People v. Harris

2019 IL App (2d) 170114-UNo. 2-17-0114
Order filed December 16, 2019
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 15-CF-607
)
ELMER HARRIS, ) Honorable
) David P. Kliment,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court.
Justices McLaren and Hudson concurred in the judgment.
ORDER
¶1 Held: Defense counsel was ineffective for failing to timely move to dismiss defendant’s
burglary charge, which was subject to compulsory joinder with defendant’s initial
theft charges and was not charged until after the speedy-trial term had expired.
¶2 Defendant, Elmer Harris, appeals from his convictions of theft (720 ILCS 5/16-1(a)(1)(A)
(West 2014)) and burglary (id. § 19-1(a)). He contends that his counsel was ineffective for failing
to timely move to dismiss the burglary charge, which was subject to compulsory joinder with the
theft charges and was not charged until after the speedy-trial term had expired. In our initial order,
we held that defendant had forfeited his contention. Now, however, we grant defendant’s petition
2019 IL App (2d) 170114-Ufor rehearing and we agree that counsel was ineffective. Accordingly, we reverse the burglary
conviction.
¶3 I. BACKGROUND
¶4 On April 13, 2015, defendant was arrested in connection with the removal of electric wire
from a construction site. The next day, he was charged by a verified complaint with two counts
of felony theft. The complaint was signed by a police officer. However, the complaint stated that
it was brought by the state’s attorney, and a “new case information sheet” listed an “authorizing
ASA [(assistant state’s attorney)].” That same day, defendant was released on his own
recognizance. On April 22, 2015, at defendant’s first court appearance, an ASA appeared and
obtained a discovery date. The next day, defendant filed a speedy-trial demand.
¶5 By agreement, a preliminary hearing was set for January 21, 2016. However, on January
20, 2016, the State charged defendant by indictment with the initial theft charges and added the
burglary charge. On August 29, 2016, a bench trial was held.
¶6 Evidence at trial showed that, on April 9, 2015, defendant entered a construction site and
removed boxes of electrical wire. The vice president of the company overseeing the construction
testified that the building was not open to the public and that defendant would not have been
authorized to be in the building unless he was an employee of a subcontractor. An electrician at
the site saw defendant with a couple of boxes and then discovered that some of his own boxes
were missing. The electrician confronted defendant, who denied taking anything. Defendant
showed him that there were no boxes in his truck. The boxes were later found hidden between a
storage container and a dumpster outside of the building.
¶7 Defendant testified that he had been regularly going to the construction site for four to six
months to collect scrap and that he had the permission of the head electrician to enter the building.
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2019 IL App (2d) 170114-UHowever, he could not recall the person’s name, and he could not locate the person on April 9,
2015. Defendant admitted that he took the boxes of wire, but he said that he changed his mind
because taking them was not right, so he set them down between the storage container and the
dumpster. He lied to the electrician because he was nervous. Defendant did not plan to come back
and get the boxes later. Defendant was arrested and he told the police a version of the facts
essentially the same as his testimony at trial.
¶8 The trial court found defendant guilty of both burglary and one count of theft. At
sentencing, defense counsel moved to dismiss the burglary charge based on a denial of defendant’s
statutory right to a speedy trial. The court denied the motion because defendant forfeited the issue
by failing to file the motion before trial. Defendant was sentenced to two concurrent terms of
probation. He appeals.
¶9 II. ANALYSIS
¶ 10 Defendant contends that his counsel was ineffective for failing to timely move to dismiss
the burglary charge. He argues that the theft and burglary charges were subject to compulsory
joinder and that the burglary charge was filed after the speedy-trial period had run.
¶ 11 A speedy-trial claim can be reviewed for ineffective assistance of counsel despite the
defendant’s forfeiture of the claim in the trial court. See People v. Wigman, 2012 IL App (2d)
100736, ¶ 31.
“In order to establish a claim of ineffective assistance of counsel, the defendant must show
that counsel’s performance was deficient and that the deficient performance resulted in
prejudice. The failure of counsel to move for discharge on the basis of a speedy trial
violation will constitute ineffective assistance of counsel ‘when there is at least a
reasonable probability that the client would have been discharged had a timely motion been
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2019 IL App (2d) 170114-Ufiled and there was no justification for the attorney’s decision not to file a motion.’ ” Id.(quoting People v. Peco, 345 Ill. App. 3d 724, 729 (2004)).
¶ 12 Section 103-5(b) of the Code of Criminal Procedure of 1963 provides that a defendant
released on bail or recognizance shall be tried within 160 days from the date the defendant demands
trial unless delay is occasioned by the defendant. 725 ILCS 5/103-5(b) (West 2014). “If a
defendant is not brought to trial within the statutory speedy-trial period, he must be released from
his trial obligations and have the charges dismissed.” People v. Thomas, 2014 IL App (2d) 130660,
¶ 14. We review the matter de novo. Id.¶ 13 When the State files new and additional charges that arise from the same facts as the
original charges and the State had knowledge of those facts at the commencement of the
prosecution, the time that trial must begin on the new and additional charges is subject to the same
statutory limitation that is applied to the original charges. Id. ¶ 15. “[H]owever, any continuances
obtained in connection with the trial of the original charges cannot be attributed to the defendant
with respect to the new and additional charges, because those charges were not before the court
when the continuances were obtained.” Id. “This rule applies only where the original and the new
charges are subject to compulsory joinder.” Id.
¶ 14 The compulsory-joinder statute provides that “[w]hen the same conduct of a defendant may
establish the commission of more than one offense, the defendant may be prosecuted for each such
offense.” 720 ILCS 5/3-3(a) (West 2014). “If the several offenses are known to the proper
prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a
single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c),
if they are based on the same act.” (Emphasis added.) Id. § 3-3(b). “When 2 or more offenses
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2019 IL App (2d) 170114-Uare charged as required by Subsection (b), the court in the interest of justice may order that one or
more of such charges shall be tried separately.” Id. § 3-3(c).
¶ 15 “[T]he compulsory joinder statute ‘was enacted to prevent the prosecution of multiple
offenses in a piecemeal fashion and to forestall, in effect, abuse of the prosecutorial process.’ ”
People v. Hunter, 2013 IL 114100, ¶ 18 (quoting People v. Quigley, 183 Ill. 2d 1, 7 (1998)). The
phrase “ ‘based on the same act’ ” is not given a hypertechnical interpretation to create multiple
acts based on discrete moments in time, and joinder is required when the defendant engaged in one
continuous and uninterrupted act. Id.¶ 16 Here, the State does not dispute that the theft charges and the burglary charge were based
on the same act. The State argues, however, that defendant’s initial charges—felony charges filed
by a verified complaint signed by a police officer—did not “commenc[e] the prosecution” and thus
were not subject to compulsory joinder. 720 ILCS 5/3-3(b) (West 2014).
¶ 17 The compulsory-joinder statute provides that the offenses must be known at the time of
“commencing the prosecution.” Id. “Prosecution” is defined as “all legal proceedings by which a
person’s liability for an offense is determined, commencing with the return of the indictment or
the issuance of the information.” (Emphasis added.) Id. § 2-16. To be sure, we have interpreted
the statute to include “a criminal proceeding on a misdemeanor complaint.” (Emphasis added.)
People v. Mann, 341 Ill. App. 3d 832, 838 (2003). The complaint here, however, charged
defendant with felonies, and “[a]ll prosecutions of felonies shall be by information or indictment.”
725 ILCS 5/111-2(a) (West 2014). Accordingly, the State asserts that this prosecution commenced
not on April 14, 2015, when the complaint was filed, but on January 20, 2016, when the indictment
was filed. We disagree.
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2019 IL App (2d) 170114-U¶ 18 In his reply brief, defendant asserts, inter alia, that “the complaint sufficed as an
information that commenced the prosecution.” 1 To support this assertion, he relies on People v.
Sandoval-Carrillo, 2016 IL App (2d) 140332, in which we held that, when an ASA amended,
initialed, and presented a police officer’s complaint, “she filed an ‘information’ and thus properly
commenced the prosecution.” Id. ¶ 36. Here, upon rehearing, we find that case sufficiently
instructive. In this case, although the complaint was signed by a police officer, it stated that it was
brought by the state’s attorney, and the accompanying “new case information sheet” stated that the
complaint was authorized by an ASA. A week later, at defendant’s first court date, an ASA
appeared and obtained a discovery date, effectively adopting the complaint. Clearly, under these
circumstances, we would place form well above substance if we were to hold that the complaint
did not “commenc[e] the prosecution.” 720 ILCS 5/3-3(b) (West 2014).
¶ 19 The State next argues that the speedy-trial term did not expire, because defendant agreed
to continuances. But, as previously noted, any continuances obtained in connection with the trial
of the original charges cannot be attributed to defendant with respect to the new and additional
charge. See Thomas, 2014 IL App (2d) 130660, ¶ 15. With those continuances excluded, the
burglary charge was not brought until more than 160 days after the commencement of the
prosecution.
1
In our initial order, we held that defendant had forfeited his argument by raising it only
in his reply brief. Upon rehearing, in the interest of justice, we address it. To whatever extent a
forfeiture occurred here, we are free to disregard it. See People v. Tomczak, 395 Ill. App. 3d 877,
879 (2009).
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2019 IL App (2d) 170114-U¶ 20 Thus, the burglary charge violated defendant’s statutory speedy-trial right. Accordingly,
counsel was ineffective for failing to timely file a motion to dismiss, which would have resulted
in dismissal of that charge.
¶ 21 III. CONCLUSION
¶ 22 For these reasons, defendant’s burglary conviction is reversed.
¶ 23 Reversed in part.
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