People v. Warren

2021 IL App (5th) 190495-U

• Court: Appellate Court of Illinois
• Decided: June 4, 2021
• Docket: 5-19-0495
• Status: Unpublished

Opinion

NOTICE 2021 IL App (5th) 190495-U NOTICE Decision filed 06/04/21. The This order was filed under text of this decision may be NO. 5-19-0495 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for Rehearing or the disposition of IN THE limited circumstances allowed under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Alexander County. ) v. ) No. 19-CF-40 ) JOHNNY L. WARREN, ) Honorable ) Jeffery B. Farris, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

ORDER

¶1 Held: The circuit court erroneously dismissed defendant’s charges when it combined separate periods of incarceration in calculating defendant’s 120-day speedy trial term.

¶2 The State of Illinois appeals the circuit court’s order denying the State’s motion to

reconsider the court’s August 27, 2019, order granting defendant, Johnny L. Warren’s,

motion to dismiss on speedy trial grounds. The sole issue on appeal is whether the circuit

court should have denied defendant’s motion to dismiss. For the following reasons, we

reverse and remand for further proceedings.

1 ¶3 I. Background

¶4 On January 23, 2019, defendant was arrested and, the next day, charged by

information in No. 19-CF-6 with five counts of first degree murder (720 ILCS 5/9-

1(a)(1), (2) (West 2018)) for the death of Stacy A. Carter-Gonzalez on January 11, 2019.

At his initial appearance on January 24, 2019, defendant informed the circuit court of his

intention to be represented by private counsel. The court did not appoint counsel for

defendant at that time.1

¶5 At the preliminary hearing on February 7, 2019, defendant appeared without

counsel and requested a public defender. After inquiring into defendant’s financial ability

to hire private counsel, the circuit court appointed a public defender for defendant and

reset the preliminary hearing for February 14, 2019.

¶6 At the hearing on February 14, 2019, the circuit court ruled that probable cause

had been shown. Following defense counsel request, the court set defendant’s

arraignment for February 21, 2019.

¶7 At the February 21, 2019, arraignment, defense counsel informed the circuit court

of defendant’s intention to file a motion to reduce bond. In addition, at the request of

defense counsel, defendant’s arraignment was rescheduled for March 5, 2019.

¶8 On March 5, 2019, the circuit court held defendant’s arraignment and heard

argument on defendant’s motion to reduce bond. The State requested additional time to

prepare for a hearing on defendant’s motion to reduce bond. In addition, as it relates to

defendant’s arraignment, defendant waived a formal reading of the charges against him,

1 A transcript from the January 24, 2019, hearing is not contained in the record on appeal. 2 possible penalties, and entered pleas of not guilty. The court set a pretrial hearing for

March 28, 2019, and a jury trial was scheduled for April 9, 2019. The court subsequently

denied defendant’s motion to reduce bond.

¶9 On March 28, 2019, the State requested a continuance for defendant’s jury trial

until May 14, 2019, informing the circuit court that it was waiting on evidence from the

Illinois State Police (ISP) crime lab. Defense counsel objected, indicating that defendant

was prepared to move forward and desired to exercise his right to a speedy trial. Before

granting the State’s request for continuance, the court inquired as to defendant’s speedy

trial rights. In response, the State informed the court that if its motion to continue was

granted and defendant’s jury trial took place on May 14, 2019, defendant would be in

custody for 111 days. The court set a pretrial hearing for April 23, 2019.

¶ 10 At the April 23, 2019, pretrial hearing, the circuit court entered an order for

forensic testing, allowing defendant the right to examine the State’s evidence against him,

including all laboratory testing and results. The court ordered the ISP crime lab to

complete all forensic testing and send all lab reports to the Alexander County State’s

Attorney’s Office before the final pretrial hearing.

¶ 11 On May 7, 2019, the parties appeared before the circuit court for a final pretrial

hearing. At the hearing, both the State and defense counsel indicated readiness to proceed

with defendant’s jury trial. Defendant’s jury trial was scheduled to begin on May 14,

2019.

¶ 12 On May 14, 2019, at the outset of defendant’s trial, the State made an oral motion

to continue, informing the circuit court that four subpoenaed witnesses, three of which 3 were material, had failed to appear. According to the State, pursuant to section 103-5(c)

of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-5(c) (West 2016)),

the court could continue the cause for an additional 60 days provided the State had

exercised due diligence without success. Defense counsel objected. While argument

continued before the court, two of the four witnesses arrived in court. Given this, the

court informed the parties that jury selection would begin, and it would revisit the State’s

oral motion to continue after it allowed the sheriff additional time to obtain the two

missing witnesses. In addition, the court asked “the State and the defendant *** [to] sit

down *** and calculate what *** is an agreed number on where the speedy trial statute

stands.”

¶ 13 Following jury selection, the circuit court addressed the State’s motion to

continue. At that time, three of the four witnesses had appeared in court, although one

material witness, Fanelle Woodson, who was allegedly present on the night of the

murder, had not appeared. Over defense counsel’s objection, the court held Woodson in

contempt of court, issued a warrant to allow the State further opportunity to locate its

witness overnight, and reserved its ruling on the State’s motion to continue.

¶ 14 The next day, on May 15, 2019, the State renewed its motion to continue.

Following argument and testimony concerning the State’s extensive, unsuccessful

attempts to locate Woodson, the circuit court determined that defendant had been in

custody for 101 days, which took into consideration a period of delay attributable to the

defense from February 21, 2019, to March 5, 2019. In addition, the court, declining the

State’s request for an additional 60 days, granted the State a continuance until May 28, 4 2019. According to the court, its ruling did not violate the original 120-day requirement

set forth in the speedy trial statute. The court released the previously selected jury and

informed the parties that a new jury would be selected on May 28, 2019, at defendant’s

scheduled jury trial.

¶ 15 On May 28, 2019, before jury selection began, the State, again, moved to continue

because, despite the assistance of several state agencies, the State was unable to locate

Woodson. 2 Following argument by the parties, the circuit court denied the State’s motion

to continue, declining to extend past the speedy trial term. The State subsequently moved

to nol-pros defendant’s case. Defense counsel did not object. The court granted the

State’s motion, and defendant’s case (No. 19-CF-6) was dismissed with leave to reinstate.

Defendant was subsequently released from custody.

¶ 16 On August 5, 2019, the State charged defendant with five counts of first degree

murder in No. 19-CF-40 for the death of Stacy A. Carter-Gonzalez on January 11, 2019.

See supra ¶ 4. That same day, the circuit court issued a warrant for defendant’s arrest,

and defendant was taken into custody on August 6, 2019. Defendant’s previous defense

counsel took over defendant’s representation.

¶ 17 On August 27, 2019, defendant filed a motion to dismiss the charges, arguing that

the 120-day speedy trial clock had expired. Defendant claimed that he had been in

custody initially from January 23, 2019, until May 28, 2019, when the charges against

2 The State requested leave to supplement the record on September 9, 2020, to include documents from Woodson’s case (No. 19-MR-41), which included a “petition for adjudication of indirect criminal contempt (serious)”; plea of guilty, signed by Woodson; an “order of adjudication (serious) indirect criminal contempt” of court for failure to appear as a material witness in defendant’s case; and the circuit court’s order sentencing Woodson to seven years in the Illinois Department of Corrections. This court subsequently granted the State’s motion to supplement on September 29, 2020. 5 him were dismissed. At that time, defendant argued that the speedy trial clock was tolled

at 115 days. Defendant next argued that he was arrested on August 6, 2019, after the

State refiled the same charges in No. 19-CF-40, causing the speedy trial clock to resume

running again. Accordingly, because he had not yet been placed on trial for the charges in

No. 19-CF-40, defendant argued that he had spent more than 120 days in custody

awaiting trial.

¶ 18 Following a hearing on August 27, 2019, the circuit court granted defendant’s

motion to dismiss. The record reflects that the court’s order granting defendant’s motion

to dismiss is in the form of a docket entry; however, the docket entry does not contain the

court’s reasoning, and the transcript of the August 27, 2019, hearing is not contained in

the record on appeal. Nevertheless, the parties agree on appeal that the court found, after

combining defendant’s periods of incarceration in Nos. 19-CF-6 and 19-CF-40 and then

subtracting delays attributable to defendant, that defendant had been in custody for 128

days. Thus, according to the court, defendant’s statutory right to a speedy trial had been

violated.

¶ 19 On August 30, 2019, the State filed a timely notice of appeal from the circuit

court’s August 27, 2019, order granting defendant’s motion to dismiss. Shortly thereafter,

the State withdrew its notice of appeal and timely filed a motion to reconsider on

September 11, 2019. The State, with reliance on section 103-5(a) of the Code, argued that

the court had erred (1) by combining the two periods of incarceration in Nos. 19-CF-6

and 19-CF-40 and (2) in calculating the days in which delay was attributable to

defendant. In its memorandum, the State argued that, pursuant to section 103-5(a) of the 6 Code, the speedy trial clock started at day zero when defendant was taken into custody on

August 5, 2019,3 for the charges filed in No. 19-CF-40.

¶ 20 On November 13, 2019, following a hearing, the circuit court denied the State’s

motion to reconsider. The State subsequently filed a timely notice of appeal and

supporting affidavit, asserting that the court’s order substantially impaired the State’s

ability to prosecute defendant’s case.

¶ 21 II. Analysis

¶ 22 The sole issue on appeal is whether defendant’s motion to dismiss, based on

speedy-trial provisions of section 103-5(a) of the Code, should have been denied by the

circuit court. The State argues that defendant’s speedy trial clock stopped when the State

moved to nol-pros the charges against defendant in No. 19-CF-6, and the clock restarted

at zero when defendant was taken into custody for the charges later filed in No. 19-CF-

40. As such, the State asserts that the court erred by combining the days defendant had

spent in custody in both No. 19-CF-6 and No. 19-CF-40 when it concluded that

defendant’s statutory right to a speedy trial had been violated. We agree with the State.

¶ 23 In Illinois, a defendant possesses both constitutional and statutory rights to a

speedy trial. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; 725 ILCS 5/103-5

(West 2016). Section 103-5 of the Code sets forth the time frame during which the State

must bring a criminal defendant to trial. The provisions set forth in subsections (a) and

(b) of section 103-5 of the Code state, in pertinent part, as follows:

3 The State claimed in its memorandum that defendant was arrested and taken into custody on August 5, 2019; however, the warrant of arrest is signed by the sheriff having executed the warrant by arresting defendant on August 6, 2019. 7 “(a) 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.

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 defendant is taken into custody a second (or subsequent) time for

the same offense, the term will begin again at day zero.

(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 ***.

For purposes of computing the 160[-]day period under this subsection (b),

every person who was in custody for an alleged offense and demanded trial and is

subsequently released on bail or recognizance and demands trial, shall be given

credit for time spent in custody following the making of the demand while in

custody.” 725 ILCS 5/103-5(a), (b) (West 2016).

The provisions of section 103-5(a) of the Code are to be liberally construed in favor of

the defendant, and the State shall not be allowed to manipulate criminal proceedings or 8 purposefully evade the operation of the provisions set forth in this section. People v.

Van Schoyck, 232 Ill. 2d 330, 335 (2009). Here, because the parties dispute the proper

application of section 103-5 of the Code, this court must interpret its pertinent provisions.

¶ 24 We review issues involving statutory interpretation de novo. People v. Sanchez,

2013 IL App (2d) 120445, ¶ 18. The fundamental rule of statutory construction is to

ascertain and give effect to the legislature’s intent. People v. Blair, 215 Ill. 2d 427, 442

(2005). The most reliable indicator of legislative intent is the language of the statute,

given its plain and ordinary meaning. People v. Clark, 2019 IL 122891, ¶ 20. If possible,

the court must give effect to every word, clause, and sentence, and it must not read a

statute so as to render any part meaningless or superfluous. People v. Ellis, 199 Ill. 2d 28,

39 (2002). When the statute’s language is clear, it will be given effect without resort to

tools of interpretation (Petersen v. Wallach, 198 Ill. 2d 439, 445 (2002)), and a court

must not depart from the statute’s plain language by reading into it exceptions,

limitations, or conditions the legislature did not express. Ellis, 199 Ill. 2d at 39.

¶ 25 Section 103-5(a) of the Code provides that separate periods of incarceration may

not be combined when calculating the 120-day term. Rather, the calculation must be

based on one continuous period of incarceration. In addition, if a defendant is taken into

custody a second or subsequent time for the same offense, the 120-day term starts again

at day zero. Here, defendant initially spent 101 days in custody, as determined by the

9 circuit court on May 15, 2019, 4 until May 28, 2019, when the circuit court granted the

State’s motion to nol-pros in No. 19-CF-6. It is important to note that the effect of the

State’s motion to nol-pros is “to terminate the charge to which it is entered and to permit

the defendant to go wherever he pleases.” People v. Watson, 394 Ill. 177, 179 (1946).

Thus, by virtue of the State’s motion, the charges against defendant for five counts of

first degree murder in No. 19-CF-6 were terminated on May 28, 2019. The State then

charged defendant with the same offenses in No. 19-CF-40 on August 5, 2019, and

defendant was taken into custody for a second time on August 6, 2019. Accordingly,

defendant was subject to two separate periods, not one continuous period, of

incarceration for the same offenses.

¶ 26 Despite this, defendant asserts that the plain and ordinary meaning of section 103-

5(a) of the Code demonstrates that the legislature intended for the speedy trial clock to

restart at zero when defendants are taken into custody more than once during the “same

and continuous prosecution.” (Emphasis in original.) However, the statute neither states

defendant’s proposition nor provides any express language that would indicate this type

of application. Without such express language, we must read the provision within the

plain language of the statute as a whole and refrain from including conditions not clearly

expressed by the legislature. See Schlutz v. Illinois Farmers Insurance Co., 237 Ill. 2d

391, 408 (2010) (“A court may not add provisions that are not found in a statute, nor may

it depart from a statute’s plain language by reading into the law exceptions, limitations, or

4 On May 14, 2019, the circuit court stated that defendant had been in custody for 103 days; however, the next day, on May 15, 2019, the court stated the total days in custody, excluding delay attributable to defendant, was 101 days. 10 conditions that the legislature did not express.”); see also People v. Shinaul, 2017 IL

120162, ¶ 17 (“Absent express language in the statute providing an exception, we will

not depart from the plain language and read into the statute exceptions, limitations, or

conditions that the legislature did not express.”). Accordingly, we will not depart from

the plain language of the statute to add provisions that are not found in the statute.

¶ 27 Additionally, defendant, with reliance on People v. Castillo, 372 Ill. App. 3d 11

(2007), and People v. Decatur, 191 Ill. App. 3d 1034 (1989), argues that “it simply goes

against reason that the legislature would intend” for defendants in custody to be provided

less protection under subsection (a), with the speedy trial clock restarting at day zero in

the event the State moves to nol-pros, than defendants subject to subsection (b), where

the speedy trial clock is tolled when a defendant is released on bond or recognizance. In

making this argument, defendant asserts that subsection (a) does not pertain to situations

where the State moves to nol-pros. We cannot accept this argument.

¶ 28 First, this court will not depart from the plain language of the statute to read into

law an exception, as defendant has requested, that subsection (a) does not pertain to

situations where the State moves to nol-pros charges against a defendant. Because the

statute does not expressly provide such an exception, it would be improper for this court

to depart from the plain language of the statute in this instance. Shinaul, 2017 IL 120162,

¶ 17. Next, our supreme court has stated that “[w]hen the legislature includes particular

language in one section of a statute but omits it in another section of the same statute,

courts presume that the legislature acted intentionally and purposely in the inclusion or

exclusion [citation], and that the legislature intended different meanings and results 11 [citation].” Chicago Teachers Union, Local No. 1 v. Board of Education of the City of

Chicago, 2012 IL 112566, ¶ 24. Here, the legislature included language that courts may

not combine separate periods of incarceration in subsection (a) but omitted such language

in subsection (b). Had the legislature intended for courts to similarly compute the 120-

day and 160-day terms in subsections (a) and (b), it would have expressed so in the

statute. Accordingly, we must presume that the legislature acted intentionally and

purposely in specifically stating that computing the 120-day term must be based on one

continuous period of incarceration. Thus, because the language in subsection (a) is clear,

this court must apply it as written (Reda v. Advocate Health Care, 199 Ill. 2d 47, 55

(2002) (citing Paris v. Feder, 179 Ill. 2d 173, 177 (1997); see Sassali v. Rockford

Memorial Hospital, 296 Ill. App. 3d 80, 83 (1998))) without resort to aids or tools of

interpretation. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006).

¶ 29 III. Conclusion

¶ 30 Accordingly, the circuit court erroneously dismissed defendant’s case when it

combined two separate periods of incarceration in calculating the 120-day speedy trial

term under section 103-5(a) of the Code. Thus, the judgment of the court is reversed, and

defendant’s cause is remanded for further proceedings consistent with this order.

¶ 31 Reversed; cause remanded for further proceedings.