Opinion filed June 9, 2016 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2016

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-14-0235 v. ) Circuit No. 12-CF-309 ) RICKEY D. SMITH, ) Honorable ) David A. Brown, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court, with opinion. Presiding Justice O'Brien and Justice Holdridge concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 Defendant, Rickey D. Smith, appeals his aggravated criminal sexual abuse conviction

arguing that the trial court erred in denying his motion to dismiss for violation of his speedy trial

rights. We reverse and remand with directions for the trial court to vacate its order denying the

motion to dismiss and to enter judgment dismissing the charges.

¶2 FACTS

¶3 On March 20, 2012, defendant was charged by indictment with two counts of aggravated

criminal sexual abuse (720 ILCS 5/12-16(d) (West 2010)) in Peoria County. An arrest warrant

was ordered that same day, which listed defendant's location as the Sangamon County jail in Springfield, Illinois. He was being held in the Sangamon County jail while awaiting trial for a

separate charge of aggravated criminal sexual abuse. On June 24, 2012, defendant was served

with the arrest warrant while in the Sangamon County jail. 1 On July 11, 2012, Peoria County

sent a message to Sangamon County regarding defendant which stated, "Please place a hold for

[Peoria County]." On June 11, 2013, defendant was sentenced on the Sangamon County offense

to four years' in the Department of Corrections (DOC). He was transferred to the DOC 31 days

later on July 12, 2013.

¶4 On July 17, 2013, a Peoria County judge issued an order for habeas corpus ad

prosequendum directing the DOC to transport defendant to court on August 8, 2013. Defendant

was arraigned in Peoria County on August 8, 2013, and the case was set for pretrial on

September 13, 2013, and trial on September 23, 2013.

¶5 On September 13, 2013, the State asked for a continuance, to which defendant objected

and presented himself as ready for trial. Over defendant's objection, the court struck the

September 23, 2013, trial date and set the case for trial on October 28, 2013. At a pretrial on

October 18, 2013, defendant indicated he was going to file a motion to dismiss based on a

speedy trial violation, which he did on October 24, 2013. After taking the matter under

advisement, the trial court denied the motion to dismiss. The court reasoned that the intrastate

detainer statute of the Unified Code of Corrections (Act) (730 ILCS 5/3-8-10 (West 2012))

applied; and therefore, the speedy trial time was 160 days and defendant was required to make a

speedy trial demand in order to start the speedy trial clock.

1 Although the record is unclear about the exact date the warrant was served, both parties

accept June 24, 2012, as the date of service.

2 ¶6 Defendant, proceeding pro se, filed a motion to reconsider dismissal for a speedy trial

violation on November 15, 2013. The State responded, and included a fax from the Sangamon

County sheriff's office that indicated that defendant was not being held for Peoria County, but

that there was a delay in receiving the judgment and sentence from the Sangamon County court.

The motion to reconsider was denied. The court determined that the fact that defendant had been

held in Sangamon County before being transported to the DOC did not mean he was being held

for Peoria County. Defendant "was committed" to the DOC upon termination of the Sangamon

County proceedings.

¶7 On December 11, 2013, after a jury trial, defendant was found guilty of both counts of

aggravated criminal sexual abuse. He was subsequently sentenced to concurrent sentences of

seven years' incarceration to run concurrent with the sentence for the Sangamon County offense.

¶8 ANALYSIS

¶9 On appeal, defendant contends that he was denied his statutory right to a speedy trial as:

(1) he was served with a Peoria County arrest warrant in this case while he was awaiting trial in

Sangamon County on another charge; (2) he was held in the Sangamon County jail for 31 days

after he was sentenced on the Sangamon County case; and (3) over 120 days passed from the

termination of proceedings in Sangamon County to the date he filed his motion to dismiss.

¶ 10 Defendant recognizes that, though he filed a motion to dismiss for a speedy trial violation

and a motion to reconsider the dismissal of the motion, he failed to file a posttrial motion, and

the issue has not been preserved for appeal. See People v. McCarty,

(2006)

("[T]he failure to raise an issue in a posttrial motion results in the forfeiture of that issue on

appeal."). However, we accept defendant's request to consider his argument under the plain error

doctrine. See People v. McKinney,

(where a defendant failed to

3 properly preserve a speedy trial issue for review, "it is subject to plain error review because a

speedy trial implicates fundamental constitutional concerns.").

¶ 11 We review forfeited errors under the plain error doctrine in two instances: "(1) where a

clear or obvious error occurred and the evidence is so closely balanced that the error alone

threatened to tip the scales of justice against the defendant, regardless of the seriousness of the

error and (2) where a clear or obvious error occurred and that error is so serious that it affected

the fairness of the defendant's trial and challenged the integrity of the judicial process." People

v. Belknap,

, ¶ 48. However, when reviewing a case under the plain error

doctrine, the first step is determining whether any error occurred. People v. Walker,

(2009). We begin our examination of the potential error with a review of the

applicable speedy trial authority.

¶ 12 Both the United States Constitution and the Illinois Constitution guarantee the right to a

speedy trial for anyone accused of a crime. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8.

The Illinois speedy trial statute enforces this constitutional right, and its protections are to be

liberally construed in favor of the defendant. People v. Buford,

(2007).

Section 103-5(a) of the speedy trial statute states, "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

was taken into custody unless delay is occasioned by the defendant ***." 725 ILCS 5/103-5(a)

(West 2012). It does not require a defendant to file a demand to exercise his or her speedy trial

rights. See id.; People v. Zeleny,

(2009). However, under section 103-

5(b) of the speedy trial statute any person on bail or recognizance must be tried within 160 days

from the date that the defendant demands trial. 725 ILCS 5/103-5(b) (West 2012). The IDA

further applies the 160-day time period and trial demand requirement to "persons committed to

4 any institution or facility or program of the [DOC] who have untried complaints, charges or

indictments pending in any county of this State." 730 ILCS 5/3-8-10 (West 2012). "Proof of a

violation of the statutory right requires only that the defendant has not been tried within the

period set by statute and that defendant has not caused or contributed to the delays." People v.

Staten,

(1994).

¶ 13 We first must determine which of the above speedy trial provisions applies in the instant

case (section 103-5(a) or section 103-5(b) through application of the IDA). The answer to this

question derives from whether defendant was in the custody of the DOC, Peoria County, or

Sangamon County.

¶ 14 At the outset, we reject the State's reliance on People v. Williams,

(2011), for the proposition that a defendant is in the legal custody of the DOC upon the entry of

judgment on his conviction and sentence. The State concludes that defendant would have been

in the custody of the DOC as soon as he was sentenced and the 160-day period would have

applied after defendant submitted a written speedy trial demand. However, Williams does not

deal with a speedy trial issue. See

The Illinois Supreme Court specifically stated that it was

considering the "narrow question of whether the day of a defendant's commitment to the [DOC]

should be counted by the circuit court in its calculation of presentence credit or counted by the

[DOC] as the first day of sentence."

. It also stated that the plain language of section

5-4.5-100 of the Unified Code of Corrections (730 ILCS 5/5-4.5-100 (West 2012)) compelled

the holding, and that the Code of Criminal Procedure of 1963 (725 ILCS 5/100-1 et seq. (West

2012)) was an entirely different code that was not at issue.

. Therefore, Williams does

not apply in this case.

5 ¶ 15 Instead, we must examine how Illinois case law has defined "custody" in the context of

the Code of Criminal Procedure of 1963. The terms " '[c]ustody' and 'commitment' are both

terms which have commonly been used interchangeably to characterize actual 'imprisonment,' or

'incarceration,' or 'confinement.' " People v. Mikrut,

(1969). As

defendant was not actually imprisoned, incarcerated, or confined by the DOC at the time that the

proceedings in Sangamon County were terminated, defendant was not in the custody of the

DOC, and the IDA does not apply. See People v. Woodruff,

(1980),

rev'd on other grounds,

(1981) (holding that a person is "committed" for purposes of

the IDA "when he is in custody of, confined, or held by the [DOC]" so defendant, who was

retained by the county after sentencing, was not committed to the DOC until he was actually sent

there). Thus, defendant was not in the custody of, or committed to, the DOC after he was

sentenced in Sangamon County.

¶ 16 We now address the issue of whether defendant was in the custody of Peoria County.

When a defendant is in custody awaiting trial in one county and charges are pending against him

in another county, the 120-day speedy trial period "does not begin to run until the proceedings in

the first county end and defendant is held in custody by or for the second county on the subject

charges." People v. Wentlent,

(1982). A defendant is not in the

custody "of the second county until the first proceedings have ended, even where a defendant is

served with a warrant while incarcerated in the first county [citation], where a 'hold' or 'detainer'

is lodged against him while incarcerated in the first county [citations], or where defendant is

brought before the court in the second county, but then is returned again to the custody of the

first county."

In order for a defendant to be in the custody of the second county upon

termination of proceedings in the first county, defendant must be served with a warrant while

6 incarcerated in the first county. See Wentlent,

(defendant was not in the

custody of DuPage County after proceedings terminated in Cook County as he had not been

served a warrant while incarcerated in Cook County); People v. Karr,

(1979) (defendant was not in custody of the second county where defendant was only given an

informal copy of the complaint and warrant while in custody in the first county).

¶ 17 Here, defendant was held awaiting trial in Sangamon County when he was served with a

warrant for the instant case. The service of the Peoria County warrant on defendant effectuated

his custody by Peoria County upon the termination of the Sangamon County proceedings. Stated

another way, defendant was legally transferred to the custody of Peoria County once he was

sentenced on the Sangamon County conviction. While we do not have the record for defendant's

Sangamon County case, the existence of any pending posttrial motions would not change our

conclusion. See People v. Kerley,

(1979) (after a DuPage County detainer

warrant was served during the proceedings on a case in Cook County, defendant was in custody

of DuPage County the day he entered his guilty plea and was sentenced); People v. Gardner,

(1982) ("Since a Williamson County warrant was served on this defendant

in Jackson County prior to the termination of the Jackson County proceedings, we are of the

opinion that [defendant] was being held for Williamson County as soon as the Jackson County

prosecution had concluded"). Accordingly, defendant was in custody of Peoria County after he

was sentenced on June 11, 2013, and therefore, section 103-5(a) of the speedy trial statute

applies, giving the State 120 days to bring defendant to trial. See 725 ILCS 5/103-5(a) (West

2012).

¶ 18 Having determined that defendant was in the custody of Peoria County after sentencing

in Sangamon County, we next turn to the question of whether defendant's speedy trial rights

7 were violated after he was taken into custody. The 120-day speedy trial clock began as soon as

defendant was in custody of Peoria County after sentencing in Sangamon County. See 725 ILCS

5/103-5(a) (West 2012); People v. Peco,

(2004) (the 120-day term

begins to run as soon as the defendant is taken into custody). No formal demand is necessary

under this portion of the statute. See 725 ILCS 5/103-5(a) (West 2012); People v. Castillo,

(2007). Over 120 days passed from the time defendant was taken into

custody by Peoria County to the time his motion to dismiss was filed on October 24, 2013, and

even more time passed before his trial ultimately took place on December 11, 2013. Defendant's

speedy trial rights were violated so long as the delay was not attributable to him.

¶ 19 The defendant has the burden of proving that his right to a speedy trial has been violated

and that he caused no delay. People v. Patterson,

(2009). "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." 725 ILCS 5/103-5(a) (West

2012). " 'A defendant is considered to have occasioned a delay when he requests a continuance,

agrees to a continuance, or when his actions otherwise cause or contribute to the delay.' "

Patterson,

(quoting People v. Hatch,

(1982)).

¶ 20 After defendant's sentencing in Sangamon County, he remained in the Sangamon County

jail for 31 days until he was transferred to the DOC. He was then brought to Peoria, was

arraigned, and trial was set for a date within the speedy trial timeframe. Before the trial date, the

State asked for a continuance. Defendant objected and told the court he was prepared for trial.

The continuance was granted over defendant's objection. The new trial date that was set was

outside of the 120-day speedy trial window. Prior to that trial, but after the 120-day window

expired, defendant filed a motion to dismiss on speedy trial grounds, which was denied. We find

8 that defendant did not agree to the delay as he properly objected, and the State further does not

contend that any delay was attributable to defendant. The delay was not occasioned by

defendant, and, as the trial was outside of the 120-day limit, the trial court erred in denying

defendant's motion to dismiss on speedy trial grounds.

¶ 21 Further, the speedy trial error "is so serious that it affected the fairness of the defendant's

trial and challenged the integrity of the judicial process." Belknap,

;

McKinney,

. Defendant is therefore entitled to relief under the

plain error doctrine.

¶ 22 Last, we note that defendant argues, in the alternative, that he is entitled to additional

presentence custody credit. In light of the above, we need not consider this argument.

¶ 23 CONCLUSION

¶ 24 The judgment of the circuit court of Peoria County is reversed and remanded with

directions to the trial court to vacate its order denying the motion to dismiss and to enter

judgment dismissing the charges.

¶ 25 Reversed and remanded with directions.

9