People v. Cordell

• Decision Date: 30 November 2006
• Docket Number: No. 101546.,101546.
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Ronnie E. CORDELL, Appellee.
• Court: Illinois Supreme Court

860 N.E.2d 323

223 Ill.2d 380

307 Ill.Dec. 669

The PEOPLE of the State of Illinois, Appellant, v. Ronnie E. CORDELL, Appellee.

No. 101546.

Supreme Court of Illinois.

November 30, 2006.

COPYRIGHT MATERIAL OMITTED

Lisa Madigan, Attorney General, Springfield, and Edward D. Smith, State's Attorney, Kankakee (Gary Feinerman, Solicitor General, Karl R. Triebel and Michael M. Glick, Assistant Attorneys General, Chicago, Norbert J. Goetten and Lawrence M. Bauer, Office of the State's Attorneys Appellate Prosecutor, Ottawa, of counsel), for appellee.

Robert Agostinelli, Deputy Defender, and Kenneth D. Brown, Assistant Defender, Office of the State Appellate Defender, Ottawa, for appellee.

Justice BURKE delivered the judgment of the court, with opinion.

Defendant Ronnie Cordell was convicted in the circuit court of Kankakee County of retail theft (720 ILCS 5/16A-3(a) (West 2002)) and criminal trespass to real property (720 ILCS 5/21-3(a)(2) (West 2002)). On appeal, the appellate court reversed the convictions, finding that defendant's trial counsel was constitutionally ineffective because she failed to argue that defendant's statutory right to a speedy trial had been violated. No. 3-03-1077 (unpublished order under Supreme Court Rule 23). We granted the State's petition for leave to appeal. 177 Ill.2d R. 315. For the reasons that follow, we reverse the judgment of the appellate court.

BACKGROUND

On January 24, 2002, defendant was arrested and charged with criminal trespass to property following an incident at a Bourbonnais grocery store. Defendant was unable to post bond and remained in custody. On February 15, a grand jury indicted defendant for felony retail theft and criminal trespass to property. The trial court scheduled arraignment for March 5.

On March 5, 2002, the court appointed a public defender to represent defendant, who pled not guilty and demanded a jury trial. The State filed its Supreme Court Rule 412 discovery (188 Ill.2d R. 412) disclosures, and the trial court gave defendant 30 days in which to file its Rule 413 discovery (134 Ill.2d R. 413). The following exchange then occurred:

"THE COURT [to defense counsel]: * * * Show 413 [discovery] within 30 days and we'll continue this over to —

THE CLERK: You have a day?

[DEFENSE COUNSEL]: Want to put it on Tuesday? I can always cover if it's not —

THE CLERK: April 16th.

THE COURT: April 16th at 9:30."

On March 6, 2002, a different public defender was assigned to defendant. On April 5, without notifying his new defense counsel, defendant filed a pro se motion to suppress evidence due to the insufficiency of statements leading to the charge. On April 16, defense counsel appeared in court and requested a continuance to review defendant's pro se motion and for time to file discovery. The court continued the matter to April 26.

On April 26, 2002, the parties appeared for a status hearing. At the hearing, the following exchange took place:

"[DEFENSE COUNSEL]:* * * I think at this point we're going to withdraw that [pro se] motion and request this be set for jury.

THE COURT: All right. * * * I will give a jury trial date. Let me see, how long do we think this will take? It's—is it 120 days?

* * *

[THE STATE]: I don't think the [Rule 413 discovery] has been filed, but our part won't take long."

Defense counsel then told the court that she had filed her discovery the previous day. The following colloquy then took place:

"THE COURT: * * * All right. I'll give you a jury trial date. You have either June 12th or June 11th?

THE CLERK: Right.

[DEFENSE COUNSEL]: Let me just check that June 11th. I know on June 4th we have a number of jury trials already set.

THE COURT: Yeah. I usually set 6 to 10 every day.

(Discussion held off the record.)

THE COURT: June 11th, then, at 10:00 jury trial, sir. Okay."

On June 11, 2002, the case went to trial, and a jury found defendant guilty of retail theft and criminal trespass to real property. Prior to sentencing, defendant filed a pro se posttrial motion for new trial that alleged, among other things, that his trial counsel was ineffective for failing to file for dismissal based on the State's violation of section 103-5(a) of the Code of Criminal Procedure of 1963 (the Speedy Trial Act) (725 ILCS 5/103-5(a) (West 2002)). Defendant argued that he was not given a trial within 120 days of his arrest, as is mandated by section 103-5(a). On October 4, the trial court held a hearing on defendant's pro se motion and found that defense counsel was not ineffective for failing to file a motion to dismiss on speedy-trial grounds, because there was no violation of section 103-5(a). In making its determination, the trial court stated,

"[T]he case law says certain continuances are on the defense. For instance, when the State filed their 412 in open court on [March 5], the continuance runs from [March 5] to actually either [April 25] or [June 11] to the Defense. So, it doesn't appear there would have been a speedy-trial violation even if you consider the fact that he was in custody."

Defendant was subsequently sentenced.

On appeal, defendant contended that his pro se motion raised a viable claim that his statutory right to a speedy trial was violated. The State, in response, contended that any delay beyond the 120-day speedy-trial period was attributable to defendant because all of the continuances of the trial were "by agreement." The State maintained that defendant did not object at any point during the proceedings to any of the dates proposed by the court, and therefore agreed to his delayed trial date. The appellate court rejected the State's argument.

Relying on a rule stated in People v. Vasquez, 311 Ill.App.3d 291, 244 Ill.Dec. 96, 724 N.E.2d 984 (2000), the appellate court found that "defense counsel neither affirmatively requested nor expressly agreed to continuing the case" on each occasion where the trial court set a date for hearing or trial, and thus "did not contribute to this delay in bringing the case to trial." No. 3-03-1077 (unpublished order under Supreme Court Rule 23). Consequently, the appellate court held that the 42-day period from March 6 to April 16, the 46-day period from April 27 to June 11, and the initial 40-day period from January 25 to March 5 were all attributable to the State. The appellate court found that the combined total of 128 days attributable to the State exceeded the 120-day speedy-trial period and therefore reversed the conviction.

ANALYSIS

At issue in this case is whether defendant was denied effective assistance when his defense counsel failed to object to the purported violation of his right to a speedy trial. To determine whether a defendant was denied the effective assistance of counsel, we apply the two-pronged test developed by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by this court in People v. Albanese, 104 Ill.2d 504, 526, 85 Ill.Dec. 441, 473 N.E.2d 1246 (1984). To prevail on a claim of ineffective assistance of counsel, the defendant must show both that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced defendant such that he was deprived of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The failure of counsel to argue a speedy-trial violation cannot satisfy either prong of Strickland where there is no lawful basis for arguing a speedy-trial violation. See People v. Cooksey, 309 Ill.App.3d 839, 844, 243 Ill.Dec. 481, 723 N.E.2d 784 (1999). Accordingly, we must determine whether defendant's speedy-trial rights were violated before we can determine whether counsel was ineffective.

In Illinois, a defendant has both a constitutional and a statutory right to a speedy trial. U.S. Const., amends. VI, XIV; Ill. Const.1970, art. I, § 8; 725 ILCS 5/103-5(a) (West 2002); see People v. Crane, 195 Ill.2d 42, 48, 252 Ill.Dec. 687, 743 N.E.2d 555 (2001). Although section 103-5(a) implements the constitutional right to a speedy trial, the statutory right and the constitutional right are not coextensive. People v. Gooden, 189 Ill.2d 209, 217, 244 Ill.Dec. 361, 725 N.E.2d 1248 (2000). Defendant does not argue that his constitutional right to a speedy trial was violated. Therefore, the specific issue on appeal is only whether defendant's statutory right to a speedy trial was violated.

Section 103-5(a) of the Act provides, in relevant part:

"(a) 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) (West 2002).

Prior to 1999, section 103-5(a) did not contain the final sentence that required a defendant to make a written or oral objection to any delay in his trial in order to keep the speedy trial clock from tolling. Under the preamended statute, only affirmative acts by the defendant that caused or contributed to the delay would toll the speedy-trial clock. People v. Turner, 128 Ill.2d 540, 132 Ill.Dec. 390, 539 N.E.2d 1196 (1989). Express agreements to continuances on the record were considered to be affirmative acts attributable to defendants, but mere silences or failures to object to continuances requested by the prosecution or the court were not. People v. Beyah, 67 Ill.2d 423, 10 Ill.Dec. 568, 367 N.E.2d 1334 (1977); People v. Reimolds, 92 Ill.2d 101, 65 Ill.Dec. 17, 440 N.E.2d 872 (1982); see also People v. Cichanski, 81 Ill.App.3d 619, 37 Ill.Dec. 222, 401 N.E.2d 1315 (1980).

In People v. Healy, 293 Ill.App.3d 684, 228 Ill.Dec. 88, 688 N.E.2d 786 (1997), these principles led the appellate court to overturn a defendant's murder conviction. In Healy, the defendant was...