People v. Kohler

• Decision Date: 12 April 2012
• Docket Number: No. 2–10–0513.,2–10–0513.
• Citation: 360 Ill.Dec. 379,968 N.E.2d 1132,2012 IL App (2d) 100513
• Parties: The PEOPLE of the State of Illinois, Plaintiff, v. Michael D. KOHLER, Defendant–Appellant (The Village of Long Grove, Plaintiff–Appellee).
• Court: United States Appellate Court of Illinois

2012 IL App (2d) 100513

968 N.E.2d 1132

360 Ill.Dec. 379

The PEOPLE of the State of Illinois, Plaintiff,

v.Michael D. KOHLER, Defendant–Appellant (The Village of Long Grove, Plaintiff–Appellee).

No. 2–10–0513.

Appellate Court of Illinois, Second District.

April 12, 2012.

Thomas A. Lilien, Deputy Defender, Bruce Kirkham, Office of the State Appellate Defender, Elgin, for Michael D. Kohler.

Joel D. Gingiss, Smith & LaLuzerne, Ltd., Waukegan, for Village of Long Grove.

OPINION

Justice BIRKETTdelivered the judgment of the court, with opinion.

[360 Ill.Dec. 380]¶ 1Defendant, Michael D. Kohler, appeals his convictions, following a stipulated bench trial, of driving under the influence of alcohol under the ordinances of the Village of Long Grove(the Village).Defendant argues that the Village did not bring him to trial within the 160–day time period specified in section 103–5(b) of the Code of Criminal Procedure of 1963(Code)(725 ILCS 5/103–5(b)(West 2008)).For the reasons that follow, we agree and vacate defendant's convictions.

¶ 2We summarize the evidence appearing in the record.We note that the parties included transcripts from two hearings in this matter: the hearing on defendant's motion to dismiss based on a violation of the speedy-trial statute(725 ILCS 5/103–5(b)(West 2008)), and the stipulated bench trial.To make up for the lack of other transcripts, the parties filed an agreed statement of facts signed by all attorneys who participated in this matter, apparently pursuant to Illinois Supreme Court Rule 323(d)(eff. Dec. 13, 2005).We also use the agreed statement of facts in setting forth the relevant facts surrounding this appeal.

¶ 3 On June 29, 2007, defendant was issued two citations for driving under the influence of alcohol.The citations were made out by a deputy of the Lake County sheriff's department.On each citation, the deputy checked the box indicating that the “City/Village of” would be the charging entity and completed the form by writing in “Long Grove” as the village.Despite filling in Long Grove as the charging entity, the deputy also noted that defendant was being charged with violations of sections 11–501(a)(1)and11–501(a)(2) of the Illinois Vehicle Code(625 ILCS 5/11–501(a)(1), (a)(2)(West 2006)).The citation form had boxes to indicate whether defendant was being charged with a violation of state law or a local ordinance.These boxes were left unchecked.Last, the deputy indicated that the citations had been issued pursuant to an accident involving property damage and that the accident had occurred on westbound Lake–Cook Road at Old Hicks (Route 53).

¶ 4 On July 25, 2007, defendant was arraigned, and on August 17, 2007, defendant appeared at a hearing for status of counsel.At both of those hearings, the prosecution was represented by assistant State's Attorneys and not by a Village attorney.On September 21, 2007, defendant did not appear in court.On October 26, 2007, the trial court issued a warrant for defendant's arrest.

¶ 5 On September 27, 2008, defendant was arrested on the outstanding warrant.On September 28, 2008, defendant appeared for a bond hearing.At the bond hearing, the prosecution was represented by an assistant State's Attorney and not by a Village attorney.Also at the bond hearing, the trial court appointed the public defender to represent defendant.The trial court further ordered defendant released from custody on a personal recognizance bond.The assistant public defender representing defendant filed a demand for a speedy trial on that date, serving a copy of the demand on the attorney representing the prosecution at that time, the assistant State's Attorney.

¶ 6 On October 3, 2008, defendant appeared for arraignment, but the case was continued because the Village's prosecutor did not have a file on defendant's case.The case was continued without defendant's agreement.On November 7, 2008, defendant's attorney requested additional discovery, and the case was continued on defendant's motion.The case was set for pretrial statuses on December 12, 2008, January 16, 2009, and February 13, 2009.On December 12 and February 13, defendant was personally present; on January 16, defendant was not personally present, because the trial court had waived his attendance at that hearing.Further, defendant did not expressly agree to continue the case before January 16; on January 16, the case was continued on defendant's motion.

¶ 7 On February 13, 2009, the case was set for trial during the week of March 30, 2009, with trial priority to be determined on March 27, 2009.On February 13, 2009, defendant's counsel filed another written speedy-trial demand.

¶ 8 On March 6, 2009, the Village presented a motion to continue the March 30 trial date.The trial court granted the Village's motion to continue, over defendant's objection.The matter was set for trial on the week of April 7, 2009, with a trial priority date of April 3, 2009.On the April 3 trial priority date, both defendant and the Village answered ready for trial, and the matter was continued for trial as scheduled, to April 7.

¶ 9 On April 7, defense counsel appeared, but defendant was absent.Counsel informed the trial court that, earlier that day, she had been contacted by defendant, who told her that he was ill and could not attend trial on that date.Counsel further related that she had called the Village's prosecutor and informed him about defendant's illness.Counsel then moved to continue the trial date.The trial court granted defendant's motion to continue the trial as a result of his illness and set the matter for a trial priority date of May 8, 2009.

¶ 10 On the May 8, 2009, trial priority date, the parties answered that they were ready for trial.The trial court set the matter for trial on May 19, 2009.On May 19, the parties answered ready for trial, but there were no judges available to hear the trial.The trial court, on its own motion, continued the matter for trial until June 30, 2009.The June 30 date turned into a repetition of the May 19 date: the parties answered ready, but no judge was available to hear the trial.The trial court, again on its own motion, continued the matter for trial until August 4, 2009.

¶ 11 On August 4, 2009, the parties again answered ready for trial, and, once again, the trial court continued the matter due to the unavailability of a judge to hear the trial.This time, the trial court set the matter for trial on August 18, 2009.Defendant expressly objected to the continuance.

¶ 12 On August 18, 2009, defendant filed a motion to dismiss, alleging that the speedy-trial statute had been violated.The matter was continued, on defendant's motion, until October 27, 2009, when the trial court heard argument on the motion.The court denied defendant's motion, giving two grounds in explanation.First, the court held that the first written demand for a speedy trial was not served on the Village, because it was served on one of the assistant State's Attorneys covering the call rather than the Village's attorney.Second, the court held that defendant agreed to a trial date that was outside of the 160–day speedy-trial limit, relying on the reasoning in People v. Hampton,394 Ill.App.3d 683, 334 Ill.Dec. 71, 916 N.E.2d 104(2009)(which held that, in the context of section 103–5(a) of the Code (725 ILCS 5/103–5(a)(West 2008)), if a defendant acquiesced to a date outside of the speedy-trial limit, the defendant waived his speedy-trial claim).On November 25, 2009, defendant filed a motion to reconsider, and, on March 16, 2010, the trial court denied the motion.

¶ 13 On March 16, 2010, defendant filed another speedy trial demand, and the trial court set March 30, 2010, as the trial date.On March 23, 2010, the parties appeared before the trial court on defendant's motion to strike the March 30 trial date, and the trial court set the matter for trial on April 27, 2010.

¶ 14 On April 27, 2010, the matter finally moved to trial.Defendant waived a jury and agreed to a bench trial.The parties then proceeded to a stipulated bench trial.The Village stated that the deputy was acting on the Village's behalf when the deputy responded to the traffic accident involving defendant.The deputy had defendant attempt field sobriety tests, which defendant failed, and, using a Breathalyzer, the deputy determined that defendant's blood alcohol content was 0.22.The trial court found defendant guilty of the two counts of driving under the influence of alcohol.On May 18, 2010, defendant was sentenced to a 12–month term of conditional discharge, 100 hours of public service, 180 days in the county jail stayed pending compliance with the other terms, an $800 fine, and court costs.Defendant timely appeals.

¶ 15 On appeal, defendant argues that he was not brought to trial within the 160–day time period of section 103–5(b) of the Code.Defendant further contends that, as a result, his conviction should be vacated.The State counters that defendant's first speedy-trial demand was ineffective because he was still in custody when it was made and it was not served on the Village's prosecutor, and defendant's absence from the scheduled April 7, 2009, hearing resulted in the waiver of his speedy-trial demand, notwithstanding the fact that the trial court accepted the reason for defendant's absence and continued the trial date on defendant's motion.Regarding the second speedy-trial demand, the State argues that it was ineffective because defendant did not record on it his previous speedy-trial demand.For the reasons that follow, we agree with defendant's argument.

¶ 16 As an initial matter, we consider our standard of review.Generally, we review a trial court's decision on a speedy-trial challenge for an abuse of discretion; absent an abuse of discretion, the trial court's determination will be upheld.People v. Buford,374 Ill.App.3d 369, 372, 312 Ill.Dec. 551, 870 N.E.2d...