NOTICE 2022 IL App (5th) 200395-U NOTICE Decision filed 09/15/22. The This order was filed under text of this decision may be NO. 5-20-0395 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Marion County. ) v. ) No. 19-CF-341 ) DENNIS S. TATE, ) Honorable ) Allan F. Lolie Jr., Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE CATES delivered the judgment of the court. Presiding Justice Boie and Justice Vaughan concurred in the judgment.
ORDER
¶1 Held: The defendant’s right to a speedy trial was not violated where the defendant did not make a sufficient demand for a trial as required by the speedy trial statute. The defendant’s sentence was not excessive nor an abuse of discretion.
¶2 The defendant appeals his convictions and sentence for five counts of aggravated
criminal sexual abuse. The defendant argues that his right to a speedy trial was violated
due to delays associated with the COVID-19 pandemic and that his sentence was excessive.
For the following reasons, we affirm the defendant’s convictions and sentence.
1 ¶3 I. BACKGROUND
¶4 On September 13, 2019, the State charged the defendant with five counts of
aggravated criminal sexual abuse (720 ILCS 5/11-1.60(b), (c)(1)(i) (West 2018) previously
codified as 720 ILCS 5/12-16(b), (c)(1)(i)) (counts I-V) and one count of predatory
criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2018) previously
codified as 720 ILCS 5/12-14.1(a)(1)) (count VI). The victims in this case, Dovie Kirtley
and Roxann Johnson, are the defendant’s stepdaughters, who are now adults. The alleged
offenses occurred between 1994 and 2002, when Kirtley and Johnson were children.
¶5 On September 14, 2019, the defendant was arrested. A bond was set, but the
defendant remained in custody. Following a preliminary hearing and arraignment, the trial
court set the defendant’s case for a jury trial on December 9, 2019.
¶6 On November 21, 2019, the defendant moved for a continuance of his trial date, and
the trial court reset the defendant’s trial for January 21, 2020, with the delay attributed to
the defendant. On January 9, 2020, the defendant again moved for a continuance of his trial
date, and the trial court subsequently set the defendant’s trial for April 13, 2020. The delay
was attributed to the defendant.
¶7 On March 31, 2020, the defendant’s jury trial was continued a third time. On this
date, the following occurred on the record:
“THE COURT: Then we have 19-CF-341 and 342, Dennis Tate.
[THE STATE]: Same thing as the other in custody juries.
[DEFENSE COUNSEL]: Same objection.
THE COURT: Okay. You got it.” 2 The docket entry for this day provides as follows: “Pursuant to Administrative Order 2020-
4,[1] as amended, over defendant’s objection, jury setting vacated. Reset for jury trial 6/8/20
***.”
¶8 On May 21, 2020, the defendant’s jury trial was once again continued pursuant to
Administrative Order 2020-4 and over the defendant’s objection. The defendant’s jury trial
was reset for July 13, 2020. The record does not contain a transcript of proceedings for this
date, and the court reporter indicated that she did not have any notes pertaining to the
defendant’s case.
¶9 On June 23, 2020, the defendant agreed to waive his right to a jury trial and proceed
to a bench trial on counts I through V in exchange for the State’s dismissal of count VI.
The trial court accepted the defendant’s waiver and set the case for a bench trial on August
4, 2020.
¶ 10 On July 2, 2020, the defendant filed a motion to dismiss, alleging a violation of his
right to a speedy trial under section 103-5(a) of the Code of Criminal Procedure of 1963
(speedy trial statute) (725 ILCS 5/103-5(a) (West 2018)). In his motion, the defendant
argued that the orders continuing his trial due to the COVID-19 pandemic violated the
separation of powers doctrine and attempted to rewrite section 103-5(a) of the speedy trial
statute. Following a hearing on the defendant’s motion, the trial court denied the
defendant’s motion. The trial court stated that any delay was not charged to the State or the
1 In response to the COVID-19 pandemic, the Illinois Supreme Court entered several orders in March and April 2020 which allowed the chief judge in each circuit to continue trials. The orders provided that such continuances would not be attributable to the State or the defendant, and the delays would be excluded from speedy trial computations. 3 defendant due to the supreme court’s order that was generated by necessity because of the
COVID-19 outbreak.
¶ 11 At the defendant’s bench trial, his stepdaughters, Kirtley and Johnson, testified
about the sexual abuse the defendant committed against them when they were children.
Kirtley testified that when she was a child, she lived in Sandoval, Illinois, with her mother,
the defendant, and her five younger siblings, one of whom was her sister, Johnson. After
the birth of Kirtley’s fifth sibling, her mother was diagnosed with multiple sclerosis. Her
mother’s health and mobility gradually declined, and she began to suffer seizures. Kirtley
testified that during the summer between her second and third grade years, when she was
eight or nine years old, the defendant began to come into her room while Kirtley slept, and
he would lay beside her. Kirtley testified that the defendant would remove her underwear,
place his penis between her “butt cheeks,” and move his penis back and forth for five to 10
minutes. Kirtley recalled hearing the defendant moaning and grunting while he did this.
The defendant also rubbed Kirtley’s vagina. When asked if the defendant ever penetrated
her vagina, Kirtley responded, “Not fully. Maybe to like the first knuckle or something like
that.” Kirtley stated that during these encounters, she pretended to be asleep and would
“squirm” to get the defendant to stop.
¶ 12 Kirtley indicated that these encounters occurred almost nightly. During this time,
Kirtley sometimes shared a bedroom with Johnson but never witnessed the defendant abuse
Johnson. Kirtley never told anyone about the sexual abuse because, when she was a child,
she and her siblings were told that too much stress on their mother could cause her to have
4 a seizure and die. The sexual abuse stopped when Kirtley was approximately 14 or 15 years
old. She stopped pretending to be asleep and told the defendant she was awake.
¶ 13 Johnson testified that the defendant began to molest her when she was six or seven
years old. She stated that the defendant would frequently enter her room at night, play with
her clitoris, place his penis between her upper thighs or “butt cheeks,” and move his penis
back and forth. Johnson indicated that she could hear the defendant grunting. Johnson
testified that this happened at least one time in the living room. Johnson also recalled an
occasion when the defendant made her perform oral sex on him in the bathroom.
¶ 14 When Johnson was 12 or 13 years old, she was afraid the defendant would try to
take things further, and she would get pregnant. Johnson found the courage to stand up to
the defendant and began telling him to stop whenever he tried to sexually abuse her. She
did not tell anyone about the abuse because she was afraid of endangering her mother’s
health and causing a hardship for her family as the defendant was the primary provider.
Johnson indicated that she never witnessed the defendant sexually abuse Kirtley.
¶ 15 After the State rested, the defendant testified and categorically denied the
allegations made against him. The trial court found the defendant guilty on counts I through
V.
¶ 16 The defendant filed a posttrial motion alleging that the trial court erred in denying
the defendant’s pretrial motion to dismiss and that the State had failed to prove the
defendant guilty beyond a reasonable doubt. The trial court denied the defendant’s posttrial
motion at his sentencing hearing.
5 ¶ 17 The presentence investigation report (PSI) that had been prepared for sentencing
provided that the defendant had no criminal history, but had two charges for aggravated
criminal sexual abuse pending in Marion County, Illinois, 19-CF-342. Regarding his
health, the defendant reported that he had a total of 13 strokes, with the most recent being
in 2019. The defendant indicated that this was the worst stroke he had suffered, and that he
was required to go to a nursing home for rehabilitation. The PSI noted that while
incarcerated in the jail, the defendant was under the care of Advanced Correctional Care
and was taking numerous medications.
¶ 18 An “Adult Psychosexual Evaluation Report” was also prepared for sentencing. The
evaluator noted that the defendant attempted to “fake good” and present himself as
“unrealistically virtuous.” The defendant also attempted to portray himself as without
interest in sexuality. The evaluator determined that the defendant was not a reliable reporter
regarding his own experiences. The evaluator stated that the defendant engaged in
manipulative deception in areas related to sexuality but also observed that the defendant
experienced a significant level of cognitive dysfunction. The evaluator found the defendant
was a below average, to average risk of recidivism for a sexual offense, mostly attributable
to the defendant’s age. The evaluator cautioned that the defendant may be an outlier for his
age demographic because the defendant was charged with conduct that occurred after he
turned 60. The evaluator concluded that the defendant’s risk level was low enough that
community treatment and management would typically be recommended but stated that
the defendant was not capable of benefitting from cognitive behavioral therapy, the core
method of intervention for sex offense specific treatment. The evaluator recommended that 6 if the defendant received a community-based sentence, he should not have contact with
minors. The evaluator further recommended that if the defendant was in a care facility, the
staff should be advised about his sexual interest in children to appropriately monitor and
maintain safety precautions. The evaluator indicated that the defendant may benefit from
pharmacological intervention to decrease the risk of problematic sexual behaviors.
¶ 19 At sentencing, Johnson read victim impact statements for both herself and Kirtley
which detailed the impact the sexual abuse had on their lives. As evidence in aggravation,
the State called Deputy Jordan Johnson, Kim Tucker, and Kayla Essington to testify about
the charges pending in 19-CF-342.
¶ 20 Deputy Jordan Johnson was dispatched on April 8, 2018, to the residence of
Essington and Donnie Hulsey, the parents of the victims H.E. and A.E., who were five
years old and eight years old, respectively. Essington reported that she had another
daughter, April Tate, who was 23 years old and lived nearby. April lived with her husband
Jacob Tate, their children, and the defendant. H.E. and A.E. often visited April’s children
and sometimes stayed the night or the weekend. It was reported that the defendant had nude
photographs of H.E. on his phone. According to Deputy Johnson’s investigation, the
defendant showed a family member, Kyle Rose, the photographs and asked Rose if he
could delete the photographs from the defendant’s phone. Rose and April subsequently
showed the photographs to Essington and Hulsey.
¶ 21 After the photographs came to light, Essington asked H.E. and A.E. if the defendant
had touched them. H.E. and A.E. both stated the defendant had touched them
inappropriately. Deputy Johnson interviewed H.E. and A.E. Both girls indicated that the 7 defendant had touched their vaginas. H.E. reported that the defendant asked her to take the
photographs that were located on his phone. The children were subsequently interviewed
at the Amy Center by Kim Tucker. The forensic interviews were recorded and played at
the defendant’s sentencing hearing. Essington testified that A.E. and H.E. were attending
counseling. Essington stated that since late April to early May 2018, A.E. was more
aggressive toward others and having trouble sleeping at night. A.E. was also failing school
and enrolled in special education courses, although she had not been diagnosed with any
learning disability. Essington testified that she had not noticed any changes with H.E. This
concluded the State’s evidence in aggravation.
¶ 22 The defendant presented no evidence in mitigation. In allocution, the defendant
claimed that he provided for his family but that nobody wanted to help him as his health
declined. He maintained his innocence and accused the victims and their families of lying.
¶ 23 Before pronouncing sentence, the trial court indicated that it had considered the PSI,
the psychosexual evaluation, the trial evidence, the evidence in aggravation, and the
defendant’s statement in allocution. In mitigation, the trial court found that incarceration
may endanger the defendant’s medical condition but noted the defendant had been
incarcerated for 424 days and appeared to be getting the treatment he required. The trial
court also found the defendant’s lack of criminal history in mitigation.
¶ 24 In aggravation, the trial court found that the defendant’s conduct caused or
threatened serious mental harm to Kirtley and Johnson based upon their trial testimony and
victim impact statements. The trial court noted that in addition to the five counts of
conviction, the court had heard evidence at trial that the defendant’s abuse of Kirtley and 8 Johnson was ongoing for a period of time. The trial court also found that a sentence of
imprisonment was necessary to deter others. Regarding the allegations of sexual abuse
involving H.E. and A.E., the trial court found that the State had presented reliable evidence
and considered the allegations in aggravation.
¶ 25 In consideration of the defendant’s rehabilitative potential, the trial court noted that
the psychosexual evaluation found the defendant to be a low risk to reoffend but expressed
concern about the defendant’s attempts to deceive the interviewer. The trial court indicated
that had the defendant gotten treatment and not committed “another act,” the trial court
likely would have given the defendant probation. The trial court determined, however, that
a sentence of imprisonment was necessary to protect the public, which included children,
and that a sentence of probation would deprecate the seriousness of the offense. The trial
court sentenced the defendant to seven years’ imprisonment on each count, to be served
concurrently, followed by two years of mandatory supervised release.
¶ 26 The defendant filed a motion to reduce sentence. The defendant argued that the trial
court did not give adequate weight to various mitigating factors and gave undue weight to
the pending charges. Following a hearing, the trial court denied the defendant’s motion to
reduce sentence. At this hearing, the State dismissed the pending charges in 19-CF-342.
This appeal followed.
¶ 27 II. ANALYSIS
¶ 28 A. Speedy Trial Violation
¶ 29 The defendant contends that the trial court erroneously denied the defendant’s
motion to dismiss his case after he had been detained for more than 120 days pursuant to 9 Administrative Order 2020-4. The defendant argues that between September 14, 2019, and
June 23, 2020, there were at least 152 days that he did not consent to delaying his trial—
68 days between September 14, 2019, and November 21, 2019, and 84 days between March
31, 2020, and June 23, 2020. We agree with the defendant that the time between September
14 and November 21 is not attributable to him. The defendant, however, orally moved for
continuances on November 21, 2019, and January 9, 2020. The trial court granted these
continuances, causing the delays to be attributable to the defendant. The subsequent delays
on March 31 and June 23 are also considered agreed to by the defendant as further
explained hereafter.
¶ 30 The speedy trial statute provides that, “[e]very 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 ***.”
725 ILCS 5/103-5(a) (West 2018). To prove a violation of the speedy trial statute, the
defendant is only required to prove that he or she has not been tried within the period set
by the statute and that he or she has not caused or contributed to the delays. People v.
Murray, 379 Ill. App. 3d 153, 158 (2008). Any delay occasioned by the defendant tolls the
speedy-trial period until the delay expires, at which point the statute resumes running.
Murray, 379 Ill. App. 3d at 158. It is the defendant’s burden to establish that delays were
not attributable to his or her conduct. Murray, 379 Ill. App. 3d at 158. Delay is attributable
to the defendant when his or her acts caused or contributed to the delay, resulting in the
postponement of trial. Murray, 379 Ill. App. 3d at 158-59.
10 ¶ 31 The speedy trial statute provides that “[d]elay 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 2018). Although the
speedy trial statute does not require any “ ‘magic words’ constituting a demand for trial,”
the statute does require “some affirmative statement in the record requesting a speedy trial.”
(Emphasis in original.) People v. Phipps, 238 Ill. 2d 54, 66 (2010). The demand should not
be disguised in ambiguous language. Murray, 379 Ill. App. 3d at 160.
¶ 32 In Murray, defense counsel objected to the delay, stated that she was ready for trial,
and specifically stated her desire that the delay be attributed to the State. Murray, 379 Ill.
App. 3d at 161. The Murray court found this statement sufficient to invoke the speedy trial
statute, reasoning that defense counsel’s language would be used only in reference to the
defendant’s speedy trial right. Murray, 379 Ill. App. 3d at 161. Conversely, at a separate
hearing where substitute counsel appeared, substitute counsel announced a readiness for
trial and objected to the delay, but did not specifically ask for trial or use language that
would reference the speedy trial statute. Murray, 379 Ill. App. 3d at 161. The Murray court
found this was insufficient to affirmatively invoke the speedy trial statute. Murray, 379 Ill.
App. 3d at 161. The appellate court noted that the trial court made no finding that this
objection rose to the level of a speedy trial demand. Murray, 379 Ill. App. 3d at 161. The
Murray court stated: “In the absence of language clearly showing an intent to invoke the
speedy-trial statute and without a specific finding by the trial court, there is not an
affirmative and unambiguous request for a speedy trial on the record.” Murray, 379 Ill.
App. 3d at 161. 11 ¶ 33 More recently, our supreme court found the following insufficient to invoke the
defendant’s speedy trial right: “ ‘Judge, he’s in custody. Ready for trial. Please note my
objection to the state’s motion.’ ” People v. Hartfield, 2022 IL 126729, ¶¶ 34-38. The
supreme court found that the language of the speedy trial statute required more than a mere
objection to delay to invoke the statutory speedy trial right. Hartfield, 2022 IL 126729,
¶ 35. The defendant must object specifically by demanding trial. Hartfield, 2022 IL
126729, ¶ 35. The supreme court also recognized that the trial court’s interpretation of the
objection is relevant because where the trial court recognizes the objection as a demand for
trial, “there is a more complete understanding that an affirmative demand has been made
and understood.” Hartfield, 2022 IL 126729, ¶ 37.
¶ 34 Here, the defendant’s trial was continued twice at his request. On March 31, 2020,
the defendant objected to a further continuance of his trial by making the “[s]ame
objection” as the “the other in custody juries.” The report of proceedings does not show
what that objection was. In the docket entry for that date, the trial court simply noted that
the defendant’s trial was continued pursuant to Administrative Order 2020-4 over the
defendant’s objection. On May 21, 2020, there is no report of proceedings for this date.
The docket entry for this date also provided that the defendant’s trial was continued
pursuant to Administrative Order 2020-4 over the defendant’s objection. No written
demand for trial was filed on either of these dates. As the record shows, defense counsel
did not specifically ask for trial or use any language clearly showing an intent to invoke
the speedy trial statute. There is no indication in the record that the trial court considered
the defendant’s objection as a demand for a speedy trial. Consistent with Murray and 12 Hartfield, we find that the defendant’s objections were insufficient to invoke the speedy
trial statute on March 31 and May 21. Consequently, no statutory speedy trial violation
occurred.
¶ 35 B. The Defendant’s Sentence
¶ 36 The defendant contends that his seven-year sentence, the maximum allowed
sentence, was excessive where the statutorily preferred sentence was probation. The
defendant argues that the trial court gave insufficient weight to the mitigating factors in the
defendant’s case and gave undue weight to the charges pending against the defendant at
the time of sentencing.
¶ 37 It is well settled that the trial court has broad discretion in fashioning a sentence.
People v. Stacey, 193 Ill. 2d 203, 209 (2000). Reviewing courts will not disturb the trial
court’s sentencing decision, absent an abuse of discretion. People v. Etherton, 2017 IL App
(5th) 140427, ¶ 26. The trial court is given great deference at sentencing because the trial
court, having observed the defendant and the proceedings, is in a superior position than the
reviewing court to consider the relevant sentencing factors. People v. Alexander, 239 Ill.
2d 205, 212-13 (2010). The trial court has the opportunity to weigh such factors as the
defendant’s credibility, demeanor, general moral character, mentality, social environment,
habits, and age. Stacey, 193 Ill. 2d at 209. Consequently, a reviewing court may not
substitute its judgment for that of the trial court merely because the reviewing court would
have weighed the pertinent factors differently. Stacey, 193 Ill. 2d at 209.
¶ 38 Although the trial court has broad discretion in sentencing, its discretion is not
without limitation. Stacey, 193 Ill. 2d at 209. Reviewing courts have the power to reduce a 13 defendant’s sentence pursuant to Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967).
This power, however, should be exercised cautiously and sparingly. Alexander, 239 Ill. 2d
at 212.
¶ 39 At sentencing, the trial court is required to consider the evidence at trial and the PSI.
730 ILCS 5/5-4-1(a)(1), (2) (West 2020). The trial court is also permitted to consider
certain statutory factors in aggravation (730 ILCS 5/5-5-3.2 (West 2020)) and mitigation
(730 ILCS 5/5-5-3.1 (West 2020)). Absent some indication to the contrary, reviewing
courts presume the trial court considered all relevant factors in crafting a sentence. People
v. Flores, 404 Ill. App. 3d 155, 158 (2010). The trial court is not required to enumerate or
assign a value to each factor presented at sentencing. Etherton, 2017 IL App (5th) 140427,
¶ 29. Moreover, “[t]he existence of mitigating factors does not mandate imposition of the
minimum sentence [citation] or preclude imposition of the maximum sentence [citation].”
Flores, 404 Ill. App. 3d at 158.
¶ 40 A sentence that falls within the statutorily prescribed range will not be found
excessive or an abuse of discretion unless it greatly varies from the spirit and purpose of
the law or is manifestly disproportionate to the nature of the offense. Etherton, 2017 IL
App (5th) 140427, ¶ 28. The spirit and purpose of the law are promoted when the trial
court’s sentence reflects both the seriousness of the offense and the defendant’s
rehabilitative potential. Etherton, 2017 IL App (5th) 140427, ¶ 28. The most important
factor for the trial court to consider is the seriousness of the offense. Etherton, 2017 IL App
(5th) 140427, ¶ 28.
14 ¶ 41 Here, the defendant’s sentence was neither excessive nor an abuse of discretion. The
record shows that the trial court carefully considered the evidence presented at trial and
sentencing, the PSI, the psychosexual evaluation, and the defendant’s statement in
allocution. The record also shows that the trial court considered the relevant statutory
factors in aggravation and mitigation, the defendant’s rehabilitative potential, and whether
probation would be an appropriate sentence for the defendant.
¶ 42 We do not find that the trial court gave insufficient weight to the mitigating factors
in the defendant’s case, or that the trial court gave undue weight to the charges pending
against the defendant at the time of sentencing. After considering the evidence and
information before it, the trial court determined that probation would deprecate the
seriousness of the offense and that a sentence of imprisonment was necessary to protect the
public. We also do not find that the defendant’s sentence varies from the spirit and purpose
of the law or is manifestly disproportionate to the nature of the offense. The evidence
showed that the defendant sexually abused his stepdaughters over a period of several years.
The trial court found that the State presented reliable evidence that the defendant sexually
abused his grandchildren many years later. Thus, we will not disturb the defendant’s
sentence.
¶ 43 For the foregoing reasons, the defendant’s convictions and sentence are affirmed.
¶ 44 Affirmed.