NOTICE 2024 IL App (4th) 230741-U FILED This Order was filed under September 9, 2024 Supreme Court Rule 23 and is NO. 4-23-0741 not precedent except in the Carla Bender th limited circumstances allowed 4 District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County D’MARLO A. REED, ) No. 22CF1977 Defendant-Appellant. ) ) Honorable ) Ronald J. White, ) Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court. Presiding Justice Cavanagh and Justice Steigmann concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding defendant was not denied his statutory or constitutional right to a speedy trial.
¶2 Defendant, D’Marlo A. Reed, appeals his conviction of aggravated driving under
the influence (DUI) (625 ILCS 5/11-501(d)(1)(G) (West 2022)). Defendant was arrested on
August 13, 2022, in Winnebago County and charged with multiple drug offenses and multiple
counts of DUI. He posted bond and was subsequently taken into custody by federal authorities
based on a parole violation stemming from the Winnebago County charges. On September 12,
2022, while in federal custody, defendant surrendered his bond. Federal authorities expressed an
unwillingness to return defendant to Winnebago County for trial until after the federal proceedings
were concluded. ¶3 On March 2, 2023, defendant filed a motion to dismiss and discharge, contending
he was not timely brought to trial as required by section 103-5(a) of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/103-5(a) (West 2022)). Defendant argued he was
continually in state custody, at least as of the date that he withdrew his bond, and the State failed
to bring him to trial within 120 days. The trial court found defendant was in federal custody and
the time period would not run until he was returned to state custody.
¶4 On appeal, defendant argues the trial court erred because the State failed to timely
bring him to trial in violation of both his statutory and constitution speedy-trial rights. We affirm.
¶5 I. BACKGROUND
¶6 On August 13, 2022, law enforcement took defendant into custody and, on August
15, 2022, charged him with multiple counts of DUI and multiple drug offenses. On August 16,
2022, defendant posted bond. At some point between August 13 and 16, 2022, a federal parole
hold was placed on defendant. The record indicates that, immediately after posting bond, defendant
was taken into federal custody on August 16, 2022, and later transported to a facility in another
county.
¶7 At an August 26, 2022, hearing regarding forfeiture of currency, the trial court
noted defendant was not present. The court asked if defendant was “out of custody,” and the State
replied, “Yes.” The court also asked if the clerk of the court could check whether defendant posted
bond, and the bailiff replied that the jail did not have defendant in custody. Defense counsel stated,
“I believe he’s out of custody.” The clerk of the court reported defendant posted bond.
¶8 On September 9, 2022, the State indicted defendant on six drug charges and two
counts of DUI. On September 12, 2022, defendant filed a motion to withdraw his bond, stating he
-2- had been “re-arrested and returned to custody” and seeking a return of the bond and credit for time
spent in custody. The motion did not state the jurisdiction that “re-arrested” him.
¶9 On September 21, 2022, the trial court convened for a summary suspension hearing.
Defendant was again absent, and the court stated defendant was out of custody and had posted
bond. The court told defense counsel defendant was required to be present for the summary
suspension hearing. The court stated, “I’ll leave it up to you to prepare a writ if you know where
he is located, all right?” Counsel told the court he had a motion to withdraw the bond, and the court
stated, “In effect he becomes in custody on this.” The court asked for a written order withdrawing
the bond and stated, “[H]e is in custody now.” The court noted the time until the next hearing was
attributable to defendant for speedy-trial purposes. The court further noted the time for the
summary suspension hearing was running and said, “Good luck on getting him here. Again, I say
that respectfully. The Federal authorities, they’re less than cooperative when you need somebody
here.” The court further stated:
“I’m not going to wait for the Federal authorities to do whatever they have to do
and whatever they have pending. This matter is going to proceed to a trial or a plea
or a dismissal. I’m not waiting for the Feds. I have to clear my cases. And especially
if this is in another Federal court somewhere down state, we need to get him here.
If there is a demand for speedy trial, they’re going to have to bring him. But I’ll
leave it up to the attorneys.”
The court again noted, “[H]e is in custody on this now,” but it also stated, “[I]t’s kind of a strange
issue because he is in Federal custody.” The court entered a written order withdrawing the bond
retroactive to September 12, 2022.
-3- ¶ 10 On October 7, 2022, defendant did not appear for the summary suspension hearing.
The following colloquy then occurred:
“THE COURT: Where is [defendant]?
[DEFENSE COUNSEL]: Judge, [defendant], as you might recall, was in
custody here in the Winnebago County Jail and was removed from the Winnebago
County Jail and taken to Benton, Illinois. It’s my belief—
THE COURT: Did he post bond in this case?
[DEFENSE COUNSEL]: No. He had bond posted and was rearrested. We
withdrew the bond the last time we were here. I don’t think the order maybe caught
up with the—it didn’t get filed. But the last time we were here we ordered that bond
would be withdrawn effective September 12th. The jail, I believe—I think he’s in
federal custody, but he tells me that he’s currently being held in the Franklin County
Jail in Benton, Illinois.
THE COURT: So he has federal charges pending.
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: So what I think happened here was he was in custody with
the Feds here. Is that correct?
[DEFENSE COUNSEL]: That’s correct.
THE COURT: So when you made the motion to vacate his bond—
[DEFENSE COUNSEL]: Yes.
THE COURT: He was in custody here.
-4- THE COURT: So the Feds—and our corrections allowed the Feds to take
him somewhere else.
[DEFENSE COUNSEL]: Correct.
THE COURT: They should never have done that because he is in custody
here. And again, the Feds could have kept him here so now—I’m not going to wait
for the Feds. So if you’re going to proceed, you writ him back here. Prepare a writ
right away. I am not going to wait for the Feds. Our corrections should never have
released him. Whatever the Feds say, they do. They shouldn’t do that. The Feds
just picked him up and took him. We have matters pending here.
Having said that, we have a statutory summary suspension here, so that
can’t go forward.”
Defense counsel then waived the 30-day requirement for a summary suspension hearing and asked
to continue the matter to try to reach an agreement with the State. The following colloquy then
occurred:
“THE COURT: Good. Why don’t the attorneys—we’ll give you a status
date.
[Assistant state’s attorney], if you are going to proceed on here, I’m going
to ask you, respectfully, to issue a writ to the Feds and have him brought here.
Okay?
[ASSISTANT STATE’S ATTORNEY]: Yes, [Y]our Honor.
THE COURT: If he demands speedy trial, it will run. So you’re on notice
here that once the defendant demands speedy trial, he is in custody now, just
because he is with the Feds doesn’t toll it. You’re responsible to get him here.
-5- [ASSISTANT STATE’S ATTORNEY]: I understand, [Y]our Honor.
THE COURT: Not your fault. That’s why the Feds—they do what they want
regardless of what we have here, and it’s unacceptable. Having said that, good
luck.”
The trial court later told defense counsel:
“[Y]ou might want to start working on getting him here. And good luck getting him
here from the Feds when he is not housed here in our county. So I’ll leave it up to
you. You know that he’s in custody here. If you demand speedy trial on his behalf,
it will be running. Okay?”
¶ 11 On November 2, 2022, the parties appeared remotely. The trial court referred to
defendant being “in custody in federal court.” Defense counsel stated he wished to file a
speedy-trial demand, and the following colloquy occurred:
“THE COURT: Well, is he out of custody on this matter?
[DEFENSE COUNSEL]: No. He’s in.
[ASSISTANT STATE’S ATTORNEY]: So he had posted—[defense
counsel] filed—
He had posted bond and then got sent to the Illinois Department of
Corrections for a parole violation. [Defense counsel] filed a motion to—
THE COURT: Withdraw.
[ASSISTANT STATE’S ATTORNEY]:—withdraw his bond.
THE COURT: All right. He’s in custody.
I’d like the record to reflect that [defense counsel], on behalf of his client,
[defendant], demands a speedy trial; so we have a demand for a speedy trial.”
-6- The court set trial for January 23, 2023.
¶ 12 On January 13, 2023, the State filed a superseding bill of indictment, charging
defendant with six drug offenses, two counts of DUI, and two counts of aggravated DUI. On
January 20, 2023, the State moved for a continuance. In the motion, the State noted defendant
posted bond on August 16, 2022. The State then wrote defendant was taken into federal custody
on September 16, 2022, on “US Marshals and Illinois Department of Corrections holds.” However,
the record indicates defendant was detained based on a parole hold on August 16, 2022. Sometime
thereafter, perhaps on September 16, 2022, defendant was actually transported by federal
authorities from the Winnebago County jail to a facility in another county. The defense at times
stated defendant arrived in the other county on September 20, 2022. The State wrote that federal
authorities had advised they would maintain custody of defendant and would not release him to
the State until the conclusion of the federal proceeding, which was set for February 2023. The trial
court granted the motion over defendant’s objection and attributed the delay to the State for
speedy-trial purposes over the State’s objection.
¶ 13 On February 10, 2023, defense counsel told the trial court there were “speedy trial
questions” in the case and noted the State believed the speedy-trial period had not yet started to
run. Defense counsel indicated his disagreement with that position, arguing defendant was in state
custody and the speedy-trial term had been running at least since the time defendant’s bond was
withdrawn. The court expressed frustration with the difficulty in getting defendant to court, said it
was going to look at the filing to determine when the bond was withdrawn, and stated, “Because
at that point in there he becomes in custody here.”
¶ 14 On March 2, 2023, defendant filed a motion to discharge based on speedy-trial
grounds under section 103-5(a) of the Code. The motion did not allege a violation of defendant’s
-7- constitutional speedy-trial right. The State filed a response, noting defendant posted bail on August
16, 2022, but remained in jail on both federal and state parole holds and was transported by federal
authorities to another county on September 16, 2022. The State alleged federal authorities denied
the State’s request to regain custody of defendant until the federal proceedings were concluded.
The State argued defendant was not in state custody for purposes of the Code. In the alternative,
the State argued any delay was occasioned by defendant because, but for the parole hold caused
by his own actions, he would be available for trial.
¶ 15 On March 29, 2023, the trial court held a hearing on the motion. Defendant testified
he relied on the court’s previous representations that he was in state custody and the speedy-trial
time was running. Defendant stated he agreed to continuances in the federal case in order to resolve
the issues in the state case before dealing with the parole violations in the federal case, which arose
from the state charges. During testimony about the court’s previous statement that it would not
wait for the federal authorities to move the case along, the court stated:
“I want to clarify the record, too. I made that statement not knowing that he had
posted bond on August 16, 2022. I made that statement because I thought he was
in joint custody at that time. In Winnebago County on the pending charges and the
parole violation that placed the hold, I thought. And it was never explained to me
that he had posted bond. Again, I want to make that clear. I thought he was in dual
custody at that time which would kick in the statute which provides for the
Agreement on Detainers [(see 730 ILCS 5/3-8-9 (West 2022))]. Okay. But I was
incorrect because I was never informed.”
¶ 16 The defense argued defendant was in state custody at least as of the date the bond
was withdrawn and defendant was not brought to trial within 120 days, as required by section
-8- 103-5(a) of the Code. The defense also argued defendant relied on the trial court’s representations
that defendant was in state custody and that the State failed to act with due diligence to attempt to
bring defendant to state court.
¶ 17 The State argued defendant was not in state custody when he posted bond on
August 16, 2022, making the 120-day speedy-trial provision inapplicable. Instead, he would not
be in state custody until the federal authorities surrendered him to the State, at which time the
speedy-trial period would begin to run. The State also noted the agreement on detainers did not
apply to a parole hold.
¶ 18 The State presented evidence that it sent a video writ to Franklin County and was
told the State had to submit a writ to the U.S. Marshals Service for approval. On November 22,
2022, the State e-mailed Lauren Patterson, an investigator analyst with the U.S. Marshals Service
for the Southern District of Illinois, and Jason Batson, the acting supervisor for the U.S. Marshals
Service in the Southern District of Illinois, regarding instructions on how to get defendant to state
court to comply with the speedy-trial demand. Patterson responded:
“We do not allow in-person state writs while the prisoner is in Federal custody
baring [sic] extenuating circumstances, which can be approved at the discretion of
our Operations Supervisor Jason Batson. His final revocation hearing is early
February 2023 so it will most likely have to be after that.”
Batson responded:
“As I understand it, [defendant’s] legal proceeding began in Winnebago County. A
Federal detainer was lodged against him. He was granted bail in Winnebago County
so the [federal] detainer kicked in sending him into [federal] custody. Had he not
been granted bail, his Federal proceedings would have been on hold until the state
-9- case concluded. After consulting with the [assistant United States attorney] on this
case, we want to maintain custody of him until after his Federal proceedings
conclude. I believe his final revocation hearing is set for 2-7-2023.”
Batson also wrote, “Is it possible to accommodate [defendant’s] request via video[?] Will the judge
consider the fact he is in custody when addressing the defendant’s demand for speedy trial[?]”
Based on that correspondence, the State did not issue a writ to physically bring defendant to state
court.
¶ 19 Following a discussion of the case law, the trial court stated it was initially unaware
defendant had posted bond and was out on bail when transported by the federal authorities instead
of being sent to the federal authorities by the local sheriff’s department. The court then made the
following factual findings, stating:
“We have a unique fact situation here and this is what happened. The defendant
was in custody, and the defendant posted bond in this case on August 16, 2022,
given another court date for September 21st at 8:30 in my courtroom. Unbeknown
to the Court, and I don’t know if it was even known to you, [defense counsel],
unbeknownst to—the prosecutor wasn’t aware that he was on Federal parole and
there was a parole hold when he was taken into custody. The parole hold was placed
on him one day after he was taken into custody. And when he posted that bond or
that bond was posted by someone for his release, immediately because of the parole
hold he was taken from Winnebago County and placed in a facility in Franklin
County, Illinois. He was in Federal custody at that time. And [defense counsel]
came back on November 22nd and asked that his bond be withdrawn, meaning give
me my money back because I’m in custody down there and might as well be getting
- 10 - credit for time served if I’m going to serve time on this matter, which happens
frequently when defendants have two matters pending. As a matter of fact, for the
record, if the defendant was in custody on Charge A and picks up Charge B—if he
is custody on A and posted bond on A and he picks up Case B, many times there
are two pending, and the attorneys and the defendants ask that he is in custody on
A and ask the bond be—he’s in custody on that. Many times they plead to Case B
and he doesn’t get any credit for time, so that’s the way. I have no control to say,
no, I’m not going to allow you to withdraw his bond, that is up to your discretion.”
The court added, “So now we have him down there and there is a demand for speedy trial on
November 2nd. I was under the misbelief that the defendant was in custody on both matters
because I’ve had that happen, for the record.”
¶ 20 The trial court ultimately found defendant was out of state custody for speedy-trial
purposes and was being held by federal authorities. As a result, the court found the 120-day period
in section 103-5(a) did not apply. The court further noted any delay in prosecuting defendant under
a parole hold was attributable to defendant because, but for his parole violation and resulting
removal by federal authorities, he could have been tried within 120 days. The court rejected the
application of cases in which the State voluntarily sent a defendant in state custody to federal
authorities, noting that, in the case before it, defendant posted bond and was out of state custody
when the federal authorities detained him. The court further stated, even though defendant
withdrew his bond, he still was not in state custody for speedy-trial purposes. The court stated,
“Initially, if he had been in custody here, not posted bond, there might be a different issue.” Thus,
the court denied defendant’s motion to discharge.
- 11 - ¶ 21 The trial court denied defendant’s motion to reconsider. Defendant was
subsequently acquitted by a jury of all charges except aggravated DUI. Defendant was sentenced
to a term of incarceration and did not file a motion for a new trial.
¶ 22 This appeal followed.
¶ 23 II. ANALYSIS
¶ 24 On appeal, defendant contends both his statutory and constitutional rights to a
speedy trial were violated when he was not timely brought to trial. The State contends defendant
forfeited the issues by failing to raise them in a motion for a new trial.
¶ 25 A. Statutory Claim
¶ 26 Defendant first argues he was deprived of his statutory right to a speedy trial under
section 103-5(a) of the Code(725 ILCS 5/103-5(a) (West 2022)). In particular, he contends he was
in state custody at least as of September 12, 2022, when he withdrew his bond, and he was not
brought to trial within 120 days. He further maintains, because the State allowed him to be
transported to federal custody, any delay may not be attributable to him.
¶ 27 The State initially contends defendant forfeited the issue by failing to preserve it in
a motion for a new trial. Defendant concedes he did not raise the issue in a motion for a new trial
but argues ineffective assistance of counsel applies. We conclude the issue was not forfeited.
¶ 28 Our supreme court has held, “where the trial court clearly ha[s] an opportunity to
review the same essential claim that [i]s later raised on appeal,” the failure to include the claim in
a posttrial motion will not result in forfeiture. People v. Heider, 231 Ill. 2d 1, 18, 896 N.E.2d 239,
249 (2008); see People v. Patterson, 392 Ill. App. 3d 461, 464, 912 N.E.2d 244, 247 (2009)
(finding where “the speedy-trial issue was fully considered by the trial court,” the defendant’s
failure to assert the issue in a posttrial motion did not result in forfeiture).
- 12 - ¶ 29 Here, the trial court fully considered defendant’s statutory speedy-trial claim in
response to defendant’s motion for discharge. The court then denied defendant’s motion to
reconsider. Defendant did not raise anything new regarding the statutory speedy-trial claim on
appeal. Accordingly, defendant did not forfeit the issue.
¶ 30 In Illinois, a criminal defendant has both a constitutional and statutory right to a
speedy trial. See U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; 725 ILCS 5/103-5(a)
(West 2022). Although section 103-5(a) of the Code implements the constitutional right to a
speedy trial, the statutory and the constitutional rights “are not coextensive.” People v. Phipps, 238
Ill. 2d 54, 65, 933 N.E.2d 1186, 1193 (2010).
¶ 31 Section 103-5(a) of the Code provides, in part:
“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 or she 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. The provisions
of this subsection (a) do not apply to a person on bail or recognizance for an offense
but who is in custody for a violation of his or her parole, aftercare release, or
mandatory supervised release for another offense.” 725 ILCS 5/103-5(a) (West
2022).
See Pub. Act 101-652, § 10-255 (eff. Jan. 1, 2023) (replacing the term “bail” with “pretrial
release”).
Section 103-5(a) also provides, “The 120-day term must be one continuous period of incarceration.
In computing the 120-day term, separate periods of incarceration may not be combined. If a
- 13 - defendant is taken into custody a second (or subsequent) time for the same offense, the term will
begin again at day zero.” 725 ILCS 5/103-5(a) (West 2022).
¶ 32 The 120-day speedy-trial period begins to run automatically if a defendant remains
in custody pending trial. People v. Wooddell, 219 Ill. 2d 166, 174, 847 N.E.2d 117, 122 (2006).
Any delay occasioned by the defendant within this term will suspend or toll the term for the time
for the delay. 725 ILCS 5/103-5(f) (West 2022).
¶ 33 If a person is not tried within the statutory speedy-trial term, the person shall be
discharged from custody and the charges must be dismissed. 725 ILCS 5/103-5(d) (West 2022);
People v. Woodrum, 223 Ill. 2d 286, 299, 860 N.E.2d 259, 269 (2006). Subsection (b) of the Code
(725 ILCS 5/103-5(b) (West 2022)), in turn, creates a 160-day speedy-trial right for persons
released on bond or recognizance, and this period begins to run only when the accused files a
speedy-trial demand. To invoke the 160-day period of subsection (b), defendants who are on bail
or recognizance must serve the State with a formal demand. Wooddell, 219 Ill. 2d at 175.
¶ 34 The general rule is that where a defendant is in custody awaiting trial in one county
and there is a charge pending against him in another county, the defendant cannot be deemed to
be in custody for the latter offense until such time as the proceedings against him in the first county
are terminated and the defendant is returned to, or held in custody for, the second county. See, e.g.,
People v. Carter, 193 Ill. App. 3d 353, 356, 549 N.E.2d 763, 765 (1989). This principle has been
recognized even when the defendant has appeared before the court in the second county but is
subsequently returned to the first county for further proceedings. People v. Gardner, 105 Ill. App.
3d 103, 111-12, 433 N.E.2d 1318, 1323-24 (1982). It has also been extended to situations where
the defendant is in federal custody when the state charges are filed. See People v. Neumann, 148
- 14 - Ill. App. 3d 362, 367-68, 499 N.E.2d 487, 490-91 (1986) (finding defendant was not under control
of the state when in federal custody, and thus section 103-5(a) did not apply).
¶ 35 The above principle has further been applied when a defendant was released on
bond in one county and then arrested in another county on another charge. People v. Hatch,110
Ill. App. 3d 531, 533-36, 442 N.E.2d 655, 657-59 (1982). In Hatch, the defendant was arrested
and released on bond in Du Page County and subsequently arrested in Kane County. Although the
defendant appeared in Du Page County pursuant to a writ after his Kane County arrest, the
appellate court held defendant was not in custody in Du Page County for speedy-trial purposes
until the termination of the Kane County proceedings. Hatch, 110 Ill. App. 3d at 535. The court
reasoned, were it to hold otherwise, the 120-day term would be running simultaneously in two
counties, which would create administrative problems and potentially delay the trial in the second
county to the defendant’s detriment. Hatch, 110 Ill. App. 3d at 535-36.
¶ 36 We determine the same principle applies here. Defendant was initially in state
custody but, after he posted bond, he was released from state custody and taken into federal
custody. At that point, section 103-5(a) explicitly states it did not apply to defendant. See 725
ILCS 5/103-5(a) (West 2022) (“The provisions of this subsection (a) do not apply to a person on
bail or recognizance for an offense but who is in custody for a violation of his or her parole.”).
Under the case law, defendant was not in state custody for speedy-trial purposes until the federal
proceeding was terminated and he was returned to state custody. At that time, the 120-day period
would begin to run. Any other conclusion would create an untenable circumstance in which the
State would be bound to try a defendant within the statutory period despite having no actual control
over the defendant. See Neumann, 148 Ill. App. 3d at 368 (stating defendant was not under control
of the State, and therefore section 103-5(a) was inapplicable).
- 15 - ¶ 37 Defendant argues we must reach a different result because the withdrawal of his
bond returned him to state custody while the federal authorities detained him. The withdrawal of
the bond is normally a means of ensuring the defendant receives sentencing credit for time spent
in simultaneous custody. See People v. Robinson, 172 Ill. 2d 452, 459-63, 667 N.E.2d 1305, 1308-
10 (1996). However, the withdrawal of bond has also been held to return a defendant to custody
for speedy-trial purposes when a defendant has been released on bond in a county and then
rearrested in the same county for a different offense. People v. Arnhold, 115 Ill. 2d 379, 383, 504
N.E.2d 100, 101-02 (1987). However, that is not the case here. Defendant was physically in federal
custody at the time he withdrew his bond, and he remained in federal custody. Any simultaneous
custody with the State was due solely to the bond withdrawal. On this point we find People v.
Wigman, 2012 IL App (2d) 100736, 979 N.E.2d 583, instructive.
¶ 38 In Wigman, the defendant was arrested in Kendall County, posted bond, and then
failed to appear, resulting in the issuance of an arrest warrant. The defendant was later found to be
in custody in Will County, which failed to produce the defendant. Addressing issues of credit for
time served and whether the defendant was in custody or released on bail for speedy-trial purposes,
the Wigman court found the defendant was in simultaneous custody and entitled to credit for time
spent in custody. Wigman, 2012 IL App (2d) 100736, ¶ 40. However, the Wigman court agreed
with the trial court’s finding that, for speedy-trial purposes, the defendant would not be deemed in
the custody of Kendall County until the proceedings in Will County were concluded. Wigman,
2012 IL App (2d) 100736, ¶¶ 38-40. We find the same here. While defendant’s withdrawal of his
bond may entitle him to credit for time served in simultaneous custody, for speedy-trial purposes,
the time did not begin to run until the federal proceedings were concluded.
- 16 - ¶ 39 Relying on People v. Stanitz, 367 Ill. App. 3d 980, 857 N.E.2d 288 (2006),
defendant also argues he was continuously in state custody because, even though he posted bond,
he never was actually released, and the State’s action of surrendering him to federal custody
impaired his speedy-trial right. Defendant correctly notes that, where the State first has custody of
a defendant and then voluntarily surrenders the defendant to federal authorities in an attempt to
evade its speedy-trial obligations, the defendant may be deemed to have remained in state custody
for purposes of section 103-5(a). See Stanitz, 367 Ill. App. 3d at 989. However, we find Stanitz
distinguishable.
¶ 40 In Stanitz, the defendant was charged in July 2004 with attempting to obtain a drug
prescription using a false name. At some point before September 30, 2004, he was arrested and
held in the Du Page County jail, and an order appointing the defendant a public defender noted
defendant was “in custody.” Stanitz, 367 Ill. App. 3d at 981. Notably, the defendant was never
released on bail. On September 30, 2004, the defendant made a speedy-trial demand. On January
18, 2005, less than 10 days before the defendant’s trial date, which would have been 119 days after
he filed his speedy-trial demand, federal authorities removed the defendant from the Du Page
County jail to a facility in Cook County to await trial on a federal charge. The defendant was not
returned to Du Page County until May 2005. Stanitz, 367 Ill. App. 3d at 981-82.
¶ 41 On appeal, the State argued the speedy-trial period was tolled when federal
authorities placed the defendant in the custody of Cook County pending the disposition of his
federal charge. The Second District found the speedy-trial period set forth in section 103-5(a) was
triggered and was not tolled because the defendant was in state custody and the State voluntarily
surrendered the defendant to federal authorities. Stanitz, 367 Ill. App. 3d at 986-89. The court
- 17 - reasoned the State could not evade its speedy-trial obligations by surrendering a defendant to
federal authorities. In particular, the court stated:
“If the State is free to choose whether to surrender a defendant to federal authorities,
then its decision to do so should not enable it to evade its responsibility to try the
defendant within the statutory period. Moreover, any delay occasioned entirely by
the State’s own choice cannot reasonably be said to have been ‘occasioned by the
defendant.’ ” Stanitz, 367 Ill. App. 3d at 986.
¶ 42 Here, the State did not voluntarily relinquish defendant to the federal authorities.
Unlike in Stanitz, where the defendant remained in state custody, defendant here posted bond and
was then detained by federal authorities. Thus, defendant was not in custody when he was held by
federal agents, making an analysis under Stanitz concerning tolling the 120-day period
inapplicable. Instead, as previously discussed, section 103-5(a) was not in effect at the time the
federal authorities took custody of defendant.
¶ 43 Finally, defendant argues he relied on previous trial court findings that he was in
state custody for speedy-trial purposes and suggests the State’s acquiescence to that conclusion
should require adherence to the 120-day statutory period. However, while the court at times stated
defendant was “in custody” and did so at times in reference to defendant’s speedy-trial right, the
record also shows the court initially was not fully aware defendant had posted bond or was still on
bond at the time the federal authorities detained him. Because of that, the court mistakenly believed
the State had voluntarily surrendered defendant to the federal authorities—an act we note would
have brought the principles from Stanitz into consideration.
¶ 44 Moreover, the record shows the defense was complicit in allowing that mistake. On
October 7, 2022, defense counsel told the trial court defendant had posted bond “and was
- 18 - rearrested,” without explaining who rearrested defendant. Defense counsel agreed with a statement
by the court that defendant “was in custody here” at the time of the motion to withdraw the bond,
and when the court specifically stated, “So the Feds—and our corrections allowed the Feds to take
him somewhere else,” defense counsel stated, “Correct.” Then, throughout the proceedings, the
court often referred to defendant as “in custody,” without specifically referring to either state or
federal custody. The court also stated, in regard to the withdrawal of the bond, that defendant was
both in state and federal custody. As time went on and speedy-trial issues became more apparent,
the State specifically challenged defense counsel’s assertion that defendant was in state custody
for speedy-trial purposes and objected to a delay being attributed to it.
¶ 45 While the statutory speedy-trial provisions are to be liberally construed in favor of
a defendant because they were enacted to avoid infringements of the defendant’s constitutional
speedy-trial right, that right “is not a sword to be used to extricate oneself from criminal charges;
it is a shield to protect the accused from unjust and prejudicial delays occasioned by the State.”
(Internal quotation marks omitted.) People v. Ingram, 2020 IL App (2d) 180353, ¶ 14, 171 N.E.3d
74. We do not agree that the State here acquiesced to the trial court’s findings regarding
defendant’s custody status or the legal effect of any such findings, which the record shows involved
facts that were far from clear to both the court and the parties and presented an arguably novel
legal issue.
¶ 46 B. Constitutional Right
¶ 47 Defendant next argues he was deprived of his constitutional right to a speedy trial.
On this point, we agree with the State that defendant forfeited the matter. Defendant never raised
a constitutional speedy-trial claim in the trial court. However, defendant notes we may review the
matter for either plain error or ineffective assistance of counsel. Before addressing either plain
- 19 - error or ineffective assistance of counsel, we must first consider whether any error occurred. See
People v. Betance-Lopez, 2015 IL App (2d) 130521. ¶ 28, 38 N.E.3d 36. We conclude no error
occurred.
¶ 48 There are four factors to be balanced to determine whether a defendant’s
constitutional right to a speedy trial has been violated: (1) the length of the delay, (2) the
defendant’s assertion of the right, (3) the reasons for the delay, and (4) the prejudice to the
defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); People v. Bazzell, 68 Ill. 2d 177, 182, 369
N.E.2d 48, 50 (1977). “Once the [Barker] factors have been considered, ‘courts must still engage
in a difficult and sensitive balancing process.’ ” People v. Crane, 195 Ill. 2d 42, 60, 743 N.E.2d
555, 566 (2001) (quoting Barker, 407 U.S. at 533). Each factor must be weighed and considered
in light of the circumstances of the case, as reflected in the record. Bazzell, 68 Ill. 2d at 182-83.
However, “[a]ll four factors are closely related,” and no one factor is dispositive. Crane, 195 Ill.
2d at 52. Because “a certain amount of delay is inevitable and wholly justifiable [citation], a
speedy-trial inquiry will not be triggered unless the complained-of delay crosses the threshold from
ordinary to presumptively prejudicial.” (Internal quotation marks omitted.) Crane, 195 Ill. 2d at
52. Thus, the first factor considered is the length of the delay. Crane, 195 Ill. 2d at 52.
¶ 49 “In general, courts have recognized a delay approaching one year to be
‘presumptively prejudicial.’ ” Crane, 195 Ill. 2d at 52-53 (quoting Barker, 407 U.S. at 530-31). A
finding of presumptive prejudice, however, does not imply the delay will be found to have actually
prejudiced the defendant. Rather, it simply marks the point at which courts deem the delay
unreasonable enough to trigger the full Barker inquiry. Crane, 195 Ill. 2d at 53; People v. Prince,
242 Ill. App. 3d 1003, 1008, 611 N.E.2d 105, 109 (1993).
- 20 - ¶ 50 The weight accorded the reasons cited by the State for the delay is dependent on
the particular circumstances of the case, such that deliberate delays are weighted heavily and
negligence is weighted less heavily. Barker, 407 U.S. at 531; Crane, 195 Ill. 2d at 55. Whether
and how a defendant asserts his right is also a factor. Barker, 407 U.S. at 531. Finally, in assessing
the prejudice factor, courts consider the interests of defendants the speedy-trial right was designed
to protect: (1) preventing undue and oppressive incarceration, (2) minimizing the anxiety and
concern that accompanies public accusations, and (3) limiting the possibility that the defense will
be impaired. Barker, 407 U.S. at 532.
¶ 51 “[T]he ultimate determination of whether a defendant’s constitutional speedy-trial
right has been violated is subject to de novo review.” Crane, 195 Ill. 2d at 52. However, we will
uphold the trial court’s factual determinations unless they are against the manifest weight of the
evidence. Crane, 195 Ill. 2d at 51. Here, as the matter was not raised in the trial court and the facts
are undisputed, we consider the matter de novo.
¶ 52 Defendant claims a delay of 278 days, although we note the total time from
defendant’s arrest on August 13, 2022, to his trial on August 7, 2023, was nearly a year. However,
even if we were to find that delay presumptively prejudicial, defendant has not shown a
constitutional speedy-trial violation. Defendant did not demand trial until November 2022, and the
delay of the trial was due to defendant’s parole violation, as opposed to any action or inaction of
the State. While defendant argues the State refused to attempt to obtain a writ to bring him to
Winnebago County, the State presented evidence the federal authorities refused to allow the state
to regain custody. As to prejudice, nothing indicates defendant was unduly incarcerated. He was
held in federal custody based on his parole violation, and he does not suggest that incarceration
was unlawful.
- 21 - ¶ 53 Although defendant contends that he suffered prejudice because he was later
acquitted of the drug charges, which could have helped him in his federal proceedings, the record
does not contain sufficient details about defendant’s federal case to reach such a conclusion. Thus,
it is merely speculative. Notably, defendant does not cite any case finding a constitutional violation
under facts similar to his case, nor does he specifically address the factors to be balanced, other
than to refer back to his statutory argument, which we have found lacks merit. Accordingly, we do
not find a constitutional speedy-trial violation. Because there was no error, there was no plain error
or ineffective assistance of counsel.
¶ 54 III. CONCLUSION
¶ 55 For the reasons stated, we affirm the judgment of the trial court.
¶ 56 Affirmed.
- 22 -