People v. Lilly

• Decision Date: 27 April 2016
• Docket Number: No. 3–14–0286.,3–14–0286.
• Citation: 403 Ill.Dec. 391,53 N.E.3d 1028
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Gregory L. LILLY, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

53 N.E.3d 1028

403 Ill.Dec. 391

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Gregory L. LILLY, Defendant–Appellant.

No. 3–14–0286.

Appellate Court of Illinois, Third District.

April 27, 2016.

Michael J. Pelletier and Mark D. Fisher, State Appellate Defender's Office, Ottawa, for appellant.

Jerry Brady, State's Attorney, Peoria (Richard T. Leonard, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice CARTER

delivered the judgment of the court, with opinion.

¶ 1 Defendant, Gregory L. Lilly, appeals his convictions of burglary and retail theft. Defendant contends that his statutory speedy trial right was violated because the State failed to bring him to trial within 120 days as required by section 103–5(a) of the Code of Criminal Procedure of 1963 (Speedy Trial Act) (725 ILCS 5/103–5(a)

(West 2012)). Defendant argues that the trial court abused its discretion when it attributed several delays to defendant and denied his motion to dismiss the charges. We affirm.

¶ 2 FACTS

¶ 3 On May 24, 2013, defendant was arrested, taken into custody, and later charged by indictment with burglary (720 ILCS 5/19–1 (West 2012)

) and retail theft (720 ILCS 5/16–25(a)(1) (West 2012)). Defendant remained in custody pending his trial.

¶ 4 On June 6, 2013, the trial court appointed a public defender to represent defendant and set August 19, 2013, as the date of defendant's jury trial.

¶ 5 When the parties appeared in court on August 19 the following discussion occurred:

“THE COURT: [Defendant], you're here with your attorney, Mr. Rose, and Ms.—Mr. FitzSimons is here for the People. Matter was set for trial, and we had another trial that was set that was going to bump yours down the line a little bit, but we can't go on any of them now because I've got to be gone the last half of the week, so we need to give you new court dates, is that right?

MR. ROSE [Defense counsel]: It is in part, Judge. There's also a Motion for Bond Reduction that was filed in the matter that perhaps we could do some time either today or this afternoon, whenever is convenient.

[Defendant] is obviously interested in pursuing the matter with some rapidity.”

Then, the following colloquy occurred:

“THE COURT: * * * Let's do this, can we continue it over on the defendant's motion, if you will indicate that—is there some discovery that needs to be completed or is there—

MR. ROSE: I've received the video but I haven't had the opportunity to review it yet.

THE COURT: Let's continue it over and then bring you back next week so we can do your—or later this week, no, bring you back next week to do your Motion for Bond Reduction, okay?

THE DEFENDANT: That's fine.

THE COURT: That way, if you have some people that want to be here, you can have them come on the day that they need to, as opposed to just do it right now.

THE DEFENDANT: That's fine.

* * *

THE COURT: Okay, All right, why don't we go ahead and put it on something next week?

[THE STATE]: Yes, sir.

THE COURT: Want to do it on a Wednesday or Thursday?

[THE STATE]: That's fine, either one, Judge.

THE COURT: Let's bring him over on Wednesday at 3:00.

MR. ROSE: That's fine.

THE COURT: So scheduling conferences are Wednesdays at 3, so we'll just put your Motion for Bond Reduction next Wednesday at 3:00.

THE DEFENDANT: That's fine.

* * *

THE COURT: All right, now your court dates, however, are—

[THE STATE]: Judge, I'm sorry, I didn't know what the regular course was.

THE COURT: October 30th and November—

THE CLERK: October 23rd, in custody.

THE COURT: October 23rd.

THE DEFENDANT: Is it possible, I really do want to use my 120, because I lost a lot being in jail with this bond that I have. I was a working man and had a lot going on, positive things.

THE COURT: How long have you been in jail?

[THE STATE]: 88 days.

THE DEFENDANT: 88 days, I guess. I lost everything, man, I mean, this is the first time in my life I ever did this well, man, I just want to be back out, I mean, granted, I'm not, you know, no violent person or anything.

THE COURT: Well, I suppose I could squeeze it in, but—is it 88 days?

[THE STATE]: Yes, sir.

THE COURT: Some time in the next 32 days.

THE CLERK: September 16th.

THE COURT: Okay, September the 16th, and scheduling conference—

THE CLERK: September 4th.

THE COURT: September 4th, is that a Wednesday?

THE CLERK: Yes.

THE COURT: September 4th, scheduling conference, September 16th, jury trial. Come back on the 28th for a bond reduction.

MR. ROSE: I don't know if we need a scheduling if we're, in effect, the week before. I don't care, I'm fine with it, whichever way.

THE COURT: We can pretty much do it at the bond reduction hearing. All right, we'll see you back on those dates.

THE DEFENDANT: Okay, thank you, thank you, sir.”

¶ 6 The written order corresponding to this date includes a notation “[t]he Defendant move(s) for a continuance,” the matter was continued to August 28 for both a scheduling conference and a hearing on defendant's motion for bond reduction, and the trial was set for September 16.

¶ 7 On August 28, the trial court entered a written order that the matter was continued to September 6 on defendant's motion for bond reduction. The order also indicates that the State and defense counsel were present, but does not state that defendant was present. The record on appeal does not include a report of the proceedings from this day.

¶ 8 The parties appeared again in court on September 6 for the hearing on defendant's motion for bond reduction. At this time, defendant had been reassigned a new public defender. The trial court explained the sentence defendant faced and asked defendant, “[t]hen it seems to me that if Mr. Sheets [defendant's new attorney] is just starting with your case, that it would be—it would seem unrealistic to me that you would want to have your trial on the 16th. Is that the case or what?” Defendant responded,

“First of all, Your Honor, I had no idea that Mr. Mark Rose [defendant's previous counsel] recanted from my case. He never told me. I never spoke to Mark Rose until August the 7th. I've been incarcerated since May 24th. I sent him a list of witnesses. He told me that—I wanted the officer that testified that has been indicted for rape who also testified at the Grand Jury, and he said he would not represent me if I called this witness. I had no idea that Mark Rose was no longer my lawyer at all. As far as I knew, he was still my lawyer.

THE COURT: Well, apparently he is not. I don't assign them.

THE DEFENDANT: So I don't know what—what happened? I mean, I was exercising my 120. I talked to him August the 28th when we was waiting to get in for the bond reduction, and I never got called in. And now I come in here, and this man here is my lawyer. I never had a clue about it at all. No one told—told me anything at all.

* * * [THE COURT]: So what I'm asking you is that—what your—Mr. Sheets asks—and it seems to be logical to me, that's why I brought you out here—is to set you on a different court date and bring you back for a bond motion—a hearing on bond reduction motion on the 26th.

THE DEFENDANT: The 26th? Your Honor, Mark Rose had brought me over here three different times for bond reductions. I never received one. I've been—I wrote Mark Rose, called him several times—

THE COURT: Let's get off the Mark Rose business. He's done. He's not your attorney anymore. This is your attorney. No what do you want to do?

THE DEFENDANT: I want to go to trial on the 16th.

THE COURT: I don't think that is—what do you want to do, [the State]?

[THE STATE]: Judge, I'm ready to go on the 16th.

THE COURT: Mr. Sheets?

MR. SHEETS: Judge, I renew simply my request to continue it in the usual course. I'd say for the record simply for me to acquire the case today and be prepared with this man facing a Class X, despite whatever he may think about his 120 which I respect, the simple fact of the matter is I think it would be ill-advised to press it knowing what he could face and the fact that I would only have it for a matter of days. And so I make the request on the record, and I'm prepared to live with whatever decision the Court makes.

* * *

THE DEFENDANT: Okay. I had sent a list of witnesses to the Circuit Clerk that I wanted Mark Rose to call, which is—John McCavitt was one of the main witnesses that I want—

THE COURT: I'm going to tell you this one more time. I'm not interested in what you did with Mr. Rose. That is a day from yesteryear. You want a trial on the 16th with this lawyer that you just met moments ago? Perhaps that's what we'll do. But what I think you're saying, [defendant] is, ‘I want my case over with a good result.’ * * * So if you somehow magically believe that it's in your best interests to have a trial with a lawyer you've just met on the 16th, then I suppose we'll take that up on the 16th. But he has indicated, Mr. Sheets, that he would like to have an opportunity to review your case and be prepared for it, and if you indicate that there are witnesses that you want to call, valid ones, then I can't expect Mr. Sheets to digest whatever it is you want to say, do it, be prepared, but maybe you think he can do that. But if you want your case on the 16th, we'll address it on the 16th, and if—if you want to give Mr. Sheets an opportunity to prepare, that's okay, too. * * *

* * *

THE DEFENDANT: I mean, it just seems like all I'm trying to do is just get a fair trial. Mark Rose completely wouldn't even speak to me whatsoever. I never—

THE COURT: See you on the 16th. All roads lead back to Mr. Rose.”

¶ 9 Ultimately, the trial court did not change the date of defendant's trial. There is no written order for this hearing.¹

¶ 10 On September 16, the parties returned to court for trial. However, the trial court informed the parties that the case had been transferred to the chief judge because the court had received a pro se letter from defendant that the court had construed as a motion to substitute judges.² As a result, the trial would have to be continued to a future date so the chief judge...