People v. Schaefer , 2020 IL App (5th) 180461 ( 2020 )

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Appellate Court Date: 2021.08.02
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People v. Schaefer, 2020 IL App (5th) 180461Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption CHARLES SCHAEFER, Defendant-Appellant.
District & No. Fifth District
No. 5-18-0461
Rule 23 order filed December 3, 2020
Motion to
publish allowed December 21, 2020
Opinion filed December 21, 2020
Decision Under Appeal from the Circuit Court of Randolph County, No. 17-CF-78; the
Review Hon. Richard A. Brown, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Ellen J. Curry, and Christina O’Connor, of State
Appeal Appellate Defender’s Office, of Mt. Vernon, for appellant.
Jeremy R. Walker, State’s Attorney, of Chester (Patrick Delfino,
Patrick D. Daly, and Valerie A. Ozment, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE CATES delivered the judgment of the court, with opinion.
Justices Barberis and Wharton concurred in the judgment and opinion.
OPINION
¶1 Following a stipulated bench trial, the defendant was convicted of two counts of aggravated
fleeing or attempting to elude a peace officer (625 ILCS 5/11-204.1(a)(1), (4) (West 2016)).
The trial court sentenced the defendant to concurrent terms of 30 months in the Illinois
Department of Corrections (IDOC), followed by one year of mandatory supervised release. On
appeal, the defendant raises three points of error. First, the defendant contends that trial counsel
was ineffective for not moving to revoke the defendant’s bond, thereby allegedly forfeiting his
right to a speedy trial. Next, the defendant asserts that trial counsel suffered a conflict of interest
because counsel was required to argue his own ineffectiveness. Finally, the defendant asks this
court to vacate one of his convictions for aggravated fleeing or attempting to elude a peace
officer under the one-act, one-crime doctrine. For the reasons that follow, we affirm the
defendant’s convictions and sentence.
¶2 BACKGROUND
¶3 On May 6, 2017, Officer Ralph Jones attempted to stop a vehicle being driven by the
defendant. Officer Jones recognized the defendant from a prior arrest in March 2017 for driving
with a suspended license. Officer Jones initiated the sirens on his police car, but the defendant
refused to stop his vehicle. Instead, the defendant led Officer Jones on a chase through Sparta,
Illinois, to outside the city limits in Randolph County. During this chase, the defendant failed
to stop at several stop signs and reached speeds of more than 21 miles per hour over the posted
speed limit. Officer Jones informed police dispatch of a speed of 89 miles per hour, where the
posted speed limit was 55 miles per hour. Officer Jones eventually terminated his pursuit of
the defendant for safety reasons and sought a warrant for the defendant’s arrest.
¶4 On May 10, 2017, the State charged the defendant by criminal information with two counts
of aggravated fleeing or attempting to elude a peace officer (625 ILCS 5/11-204.1 (West
2016)), and a warrant was issued for the defendant’s arrest. Count I of the criminal information
alleged that the defendant, after being directed by a police officer to stop his vehicle, increased
his speed to a rate of at least 21 miles per hour over the speed limit (id. § 11-204.1(a)(1)), and
count II alleged that the defendant, after being directed by a police officer to stop his vehicle,
disobeyed two or more traffic control devices (id. § 11-204.1(a)(4)).
¶5 On May 11, 2017, the defendant was taken into Perry County’s custody, where he was
charged with possession of methamphetamine (720 ILCS 646/60 (West 2016)), cause No.
2017-CF-79. 1 On July 24, 2017, the defendant was transferred from the Perry County jail to
the Randolph County circuit court for his first appearance. At this hearing, the State informed
the trial court that the defendant had recently pled guilty to possession of methamphetamine in
the Perry County circuit court and was awaiting sentencing on that case. The State told the trial
court that the Perry County judge gave the defendant a recognizance bond so that he could
1
This charge is unrelated to the issues in this case but explains why the defendant was arrested in
Perry County.
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appear in Randolph County “and try to get something worked out” before his sentencing in
Perry County. The Randolph County trial judge then explained the charges against the
defendant in Randolph County. The trial judge entered a plea of not guilty on the defendant’s
behalf and appointed the public defender, James Kelley, to represent the defendant. The case
was also set for a preliminary hearing. The defendant signed a written notice indicating his
understanding that he was to appear at the Randolph County circuit court on August 7, 2017,
for a preliminary hearing. That same day, the defendant posted bond in Randolph County and
was released from custody.
¶6 On August 7, 2017, the defendant failed to appear for his preliminary hearing. Kelley
informed the trial court that the defendant had not made any effort to contact Kelley’s office,
and Kelley requested 48 hours to ascertain the defendant’s whereabouts. The State requested
a “no bond, no limit warrant” but did not object to Kelley’s request for time to locate the
defendant. The trial court granted Kelley’s request and stated that the court would stay an arrest
warrant until August 10, 2017. On August 8, 2017, however, the trial court issued a warrant
for the defendant’s arrest.
¶7 Nothing occurred on the defendant’s case until November 2, 2017, when the defendant
filed, from IDOC, 2 a “Demand for Speedy Trial and/or Quash Warrant,” a “Motion to
Dismiss,” a “Petition to Vacate Bond Forfeiture and Judgment,” a “Petition for Return of
Forfeitured [sic] Bond,” and an affidavit. In his pro se pleadings, the defendant stated that
Randolph County mistakenly released him after he posted bond because Perry County had a
hold on the defendant. The defendant further claimed that, after he was released from Randolph
County, he received a phone call and was told to return to the Perry County jail. The defendant
alleged that his attorney “knew this but did nothing,” as the defendant was never brought back
to Randolph County for his preliminary hearing.
¶8 After the defendant’s pleadings were filed, the arrest warrant for the defendant was
quashed, and the case was set for a case management conference on December 4, 2017. On
this date, the defendant was brought before the trial court, and new counsel, Beth Heaton, was
appointed. 3 At this case management conference, the defendant addressed the trial court
regarding the pleadings he filed on November 2, 2017. The defendant was concerned that his
bond had been forfeited while he was incarcerated in either Perry County or IDOC. The State
informed the trial court that the arrest warrant had been quashed and the defendant’s bond had
not been forfeited.
¶9 On January 29, 2018, the trial court held another case management conference. The State
announced that it was ready for trial, had turned over discovery, and made the defendant a plea
offer. Heaton advised that the defendant was persistent in his demand for a jury trial and
requested the case be set on the next jury trial date. Heaton also indicated that “this remains
Kelley’s case.” The defendant then inquired about the pro se pleadings he filed on November
2, 2017, regarding a speedy trial and bond forfeiture. The State reminded the trial court that
the arrest warrant for the defendant had been quashed and that his bond was not forfeited. The
State asserted that the defendant did not have an automatic speedy trial right because the
2
On September 11, 2017, the defendant was sentenced in the Perry County circuit court to 30
months in IDOC.
3
The record indicates that attorney James Kelley had become incapacitated and unable to represent
the defendant but does not reveal when Kelley became temporarily incapacitated.
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defendant was not in custody on a Randolph County warrant. The defendant stressed that he
was asking for a speedy trial, and the trial court told defendant his trial date would be April 2,
2018. Neither defendant nor Heaton objected to this trial setting. The trial court also informed
the defendant that Kelley was ill and set the defendant’s case for another case management
conference prior to the trial date when Kelley would be present.
¶ 10 On March 1, 2018, the trial court held a hearing at which Kelley was reappointed to
represent the defendant. Kelley indicated that this was the first time he had met with the
defendant since being appointed on July 24, 2017. Kelley then argued for the dismissal of the
defendant’s case based on a violation of the defendant’s right to a speedy trial. Kelley argued
that the defendant filed a speedy trial demand on November 2, 2017, and that the defendant
had been in continuous custody since that date. The State replied that the defendant’s demand
was improper and, even if the trial court accepted his demand, defendant’s speedy trial time
had not yet run. The State asserted that the April 2, 2018, jury trial date was within 160 days
from the date the defendant mailed his speedy trial demand, October 26, 2017. Kelley
responded that, because the defendant was incarcerated, the defendant’s speedy trial time was
120 days, but Kelley had no authority to support his position. The trial court denied the
defendant’s motion to dismiss and explained that the defendant’s motion was premature
because the defendant’s speedy trial time had not yet run. The trial court stated that it would
bring the defendant to trial within the 160 days of the defendant’s request for a speedy trial.
¶ 11 On April 2, 2018, the defendant waived his right to a jury trial, and the case proceeded to
a stipulated bench trial. The parties stipulated that Officer Jones would testify to the previously
described events that occurred on May 6, 2017. The State also introduced dash camera footage
from Officer Jones’s vehicle and an audio recording of police radio traffic, both of which
corresponded with the May 6, 2017, incident. The defense presented no evidence, but Kelley
reasserted the defendant’s contention that his right to a speedy trial had been violated because
he had not been brought to trial within 120 days of his arrest. The trial court stated that the
defendant’s request for dismissal was denied and found the defendant guilty of two counts of
aggravated fleeing or attempting to elude a peace officer. The trial court ordered a presentence
investigation report to be prepared and set the matter for sentencing.
¶ 12 On May 31, 2018, the trial court sentenced the defendant to 30 months in IDOC, followed
by one year of mandatory supervised release. Both convictions were ordered to run
concurrently with each other and concurrently with the defendant’s sentence from Perry
County. With the agreement of the State, the trial court gave the defendant sentencing credit
for all of the time he was incarcerated, from his original arrest date of May 11, 2017, through
May 31, 2018, even though the defendant was not in Randolph County’s custody.
¶ 13 On June 28, 2018, the defendant filed a pro se motion to reconsider, alleging that “due
process was not followed.” The defendant argued that his right to a speedy trial was violated
because he received sentencing credit for being continuously incarcerated. On September 10,
2018, the parties appeared before the trial court on the defendant’s motion to reconsider. The
defendant argued that his due process rights were violated “when it took 11 months to try [the
defendant] instead of six.” The State responded that it would stand on its previous argument
made during the hearing on March 1, 2018. The trial court stated that it did not believe
defendant’s speedy trial or due process rights were violated and denied the defendant’s motion
to reconsider. This appeal followed.
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¶ 14 ANALYSIS
¶ 15 On appeal, the defendant raises three points of error. First, the defendant argues that
Kelley’s failure to revoke the defendant’s bond, thus allegedly forfeiting his right to a speedy
trial, constituted ineffective assistance of counsel. Defendant next alleges that Kelley suffered
a conflict of interest because Kelley would have had to argue that the defendant’s speedy trial
right was violated due to Kelley’s own ineffectiveness. Finally, the defendant contends that
one of his convictions for aggravated fleeing or attempting to elude a peace officer should be
vacated under the one-act, one-crime doctrine because both convictions were based on one
continuous act. We disagree.
¶ 16 Claims of ineffective assistance of counsel may be raised on a direct appeal when the basis
for the claim can be ascertained from the record. People v. Veach, 2017 IL 120649, ¶ 46;
People v. Watson, 2012 IL App (2d) 091328, ¶ 21. In reviewing an ineffective assistance of
counsel claim, we defer to the trial court’s findings of fact unless they are against the manifest
weight of the evidence but review the ultimate legal issue of whether counsel was ineffective
de novo. People v. Berrier, 362 Ill. App. 3d 1153, 1166-67 (2006).
¶ 17 In determining whether trial counsel was ineffective, we apply the two-pronged test set
forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in People v. Albanese,
104 Ill. 2d 504, 526 (1984). Under Strickland, a defendant must show that trial counsel’s
performance fell below an objective standard of reasonableness and that there is a reasonable
probability that, but for counsel’s deficient performance, the outcome of the proceedings would
have been different. Albanese, 104 Ill. 2d at 525. A reasonable probability that the outcome of
the proceedings would have been different is a probability sufficient to undermine confidence
in the result of the proceedings. People v. Colon, 225 Ill. 2d 125, 135 (2007). A reviewing
court is not required to consider whether trial counsel’s performance was deficient before
determining whether the defendant was prejudiced by counsel’s alleged deficiencies because
a claim of ineffective assistance of counsel fails if either prong of the Strickland test is not met.
People v. Perry, 224 Ill. 2d 312, 342 (2007).
¶ 18 Section 103-5(a) of the Code of Criminal Procedure of 1963 mandates that: “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 ***.” 725 ILCS 5/103-5(a) (West 2016). Under subsection (a), the defendant’s
right to a speedy trial is automatic, and the State must bring the defendant to trial within 120
days. People v. Staten, 159 Ill. 2d 419, 424-25 (1994).
¶ 19 In contrast, section 103-5(b) provides that: “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 ***.” 725 ILCS 5/103-5(b) (West 2016). To
invoke the 160-day period of subsection (b), defendants who are released on bail or
recognizance must serve the State with a demand for a speedy trial. Staten, 159 Ill. 2d at 425.
Here, the defendant posted bond after his first appearance in Randolph County. The defendant
was then released from Randolph County’s custody. Accordingly, the defendant no longer had
an automatic right to a speedy trial and was required to file a motion demanding that he be
brought to trial within 160 days.
¶ 20 Following his release from Randolph County, the defendant claims he received a phone
call instructing him to return to the Perry County jail because Randolph County mistakenly
released the defendant from confinement. The defendant alleged that he complied and returned
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to Perry County’s custody. A defendant who is released on bond for one charge, and who is
subsequently arrested or returned to custody on a different charge, is not returned to custody
on the first charge until his bond is withdrawn or revoked. People v. Arnhold, 115 Ill. 2d 379,
383 (1987). Once a defendant’s bond is withdrawn or revoked, he is then considered in custody.
See id. at 383-84. Therefore, even though the defendant returned to custody in Perry County,
his bond in Randolph County was still in effect, and he was not in simultaneous custody for
his Perry County and Randolph County charges.
¶ 21 The record shows that the defendant did not make a demand for a speedy trial until
November 2, 2017, while he was incarcerated in IDOC. Following the defendant’s November
2, 2017, pro se filings, the warrant for his arrest was quashed, and he remained on bond in
Randolph County. The record also shows, and the defendant does not dispute, that the
defendant was tried within 160 days of his written demand for a speedy trial. Thus, no speedy
trial violation occurred under section 103-5(b).
¶ 22 The defendant argues, however, that, had Kelley sought revocation of the defendant’s
bond, the 120-day period of section 103-5(a) would have applied to his case. The defendant
assumes, therefore, that he would not have been brought to trial within 120 days and his charges
in Randolph County would have been dismissed. It is, however, exceedingly speculative to
conclude that the defendant would not have been brought to trial within 120 days of any date
the defendant’s bond may have been revoked. The defendant submits that we may not speculate
what might have happened had his bond been revoked. We need not speculate, however, as the
record refutes any such speculation.
¶ 23 The record shows that both the trial court and the State were well aware of the requirements
of the speedy trial statute, and the defendant’s trial was scheduled with the statute’s time
constraint in mind. Had the defendant’s bond been revoked, the trial court would have had 120
days from the date of any such revocation to schedule the defendant’s trial. See 725 ILCS
5/103-5(a) (West 2016) (“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.”). We find that the defendant is unable to demonstrate a reasonable
probability that, had his bond been revoked, the defendant would have been tried outside the
120-day speedy trial period. Accordingly, the defendant cannot establish he was prejudiced by
Kelley’s alleged ineffective assistance. Because we find that the defendant’s claim of
ineffective assistance of counsel fails, his contention that Kelley operated under a conflict of
interest is moot, and we need not address it.
¶ 24 The defendant next argues that one of his convictions for aggravated fleeing or attempting
to elude a peace officer (625 ILCS 5/11-204.1 (West 2016)) must be vacated under the one-
act, one-crime doctrine because both convictions were based on one continuous act of fleeing
from Officer Jones. The defendant did not raise this claim in the trial court and requests that
this court review his claim for plain error. The plain error rule allows a reviewing court to
consider an error not properly preserved for appellate review when the evidence is closely
balanced or the error is so serious that the defendant was denied a fair trial. People v. Harvey,
211 Ill. 2d 368, 387 (2004). An alleged violation of the one-act, one-crime doctrine, and the
potential for a surplus conviction and sentence, satisfies the second prong of the plain error
rule because such a violation affects the integrity of the judicial process. Id. at 389. Therefore,
we will consider the defendant’s contention that his convictions for two counts of aggravated
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fleeing or attempting to elude a peace officer violate the one-act, one-crime doctrine. Alleged
violations of the one-act, one-crime doctrine are subject to de novo review. People v. Bush,
2015 IL App (5th) 130224, ¶ 6.
¶ 25 Pursuant to the one-act, one-crime doctrine, a defendant cannot be convicted of more than
one offense “carved from the same physical act.” People v. King, 66 Ill. 2d 551, 566 (1977).
In this sense, our supreme court defined an “act” as any overt or outward manifestation that
will support a separate offense. Id. Where two offenses share a common act, multiple
convictions are permissible if the defendant commits a second act which supports a second
offense. Bush, 2015 IL App (5th) 130224, ¶ 7. Multiple convictions are improper, however, if
the offenses are based on the same physical act. People v. Rodriguez, 169 Ill. 2d 183, 186
(1996). To sustain convictions where multiple offenses share a common act, the charging
document must indicate the State’s intent to treat the defendant’s conduct as multiple acts.
People v. Shines, 2015 IL App (1st) 121070, ¶ 44.
¶ 26 To determine whether a defendant’s multiple convictions violate the one-act, one-crime
doctrine, we follow a two-step analysis. Under King, a reviewing court must first determine
whether a defendant committed multiple acts. Rodriguez, 169 Ill. 2d at 186. If the reviewing
court determines that the defendant committed multiple acts, the court must then determine if
any of the offenses are lesser included offenses. Id. In King, our supreme court stated that,
“when more than one offense arises from a series of incidental or closely related acts and the
offenses are not, by definition, lesser included offenses, convictions with concurrent sentences
can be entered.” King, 66 Ill. 2d at 566.
¶ 27 Here, the record shows that the defendant committed multiple acts which support separate
offenses. The State charged the defendant with two counts of aggravated fleeing or attempting
to elude a peace officer, based upon the following acts: (1) the defendant’s driving at a high
rate of speed and (2) the defendant’s refusal to obey multiple traffic control devices. The
evidence presented in the stipulated bench trial showed that the defendant reached speeds of at
least 21 miles per hour over the legal speed limit and failed to stop for multiple stop signs. The
trial court accepted the stipulated evidence, found the defendant guilty of both counts of
aggravated fleeing or attempting to elude a peace officer, and entered concurrent sentences.
Furthermore, neither of the defendant’s convictions is a lesser included offense of the other.
Thus, the defendant’s convictions do not violate the one-act, one crime doctrine.
¶ 28 Our analysis in this case is analogous to the First District’s decision in People v. Shines,
2015 IL App (1st) 121070. In Shines, the defendant led police officers on a high-speed chase
and failed to stop for multiple traffic control devices. Id. ¶¶ 7-8. The State charged the
defendant, inter alia, with two counts of aggravated fleeing and eluding a peace officer. Id.
¶ 4. Following a trial, the defendant was found guilty of both offenses and argued on appeal
that his convictions violated the one-act, one-crime doctrine. Id. ¶¶ 20, 41-46. The defendant
claimed that the different acts giving rise to his two convictions were mere attendant
circumstances or alternative theories of culpability for the same conduct. Id. ¶ 46. The First
District found, as we do here, that, because the defendant committed multiple acts, his
convictions did not violate the one-act, one crime doctrine. Id.
¶ 29 The defendant contends that the aggravated fleeing or attempting to elude a peace officer
statute creates a single offense, which may be violated in a number of ways. The defendant
argues that “the presence of two aggravating factors does not turn one flight into two crimes”
but merely provides the State with alternative ways to elevate a misdemeanor crime to a felony.
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In making this argument the defendant relies on our supreme court’s decision in People v.
Price, 221 Ill. 2d 182 (2006). In Price, our supreme court restated its prior ruling that the theft
statute (720 ILCS 5/16-1 (West 2002)) did not “ ‘ “undertake to create a series of separate
offenses, but rather to create a single offense of theft which may be performed in a number of
ways.” ’ ” Price, 221 Ill. 2d at 189 (quoting People v. Graves, 207 Ill. 2d 478, 484 (2003),
quoting People v. Fowler, 72 Ill. App. 3d 491, 494-95 (1979)).
¶ 30 Price did not hold, however, that multiple convictions cannot arise from different
subsections of the same statute. In Price, the defendants were charged, inter alia, with two
counts of theft (720 ILCS 5/16-1(a)(1), (4) (West 2002)) for stealing the same “ ‘office-related
property, having a total value exceeding $300.’ ” Price, 221 Ill. 2d at 186. One count of theft
charged the defendants with violating section 16-1(a)(1) of the statute, which provided that
“one commits theft who knowingly ‘[o]btains or exerts unauthorized control over property of
the owner.’ ” Id. at 189 (quoting 720 ILCS 5/16-1(a)(1) (West 2002)). The second count
alleged the defendants also violated section 16-1(a)(4) of the statute, which provided that “one
commits theft who ‘[o]btains control over stolen property knowing the property to have been
stolen or under such circumstances as would reasonably induce him to believe that the property
was stolen.’ ” Id. (quoting 720 ILCS 5/16-1(a)(4) (West 2002)). A jury found the defendants
guilty of both counts, and the trial court entered concurrent sentences on both counts. Id. at
187-88. On review, our supreme court determined that the defendants’ two theft convictions
were not legally inconsistent but could not stand under the one-act, one-crime doctrine because
the convictions were “for the same offense and [arose] from the same conduct.” Id. at 194.
Accordingly, our supreme court vacated one of the theft convictions for each of the defendants.
Id. at 195.
¶ 31 Conversely, the defendant’s convictions in the present case, while sharing the common act
of refusing to stop at the direction of a police officer, are based upon separate acts—the
defendant’s high rate of speed and failure to stop for traffic control devices. The defendant’s
convictions are not, as was the case in Price, convictions for the same offense that arose from
precisely the same conduct. Therefore, we find that the defendant’s convictions for two counts
of aggravated fleeing or attempting to elude a peace officer and concurrent sentences were
properly imposed.
¶ 32 For the foregoing reasons, we affirm the trial court’s judgment and sentence.
¶ 33 Affirmed.
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