NOTICE

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,

(2008). Any delay occasioned by the defendant tolls the

speedy-trial period until the delay expires, at which point the statute resumes running.

Murray,

. It is the defendant’s burden to establish that delays were

not attributable to his or her conduct. Murray,

. Delay is attributable

to the defendant when his or her acts caused or contributed to the delay, resulting in the

postponement of trial. Murray,

.

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,

(2010). The demand should not

be disguised in ambiguous language. Murray,

.

¶ 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,

. 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,

. 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,

. The Murray court

found this was insufficient to affirmatively invoke the speedy trial statute. Murray,

. The appellate court noted that the trial court made no finding that this

objection rose to the level of a speedy trial demand. Murray,

. 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,

. 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,

. 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,

. The defendant must object specifically by demanding trial. Hartfield,

. 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,

.

¶ 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,

(2000). Reviewing courts will not disturb the trial

court’s sentencing decision, absent an abuse of discretion. People v. Etherton,

, ¶ 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,

(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,

. 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,

.

¶ 38 Although the trial court has broad discretion in sentencing, its discretion is not

without limitation. Stacey,

. 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,

.

¶ 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,

(2010). The trial court is not required to enumerate or

assign a value to each factor presented at sentencing. Etherton,

. 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,

.

¶ 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,

. 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,

. The most important

factor for the trial court to consider is the seriousness of the offense. Etherton,

.

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.

15