to a speedy trial.

On February 18, 1988, attorney Richard Coppula filed an appearance on defendant's behalf, replacing Jarrin. At that time, defendant filed a motion to dismiss, alleging a violation of the speedy-trial act. The trial judge granted this motion. The appellate court affirmed. (180 Ill.App.3d 755, 129 Ill.Dec. 609, 536 N.E.2d 449.) We granted the State's petition for leave to appeal (107 Ill.2d Rules 315(a), 612(b)).

The only issue that this court needs to examine on appeal is whether defendant's motion to remove his case from the November 23, 1987, trial calendar and to continue the matter was an action attributable to him which therefore tolled the 120-day speedy-trial period.

Section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1987, ch. 38, par. 103-5(a)) implements a right guaranteed by the Federal and Illinois Constitutions (U.S. Const., amends. VI, XIV; Ill. Const.1970, art. I, § 8). Although the constitutional and statutory provisions address similar concerns, the rights which they establish are not necessarily coextensive. (People v. Garrett (1990), 136 Ill.2d 318, 323, 144 Ill.Dec. 234, 555 N.E.2d 353; People v. Richards (1980), 81 Ill.2d 454, 459, 43 Ill.Dec. 700, 410 N.E.2d 833.) This court has stated that the statute is to be liberally construed as courts decide each case on its own facts. (People v. Jones (1984), 104 Ill.2d 268, 273-74, 84 Ill.Dec. 495, 472 N.E.2d 455; People v. Reimolds (1982), 92 Ill.2d 101, 106, 65 Ill.Dec. 17, 440 N.E.2d 872.) Section 103-5(a) specifically states that an accused in custody must be brought to trial within 120 days from the date he is taken into custody, unless delay is occasioned by the defendant. (Ill.Rev.Stat.1987, ch. 38, par. 103-5(a); Reimolds, 92 Ill.2d at 106, 65 Ill.Dec. 17, 440 N.E.2d 872.) Any accused not tried within the parameters of section 103-5(a) must be discharged from custody and is entitled to have the charges dismissed. (Ill.Rev.Stat.1987, ch. 38, pars. 103-5(d), 114-1(a)(1); Richards, 81 Ill.2d at 459, 43 Ill.Dec. 700, 410 N.E.2d 833.) On a motion to dismiss for violation of the right to speedy trial, the defendant has the burden of affirmatively establishing the violation. ( Jones, 104 Ill.2d at 280, 84 Ill.Dec. 495, 472 N.E.2d 455; Reimolds, 92 Ill.2d at 106, 65 Ill.Dec. 17, 440 N.E.2d 872.) The trial court's determination as to who is responsible for the delay of trial is entitled to much deference, and should be sustained in the absence of a clear showing of the trial court's abuse of discretion. Reimolds, 92 Ill.2d at 107, 65 Ill.Dec. 17, 440 N.E.2d 872.

The appellate court, in affirming the circuit court's granting of defendant's motion to dismiss, noted that when a court-appointed attorney withdraws from a case on his own initiative, any resulting delay cannot be charged to the accused unless the withdrawal occurs under circumstances which indicate that the accused acquiesced in the delay. It also recognized that a court of review will affirm a decision on such a motion as defendant's unless it amounts to an abuse of discretion. 180 Ill.App.3d at 757, 129 Ill.Dec. 609, 536 N.E.2d 449 (citing People v. Roberts (1985), 133 Ill.App.3d 731, 88 Ill.Dec. 773, 479 N.E.2d 386; People v. McGuire (1984), 123 Ill.App.3d 908, 79 Ill.Dec. 487, 463 N.E.2d 1041; People v. Keagbine (1979), 77 Ill.App.3d 1039, 33 Ill.Dec. 617, 396 N.E.2d 1341).

Applying the cited precedent to the case at bar, the appellate court held that defendant did not voluntarily acquiesce in the delay occasioned by the withdrawal of his counsel. The court viewed the defendant as being forced to choose between two compromising positions: he could have gone to trial on November 23, 1987, with unprepared counsel, or he could have waived his right to a speedy trial. The appellate court determined that this was the result of actions taken by the attorneys involved and the County of Rock Island, and was not due to any conduct on defendant's part. Thus, any decision made by defendant to waive his right to a speedy trial was made under duress. 180 Ill.App.3d at 758, 129 Ill.Dec. 609, 536 N.E.2d 449.

We disagree with the appellate court's holding, and therefore reverse. In order to sustain his claim of a violation of his speedy-trial rights, defendant needed to affirmatively establish the violation before the trial court. (Jones, 104 Ill.2d at 280, 84 Ill.Dec. 495, 472 N.E.2d 455; Reimolds, 92 Ill.2d at 106, 65 Ill.Dec. 17, 440 N.E.2d 872.) We determine that the record in the case at bar reveals that defendant failed to affirmatively establish such a violation, and that the trial court erred in its application of the law to the facts.

Defendant testified that he did not discover that Jarrin was his attorney until he contacted Kopp by telephone on November 18, 1987. Defendant stated that this was the first time he learned that Kopp had resigned as the conflict attorney for the county and that Jarrin would be replacing Kopp. He further stated that he did not learn of the November 18 motion to continue until November 20, when he allegedly first spoke with Jarrin. Defendant said that, at that time, he told Jarrin that he "did not want a continuance." He then said that he did not speak to Jarrin again until January 22, 1988. Defendant also explained that neither Kopp nor Jarrin had explained his speedy-trial rights to him and that neither of them had admonished him regarding the effect a continuance would have on those rights. On cross-examination, defendant also denied that he had wanted to stay in the county jail; instead, he said that he had wanted to return to Iowa.

Defendant's testimony before the trial judge directly conflicted with much of the testimony of Kopp and Jarrin, who had both stated that they had several meetings with defendant, informed him of his speedy-trial rights, and explained the need for the continuance and its effect on speedy-trial matters, and that defendant had expressly held that the evidence showed the defendant had not wished to have his trial continued. The trial judge further stated, and the appellate court expressly affirmed (180 Ill.App.3d at 758, 129 Ill.Dec. 609, 536 N.E.2d 449), that defendant should not have had to choose between the right to competent counsel and a speedy trial.

We note that, in a criminal case, a factual determination made by a trier of fact is entitled to great weight, but where the record does not support the finding, this court must reverse. (People v. Patterson (1972), 52 Ill.2d 421, 424, 288 N.E.2d 403.) Where the truth must be ascertained from a debatable set of circumstances, it is a matter for the...