People v. Harris

2019 IL App (2d) 170114-U

Opinion

2019 IL App (2d) 170114-U No. 2-17-0114 Order filed December 16, 2019

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 15-CF-607 ) ELMER HARRIS, ) Honorable ) David P. Kliment, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Justices McLaren and Hudson concurred in the judgment.

ORDER

¶1 Held: Defense counsel was ineffective for failing to timely move to dismiss defendant’s burglary charge, which was subject to compulsory joinder with defendant’s initial theft charges and was not charged until after the speedy-trial term had expired.

¶2 Defendant, Elmer Harris, appeals from his convictions of theft (720 ILCS 5/16-1(a)(1)(A)

(West 2014)) and burglary (id. § 19-1(a)). He contends that his counsel was ineffective for failing

to timely move to dismiss the burglary charge, which was subject to compulsory joinder with the

theft charges and was not charged until after the speedy-trial term had expired. In our initial order,

we held that defendant had forfeited his contention. Now, however, we grant defendant’s petition 2019 IL App (2d) 170114-U

for rehearing and we agree that counsel was ineffective. Accordingly, we reverse the burglary

conviction.

¶3 I. BACKGROUND

¶4 On April 13, 2015, defendant was arrested in connection with the removal of electric wire

from a construction site. The next day, he was charged by a verified complaint with two counts

of felony theft. The complaint was signed by a police officer. However, the complaint stated that

it was brought by the state’s attorney, and a “new case information sheet” listed an “authorizing

ASA [(assistant state’s attorney)].” That same day, defendant was released on his own

recognizance. On April 22, 2015, at defendant’s first court appearance, an ASA appeared and

obtained a discovery date. The next day, defendant filed a speedy-trial demand.

¶5 By agreement, a preliminary hearing was set for January 21, 2016. However, on January

20, 2016, the State charged defendant by indictment with the initial theft charges and added the

burglary charge. On August 29, 2016, a bench trial was held.

¶6 Evidence at trial showed that, on April 9, 2015, defendant entered a construction site and

removed boxes of electrical wire. The vice president of the company overseeing the construction

testified that the building was not open to the public and that defendant would not have been

authorized to be in the building unless he was an employee of a subcontractor. An electrician at

the site saw defendant with a couple of boxes and then discovered that some of his own boxes

were missing. The electrician confronted defendant, who denied taking anything. Defendant

showed him that there were no boxes in his truck. The boxes were later found hidden between a

storage container and a dumpster outside of the building.

¶7 Defendant testified that he had been regularly going to the construction site for four to six

months to collect scrap and that he had the permission of the head electrician to enter the building.

-2- 2019 IL App (2d) 170114-U

However, he could not recall the person’s name, and he could not locate the person on April 9,

2015. Defendant admitted that he took the boxes of wire, but he said that he changed his mind

because taking them was not right, so he set them down between the storage container and the

dumpster. He lied to the electrician because he was nervous. Defendant did not plan to come back

and get the boxes later. Defendant was arrested and he told the police a version of the facts

essentially the same as his testimony at trial.

¶8 The trial court found defendant guilty of both burglary and one count of theft. At

sentencing, defense counsel moved to dismiss the burglary charge based on a denial of defendant’s

statutory right to a speedy trial. The court denied the motion because defendant forfeited the issue

by failing to file the motion before trial. Defendant was sentenced to two concurrent terms of

probation. He appeals.

¶9 II. ANALYSIS

¶ 10 Defendant contends that his counsel was ineffective for failing to timely move to dismiss

the burglary charge. He argues that the theft and burglary charges were subject to compulsory

joinder and that the burglary charge was filed after the speedy-trial period had run.

¶ 11 A speedy-trial claim can be reviewed for ineffective assistance of counsel despite the

defendant’s forfeiture of the claim in the trial court. See People v. Wigman, 2012 IL App (2d)

100736, ¶ 31.

“In order to establish a claim of ineffective assistance of counsel, the defendant must show

that counsel’s performance was deficient and that the deficient performance resulted in

prejudice. The failure of counsel to move for discharge 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

-3- 2019 IL App (2d) 170114-U

filed and there was no justification for the attorney’s decision not to file a motion.’ ” Id.

(quoting People v. Peco, 345 Ill. App. 3d 724, 729 (2004)).

¶ 12 Section 103-5(b) of the Code of Criminal Procedure of 1963 provides that a defendant

released on bail or recognizance shall be tried within 160 days from the date the defendant demands

trial unless delay is occasioned by the defendant. 725 ILCS 5/103-5(b) (West 2014). “If a

defendant is not brought to trial within the statutory speedy-trial period, he must be released from

his trial obligations and have the charges dismissed.” People v. Thomas, 2014 IL App (2d) 130660,

¶ 14. We review the matter de novo. Id.

¶ 13 When the State files new and additional charges that arise from the same facts as the

original charges and the State had knowledge of those facts at the commencement of the

prosecution, the time that trial must begin on the new and additional charges is subject to the same

statutory limitation that is applied to the original charges. Id. ¶ 15. “[H]owever, any continuances

obtained in connection with the trial of the original charges cannot be attributed to the defendant

with respect to the new and additional charges, because those charges were not before the court

when the continuances were obtained.” Id. “This rule applies only where the original and the new

charges are subject to compulsory joinder.” Id.

¶ 14 The compulsory-joinder statute provides that “[w]hen the same conduct of a defendant may

establish the commission of more than one offense, the defendant may be prosecuted for each such

offense.” 720 ILCS 5/3-3(a) (West 2014). “If the several offenses are known to the proper

prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a

single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c),

if they are based on the same act.” (Emphasis added.) Id. § 3-3(b). “When 2 or more offenses

-4- 2019 IL App (2d) 170114-U

are charged as required by Subsection (b), the court in the interest of justice may order that one or

more of such charges shall be tried separately.” Id. § 3-3(c).

¶ 15 “[T]he compulsory joinder statute ‘was enacted to prevent the prosecution of multiple

offenses in a piecemeal fashion and to forestall, in effect, abuse of the prosecutorial process.’ ”

People v. Hunter, 2013 IL 114100, ¶ 18 (quoting People v. Quigley, 183 Ill. 2d 1, 7 (1998)). The

phrase “ ‘based on the same act’ ” is not given a hypertechnical interpretation to create multiple

acts based on discrete moments in time, and joinder is required when the defendant engaged in one

continuous and uninterrupted act. Id.

¶ 16 Here, the State does not dispute that the theft charges and the burglary charge were based

on the same act. The State argues, however, that defendant’s initial charges—felony charges filed

by a verified complaint signed by a police officer—did not “commenc[e] the prosecution” and thus

were not subject to compulsory joinder. 720 ILCS 5/3-3(b) (West 2014).

¶ 17 The compulsory-joinder statute provides that the offenses must be known at the time of

“commencing the prosecution.” Id. “Prosecution” is defined as “all legal proceedings by which a

person’s liability for an offense is determined, commencing with the return of the indictment or

the issuance of the information.” (Emphasis added.) Id. § 2-16. To be sure, we have interpreted

the statute to include “a criminal proceeding on a misdemeanor complaint.” (Emphasis added.)

People v. Mann, 341 Ill. App. 3d 832, 838 (2003). The complaint here, however, charged

defendant with felonies, and “[a]ll prosecutions of felonies shall be by information or indictment.”

725 ILCS 5/111-2(a) (West 2014). Accordingly, the State asserts that this prosecution commenced

not on April 14, 2015, when the complaint was filed, but on January 20, 2016, when the indictment

was filed. We disagree.

-5- 2019 IL App (2d) 170114-U

¶ 18 In his reply brief, defendant asserts, inter alia, that “the complaint sufficed as an

information that commenced the prosecution.” 1 To support this assertion, he relies on People v.

Sandoval-Carrillo, 2016 IL App (2d) 140332, in which we held that, when an ASA amended,

initialed, and presented a police officer’s complaint, “she filed an ‘information’ and thus properly

commenced the prosecution.” Id. ¶ 36. Here, upon rehearing, we find that case sufficiently

instructive. In this case, although the complaint was signed by a police officer, it stated that it was

brought by the state’s attorney, and the accompanying “new case information sheet” stated that the

complaint was authorized by an ASA. A week later, at defendant’s first court date, an ASA

appeared and obtained a discovery date, effectively adopting the complaint. Clearly, under these

circumstances, we would place form well above substance if we were to hold that the complaint

did not “commenc[e] the prosecution.” 720 ILCS 5/3-3(b) (West 2014).

¶ 19 The State next argues that the speedy-trial term did not expire, because defendant agreed

to continuances. But, as previously noted, any continuances obtained in connection with the trial

of the original charges cannot be attributed to defendant with respect to the new and additional

charge. See Thomas, 2014 IL App (2d) 130660, ¶ 15. With those continuances excluded, the

burglary charge was not brought until more than 160 days after the commencement of the

prosecution.

1 In our initial order, we held that defendant had forfeited his argument by raising it only

in his reply brief. Upon rehearing, in the interest of justice, we address it. To whatever extent a

forfeiture occurred here, we are free to disregard it. See People v. Tomczak, 395 Ill. App. 3d 877,

879 (2009).

-6- 2019 IL App (2d) 170114-U

¶ 20 Thus, the burglary charge violated defendant’s statutory speedy-trial right. Accordingly,

counsel was ineffective for failing to timely file a motion to dismiss, which would have resulted

in dismissal of that charge.

¶ 21 III. CONCLUSION

¶ 22 For these reasons, defendant’s burglary conviction is reversed.

¶ 23 Reversed in part.

-7-