People v. Wade

• Decision Date: 20 March 2013
• Docket Number: No. 1–11–2547.,1–11–2547.
• Citation: 369 Ill.Dec. 799,987 N.E.2d 426,2013 IL App (1st) 112547
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Aaron WADE, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 112547

987 N.E.2d 426

369 Ill.Dec. 799

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

v.Aaron WADE, Defendant–Appellant.

No. 1–11–2547.

Appellate Court of Illinois, First District, Third Division.

March 20, 2013.

Rachel Moran, Office of the State Appellate Defender, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Jon Walters, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice HYMAN delivered the judgment of the court, with opinion.

[369 Ill.Dec. 800]¶ 1 Defendant contends his conviction must be reversed where it was obtained in violation of his statutory right to a speedy trial and where his trial counsel was ineffective for failing to move for dismissal of the charges based on those grounds. Defendant also contends his three-year mandatory supervised release term must be reduced to a two-year term because he was convicted of a Class 1 felony, although he was sentenced as a Class X offender. Lastly, defendant requests, and the State concedes, that his mittimus be corrected to reflect he was convicted for possession of a controlled substance with intent to deliver.

¶ 2 BACKGROUND

¶ 3 On July 24, 2009, undercover police officer Jose Velez and his partner, Officer Robert Ruiz, arrested defendant after observing him engage in two narcotics transactions. Defendant was charged with Class 1 possession with intent to deliver 1 to 15 grams of heroin, as well as Class X possession with intent to deliver heroin within 1,000 feet of a church. 720 ILCS 570/401 (c)(1),(b)(1) (West 2010).

¶ 4 The day after defendant's arrest, July 25, 2009, the court held a bond hearing and set defendant's bond at $100,000. Defendant's appointed counsel filed a written demand for trial that day. Defendant did not post bond and remained in custody from the date of his arrest until his trial on June 2, 2011.

¶ 5 On August 18, 2009, the State filed its information. On September 3, 2009, defendant was arraigned and his attorney agreed to a continuance to obtain pretrial discovery. Between September 25, 2009, and April 22, 2010, the matter was continued nine more times by agreement of the parties. During that time, the parties completed discovery, engaged in plea negotiations and the court ordered a fitness examination of defendant. On April 22, 2010, the parties scheduled a mutually agreeable trial date of June 9, 2010.

¶ 6 The case went to trial on June 2, 2011. Following the bench trial, defendant was convicted of possession of a controlled substance with intent to deliver, a Class 1 offense, and sentenced to eight years' imprisonment as a Class X offender because of his criminal background. Defendant's counsel filed a motion for a new trial, arguing the State failed to prove defendant guilty beyond a reasonable doubt. On July 6, 2011, defendant filed a pro se motion claiming ineffective assistance of counsel. In response to the court's questioning, defendant stated that his witness, Michael Ball, would have testified that he and defendant were buying drugs when the officers arrested defendant and that defendant was not involved in the sale of any drugs. Defendant also complained that, “[w]hen I was coming * * * to court on my five times they were steady getting status dates of trial, and [Ball] was there, so after he died, you know, then the whole program changed. They was ready for trial, you know what I mean?” The court found defendant's claims of ineffective assistance were “without basis.”

¶ 7 Defendant timely appealed.

¶ 8 ANALYSIS

¶ 9 Speedy Trial and Ineffective Assistance Claims

¶ 10 Defendant contends his conviction must be reversed because it was obtained in violation of his statutory right to a speedy trial. Defendant contends his trial counsel was ineffective for failing to move to have the charges dismissed based on this violation.

¶ 11 Defendant was brought to trial on June 2, 2011, 678 days after his arrest on July 24, 2009. Defendant remained in continuous custody the entire time. Defendant argues that of those 678 days, at least 145 days are attributable to the State and its unpreparedness for trial.

¶ 12 The State contends defendant received effective assistance of counsel where the record shows his trial began within the 120–day statutory period and, therefore, had his counsel filed a motion to dismiss on speedy trial grounds, it would have been futile.

¶ 13 To prove ineffective assistance of counsel, the defendant must allege facts showing counsel's representation was both objectively unreasonable and counsel's deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); People v. Albanese, 104 Ill.2d 504, 526, 85 Ill.Dec. 441, 473 N.E.2d 1246 (1984) (adopting the two-part test developed in Strickland ). The defendant bears the burden of demonstrating he received ineffective assistance of counsel. People v. Burks, 343 Ill.App.3d 765, 774, 278 Ill.Dec. 880, 799 N.E.2d 745 (2003). To do so, the defendant must overcome a strong presumption that counsel's performance fell within a wide range of reasonable professional assistance. People v. Pecoraro, 175 Ill.2d 294, 319–20, 222 Ill.Dec. 341, 677 N.E.2d 875 (1997). In determining the adequacy of the defendant's legal representation, we consider the totality of the circumstances. See People v. Long, 208 Ill.App.3d 627, 640, 153 Ill.Dec. 556, 567 N.E.2d 514 (1990).

¶ 14 The failure of counsel to raise a speedy trial violation cannot satisfy either prong of Strickland where there is no lawful basis for arguing a violation. Accordingly, we must first determine whether defendant's speedy trial rights were violated, before addressing whether counsel was ineffective for failing to raise the issue.

¶ 15 In Illinois, the right to a speedy trial is protected by both the constitution and statute. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; 725 ILCS 5/103–5(a) (West 2010); see People v. Crane, 195 Ill.2d 42, 48, 252 Ill.Dec. 687, 743 N.E.2d 555 (2001). Section 103–5(a) of the Code of Criminal Procedure of 1963 (hereinafter Speedy Trial Act) provides:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * *. Delay shall be considered to be agreed to by the defendant unless he or she objects to the delay by making a written demand for trial or an oral demand for trial on the record.” 725 ILCS 5/103–5(a) (West 2010).

Here, defendant only raises a violation of his statutory right to a speedy trial, not his constitutional rights.

¶ 16 The Speedy Trial Act provides that an accused in custody must be brought to trial within 120 days from the date defendant was taken into custody. 725 ILCS 5/103–5(a) (West 2010). It is the State's duty to bring the defendant to trial within the 120–day period. People v. Mayo, 198 Ill.2d 530, 536, 261 Ill.Dec. 910, 764 N.E.2d 525 (2002). The speedy trial period is suspended during any delay caused by the defendant (725 ILCS 5/103–5(f) (West 2010); People v. Izquierdo–Flores, 332 Ill.App.3d 632, 636, 266 Ill.Dec. 216, 773 N.E.2d 1286 (2002)), and the defendant bears the burden of affirmatively establishing a speedy trial violation by showing that the delay was not attributable to him or her ( People v. Cooksey, 309 Ill.App.3d 839, 843, 243 Ill.Dec. 481, 723 N.E.2d 784 (1999)). A delay is caused by the defendant and charged to him or her when “his [or her] acts caused or contributed to a delay resulting in the postponement of trial.” People v. Kliner, 185 Ill.2d 81, 114, 235 Ill.Dec. 667, 705 N.E.2d 850 (1998). A “delay” for purposes of the Speedy Trial Act is “a term of art used to describe any event that places a trial date beyond the 120–day period.” People v. Cordell, 223 Ill.2d 380, 388–89, 307 Ill.Dec. 669, 860 N.E.2d 323 (2006). Our supreme court explained:

“Should a defendant wish to employ section 103–5(a) as a shield against any attempt to place his trial date outside the 120–day period, he is free to do so. To allow section 103–5(a) to be used as a sword after the fact, to defeat a conviction, however, would be contrary to our holding in [People v. Gooden, 189 Ill.2d 209, 244 Ill.Dec. 361, 725 N.E.2d 1248 (2000), ] and allow defendants to use a procedural loophole to obstruct justice.” Cordell, 223 Ill.2d at 390, 307 Ill.Dec. 669, 860 N.E.2d 323.

¶ 17 “A simple request for trial, before any ‘delay’ is proposed, is not equivalent to an objection for purposes of section 103–5(a).” Cordell, 223 Ill.2d at 391, 307 Ill.Dec. 669, 860 N.E.2d 323 (citing People v. Peco, 345 Ill.App.3d 724, 734, 281 Ill.Dec. 157, 803 N.E.2d 561 (2004) (“while no magic words are required to constitute a speedy-trial demand, there must be some affirmative statement requesting a speedy trial in the record” (emphasis added))). Under section 103–5(a), the defendant bears the burden to take affirmative action when he or she becomes aware that the trial is being delayed. To allow a request for trial, made before any delay was proposed, to qualify as an objection to the delay not yet proposed gives defendants a sword to use after the fact to overturn their convictions, contravening the intention of section 103–5(a). Cordell, 223 Ill.2d at 390, 307 Ill.Dec. 669, 860 N.E.2d 323.

¶ 18 The State concedes it was responsible for 41 days of pretrial delay in defendant's case, but attributes the remaining delay of 637 days to defendant. The State takes responsibility for the 41–day delay from July 24, 2009, the date of arrest, to September 3, 2009, the date of defendant's arraignment.

¶ 19 Both defendant and the State agree that from September 3, 2009, to June 9, 2010, a 279–day delay is attributable to defendant and, therefore, does not count against the speedy trial term.

¶ 20 Defendant contends the 75–day period between June 9, 2010, and August 23, 2010, is...