People v. Peco

• Decision Date: 14 January 2004
• Docket Number: No. 2-02-0487.,2-02-0487.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael R. PECO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

803 N.E.2d 561

345 Ill. App.3d 724

281 Ill.Dec. 157

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael R. PECO, Defendant-Appellant.

No. 2-02-0487.

Appellate Court of Illinois, Second District.

January 14, 2004.

G. Joseph Weller, Deputy Defender, and Paul Alexander Rogers (Court-appointed), Office of the State Appellate Defender, Elgin, for Michael R. Peco.

Joseph E. Birkett, DuPage County State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Gunta Z. Hadac, Grayslake, for the People. Justice GROMETER delivered the opinion of the court:

Defendant, Michael R. Peco, was found guilty after a bench trial in the circuit court of Du Page County of attempted residential burglary (720 ILCS 5/8-4, 19-3(a) (West 2000)). The court sentenced defendant to a term of 14 years' imprisonment. On appeal, defendant argues that he was deprived of his statutory right to a speedy trial (725 ILCS 5/103-5(a) (West 2000)). We affirm.

Defendant was arrested on May 7, 2001. On May 9, 2001, defendant was charged with attempted residential burglary (720 ILCS 5/8-4, 19-3(a) (West 2000)). On the same date, defendant was remanded to the sheriff of Du Page County in lieu of bond and given a court date of June 4, 2001. On May 31, 2001, defendant was indicted on one count of attempted residential burglary (720 ILCS 5/8-4, 19-3(a) (West 2000)). On June 4, 2001, defendant appeared in court for arraignment, and the trial court appointed a public defender to represent defendant. The court ordered the parties to provide discovery and continued the matter until June 27, 2001. The written discovery order entered on that date contains a notation stating, "speedy tolled (once disclosure is tendered)." The State filed its discovery disclosure on June 13, 2001. The case was continued from time to time between June 27, 2001, and November 7, 2001.

On November 7, 2001, defense counsel advised the trial court that her client "is asking at this time that this be set for bench trial." The State asked the court to set trial for January 7 or 8, 2002. Defense counsel responded that her client "would like the soonest date possible," but that she "understand[s] the schedule of the State." Ultimately, the court offered a trial date of January 9, 2002, and defense counsel responded, "[t]hat would be fine The written order setting trial for January 9, 2002, included boxes to indicate whether the continuance should be attributed to defendant, the State, or the court. The order also included a box to indicate that the speedy-trial term was tolled. None of these boxes was checked.

On December 31, 2001, the State filed a motion to continue the trial on the basis that a material witness for the prosecution would be unavailable for the scheduled trial date. Attached to the motion was an affidavit from the prosecutor attesting that the witness was out of state but would be available on or after January 24, 2002. At the January 3, 2002, hearing on the State's motion, the prosecution requested a trial date in the first or second week of February. The court granted the State's motion and rescheduled the trial to February 13, 2002. When asked whether the continuance was on the State's motion, the prosecutor responded in the affirmative. After introducing herself for the record, defense counsel said nothing during the hearing, except to confirm that the matter would be a bench trial and to thank the court at the conclusion of the hearing. The written order entered on January 3, 2002, indicated that the continuance was on the State's motion. However, the box indicating whether the speedy-trial term was tolled was not checked.

On February 13, 2002, defense counsel filed a motion for continuance resulting from an obligation related to another case. At the hearing on the motion, defendant stated that his "speedy trial has been running in this case" and expressed opposition to any continuance. Defendant informed the court that he asked his public defender about being represented by another attorney from her office if she was unavailable. Defendant also stated that he was "ready today to proceed with or without the Public Defender's Office." The State noted." that defendant had not previously made a speedy-trial demand and asked defendant whether he was then making such a demand. The court then told defendant that he "can put whatever motion [he] wishes in writing," but that it was granting defense counsel's motion and continuing the cause to March 20, 2002. The court also informed defendant that the delay was attributable to the defense. Defendant replied, "I make the demand today," and he filed a written demand for speedy trial.

On March 20, 2002, before the commencement of defendant's bench trial, defense counsel informed the court that defendant had prepared a pro se motion to dismiss on speedy-trial grounds. Defense counsel then informed the court that she had "looked into that issue," but believed it was without merit. Initially, the trial court allowed defendant to file the motion. The court then asked defendant whether he wished to represent himself at trial. Defendant responded, "[o]h no. Not today."

The prosecutor questioned whether it was proper for defendant to file the pro se motion given that he was represented by counsel. The State also argued that since a speedy-trial demand was not filed until February 13, 2002, defendant's motion was without merit. The court then stated that it would not entertain defendant's pro se motion while he was represented, by the public defender. We note that the record does not contain a copy of defendant's motion. The court added:

"And also for the record, I also reviewed the court file when [defendant] raised the speedy [sic] on the last court date.

And I reviewed the file that the Court keeps on each case, and I show that up until January 3rd, every date was on the Defendant's motion or by agreement; okay?"

The matter then proceeded to a bench trial at which the court found defendant guilty of attempted residential burglary (720 ILCS 5/8-4, 19-3(a) (West 2000)).

On April 19, 2002, defense counsel filed a motion for a new trial. The motion did not contain any allegation regarding the speedy-trial issue. On April 25, 2002, the trial court denied defendant's posttrial motion. Following defendant's sentencing hearing, the trial court imposed a term of 14 years' imprisonment. The court also entered an unsatisfied civil judgment order against defendant in the amount of $1,500 for the damages resulting from the offense of which he was convicted.

Defendant filed a timely appeal, arguing that his statutory right to a speedy trial (725 ILCS 5/103-5(a) (West 2000)) had been violated. As a preliminary matter, the State argues that defendant waived review of the speedy-trial issue by failing to argue it in his posttrial motion. An examination of the record in this case confirms that defendant failed to properly preserve this issue for appellate review. Accordingly, we agree that defendant has waived this issue. People v. Mayo, 198 Ill.2d 530, 535 n.1, 261 Ill.Dec. 910, 764 N.E.2d 525 (2002) (noting that the failure to raise an issue in a posttrial motion normally results in waiver); People v. Kuntu, 196 Ill.2d 105, 134-35, 256 Ill.Dec. 500, 752 N.E.2d 380, (2001) (same).

Defendant urges, however, that even if the speedy-trial issue has been waived, we should consider the merits of his claim for two reasons. First, defendant argues that his attorney's failure to raise the issue in a posttrial motion resulted in ineffective assistance of counsel. Second, he asserts that the failure to raise the speedy-trial issue in his posttrial motion is reviewable as plain error under Supreme Court Rule 615(a) (134 Ill.2d R. 615(a)). We turn first to defendant's claim of ineffective assistance of counsel. To determine whether a defendant was denied the effective assistance of counsel, we apply the two-prong 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 our supreme 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.

It is well settled that the failure of counsel to move for the discharge of his client on the basis of a speedy-trial violation will constitute ineffective assistance of counsel when there is at least a reasonable probability that the client would have been discharged had a timely motion been filed and there was no justification for the attorney's decision not to file a motion. People v. Cooksey, 309 Ill.App.3d 839, 844, 243 Ill.Dec. 481, 723 N.E.2d 784 (1999); People v. Plair, 292 Ill.App.3d 396, 398, 226 Ill. Dec. 679, 686 N.E.2d 28 (1997); People v. Garcia, 251 Ill.App.3d 473, 478-79, 190 Ill.Dec. 582, 621 N.E.2d 1035 (1993). In addition, the failure of trial counsel to file a posttrial motion raising a specific issue may form the basis for an ineffective assistance of counsel claim. See People v. Mick, 86 Ill.App.3d 1022, 1027-28, 42 Ill. Dec. 370, 408 N.E.2d 1079 (1980) (noting that trial counsel's failure to raise issue in posttrial motion constitutes ineffective assistance where it is demonstrated that the failure to address the issue affected the defendant's conviction); see also People v. Feazell, 248 Ill.App.3d 538, 544-45, 188 Ill.Dec. 1, 618 N.E.2d 571 (1993). Thus, it necessarily follows that the failure of defense counsel to argue a speedy-trial violation in a posttrial motion will also constitute ineffective assistance where there is at least a reasonable probability that the client would have been discharged had the issue been...