Opinion
No. 2-17-0114
08-09-2019
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELMER HARRIS, Defendant-Appellant.
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). Appeal from the Circuit Court of Kane County. No. 15-CF-607 Honorable David P. Kliment, Judge, Presiding. JUSTICE JORGENSEN delivered the judgment of the court.
Justices McLaren and Hudson concurred in the judgment.
ORDER
¶ 1 Held: We rejected defendant's claim that his counsel was ineffective, as defendant forfeited a crucial premise of his claim by failing to develop an argument and cite pertinent authority to support it. ¶ 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 on speedy-trial grounds when it was subject to compulsory joinder and was not charged until after the speedy-trial term had expired. We affirm.
¶ 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. That same day, defendant was released on his own recognizance. He filed a speedy-trial demand on April 23, 2015. ¶ 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. However, 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 filed 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 are 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 Defendant argues, and we agree, that the theft charges and the burglary charge were based on the same act. What is much less certain, however, is whether defendant's initial charges—felony charges filed by a verified complaint signed by a police officer—"commenc[ed] the prosecution" such that they were 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." 720 ILCS 5/3-3(b) (West 2014). "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). ¶ 18 Thus, it is highly questionable whether the complaint here "commenc[ed] the prosecution" for purposes of the compulsory-joinder statute. In People v. Herndon, 105 Ill. App. 3d 167, 169 (1982), the court held that a complaint charging a felony did not "commence the prosecution" for purposes of the statute of limitations. On the other hand, in People v. Townsel, 2018 IL App (2d) 160612, we distinguished Herndon, holding that a defendant charged with a felony by a complaint was "charged with a felony" for purposes of section 5-8-4(d)(8) of the Unified Code of Corrections (730 ILCS 5-8-4(d)(8) (West 2014)). Whether this case is more like Herndon or more like Townsel is a difficult question, requiring a careful and thorough analysis. ¶ 19 Defendant, however, does not provide one. Indeed, in his initial brief, he flatly declares, as if stating a given, that "[t]he State commenced the prosecution against [him] on April 13, 2015, when it filed a verified complaint charging two counts of theft." As noted, since those were counts of felony theft—which defendant acknowledges in his statement of facts—whether the complaint commenced the prosecution is not in fact a given at all. ¶ 20 In its brief, the State points out that "defendant does not cite to any authority to support his argument that the compulsory-joinder statute applies pre-indictment or before an information is filed." The State then cites Vancura v. Katris, 238 Ill. 2d 352, 370 (2010), in which the supreme court observed that, to avoid forfeiture, "[b]oth argument and citation to relevant authority are required." See also Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018). Here, defendant provides neither argument nor citation to relevant authority. ¶ 21 In his reply brief, defendant attempts to escape the forfeiture rule by asserting that he had "no reason" to develop or support his argument, "since, at the hearing on the motion to dismiss the burglary charge, the State never contested that the prosecution commenced *** when the verified complaint charging felony theft was filed. Instead, *** the State argued that [defendant] had waived the issue." But surely defendant realizes that, because he had "waived" the issue—as a result, he now argues, of his counsel's ineffective assistance—it was the State that had "no reason" to contest when the prosecution commenced. In arguing that defendant's motion was untimely, the State in no way conceded that a timely motion likely would have succeeded. Thus, defendant here was required to prove this, by showing, among other things, that the complaint commenced the prosecution. In his initial brief, defendant did not. As a result, he forfeited his claim. ¶ 22 Defendant goes on, in his reply brief, to submit an argument and authorities on this issue. But of course, because the State has no proper opportunity to respond, this argument is forfeited too. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018). In any event, however, we observe that none of his authorities are on point. Defendant asserts that, in Thomas, 2014 IL App (2d) 130660, ¶ 15, we held that "compulsory joinder does apply to situations where the prosecution was commenced by verified complaint." But he neglects to mention that, in Thomas, the verified complaint charged a misdemeanor, not a felony. Id. ¶ 21. He next cites People v. Sandoval-Carrillo, 2016 IL App (2d) 140332, in which we held that, when an assistant state's attorney (ASA) amended, initialed, and presented a police officer's complaint, "she filed an 'information' and thus properly commenced the prosecution." Id. ¶ 36. But here no ASA did likewise. Although the complaint did state that it was brought by the Kane County state's attorney, and although a separate "new case information sheet" listed an "authorizing ASA," it is far from clear that these facts support defendant's conclusion that the complaint "sufficed as an information." ¶ 23 In sum, a crucial premise of defendant's ineffectiveness claim is that, indeed, the complaint "commenc[ed] the prosecution" such that the initial charges were subject to compulsory joinder. 720 ILCS 5/3-3(b) (West 2014). But the truth of this premise is not self-evident, and defendant has failed to develop an argument and cite pertinent authority to sustain it. As a result, we must deem it forfeited and reject defendant's ineffectiveness claim.
Although a defendant may make a plain-error argument for the first time in his reply brief (People v. Ramsey, 239 Ill. 2d 342, 412 (2010)), defendant here does not do so. --------
¶ 24 III. CONCLUSION
¶ 25 The judgment of the circuit court of Kane County is affirmed. ¶ 26 Affirmed.