People v. Turley

• Decision Date: 15 October 1992
• Docket Number: No. 5-91-0338,5-91-0338
• Citation: 235 Ill.App.3d 917,175 Ill.Dec. 908,601 N.E.2d 305
• Parties: , 175 Ill.Dec. 908 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gregory J. TURLEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 305

601 N.E.2d 305

235 Ill.App.3d 917, 175 Ill.Dec. 908

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gregory J. TURLEY, Defendant-Appellant.

No. 5-91-0338.

Appellate Court of Illinois,

Fifth District.

Oct. 15, 1992.

Daniel M. Kirwan, Deputy Defender, Robert S. Burke, Asst. Defender, Office of the State Appellate Defender, Mt. Vernon, for defendant-appellant.

Jon C. Anderson, State's Atty., Robinson, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Debra A. Buchman, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, for plaintiff-appellee.

Justice RARICK delivered the opinion of the court:

On May 29, 1990, defendant, Gregory Turley, was charged in the circuit court of Crawford County with theft, kidnapping, and seven counts of aggravated criminal sexual assault. On May 30, 1990, the public defender was appointed to defend him. On June 15, 1990, the public defender withdrew as counsel. Fred Johnson was appointed to represent Turley but withdrew on June 20, 1990. On June 22, 1990, Mike Darnold was appointed but withdrew three days later because of a conflict. Edward Kirkwood was then appointed to represent Turley.

On July 27, 1990, defendant sought a change of place of trial, but the motion was denied on August 3, 1990. On August 16, 1990, defendant sought a substitution of judge, and that motion was granted on August 29, 1990. Defendant also filed a motion to suppress statements on August 16, 1990, but the motion was withdrawn when it came up for hearing on September 14, 1990. At that hearing the parties were asked for their determination of where the case was within the speedy trial framework. The parties agreed that 45 days of delay was attributable to defendant.

On October 5, 1990, the defendant moved for discovery sanctions but withdrew the motion at the pretrial hearing on October 23, 1990. The State indicated that it needed an additional 30 days to prepare for trial. Defendant also indicated the need for more time, and the trial was continued to December 3, 1990, and a pretrial hearing was set for November 27, 1990. On November 27, 1990, defendant requested and was granted a continuance.

On December 24, 1990, Turley filed a pro se motion seeking either new counsel or a waiver of his right to counsel, and to have the charges dismissed based on the speedy trial statute. Attorney Kirkwood sought to withdraw as counsel, and a hearing was held on February 15, 1991. The hearing was reset for February 22, 1991. Turley's pro se motions were denied. Trial was held on March 11, 1991, and Turley was found guilty on all counts. The trial court vacated four of the seven convictions of aggravated criminal sexual assault and sentenced defendant to consecutive terms totaling 115 years' imprisonment.

On appeal, Turley argues that he was denied his right to a speedy trial pursuant to section 103 of the Code of Criminal Procedure of 1963, which provides that every person in custody for an alleged offense must be brought to trial within 120 days of the date he was taken into custody, unless the delay is occasioned by the defendant. (Ill.Rev.Stat.1991, ch. 38, par. 103-5(a).) Defendant maintains that he was in custody for 136 days, not counting delays attributable to him.

Initially, we note that defendant failed to include this issue in his post-trial motion. Our supreme court has held that to preserve an issue for appeal, defendant must make both a timely objection at trial and specifically raise the issue in a post-trial motion. Failure to do both results in a waiver of that issue on appeal. (People v. Enoch (1988), 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124.) Having failed to specifically raise this issue in his post-trial motion, it is waived.

Even if not waived, a review of the record demonstrates that defendant was not denied his right to a speedy trial.

Defendant was taken into custody on May 29, 1990. Absent any delays occasioned by defendant, the speedy trial term would have expired on September 27, 1990. Defendant concedes that the 29-day delay resulting from his August 16, 1990, motion for substitution of judge was properly attributable to him, and that his October 23 and November 27 motions for continuance delayed the expiration of the speedy trial term until February 22, 1991. He argues that the delay resulting from the withdrawal of his first three attorneys and his motion for a change of place of trial should not be attributed to him. He also argues that the trial court erred in ordering, sua sponte, on February 22, 1991, that the speedy trial term would toll until March 11, 1991.

Where delay occasioned by defendant occurs within 21 days of the statutory speedy trial limit, the trial court may, upon application of the State, continue the case for up to 21 days beyond the 120-day limit. (Ill.Rev.Stat.1991, ch. 38, par. 103-5(f).) Defendant concedes that when he sought a continuance on October 23, 1990, less than 21 days remained of the speedy trial limit. He argues, however, that because the State did not seek to have the case continued, the trial court was without authority to do so. Reviewing the record, we find that, contrary to defendant's assertion, the trial court did not toll the running of the speedy trial term pursuant to section 103-5(f), but rather ruled that the delay resulting from defendant's November 27, 1990, motion to continue was attributable to defendant and that the length of the delay would run from the time of the filing of defendant's motion until the case could be placed back on the jury setting, which was March 11, 1991.

Reviewing the record, we find that defendant was brought to trial within the statutory 120-day speedy trial limit. Defendant was taken into custody on May 29, 1990. On June 15, 1990, the public defender withdrew, and new counsel, Fred Johnson, was appointed that same day. Attorney Johnson subsequently withdrew on June 20, 1990, because of prior commitments. On June 22, 1990, Attorney Mike Darnold was appointed but withdrew on June 25, 1990, because of a conflict. Attorney Edward Kirkwood was appointed to represent defendant. No actual delay resulted from the appointments of attorneys Johnson and Kirkwood, and we find that any delay resulting from the substitution of attorney Darnold for attorney Johnson should not be attributed to the defendant as attorney Darnold withdrew on his own initiative and not at the request of the defendant. Between the date of defendant's arrest and June 30, 1990, 32 days of the speedy trial term expired.

On July 27, 1990, defendant filed a motion for change of place of trial, which was argued and denied on August 3, 1990. Defendant argues that the delay resulting from this motion should not be charged to him because the motion was short and simple, no evidence was presented at the hearing on the motion, and no actual delay occurred. The State argues that it was required to prepare a response which included three affidavits. Delays resulting from motions for change of place of trial are properly charged to the defendant. (People v. Holliday (1983), 115 Ill.App.3d 141, 70 Ill.Dec. 882, 450 N.E.2d 355, citing People v. Ortiz (1979), 70 Ill.App.3d 684, 26 Ill.Dec. 890, 388 N.E.2d 891; People v. Ellis (1972), 4 Ill.App.3d 585, 281 N.E.2d 405.) As of July 27, 1990, 59 days of the speedy trial term had expired.

On August 16, 1990, defendant filed a motion for substitution of judge. A new judge was assigned to the case, and it was set for the next available trial date which was September 14, 1990. This resulted in a 29-day delay which the defendant concedes is attributable to him. (People v. Grant (1977), 68 Ill.2d 1, 11 Ill.Dec. 301, 368 N.E.2d 909, citing People v. Zuniga (1973), 53 Ill.2d 550, 293 N.E.2d 595; People v. Grayson (1988), 165 Ill.App.3d 1038, 117 Ill.Dec. 550, 520 N.E.2d 901.) As of August 16, 1990, 72 days of the speedy trial term had expired.

On October 9, 1990, defendant filed a motion to suppress evidence and a hearing on the motion was scheduled for October 23, 1990. The delay resulting from the motion is properly attributable to defendant. (People v. Donalson (1976), 64 Ill.2d 536, 1 Ill.Dec. 494, 356 N.E.2d 776; People v. McCoy (1987), 155 Ill.App.3d 725, 108 Ill.Dec. 428, 508 N.E.2d 739; People v. Boyd (1980), 88 Ill.App.3d 825, 43 Ill.Dec. 798, 410 N.E.2d 931; People v. DeCarlis (1980), 88 Ill.App.3d 634, 43 Ill.Dec. 677, 410 N.E.2d 677.) As of October 9, 1990, 97 days of the speedy trial term had expired. On October 23, 1990, defendant withdrew his motion and requested a continuance. The continuance was granted, and the trial was set for December 5, 1990. Twenty-three days of the speedy trial term still remained.

On November 27, 1990, defendant requested the trial court to order an examination to determine whether there was a bona fide doubt as to his fitness to stand trial, and he requested the case be continued until an expert could examine him and render an opinion. Defendant's motions were granted. The case was rescheduled for February 22, 1991, at which time the trial court ruled that there was no bona fide doubt as to defendant's fitness to stand trial. Defendant concedes that the delay from October 23, 1990, to February 22, 1991, was attributable to him. People v. Siglar (1971), 49 Ill.2d 491, 274 N.E.2d 65; People v. Martin (1989), 185 Ill.App.3d 547, 134 Ill.Dec. 27, 542 N.E.2d 27; People v. Bivins (1981), 97 Ill.App.3d 386, 52 Ill.Dec. 835, 422 N.E.2d 1044 (delay resulting from defendant's request for continuance); People v. Clark (1986), 148 Ill.App.3d 669, 102 Ill.Dec. 144, 499 N.E.2d 701, citing People v. Sonntag (1984), 128 Ill.App.3d 548, 83 Ill.Dec. 505, 470 N.E.2d 631 (delay resulting from petition for fitness examination attributable to defendant).

At the February 22, 1991, hearing, trial was set for March 11, 1991. The trial court ruled that the delay attributable to defendant resulting from his November...