People v. Howell

• Decision Date: 01 November 1983
• Docket Number: No. 4-82-0676,4-82-0676
• Citation: 74 Ill.Dec. 734,119 Ill.App.3d 1,456 N.E.2d 236
• Parties: , 74 Ill.Dec. 734 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George HOWELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 236

456 N.E.2d 236

119 Ill.App.3d 1, 74 Ill.Dec. 734

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George HOWELL, Defendant-Appellant.

No. 4-82-0676.

Appellate Court of Illinois Fourth District.

Nov. 1, 1983.

Daniel D. Yuhas, Deputy State Appellate Defender, Jerome McGuire, Asst. State Appellate Defender, Springfield, for defendant-appellant.

Craig DeArmond, Sp. Prosecutor for Vermilion County State's Attys. Office, Danville, for plaintiff-appellee.

MILLS, Justice:

Howell escaped from the Vermilion County Jail.

Twelve years later he was tried for escape.

Did the delay deny him any procedural rights?

No.

We affirm.

In an attempt to concisely set forth the tangled jumble of dates and details from the record below, here is a chronological table listing the relevant developments surrounding Howell's past 14 years' experience with the criminal justice system:

Chronology of events

2-12-69 Defendant sentenced to 4 to 6 years in a Federal correctional institution for interstate transportation of a stolen motor vehicle.

5-70 Defendant escaped from Federal correctional institution in Florida.

6-14-70 Defendant arrested in Vermilion County and charged with rape.

8-3-70 Defendant pleaded guilty to rape and was sentenced to 9 to 10 years' imprisonment to run concurrently with the Federal sentence. Defendant then escaped from the Vermilion County jail.

9-16-70 Defendant arrested in Texas for robbery. Defendant indicted by Vermilion County grand jury for escape.

11-16-70 Defendant sentenced on the robbery charge to 20 years' imprisonment with the Texas Department of Corrections.

1971 According to defendant, he wrote a letter to the Vermilion County State's Attorney's office requesting that he be brought to trial on the escape charge.

6-19-73 Defendant's file in the Vermilion County State's Attorney's office was reviewed, his Texas conviction noted, and the file marked "close file until notified."

5-30-80 Defendant paroled in Texas and released to Federal custody to complete his initial Federal sentence.

9-15-80 Defendant wrote a letter to the Vermilion County State's Attorney's office.

9-24-80 Defendant wrote a letter to the Vermilion County circuit court.

12-5-80 Defendant was paroled on his initial Federal sentence and began serving an 18-month sentence for his escape from the Florida institution.

12-24-80 A special prosecutor was appointed to prosecute defendant for his Illinois escape.

1-5-81 The Vermilion County authorities were notified of defendant's impending release.

2-4-81 Vermilion County sent to Federal officials a certified copy of defendant's indictment for the Illinois escape.

12-31-81 Defendant was released from Federal prison into the custody of the sheriff's office of Shelby County, Tennessee.

3-24-82 Defendant extradited to Illinois to stand trial for escape.

8-31-82 Defendant convicted of escape after bench trial.

Defendant appeared in Vermilion County circuit court on March 25, 1982, when counsel was appointed and he was given a trial date of April 7, 1982. Prior to trial on the escape charge, defendant's appointed counsel filed a writ of habeas corpus and moved to dismiss the charge on the basis of prosecutorial misconduct and denial of a speedy trial. Both motions and the writ were denied.

Defendant waived a jury trial and proceeded to bench trial on August 31, 1982. He was convicted of escape (Ill.Rev.Stat.1981, ch. 38, par. 31-6) and--by his own election--was sentenced under the prior statute to a term of imprisonment of not less than 2 and not more than 6 years, to run concurrently with his sentence on the Illinois rape conviction.

Howell appeals, maintaining that: (1) his constitutional and statutory rights to a speedy trial were denied; (2) he was denied due process because of prosecutorial misconduct; and (3) his sentence of imprisonment was improperly imposed.

We affirm--on all grounds.

I. SPEEDY TRIAL

At the hearing on defendant's motion to dismiss the escape charge, he testified that while serving in the Texas penitentiary in 1971:

"I wrote a letter--just a plain letter to the District Attorney's office asking them if they had anything against me on the escape charge or any other charge, would they bring me to Court as soon as possible to do away with the charges."

Defendant received no response to this letter. According to further testimony at the hearing, there is no record in the Vermilion County State's Attorney's file that any such letter was ever received. On June 19, 1973, defendant's file was reviewed, his Texas conviction and the "hold" sent to Texas authorities were noted, and the file marked "close file until notified."

Defendant wrote another letter dated September 15, 1980, and received on September 17, 1980, by the Vermilion County State's Attorney. The letter stated in part:

"While in Texas I wrote to your office asking for a fast and speedy trial on you state's escape charge which your office decided not to prosecute."

The letter also made inquiry as to what amount of time remained for defendant to serve on his sentence for rape.

Defendant wrote another letter dated September 24, 1980, to the Vermilion County circuit court. This letter made no reference to the letter alleged to have been written in 1971, but it did make inquiry regarding what amount of time remained for defendant to serve on his sentence for rape.

Defendant first argues that the inaction of the Vermilion County State's Attorney denied his right to a speedy trial under the United States Constitution. In determining whether a delay in trial has breached constitutional limitations, a four-part test weighing the conduct of both the defendant and the prosecution is used. (Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.) The four factors to be considered are (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice to the defendant.

The length of the delay is a triggering mechanism to the operation of the test. (Barker, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117.) The defendant was indicted on September 16, 1970, and Illinois did not seek his extradition until December of 1982. The delay of over 11 years is inordinate and sufficient to trigger an inquiry into the other facts that go into that test.

The State explains the delay as the result of a procedure whereby the prosecution awaits the completion of sentence in a foreign jurisdiction prior to having a defendant transferred to face trial on unrelated charges. Relying on People v. McInery (1980), 91 Ill.App.3d 68, 46 Ill.Dec. 122, 413 N.E.2d 876, the State claims that Illinois courts have given tacit approval to such delays. The reliance is misplaced. In McInery, there was a 33-month delay between the issuance of an extradition warrant and the appearance of the defendant in court pursuant to a fugitive information. The court commented on the delay as follows:

"The reason for this delay is unexplained. While we disapprove of such a delay, there is no evidence that the State intentionally delayed the proceeding so as to deprive defendant of his rights. Instead it appears the State felt it would be more orderly to wait until the sentence defendant was serving on his Illinois conviction was completed. [Citation.]" (Emphasis added.) 91 Ill.App.3d 68, 70, 46 Ill.Dec. 122, 123, 413 N.E.2d 876, 877.

Contrary to the State's assertion, McInery explicitly disapproved of the delay which the State's procedure caused.

Furthermore, in People v. Bryarly (1961), 23 Ill.2d 313, 178 N.E.2d 326, the Illinois Supreme Court indicated that the State is not free to delay trial until the conclusion of a defendant's foreign incarceration. There, defendant was indicted in September 1952, and his out-of-state incarceration became known to the Illinois authorities in April of 1955. An alias warrant was issued in October of 1959, and he was extradited in January of 1960. In reversing the conviction and dismissing the charges, the supreme court said that "the burden of taking the steps necessary to bring about a prompt trial rested upon the People." (23 Ill.2d 313, 319, 178 N.E.2d 326, 329.) Therefore, we conclude that the State here had a duty to take steps to bring the defendant to a prompt trial. See also People v. Harflinger (1977), 49 Ill.App.3d 31, 35, 6 Ill.Dec. 928, 931, 363 N.E.2d 875, 878.

However, neither McInery nor Bryarly necessarily require reversal here. In subsequent speedy trial cases, the supreme court indicated that the reversal in Bryarly was grounded in large part upon facts, other than merely the delay, indicating that the prosecution of the defendant had been abandoned. (See People v. Moriarity (1966), 33 Ill.2d 606, 610, 213 N.E.2d 516, 518; People v. Tetter (1969), 42 Ill.2d 569, 575, 250 N.E.2d 433, 436.) There is no evidence here of an abandonment of the prosecution. Also, as in McInery, there is no evidence that the State intentionally delayed the proceedings as to prejudice the defendant or deprive him of his rights. We thus proceed to the remaining factors involved in the Barker test.

The third factor to be considered is the defendant's assertion of his right to a speedy trial. The supreme court in Barker emphasized "that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." (407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101, 118.) In its order denying defendant's motion for dismissal, the trial court took note of the defendant's testimony regarding the letter purportedly written in 1971 and the fact that neither the letter nor a copy was offered in evidence. The court explicitly found that "the evidence fails to sustain that defendant asserted his right to a speedy trial."

In most cases where a speedy trial violation has been found, there was a continuous assertion of a right to a speedy trial on the...