People v. Resser

2023 IL App (3d) 210462, 219 N.E.3d 1243, 467 Ill. Dec. 844

• Court: Appellate Court of Illinois
• Decided: May 11, 2023
• Docket: 3-21-0462
• Status: Published

Opinion

2023 IL App (3d) 210462

Opinion filed May 11, 2023 ____________________________________________________________________________ IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Henry County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-21-0462 v. ) Circuit No. 17-DT-73 ) DEAN A. RESSER, ) The Honorable ) Gregory Chickris and James Cosby Defendant-Appellant. ) Judges, presiding. ____________________________________________________________________________

JUSTICE HETTEL delivered the judgment of the court, with opinion. Justices Albrecht and Peterson concurred in the judgment and opinion. ____________________________________________________________________________

OPINION

¶1 In May 2017, defendant, Dean A. Resser, was charged with two counts of driving under

the influence (DUI) (625 ILCS 5/11-501(a)(1), (3) (West 2016)) and released on bond. Less than

two weeks later, defendant filed a demand for a speedy trial. In July 2018, defendant filed two

motions in limine. The trial court ruled on defendant’s motions on October 2, 2018, and set trial

for October 22, 2018. On October 16, 2018, the State filed a motion in limine. The trial court held

a hearing on the motion in March 2019 and issued its decision in May 2020. Defendant filed

motions to dismiss on speedy-trial grounds, which the trial court denied. The case proceeded to a

bench trial, and the court found defendant guilty of DUI. Defendant appeals, arguing that the trial court should have dismissed the charges against him because his speedy-trial rights were violated.

We agree and reverse defendant’s conviction.

¶2 I. BACKGROUND

¶3 On May 6, 2017, defendant Dean Resser was involved in a single-vehicle accident. After

arriving on the scene, police issued defendant a uniform traffic citation and complaint charging

defendant with two counts of DUI (id.). The next day, defendant was released on bond.

¶4 On May 19, 2017, defendant filed a document titled, “APPEARANCE, PLEA OF NOT

GUILTY AND JURY DEMAND,” which stated:

“Now comes the Defendant, DEAN A. RESSER, by his attorney, LARRY S.

VANDERSNICK, and enters his appearance in this cause and pleads not guilty.

Defendant further demands a speedy trial by jury.”

On May 22, 2017, defendant was arraigned, entered a plea of not guilty, and demanded a jury trial.

The case was set for a pretrial hearing on June 28, 2017.

¶5 From June 28, 2017, to July 10, 2018, defendant sought and obtained several continuances.

On November 29, 2017, defendant disclosed two expert witnesses, Annettea Nordstrom and Travis

Jones, whom he planned to call to testify at trial. On May 7, 2018, defendant disclosed another

expert witness, Dr. Ronald E. Henson.

¶6 On July 9, 2018, defendant filed a motion in limine seeking to bar (1) “[a]ny and all prior

arrests, convictions or bad acts of the Defendant or the Defendant’s witnesses”; (2) “[t]he results

of any [portable breath test] or the fact that Defendant took or reused a [portable breath test]”; and

(3) “[t]he Warning to Motorist or any of it’s [sic] contents, including the fact that a Warning was

given to Defendant.” One week later, defendant filed a motion in limine seeking to (1) limit the

2 testimony of the arresting officer and (2) allow admission of the National Highway Traffic and

Safety Association manual at trial.

¶7 On October 2, 2018, Judge Jeffrey O’Connor presided over the hearing on defendant’s

motions in limine. At the beginning of the hearing, the prosecutor stated: “This is the *** formal

hearing on *** the motion in limine.” The court then explained: “[B]efore the actual trial starts,

I’ll just state on the record that we had a hearing on motion in limine, and the answer is this, this,

and this, and it’s over the objection of the defense or over the objection of the State, and it’s

preserved.” After making oral rulings on the admission and exclusion of evidence requested in

defendant’s motions, the court stated:

“Anyway, you got the gist of my rulings here. I think we understand each other.

Everything else I’m going to take as a trial objection. If it comes up, I’ll deal with

it.”

Near the end of the hearing, the trial court orally confirmed that defendant’s trial was set for

October 22, 2018.

¶8 On October 16, 2018, the State filed a motion in limine seeking to bar the testimony of

defendant’s proposed expert, Dr. Ronald E. Henson. A hearing was held on October 18, 2018, at

which time the court removed the trial date of October 22, 2018, from the court’s calendar. The

case was then continued to November 21, 2018.

¶9 On November 21, 2018, defense counsel was ill, and the case was continued. On December

28, 2018, the case was set for a status hearing on January 23, 2019. On January 23, 2019, defense

counsel appeared and filed his response to the State’s motion in limine. A hearing on the State’s

motion in limine was scheduled for March 5, 2019. However, the trial court’s docket entry from

3 January 23, 2019, erroneously provided: “ATTY VANDERSNICKS’S MOTION IN LIMINE TO

BE HEARD ON 03/05/19.”

¶ 10 At the beginning of the March 5, 2019, hearing, the court expressed some confusion about

which party’s motion in limine was at issue. The parties agreed that the only motion before the

court was the State’s motion in limine. The parties and court discussed only the State’s motion

in limine to exclude Henson’s testimony from trial. During the hearing, the court asked defense

counsel for a copy of an article relied on by Henson to form his opinions. On March 25, 2019,

defendant provided the requested article to the court. On May 18, 2020, Judge O’Connor issued a

written order partially granting and partially denying the State’s motion in limine. While the court

did not file the order until May 18, 2020, the order is dated May 10, 2020.

¶ 11 On August 4, 2020, defendant filed a motion to dismiss, alleging that his speedy-trial rights

were violated because the delay from March 25, 2019, to May 10, 2020, was not attributable to

him. The State filed a response, arguing (1) the 411-day delay between March 25, 2019, to May

10, 2020, was attributable to defendant and (2) defendant’s speedy-trial demand was insufficient.

¶ 12 On September 23, 2020, Judge Gregory Chickris held a hearing on defendant’s motion to

dismiss. On January 15, 2021, Judge Chickris entered an order denying the motion, finding that

the delay from March 25, 2019, to May 10, 2020, was attributable to defendant. The court’s order

stated:

“1. Both the State and Attorney Vandersnick filed motions in limine ***.

2. Defendant’s Motion in Limine has never been heard or ruled upon at this point.

Even though it was set to be heard on March 5, 2019, it was never heard on that

date. This tolled the defendant’s speedy trial demand.”

4 Defendant filed a motion to reconsider and a supplemental and amended motion to reconsider,

which the court denied.

¶ 13 On April 16, 2021, defendant filed a second motion to dismiss, again asserting a violation

of his speedy-trial rights based on the dates contained in his original motion, as well as an

additional 173 days of delay from September 23, 2020, to March 15, 2021. That motion was heard

by Judge James Cosby on June 9, 2021. The trial court denied the motion, finding that (1) Judge

Chickris’s denial of defendant’s prior motion to dismiss acted as res judicata and (2) defendant’s

speedy trial demand was inadequate.

¶ 14 On July 19, 2021, defendant waived his right to a jury trial. The case proceeded to a bench

trial on July 26, 2021. The trial court found defendant guilty of two counts of DUI. Defendant filed

a motion for judgment notwithstanding the verdict and/or a new trial. The court partially granted

and partially denied the motion, finding defendant not guilty with respect to one of the DUI charges

but guilty of the other DUI charge. The trial court sentenced defendant to 10 days of electronic

home monitoring and 18 months of probation. The court also ordered defendant to participate in a

victim impact panel, complete an alcohol evaluation and alcohol treatment, and pay various fines

and fees.

¶ 15 II. ANALYSIS

¶ 16 Defendant argues his right to a speedy trial was violated by the delay of 411 days following

the hearing on the State’s motion in limine and the trial court’s ruling on that motion.

¶ 17 Both the federal and the state constitutions guarantee an accused the right to a speedy trial.

U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. An additional right is found in section

103-5 of the Code of Criminal Procedure of 1963 (Code), which specifies periods of time within

5 which an accused must be brought to trial. 725 ILCS 5/103-5 (West 2016). Section 103-5(b)

provides in pertinent part:

“(b) Every person on bail or recognizance shall be tried by the court having

jurisdiction within 160 days from the date defendant demands trial unless delay is

occasioned by the defendant, ***. ***

*** Any demand for trial made under this subsection (b) shall be in writing

***.” Id. § 103-5(b).

While Illinois’s speedy-trial statute implements a defendant’s constitutional speedy-trial right, the

statutory and constitutional rights are not coextensive. People v. Sandoval, 236 Ill. 2d 57, 67

(2010).

¶ 18 Defendant contends only that his statutory right to a speedy trial was violated. To resolve

this issue, we must determine if (1) defendant’s demand for a speedy trial was sufficient to activate

the speedy-trial statute and (2) defendant caused or contributed to the 411-day delay.

¶ 19 A. Sufficiency of Demand

¶ 20 When a defendant is issued a uniform traffic citation and complaint, rather than a criminal

complaint, Illinois Supreme Court Rule 505 (eff. Jan. 1, 1996) applies. People v. Hamilton, 169

Ill. App. 3d 105, 108 (1988). Rule 505 provides in pertinent part:

“If the accused demands a trial by jury, the trial shall be scheduled within a

reasonable period. In order to invoke the right to a speedy trial, the accused if not

in custody must file an appropriate, separate demand, as provided in section 103-5

of the Code of Criminal Procedure of 1963, as amended (725 ILCS 5/103-5).” Ill.

S. Ct. R. 505 (eff. Jan. 1, 1996).

6 “The express policy of Rule 505 *** is to provide a defendant with an early hearing on the merits

of his traffic offense and to avoid multiple court appearances, which eliminates undue hardship on

the accused, law enforcement agencies and the courts.” People v. Williams, 158 Ill. 2d 62, 68-69

(1994) (citing People v. McCoy, 155 Ill. App. 3d 725, 728 (1987)).

¶ 21 Here, the State concedes defendant’s speedy-trial demand was sufficient under Rule 505

because defendant clearly and unequivocally requested a jury trial. However, we reject the State’s

concession. Under prior versions of Rule 505, a traffic defendant’s demand for a jury trial was

sufficient to invoke the defendant’s speedy-trial right. See id. at 67-69 (analyzing version of Rule

505 that provided: “ ‘If the accused demands a trial by jury, the trial shall be scheduled within 120

days of arrest.’ ” (quoting Ill. S. Ct. R. 505 (eff. Aug. 1, 1987)); Hamilton, 169 Ill. App. 3d at 108-

09 (analyzing version of Rule 505 that provided: “ ‘If the accused demands a trial by jury, the trial

shall be scheduled within the time prescribed by section 103-5 of the Code of Criminal Procedure

of 1963, as amended [citation].’ ” (quoting Ill. S. Ct. R. 505 (eff. July 1, 1984)); People v.

Edgerson, 160 Ill. App. 3d 382, 384 (1987) (same); People v. Lorah, 142 Ill. App. 3d 163, 164

(1986) (same). However, the current version of Rule 505 provides that a traffic defendant not in

custody can “invoke the right to a speedy trial” only by filing “an appropriate, separate demand,

as provided in section 103-5 of the [Code].” Ill. S. Ct. R. 505 (eff. Jan. 1, 1996). Thus, we must

determine if defendant’s speedy trial demand was sufficient under section 103-5 of the Code.

¶ 22 “[T]he speedy trial provisions impose a burden on defendant to file a demand sufficient to

put the State’s Attorney on notice that defendant is invoking his right to a speedy trial under the

statute.” People v. Milsap, 261 Ill. App. 3d 827, 831 (1994); see also People v. Wigman, 2012 IL

App (2d) 100736, ¶ 34 (demand is sufficient where it does “clearly convey defendant’s demand to

7 the prosecution”). “[T]he intent of section 103-5 of the Code is that a defendant’s demand be clear

and unequivocal.” Milsap, 261 Ill. App. 3d at 831.

¶ 23 “[S]ection 103-5(b) does not require that a demand for a speedy trial be in any particular

form.” People v. Huff, 195 Ill. 2d 87, 93 (2001). A demand under section 103-5(b) is sufficient to

invoke the protections of the speedy-trial statute where (1) the caption of the pleading refers to the

defendant’s speedy-trial demand, (2) the body of the pleading expressly invokes the defendant’s

speedy trial rights, (3) nothing in the pleading, or the circumstances in which it was filed, suggests

that the document was calculated to camouflage the defendant’s demand or otherwise hide it from

the prosecution’s notice, and (4) the prosecution does not argue that it was unaware of the

defendant’s demand for a speedy trial. Id. at 93-94. A speedy-trial demand need not contain a

citation of section 103-5 of the Code to be effective. See id. at 94.

¶ 24 “[W]hile no magic words are required to constitute a speedy-trial demand, there must be

some affirmative statement requesting a speedy trial in the record and the demand should not be

disguised in ambiguous language.” People v. Peco, 345 Ill. App. 3d 724, 734 (2004). Defendants

should not be allowed to hide or bury their intent to invoke the provisions of the speedy-trial

statute. See Milsap, 261 Ill. App. 3d at 831. Whether defendant’s speedy trial demand was

sufficient is a question of law we review de novo. See People v. Bonds, 401 Ill. App. 3d 668, 671

(2010); People v. Dockery, 313 Ill. App. 3d 684, 685 (2000).

¶ 25 In this case, defendant’s speedy trial demand was sufficient under section 103-5(b) of the

Code because it conveyed defendant’s desire for a speedy trial in a clear and unambiguous manner.

While the document does not contain the term “speedy trial” in its title, nor does it cite section

103-5(b) of the Code, it does not hide or camouflage defendant’s speedy-trial demand. The

document contains only two sentences, the second of which states: “Defendant further demands a

8 speedy trial by jury.” (Emphasis added.) While the State argued in response to defendant’s motion

to dismiss that defendant’s speedy-trial demand was insufficient, the State never claimed it was

unaware of defendant’s demand for a speedy trial. Under these circumstances, defendant

sufficiently demanded a speedy trial.

¶ 26 B. Attribution of Delay

¶ 27 Proof of a violation of the statutory right to a speedy trial requires that (1) the defendant

has not been tried within the period set by statute and (2) the defendant has not caused or

contributed to the delay. People v. Staten, 159 Ill. 2d 419, 426 (1994); Bonds, 401 Ill. App. 3d at

671. Where a delay is attributable to the defendant, it tolls the speedy-trial statute. People v.

Reimolds, 92 Ill. 2d 101, 106 (1982). An express agreement to a continuance is an affirmative act

attributable to the defendant. Id. However, “mere silence on the part of the defendant or failure to

object to the State’s request for a delay does not amount to an agreement or waiver of the right to

a speedy trial by the defendant.” Id.

¶ 28 A delay occasioned by a defendant’s motion, including the time necessary for the State to

respond and for the court to hear and decide the issue, is ordinarily chargeable to the defendant.

People v. Harper, 279 Ill. App. 3d 801, 808 (1996); People v. Erickson, 266 Ill. App. 3d 273, 276

(1994). A delay by the court in ruling on a defendant’s motion is also attributed to the defendant

unless exceptional circumstances exist. Harper, 279 Ill. App. 3d at 808; Erickson, 266 Ill. App.

3d at 276. Conversely, when the State files a motion that causes a trial to be continued to a later

date, that delay is attributable to the State, as is any delay caused by the trial court’s ruling on the

State’s motion. See People v. Kliner, 185 Ill. 2d 81, 119 (1998). “Where there are two reasons for

a delay, one attributable to the State and the other to the defendant, the fact that the delay was

9 partially attributable to the defendant is sufficient to toll the term.” Wigman, 2012 IL App (2d)

100736, ¶ 59.

¶ 29 “[T]he defendant bears the burden of showing that his right to a speedy trial has been

violated.” People v. Boyce, 51 Ill. App. 3d 549, 554 (1977). “This burden includes a demonstration

that he caused no delay, which fact must be affirmatively established by the record.” Id. The

standard of review for a statutory speedy-trial issue is twofold. People v. Janusz, 2020 IL App (2d)

190017, ¶ 56. First, we review a trial court’s determination as to who is responsible for a delay in

the trial for an abuse of discretion. Id. (citing Kliner, 185 Ill. 2d at 115). Second, we review de novo

the ultimate question of whether the defendant’s statutory right was violated. Id. (citing People v.

Pettis, 2017 IL App (4th) 151006, ¶ 17).

¶ 30 Here, the trial court abused its discretion in attributing to defendant the 411-day delay from

March 25, 2019, to May 10, 2020. By March 25, 2019, the trial court had received defendant’s

response to the State’s motion in limine and held a hearing on the motion, and defendant had

provided the court with the information it requested at the hearing. After March 25, 2019, no

actions were required to be performed by either party. Rather, the parties were merely awaiting the

court’s ruling on the State’s motion in limine, which the court did not issue until over a year later.

¶ 31 The record refutes Judge Chickris’s ruling that defendant’s motions in limine were pending

during the 411-day period at issue. The trial court orally ruled on defendant’s motions on October

2, 2018, and stated it would put its rulings “on the record before we start the trial,” which was set

for October 22, 2018. The only reason trial did not take place on October 22, 2018, was because

the State filed its motion in limine six days before the scheduled trial date. Two days later, the trial

court removed the October 22, 2018, trial date from its calendar. Thereafter, defendant responded

to the State’s motion, and the trial court held a hearing on the motion on March 5, 2019. While the

10 trial court docket erroneously stated that defense attorney Vandersnick’s motion in limine was

scheduled for hearing on March 5, 2019, the record makes clear that the hearing was actually set

for the State’s motion in limine. When the trial court expressed confusion at the beginning of the

hearing, the parties agreed that only the State’s motion in limine was at issue. During the hearing,

the court and the parties discussed only the State’s motion in limine. Additionally, in its order dated

May 10, 2020, the court ruled only on the State’s motion in limine. The court’s order made no

mention of defendant’s motions in limine, nor did the court issue any other order prior to trial with

respect to defendant’s motions in limine.

¶ 32 In this case, the 411-day delay between March 25, 2019, and May 10, 2020, was caused by

the State’s filing of its motion in limine and the trial court’s delay in ruling on that motion. Thus,

the trial court abused its discretion in finding the delay attributable to defendant, instead of the

State. See Kliner, 185 Ill. 2d at 119.

¶ 33 Because the State’s delay caused defendant to be tried more than 160 days after he filed

his speedy-trial demand, defendant’s speedy-trial rights were violated. See 725 ILCS 5/103-5(b)

(West 2016). We, therefore, reverse defendant’s DUI conviction.

¶ 34 III. CONCLUSION

¶ 35 The judgment of the circuit court of Henry County is reversed.

¶ 36 Reversed.

11 People v. Resser, 2023 IL App (3d) 210462

Decision Under Review: Appeal from the Circuit Court of Henry County, No. 17-DT-73; the Hon. Gregory Chickris and the Hon. James Cosby, Judges, presiding.

Attorneys Randy K. Johnson, of West Dundee, and Larry Vandersnick, of for Paulson, Vandersnick & Bradfield, of Rock Island, for Appellant: appellant.

Attorneys Catherine L. Runty, State’s Attorney, of Cambridge (Patrick for Delfino, Thomas D. Arado, and Gary E. Gnidovec, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.