People v. Janusz

• Decision Date: 18 August 2020
• Docket Number: No. 2-19-0017,2-19-0017
• Citation: 162 N.E.3d 1027,2020 IL App (2d) 190017,443 Ill.Dec. 876
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard JANUSZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (2d) 190017

162 N.E.3d 1027

443 Ill.Dec. 876

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Richard JANUSZ, Defendant-Appellant.

No. 2-19-0017

Appellate Court of Illinois, Second District.

Opinion filed August 18, 2020

Stephen L. Richards, of Chicago, for appellant.

Richard D. Amato, State's Attorney, of Sycamore (Patrick Delfino, Edward R. Psenicka, and Richard S. London, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE BRIDGES delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant, Richard Janusz, was found guilty of 11 counts of predatory criminal sexual assault of a child ( 720 ILCS 5/11-1.40(a)(1) (West 2014)) and 4 counts of manufacturing child pornography (id. § 11-20.1(a)(1)(vii)). Defendant was sentenced to 101 years' imprisonment.

¶ 2 On appeal, defendant argues that the trial court erred in (1) denying his motion to dismiss on speedy-trial grounds and (2) denying his motion for a new trial based on his trial counsel's ineffective assistance. We affirm.

¶ 3 I. BACKGROUND

¶ 4 A. Pretrial

¶ 5 Defendant was charged by information on August 1, 2014, with 15 counts of predatory criminal sexual assault of a child in violation of section 11-1.40(a)(1) of the Criminal Code of 2012 (Criminal Code) (id. § 11-1.40(a)(1)) and 3 counts of possession of child pornography in violation of section 11-20.1(a)(6) of the Criminal Code (id. § 11-20.1(a)(6)). The 15 counts of predatory criminal sexual assault of a child alleged that, between January 1, 2010, and July 30, 2014, defendant knowingly committed acts of sexual penetration of R.M., a minor under the age of 13, in that he placed his finger in R.M.'s sex organ. The three counts of possession of child pornography alleged that, on or about July 31, 2014, defendant possessed a visual reproduction or depiction by computer of a child whom defendant knew or should have known to be under the age of 13 engaged in the lewd exhibition of the child's genitals.

¶ 6 At the August 1, 2014, hearing, the court advised defendant of the charges against him and the punishments should he be convicted, including consecutive sentences of at least six years per charge of predatory criminal sexual assault of a child and lifetime registration as a sex offender. Defendant stated that he understood the charges against him, and the court appointed a public defender. On August 19, 2014, defendant filed a demand for a speedy trial.

¶ 7 On August 20, 2014, defendant appeared with his appointed counsel, and counsel requested a status date for after he had time to review material from the State. The court entered an order of continuance by agreement and set a status hearing for September 29, 2014. Following the September 29 hearing, the court entered additional orders of continuance by agreement, on September 29 and October 1, 2014.

¶ 8 On October 6, 2014, a grand jury returned a 30-count indictment against defendant. Counts I through XXVI were for predatory criminal sexual assault of a child (id. § 11-1.40(a)(1)) for committing acts of sexual penetration with R.M., including placing his penis in R.M.'s anus, placing his finger in R.M.'s sex organ, and placing his mouth on R.M.'s sex organ, and counts XXVII through XXX were for the manufacture of child pornography (id. § 11-20.1(a)(1)(i), (vii)) in that defendant photographed a child he knew to be under the age of 13 depicting a lewd exhibition of the child's unclothed pubic area, depicting a lewd exhibition of the child's unclothed breasts, and depicting an act of sexual penetration involving defendant's sex organ and the child's anus.

¶ 9 Defendant acknowledged receipt of the indictment on October 8, 2014. The trial court stated that counsel would have the opportunity to review the indictment with defendant before an arraignment on the next court date. The case was again continued by agreement to November 4, 2014, but defendant was not arraigned on November 4.

¶ 10 Between the October 8 and November 4 hearings, defendant retained new counsel. At the November 4 hearing, defendant's new counsel filed an appearance and the trial court discharged the public defender. The case was continued by agreement after the November 4 hearing and again after a December 4 hearing.

¶ 11 The case was then continued multiple times at defendant's request: January 22, 2015 (for defense counsel to review discovery); March 12, 2015 (for defense counsel to review evidence in the possession of the police department); April 23, 2015 (following receipt of disclosures from the State); July 14, 2015 (after retaining an expert); August 24, 2015 (based on defendant's divorce trial set in September); October 15, 2015 (awaiting the ruling on defendant's divorce case); December 3, 2015 (following resolution of defendant's divorce case and the release of marital funds); January 4, 2016 (to acquire experts); and March 3, 2016 (waiting to hear from retained experts).¹

¶ 12 At the October 15, 2015, hearing, the trial court remarked that it was "not sure if we've had an arraignment on the case." The assistant state's attorney responded that the indictment was tendered in 2014, so she hoped so. The court scheduled defendant's arraignment for the next court date, but it did not occur. The court again brought up defendant's lack of an arraignment on March 3, 2016, and it set his arraignment for April 21, 2016.

¶ 13 Defendant was arraigned on April 21, 2016. The trial court admonished defendant that all 30 charges against him were Class X felonies and therefore he could not receive probation. The court also admonished him that, if he were convicted of all counts, his minimum sentence would be 186 years² and his maximum sentence would be 1680 years. Further, the court continued, defendant would also be subject to at least three years of mandatory supervised release for up to natural life, and it advised him of his right to plead not guilty, his right to be represented by a lawyer, and his right to confront witnesses. Defendant stated that he understood his rights. Defendant waived a formal reading of the charges, and he pled not guilty.

¶ 14 On June 2, 2016, defense counsel requested additional discovery, based on defendant's expert's initial review. The trial court continued the case upon defendant's request.

¶ 15 On July 28, 2016, the trial court remarked that the case was getting old and that it needed to be either set for trial or in the posture of a plea. Defense counsel responded that the defense had hired an expert and that a large part of the delay was due to defendant's divorce case. Now that the divorce case was resolved, defendant was obtaining money through the marital estate, which had been frozen, to retain the expert. Defense counsel asked for a continuance to September 15, 2016, and the court entered the order. On September 15, the court granted another continuance, per defendant's request. It set a status hearing for October 25, 2016, and it set the jury trial for February 6, 2017. At the October 25 status hearing, defense counsel again sought a continuance to November 29, 2016, for filing pretrial motions, and the court granted the request.

¶ 16 On November 29, 2016, defendant filed a motion to dismiss. He argued that various counts were duplicative, violating the "one act, one crime" doctrine, and he sought dismissal of multiple counts. The trial court denied the motion to dismiss on January 20, 2017, and it continued the case to January 27 for any additional motions. Defendant filed additional motions on that date, including a demand for a bill of particulars and a motion for discovery, and the case was continued at defendant's request.

¶ 17 On January 31, 2017, the court determined that the State did not need to respond to defendant's bill of particulars. Defense counsel then stated that he still intended to file another motion once his expert provided a report. Counsel agreed that he would not be ready for trial the next week. He was seeking a continuance. The State interjected that this delay was not occasioned by the State. The court agreed and turned to counsel, asking "[a]nd that's tolled on the speedy trial because they're answering ready, correct?" Counsel responded yes and then stated that "I don't think we've ever pulled the trigger on [defendant's] speedy, but I would in fact toll it again." The case was continued on defendant's request, and the January 31, 2017, continuance order stated: "delay occasioned by the defense" and "speedy tolled." The case was continued several more times by either agreement or defendant's request.

¶ 18 On October 12, 2017, defendant filed a motion to dismiss, based on a violation of his right to a speedy trial under the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) ( 725 ILCS 5/103-5, 114-1 (West 2016)) as well as the sixth amendment of the United States Constitution ( U.S. Const., amend. VI ). Therein, defendant argued that no trial date was set within 120 days of him being taken into custody and that the delay could not be attributable to him. In addition, he argued that he had not been arraigned for 630 days and that this delay was attributable to the State. The matter was continued, and the trial date was stricken.

¶ 19 On October 18, 2017, defendant filed an amended motion to dismiss, and on November 16, 2017, he filed a second amended motion to dismiss. The second amended motion added numerous dates when the case was continued and argued that those delays were attributable to the State or the trial court. Defense counsel did not file his memorandum in support of his motion to dismiss until January 12, 2018, after several more continuances.

¶ 20 The trial court denied defendant's motion to dismiss on February 1, 2018. In addressing the dates of the continuances, the court disagreed that the continuances were attributable to the State or the court. Rather, the continuances were either attributable to defendant or by agreement....