People v. MooneyPeople v. Mooney
FACTS
¶ 2
¶ 3 Defendant was charged via citation and complaint on February 2, 2014, with driving while license suspended (
¶ 4 Six days before the scheduled jury trial, the State filed a motion for continuance. In the motion, the State claimed that the arresting officer, James Jachymiak, would be unavailable on the scheduled trial date becausе of a previously scheduled court appearance in a different county. On October 27, 2014, defense counsel announced ready for trial, but the court granted the State‘s motion and set the matter for trial on January 5, 2015.
¶ 5 On the morning of January 5, 2015, defense counsel again announced ready for trial, adding that defendant was requesting a bench trial. The court immediately told counsel, without further explanation: “[Y]ou understand the predicament I am in so if it is going to go, it is not going to go until this afternoon probably.” The prosecutor explained that its testifying officer in the case had not slept in two days and had to work that night at 6 p.m. The prosecutor opined that such a situation was not desirable but conceded “there is a spеedy trial demand by the defendant so we have to fit it within a certain time frame.” The court agreed, stating, “[w]e have to get this done” and noting that only 20 days remained on the speedy trial clock. The court instructed the parties to return at 12:15 that afternoon in an attempt to begin the trial. The prosecutor commented: “And if we know it is going to go long, I will make my motion at thаt time.”
¶ 6 There are no further report of proceedings entries for that day. However, a written order bearing that date appears in the common law record. The order, a preprinted form with some items circled and blanks filled in, schedules a trial for March 24, 2015, a date significantly later than the January 26 deadline established by defendant‘s speedy trial demand. The order indicates that the continuance is on the motion of defendant. It also indicates that “Defendant agrees that speedy is tolled.”
¶ 7 On March 24, 2015, defense counsel again requested a bench trial but told the court that she had been tendered a video instanter and would be requesting a new trial date. The court inquired as to why, in a matter originally scheduled for trial the previous October, a video was only now being tendered. The prosecutor responded that he did not know. The following colloquy ensued:
“THE COURT: Is there any way you can watch the video and try the case?
[DEFENSE COUNSEL]: Today? THE COURT: Well, yeah, we do have a short day today. We have to find something to do in the afternoons [sic].
[DEFENSE COUNSEL]: If [Y]our [H]onor prefers, I can try. I would prefer—
THE COURT: You can try? Whаt does the video entail in driving?
[THE STATE]: Him driving? I have an expert on that topic coming up.
THE COURT: Because if [defense counsel is] vehemently moving for the motion to continue this date because you gave her the discovery late, she has grounds to do it. Are you vehemently moving for the motion for continuance?
[DEFENSE COUNSEL]: Judge, I am asking for a motion to continue.
THE COURT: All right, I am going to grant your cоntinuance. Sorry, officer. She‘s got grounds. New date. When can he be back?”
The parties did not set a date while on the record. However, the written order (again a preprinted form) issued that day shows that the trial was set for April 21, 2015. The written order again indicates that the continuance was on the motion of defendant and that “[d]efendant agrees that speеdy is tolled.”
¶ 8 The matter proceeded to a bench trial on April 21, 2015, at which the court found defendant guilty of driving while license suspended. The court sentenced defendant to a term of 24 months’ probation.
ANALYSIS
¶ 9
¶ 10 On appeal, defendant argues that defense counsel rendered ineffective assistance by failing to move for dismissal based on a violation of his statutory speedy trial rights. Alternatively, he argues that counsel was ineffective for twice agreeing to continuances and agreeing that the speedy trial clock should be tolled when it was the State that needed the second continuance and the State‘s actions that necessitated the third.
I. Right to Counsel
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¶ 12 Defendant couches his ineffectiveness arguments expressly in constitutional terms. That is, he argues that counsel‘s failures in the present case deprived him of the effective assistance guaranteed by the sixth amendment to the United States Constitution. See
¶ 13 In Illinois however, a defendant has a statutory right to counsel in any case except those where the penalty is a fine only.
¶ 14 In the sixth amendment context, the United States Supreme Court has held that the right to assistance of counsel is the right to ”effective assistance of competent counsel.” (Emphasis added.) McMann v. Richardson, 397 U.S. 759, 771 (1970). The same can be no less true of a
¶ 15 We would be remiss if we did not briefly acknowledge and distinguish the long-standing statutory exception to the rule that the right to counsel implies the right to effective counsel—the Post-Conviction Hearing Act (Act) (
¶ 16 Where effective assistance is required, the familiar two-part Strickland standard (Strickland v. Washington, 466 U.S. 668 (1984)) is applicable. E.g., Carmody, 274 Ill. App. 3d at 55 (“Although grounded in the sixth amendment, we believe that Strickland provides a reasonable and workable standard for reviewing claims of ineffective assistance of counsel.“). To prevail on an ineffectiveness claim, “[a] defendant must show that counsel‘s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” People v. Manning, 241 Ill. 2d 319, 326 (2011). In order to satisfy the prejudice prong, a defendant must provе a reasonable probability exists that, but for counsel‘s deficient performance, the outcome of the trial would have been different. People v. Smith, 195 Ill. 2d 179, 188 (2000).
¶ 17 Thus, while defendant only references his constitutional right to counsel, the analysis by which his argument proceeds is, ultimately, the correct one. Notably, the State makes no reference to any of these issues in its brief. It dоes not contest that defendant was entitled to effective assistance of counsel nor does it dispute that the Strickland test applies. Insofar as the State could argue that defendant forfeited his argument by not referencing the statutory right to counsel, that argument is forfeited. See People v. De La Paz, 204 Ill. 2d 426, 433 (2003).
II. Speedy Trial
¶ 18
¶ 19 Section 103-5(b) of the Code holds that a defendant free on bail or recognizаnce must be brought to trial within 160 days of his speedy trial demand.
¶ 20 The State concedes that the first continuance in defendant‘s case, issued on October 27, 2014, was wholly attributable to the prosecution. Between the filing оf defendant‘s speedy trial demand on August 19, 2014, and the second continuance on January 5, 2015, 139 days elapsed that are indisputably attributable to the State. Each of the second and third continuances resulted in delays of more than 21 days, and thus either continuance would have caused the speedy trial period to elapse unless attributable to defendant.
¶ 21 Dеfendant‘s first argument on appeal is that counsel was ineffective for failing to move to dismiss the charges against him on speedy trial grounds after the 160-day period had lapsed. Of course, this argument relies on his contention that neither the second nor third continuances can be considered attributable to him. Yet, the record contains written orders from the circuit court on each occasion that indicate defense counsel actually agreed that the speedy trial clock would be tolled. Had counsel filed a motion to dismiss on speedy trial grounds, that motion would have been meritless because of counsel‘s own agreements. See People v. Cordell, 223 Ill. 2d 380, 392-93 (2006).
¶ 22 We therefore turn to defendant‘s alternative argument, that counsel was ineffective for twice agreeing to toll the speedy trial clock. Defendant‘s argument requires this court to ask the questions: (1) Why would counsel agree that the speedy trial clock would be tolled and (2) what impact did these agreements have on defendant‘s right to a speedy trial?
¶ 23 Notably, the reports of proceedings from the dates of the second and third continuances demonstrate unequivocally that neither continuance was factually attributable to defendant. On January 5, 2015, the date of the second continuance, defense counsel announced ready for trial. Thereafter, the court and prosecutor discussed an apparent scheduling issue with the testifying officer, and the matter was ultimately continued. Delays occasioned by the unavailability of a State‘s witness or by the court‘s schedule cannot be attributed to a defendant. See Bonds, 401 Ill. App. 3d at 677; Kliner, 185 Ill. 2d at 119. While the third continuance, on March 24, 2015, was explicitly on defense counsel‘s motion, that motion was made only after the State tendered a video of the arrest moments before trial. The delay сaused by defense counsel‘s motion should not be held attributable to a defendant if that motion was necessitated by the State‘s late filing of discovery.1 People v. Perkins, 90 Ill. App. 3d 975, 979-80 (1980).
¶ 24 Despite these facts and the relevant law, counsel twice agreed that the speedy trial clock would be tolled. On the occasion of the second of the three continuances, counsel еven allowed
¶ 25 Defendant having asserted his statutory right to a speedy trial, defense counsel was duty-bound to zealously protect that right. Instead, counsel twice agreed, despite her expressed readiness for trial on both of the scheduled dates, to allow both continuances and concessions of tolling to be attributed to defendant. This, failure was objectively unreasonable under prevailing professional norms, and it rendered counsel‘s performance deficient.2
¶ 26 The more difficult question is that of prejudice. Had counsel‘s performance not been deficient—that is, had counsel not agreed to twice toll the speedy trial clock—is there a reasonable probability that the outcome would hаve been different? See Manning, 241 Ill. 2d at 326.
¶ 27 At the very least, of course, counsel would have been able to file a motion to dismiss on speedy trial grounds. Her agreements to toll the speedy trial clock had completely foreclosed that course of action. See supra ¶ 21. Determining whether such a motion would be meritorious, had counsel not agreed to toll the speedy trial clock, inevitably involves a certain amount of speculation. On the one hand, had counsel not agreed to toll the speedy trial clock, the court could have—on either occasion—set the matter for trial within the 21 days remaining on the clock. On the other hand, it is just as possible that the court, in any event, set the matter for trial at its next аvailable date, and counsel‘s nonagreement could not have changed that. In short, there is no perfect way to reconstruct what would have happened had counsel acted appropriately.
¶ 28 Hanging over this uncertainty is the actuality that defendant was—had the final two continuances been properly attributed—brought to trial outside оf the 160-day window. In a similar situation, our supreme court found that a continuance was attributable to the circuit court, even though the record indicated it had been on defendant‘s motion. People v. Beyah, 67 Ill. 2d 423, 426, 428-29 (1977). The Beyah court did not engage in any reconstruction, or speculate as to what would have happened had the circuit court‘s order been correct in the first placе. Instead, the court found that the defendant had been tried outside of the applicable window and reversed defendant‘s conviction outright. Id. at 429. In so doing, the court commented: “To conclude, under these circumstances ***, that the delay was occasioned by defendant would be a mockery of justice.” Id. at 428.
¶ 29 The same is no less true here. Defendant‘s speedy triаl period should have ended on January 26, 2015, but because of counsel‘s deficient performance, it did not. To pretend otherwise would be a mockery of justice.
¶ 30 On a broader scale, a finding of no prejudice here would leave this defendant, and myriad other defendants who might find themselves in this situation, with absolutely no recourse. The legislature has granted criminal defendants a statutory right to a speedy trial. Where counsel‘s actions serve to undermine that right, those actions must be subject to an ineffectiveness challenge. “[A] right without a remedy is no right at all.” People ex. rel Endicott v. Huddleston, 34 Ill. App. 3d 799, 807 (1975). To hold the inevitable speculation against a defendant would
¶ 31 Accordingly, we find that defense counsel‘s performance was deficient and that this deficiency was prejudicial in that it resulted in defendant being brought to trial outside of the statutorily prescribed 160-day period. We therefore reverse defendant‘s conviction for driving while license suspended outright. See Beyah, 67 Ill. 2d at 429.
CONCLUSION
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¶ 33 Thе judgment of the circuit court of Will County is reversed.
¶ 34 Reversed.