NOTICE

Decision filed 08/31/16. The text of this decision may be NO. 5-14-0526 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Clinton County. ) v. ) No. 14-CF-94 ) CHARLES L. KILCAUSKI, ) Honorable ) Dennis E. Middendorff, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________

JUSTICE CATES delivered the judgment of the court, with opinion. Justices Goldenhersh and Chapman concurred in the judgment and opinion.

OPINION

¶1 The People of the State of Illinois (the State) appeal the order of the circuit court

of Clinton County dismissing this case against the defendant, Charles L. Kilcauski, for

violations of the defendant's right to a speedy trial. For reasons that follow, we affirm.

¶2 BACKGROUND AND PROCEDURAL HISTORY

¶3 The defendant, Charles L. Kilcauski, was arrested in Clinton County, Illinois, on

June 23, 2013. On June 24, 2013, he was charged by information (cause No. 13-CF-80)

in the circuit court of Clinton County, with obstructing justice, a Class 4 felony (count I),

and unlawful possession of a hypodermic syringe, a Class A misdemeanor (count II). As

1 to the felony count, the information charged that the defendant, with the intent to prevent

his apprehension, knowingly furnished false information to a police officer in that the

defendant, when asked to identify himself, provided a name and date of birth different

from his own. The defendant appeared in court, pro se, that same day. The court set

bond at $20,000, appointed the public defender, and scheduled the defendant's first

appearance date for July 3, 2013. On June 25, 2013, the public defender filed an entry of

appearance, along with the defendant's plea of not guilty and jury demand, a discovery

motion, and a motion to reduce bond.

¶4 On July 3, 2013, the assistant State's Attorney and the public defender appeared in

court, but the defendant did not appear. There is no report of proceedings from this date,

but an entry in the court's docket sheet indicates that the defendant was in custody in St.

Louis, Missouri. The docket sheet shows that the court issued a notice to appear on

August 7, 2013, and the notice was sent to the defendant's home address.

¶5 On August 7, 2013, the assistant State's Attorney and the public defender appeared

in court. The defendant did not appear. When the defendant's case was called for

hearing, the assistant State's Attorney informed the trial court that the Clinton County

sheriff's department had turned over the defendant to authorities in St. Louis County.

The assistant State's Attorney stated that he talked to authorities at the St. Louis County

jail and confirmed that the defendant was in the custody of St. Louis County, being held

to bond. The assistant State's Attorney advised the court that during the proceedings on

July 3, 2013, he had requested a warrant, that his request had been denied, and that he

had been unable to get the defendant back to Clinton County without a warrant. 2 ¶6 After being apprised of the situation, the trial court indicated that it understood

that the Clinton County sheriff's department had turned the defendant over to St. Louis

County, without the consent of the State's Attorney's office, but then advised the assistant

State's Attorney that the sheriff's department is part of the State. The court found that

although the defendant was not in the physical custody of the Clinton County sheriff's

department, the defendant remained in the sheriff's custody because he had not posted

bond or escaped from custody. The court stated that it would not issue a warrant for

failure to appear because it was not the defendant's fault that he could not appear. The

court then, on its own motion, dismissed the case because the State had not provided the

defendant with a preliminary hearing within 30 days from the date he was taken into

custody. The docket entry from that date stated: "defendant not present, it appears to the

court that the Sheriff of Clinton County has transferred physical custody of the defendant

to the state of Missouri without completion of process in this County. As a consequence

of the Sheriff's act, the state is unable to proceed to preliminary hearing [w]ithin 30 days

as required by law. Cause dismissed."

¶7 On August 8, 2013, the State filed a motion to nol-pros count II of the information.

In its motion, the State noted that a defendant does not have a right to a preliminary

hearing on a misdemeanor charge and that the order dismissing the misdemeanor count

was improper. On that same day, the trial court issued an order granting the State's

motion to nol-pros the misdemeanor count without prejudice. The court also clarified its

prior order. The court acknowledged that it had authority to dismiss only the felony

3 count for failure to provide a preliminary hearing and noted that the felony count was

dismissed without prejudice.

¶8 On August 14, 2013, the defendant, acting pro se, submitted a motion for speedy

trial in the circuit court of Clinton County in No. 13-CF-80. The handwritten pleading

was received and file-marked by the court on August 14, 2013. The first page states: "I

am currently incarcerated at the St. Louis County Jail, located at 100 South Central Ave.,

Clayton, MO, 63105. I would like this motion to be filed and notice to the following

people[:] Circuit Clerk Clinton County, IL, Judge Middendorf [sic] Clinton County, IL;

St. Louis County Justice Services, 100 Central Ave., Clayton MO, 63105; Charles L.

Kilcauski, Inmate #188074 100 South Central Ave., Clayton, MO 63105." The second

page states: "I Charles Kilcauski file pro se, a motion for a 120 day fast and speedy trial."

¶9 On July 17, 2014, a Clinton County grand jury returned a bill of indictment against

the defendant, charging one count of obstructing justice, a Class 4 felony, and one count

of unlawful possession of a hypodermic syringe, a Class A misdemeanor. These charges

arose from the same offenses for which the defendant was arrested on June 23, 2013, and

were identical to the charges filed on June 24, 2013, in No. 13-CF-80. The indictment

was filed in the circuit court of Clinton County (cause No. 14-CF-94), along with the

State's notice of intent to seek an extended term of imprisonment. The court issued an

arrest warrant. Bond was set at $50,000 because of the notice of extended term.

¶ 10 The defendant was arrested in Clinton County on September 3, 2014, after being

stopped for a traffic violation. He appeared in court on September 4, 2014. The court

appointed the public defender and set first appearance for September 24, 2014. 4 ¶ 11 On September 9, 2014, the Clinton County public defender filed an entry of

appearance, a plea of not guilty, a jury-trial demand, and a motion for discovery. On

September 16, 2014, the public defender filed a motion to dismiss the felony charge,

pursuant to section 114-1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS

5/114-1 (West 2014)), for failure to state an offense. In the motion, the defense argued

that the alleged acts of intentionally furnishing a false name and date of birth to a police

officer constitute obstructing identification, a Class A misdemeanor, not felony

obstruction of justice. The public defender also filed a motion to dismiss the charges

pursuant to the defendant's sixth amendment right to a speedy trial. In the motion to

dismiss, the defense pointed out that the pending charges were identical to those

previously dismissed in August 2013 and that the pending charges were presented to a

grand jury and an indictment obtained on July 17, 2014, approximately 13 months after

the alleged offenses were committed and approximately one year after the original

charges were dismissed. The defense argued that the State offered no reason for the

delay, that the defendant had requested a speedy trial while in St. Louis County jail, and

that the defendant did nothing to cause or contribute to the delay. The defense also

claimed that the defendant had been severely prejudiced by the delay.

¶ 12 The defendant's motion to dismiss was called for hearing on September 24, 2014.

During the hearing, the defendant noted that the felony count in the original information

had been dismissed because the State violated the defendant's right to a preliminary

hearing and that the State waited for almost a year to seek an indictment. The defendant

claimed that he sought a disposition of the charges in June 2013 and that the year-long 5 delay between the dismissal of the information and the filing of the indictment resulted in

extreme prejudice because the defendant lost track of his only witness and because a deal

might have been negotiated that would have allowed him to serve a term concurrent with

his incarceration in Missouri.

¶ 13 In response, the State argued that the defendant's pro se motion for a speedy trial

was of no effect because the underlying charges had been dismissed before the motion

was filed and because the defendant had not served a copy of the speedy-trial request on

the State's Attorney as required under the Interstate Agreement on Detainers. The State

further argued that there was no constitutional speedy-trial violation because the

subsequent charges were filed within the applicable statute-of-limitations period and the

delay in filing the charges occurred because the defendant was incarcerated in Missouri.

¶ 14 After considering the arguments of counsel, the court issued its findings and order.

The court found that the State knew, as of August 7, 2013, that the defendant had been

transferred to St. Louis County Justice Center without completion of process in Clinton

County; that the original felony charge was dismissed on August 7, 2013, for failure to

provide a preliminary hearing due to the defendant's transfer to St. Louis County without

process; that the State elected to nol-pros the misdemeanor charge on August 8, 2013;

and that the bill of indictment was filed on July 17, 2014, more than a year after the

defendant was initially taken into custody on the charges. The court also found that the

State knew that the defendant was detained in the St. Louis County jail and that it could

have secured an indictment and sought extradition shortly after the original charges were

dismissed. The court determined that there were both preindictment and postindictment 6 delays in this case, noting that neither the indictment nor preliminary hearing was had in

a timely fashion and that the State offered no explanation for the delays. The court

granted the defendant's motion and dismissed the case with prejudice on constitutional

speedy-trial grounds.

¶ 15 On October 14, 2014, the State filed a motion to reconsider the order of dismissal.

In this motion, the State attributed the delay to the defendant's failure to properly notify

the State's Attorney's office that he was incarcerated in St. Louis County and the

defendant's failure to follow proper procedure under the Interstate Agreement on

Detainers. The motion was called for hearing on October 21, 2014. At the outset, the

court asked the State if it wished to make any arguments in support of its motion, and the

State declined, electing to stand on its motion. The court then turned to the defendant's

attorney and asked how long the defendant had been in custody in St. Louis County.

Counsel replied that the defendant remained in custody until March 2014. The court then

asked the assistant State's Attorney whether it was the State's contention that the 120-day

speedy-trial clock stopped when the sheriff transferred the defendant to authorities in

Missouri. The assistant State's Attorney replied that he could not say that. Counsel

stated that the defendant's transfer to Missouri created an issue regarding the ability to

provide the defendant with a preliminary hearing and that the 120-day speedy-trial clock

stopped when the charges in the information were dismissed.

¶ 16 Following this inquiry, the court found that the defendant had been sent to

Missouri without extradition or a waiver of extradition and that the defendant had been

placed in the physical custody of Missouri authorities with the consent of the Clinton 7 County sheriff's department but without a court order. The court further found that after

the original charges in Clinton County were dismissed, there was never an order releasing

the defendant from the custody of Clinton County and the defendant remained in the

physical custody in St. Louis County until March 2014. Additionally, the court found

that the State did not present the case to the grand jury until July 17, 2014, even though it

could have obtained an indictment and sought extradition of the defendant shortly after

the original charges were dismissed. The court concluded that these delays presented not

only a constitutional speedy-trial problem, but also a statutory speedy-trial problem. The

court denied the State's motion to reconsider, and this appeal followed.

¶ 17 ANALYSIS

¶ 18 On appeal, the State contends that the trial court erred in dismissing the charges

against the defendant on speedy-trial grounds. The State claims that the trial court

incorrectly applied the sixth amendment constitutional speedy-trial test when it

considered the delay between the dismissal and nol-pros of the original charges and the

filing of the bill of indictment. The State claims that the only relevant question is

whether the delay constituted a denial of due process under the fifth amendment and that

because the trial court did not conduct a due-process analysis, its decision must be

vacated and the cause remanded for a due-process analysis.

¶ 19 The right to a speedy trial is guaranteed by the United States Constitution and the

Illinois Constitution. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. A

criminal defendant in Illinois also has a statutory right to a speedy trial. 725 ILCS 5/103-

8 5 (West 2014). The constitutional and statutory rights to a speedy trial are not necessarily

coextensive. People v. Campa,

,

(2005).

¶ 20 When considering whether a defendant's constitutional right to a speedy trial has

been violated, there are four factors that may be considered and balanced: the length of

the delay, the reasons for the delay, the defendant's assertion of the right to a speedy trial,

and the prejudice to the defendant. Barker v. Wingo,

(1972); Campa,

,

. No single factor is regarded as "a necessary or

sufficient condition to the finding of a deprivation of the right of speedy trial." Barker,

. All factors are related and must be considered together with other

relevant circumstances in assessing whether a defendant's fundamental right to a speedy

trial has been violated. Barker,

.

¶ 21 In considering whether there is a constitutional speedy-trial violation, the length of

the delay is considered the triggering mechanism for considerations of the other factors,

but the length of delay is necessarily dependent on the peculiar circumstances of the case,

and not on any fixed period of time. Barker,

. The weight to be

accorded the reasons cited by the prosecution for the delay is likewise dependent on the

particular circumstances, such that deliberate delays are weighted heavily and negligence

is weighted a little less heavily. Barker,

. Whether and how a defendant

asserts his right is also a factor. Barker,

. Finally, in assessing the

prejudice factor, courts are to consider the interests of defendants that the speedy-trial

right was designed to protect: (1) preventing undue and oppressive incarceration, (2)

9 minimizing the anxiety and concern that accompanies public accusations, and (3) limiting

the possibility that the defense will be impaired. Barker,

.

¶ 22 The statutory right to a speedy trial is set forth in section 103-5 of the Code. 725

ILCS 5/103-5 (West 2014). Section 103-5(a) provides that every person in custody in

this state for an alleged offense must be tried within 120 days from the date that person

was taken into custody unless delay is occasioned by that person. 725 ILCS 5/103-5(a)

(West 2014). Section 103-5(b) provides that every person on bail or recognizance must

be tried within 160 days from the date that person demands trial unless delay is

occasioned by that person. 725 ILCS 5/103-5(b) (West 2014). Proof of a violation of a

defendant's rights under section 103-5 requires a showing that the defendant has not been

tried within the period set by the statute, and that the defendant had not caused or

contributed to the delay. Campa,

,

. Defendants

who rely on the statutory right to a speedy trial are not required to show prejudice.

People v. Staten,

,

(1994). The provisions of

section 103-5 are to be liberally construed in favor of the defendant, and the State cannot

improperly manipulate criminal proceedings or purposefully evade the operation of the

provisions in section 103-5. People v. Van Schoyck,

,

(2009).

¶ 23 The fifth and fourteenth amendments to the United States Constitution also

guarantee due process in criminal proceedings and protect a criminal defendant against

proceedings that are fundamentally unfair. U.S. Const., amends. V, XIV. Due process

under the fifth amendment would require the dismissal of an indictment if it were shown 10 that a preindictment delay resulted in substantial prejudice to the defendant's right to a

fair trial and that the delay was an intentional device by the prosecution to gain tactical

advantage over the defendant. United States v. Marion,

(1971);

People v. Lawson,

,

(1977). The trial court

has an obligation to insure a fair trial. Where there has been a clear denial of due process,

the trial court has the inherent authority to dismiss a case. Lawson,

,

.

¶ 24 Before considering the merits of the appeal, we consider the appropriate standard

of review. In this case, the relevant facts are uncontested, and as such, the trial court's

determination of the constitutional issues and the statutory speedy-trial issue are reviewed

de novo. See People v. Crane,

,

(2001) (where

relevant facts are uncontested, the ultimate determination of whether a defendant's

constitutional right to a speedy trial has been violated is reviewed de novo); People v.

Stanitz,

,

(2006) (the application of the

speedy-trial statute to undisputed facts presents questions of law that are reviewed de

novo); People v. Totzke,

, ¶ 17,

(the

determination of whether due process has been violated is a question of law that is

reviewed de novo).

¶ 25 The Sixth Amendment Speedy-Trial Analysis

¶ 26 Having outlined the due-process and speedy-trial analyses at issue and the

appropriate standards of review, we now address the State's contention that the trial court

erred in considering the period of delay between the dismissal of the original charges and 11 the filing of the bill of indictment under a constitutional speedy-trial analysis, rather than

a due-process analysis.

¶ 27 As previously noted, the particular safeguards and protections of the constitutional

speedy-trial provision are engaged either upon filing a formal indictment or information

or the actual restraints imposed by arrest and being held to answer a criminal charge.

Marion,

. Thus, a person may invoke the constitutional speedy-trial

provision upon arrest and being held to answer; he need not await a formal charge.

Marion,

.

¶ 28 In this case, the defendant was arrested on June 23, 2013, and he was charged and

held to bond in Clinton County on June 24, 2013. Sometime between June 24, 2013, and

July 3, 2013, the Clinton County sheriff's department voluntarily relinquished physical

custody of the defendant to St. Louis County, without extradition or waiver of extradition

or other order of the circuit court of Clinton County. The original felony charge was

dismissed without prejudice on August 7, 2013, because the State had failed to provide

the defendant with a preliminary hearing within 30 days of the date the defendant was

taken into custody. The State then elected to nol-pros the misdemeanor on August 8,

2013. The State sought and secured an indictment on the identical charges on July 17,

2014, and an arrest warrant issued that day. The defendant was arrested on that warrant

following a routine traffic stop on September 3, 2014. After reviewing the record, the

trial court determined that the defendant had never been released from the custody of the

Clinton County sheriff's department, even though the charges had been dismissed, and

the defendant remained in the physical custody of St. Louis County until March 2014. 12 Thus, there was a delay of more than a year between the date the defendant was arrested

and detained on the original charges and the date of his indictment on those same

charges. The delay between the dismissal of the original charges and the filing of the bill

of indictment on the same charges was almost a year.

¶ 29 Under these unique circumstances, the restraint imposed upon the defendant's

liberty began on July 23, 2013, the date he was arrested and detained in Clinton County,

and extended through the date of the subsequent indictment and arrest, as there had never

been an order releasing him from custody in Clinton County. In this case, there were

restraints on the defendant's liberty that triggered the protections of the speedy-trial

provision of the sixth amendment. Marion,

. Accordingly, we now

consider whether the delay violated the defendant's constitutional right to a speedy trial.

¶ 30 As previously noted, there are four factors to be considered when determining

whether a defendant's right to a speedy trial has been violated: the length of delay, the

reasons for the delay, the defendant's assertion of his speedy-trial right, and the prejudice

to the defendant as a result of the delay. Barker,

. In this case, there was

a delay of more than a year between the date the defendant was arrested and detained on

the original charges and the date of his indictment on those same charges. The delay

between the dismissal of the original charges and the filing of the bill of indictment was

almost a year. Under either measure, the length of the delay is "presumptively

prejudicial" and triggers an inquiry into the other factors. Barker,

;

Crane,

,

.

13 ¶ 31 Therefore, we next consider the reason for the delay. In this case, the State offered

no explanation to justify the delay. The State attempted to deflect responsibility for its

failure to provide a preliminary hearing by arguing that the Clinton County sheriff's

department voluntarily relinquished custody of the defendant to authorities in St. Louis

County without notice to the State's Attorney or the court. As the trial court correctly

noted, the sheriff's department is part of the State, and any negligent or unlawful actions

by that department are attributable to the State. The State also attempted to blame the

defendant for failing to provide notice of his whereabouts after he was transferred to

authorities in St. Louis County. In this case, the record shows that the State had actual

knowledge of the defendant's whereabouts shortly after he was transferred to the St.

Louis County Justice Center. In fact, the assistant State's Attorney advised the court that

he had spoken to authorities in St. Louis County and confirmed that the defendant was

being held to bond in St. Louis County. The record also shows that the defendant filed a

motion for speedy trial in Clinton County on August 14, 2013, and therein stated that he

was being held at the St. Louis County Justice Center and provided the address of that

facility. Thus, the defendant was not operating as a fugitive. The State did not seek an

indictment for more than 11 months after the initial charges were dismissed, and it

offered no reason for the delay. As the State did not present any reason to justify the

delay, this factor is weighed against the State.

¶ 32 The third factor is the assertion of the right to a speedy trial. In this case, the

defendant attempted to assert his right to a speedy trial while he was being held in the St.

Louis County Justice Center. The defendant, acting pro se, filed a handwritten motion 14 within a week after the original charges had been dismissed. There is no indication in the

record of whether the defendant knew that the charges in Clinton County had been

dismissed at the time he filed his motion. In this case, the record demonstrates that the

defendant made an attempt to request a speedy trial and a disposition of the charges in

Clinton County. This factor weighs in the defendant's favor.

¶ 33 Finally, we consider the prejudice resulting from the delay. In this case, it appears

undisputed that the defendant was subjected to a lengthy pretrial incarceration period of

at least eight months. The defendant also alleged actual prejudice from the delay in that

he was unable to locate the only witness to the conversation with the police officer that

led to his arrest for obstructing justice, and he lost the opportunity for concurrent

sentencing. The State offered no argument or evidence to dispute these allegations of

prejudice.

¶ 34 In summary, the length of the delay was presumptively prejudicial; the State

presented no facts to justify the delay; the defendant made the attempt to request a speedy

trial and a disposition of the charges; and the defendant made an affirmative showing of

actual prejudice in that he endured a lengthy period of incarceration during the period

between the dismissal of the information and the filing of the indictment. In addition, the

defendant's other allegations of prejudice were not contested by the State. In our view,

under these unique facts, the delay resulted in a violation of the defendant's constitutional

right to a speedy trial, and the trial court did not err in granting the defendant's motion to

dismiss this case on constitutional speedy-trial grounds.

15 ¶ 35 The Statutory Speedy-Trial Analysis

¶ 36 We will briefly address the State's contention that the trial court erred in finding

that the defendant's statutory right to a speedy trial was violated. Under the speedy-trial

statute, the State has 120 days to begin trial once a defendant is taken into custody, unless

there is delay occasioned by the defendant. 725 ILCS 5/103-5(a) (West 2014). In this

case, the speedy-trial clock started to run when the defendant was taken into custody on

June 23, 2013. Although the Clinton County sheriff's department voluntarily transferred

the defendant to authorities in St. Louis County, Missouri, the defendant remained in the

custody of the sheriff's department. The trial court determined that the defendant had not

been released from custody in Clinton County, even though all charges were dismissed.

Under these circumstances, the speedy-trial clock was not tolled. According to the

record, the defendant was released from Missouri in March 2014. At that point, the

defendant had been in continuous custody for more than eight months, and the defendant

did not to contribute to the delay. Accordingly, the trial court did not err in finding that

the defendant's statutory right to a speedy trial under section 103-5(a) was violated.

¶ 37 Given our resolution of the speedy-trial issues, we have no need to consider

whether the delay resulted in a due-process violation.

¶ 38 CONCLUSION

¶ 39 In this case, the record demonstrates that the defendant's constitutional and

statutory rights to a speedy trial were violated, and the trial court properly granted the

defendant's motion to dismiss. Accordingly, the judgment of the circuit court is affirmed.

16 ¶ 40 Affirmed.

17

NO. 5-14-0526

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Clinton County. ) v. ) No. 14-CF-94 ) CHARLES L. KILCAUSKI, ) Honorable ) Dennis E. Middendorff, Defendant-Appellee. ) Judge, presiding. __________________________________________________________________________

Opinion Filed: August 31, 2016 __________________________________________________________________________

Justices: Honorable Judy L. Cates, J.

Honorable Richard P. Goldenhersh, J., and Honorable Melissa A. Chapman, J., Concur __________________________________________________________________________

Attorneys Hon. John Hudspeth, State's Attorney, Clinton County Courthouse, for 850 Fairfax, Carlyle, IL 62231, Patrick Delfino, Director, Appellant Stephen E. Norris, Deputy Director, Kelly M. Stacey, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 __________________________________________________________________________

Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy for Defender, Maggie A. Heim, Assistant Appellate Defender, Office Appellee of the State Appellate Defender, Fifth Judicial District, 909 Water Tower Circle, Mt. Vernon, IL 62864 __________________________________________________________________________