People v. Wigman

979 N.E.2d 583

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.James J. WIGMAN, Defendant–Appellant.

No. 2–10–0736.

Appellate Court of Illinois, Second District.

Nov. 8, 2012.

Thomas A. Lilien and Paul Alexander Rogers, both of State Appellate Defender's Office, of Elgin, for appellant.

Eric C. Weis, State's Attorney, of Yorkville (Lawrence M. Bauer and Kristin M. Schwind, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant, James J. Wigman, was convicted of driving under the influence of alcohol (DUI) and improper lane usage. 625 ILCS 5/11–501(a)(2), 11-–709(a) (West 2006). Defendant appeals, alleging that his statutory right to a speedy trial was violated. Defendant acknowledges that he failed to preserve the issue but asks us to consider the issue under the plain-error doctrine or, alternatively, to find that trial counsel provided ineffective assistance of counsel by failing to move for discharge. We find that there was no error, because there was no lawful basis for raising a speedy-trial objection.

¶ 2 I. BACKGROUND

¶ 3 The proceedings in this case were not transcribed. The record on appeal consists of an agreed statement of facts, the common-law record, and a DVD of defendant's arrest.¹

¶ 4 On the afternoon of October 12, 2007, Yorkville police officer Sarah Cernekee received a dispatch that a hit-and-run accident had occurred involving a black Kia that was traveling south on Route 47. Further dispatches described the same vehicle as driving all over the roadway. The officer saw the Kia driving completely on the shoulder of Route 47, and she stopped the vehicle. Defendant was the driver and sole occupant of the vehicle. The officer described him as being highly intoxicated, and her description was confirmed by the in-squad video. Defendant was incapable of distinguishing his driver's license from a credit card, and, when he was asked to step out of his vehicle, he fell to the roadway and was unable to stand without assistance. Defendant was arrested for DUI. He refused to submit to a breath test to determine whether he was under the influence of alcohol. Defendant was charged with DUI and improper lane usage. 625 ILCS 5/11–501(a)(2), 11-–709(a) (West 2006).

¶ 5 Defendant's bail was set at $3,000, which he posted on October 15, 2007. On November 1, 2007, the case was continued to December 14, 2007. On December 14, 2007, the State furnished discovery material. The case was then continued to January 17, 2008, and the record indicates that on that date defendant sought a continuance to March 6, 2008, to retain a private attorney. On March 6, 2008, defendant failed to appear in court and the court issued an arrest warrant and set bail at $6,000, with 10% to apply. On May 1, 2008, because defendant was in custody in Will County, the deputy public defender appointed to represent defendant applied for a writ of habeas corpus ad prosequendum to have the Will County sheriff produce defendant in Kendall County for a court appearance in this case on May 22, 2008. The court issued the writ, but Will County failed to produce defendant. On May 22, 2008, the court entered an order that directed the "State to writ" defendant from Will County to Kendall County for a court appearance on June 5, 2008. On June 5, 2008, the court issued an order reflecting that the warrant remained outstanding. On September 16, 2008, defendant's attorney obtained another order for a writ of habeas corpus to have defendant brought from the Will County jail to Kendall County for a September 24, 2008, appearance. Defendant was not produced on September 24, 2008. On October 3, 2008, another order was issued to have Will County produce defendant on October 24, 2008. Again, Will County failed to produce defendant, and the court, on application of the State, issued an order directing the Will County sheriff to produce defendant in Kendall County for a court appearance on November 21, 2008.

¶ 6 On November 21, 2008, defendant was produced pursuant to the order. Defendant's oral pro se motion to dismiss on speedy-trial grounds was denied. On that same date, defendant filed a typed document entitled, "Speedy Trial Demand." The document contains the case numbers in this case as well as case numbers for six charges, four misdemeanors and two felonies, for which he was being held in custody in Will County. The document goes on to explain:

"and I am starting my trial for 08 CF 319 on 10/2/2008. My current combined bond is $7,800. The best offer I have received from the state is 2 ½ years in the Department of Correction.

I missed my first court appearance due to being in custody of Will County. I have sent a letter myself in March trying to writ myself to Kendall County which failed and I have since then had a family member try to get me brought to Kendall County on three other separate occasions. I don't understand what is going wrong with the procedure but Will County has failed to bring me to these appearances even when ordered by the judge. I am trying to get my legal issue taken care of so I can go on with my life and properly take care of my wife and two children.

I am asking that my case be dismissed for failing to give me a speedy trial." Defendant's signature on the document is in pencil and it is dated September 28, 2008.

¶ 7 Defendant's attorney was granted leave to file a motion to reconsider the denial of defendant's pro se motion to dismiss, and the matter was continued to December 23, 2008.

¶ 8 On December 5, 2008, defendant's attorney filed a "Motion to Reconsider Ruling on Defendant's Motion to Dismiss." The motion states that defendant's oral motion was "based on violation of the Speedy Trial statute" ( 725 ILCS 5/103–5 ) (West 2006). The motion states in paragraph three:

"3. The Defendant believes the holdings in People v. Schmidt, 233 Ill.App.3d 512 [174 Ill.Dec. 655, 599 N.E.2d 201], People v. Parsons, 48 Ill.App.3d [618, 6 Ill.Dec. 714, 363 N.E.2d 396], People v. Exson, 384 Ill.App.3d 794 [324 Ill.Dec. 768, 896 N.E.2d 844], and People v. Sandoval, 381 Ill.App.3d 142 [319 Ill.Dec. 730, 886 N.E.2d 493 (2008) ] warrant the court's decision to be re-evaluated."

¶ 9 On December 23, 2008, the trial court entered an order reflecting that defendant was present in open court "in custody," and the case was continued to January 8, 2009, for ruling on defendant's motion to reconsider the motion to dismiss. The court also "quashed and recalled" the failure-to-appear warrant that was issued on March 6, 2008. On January 8, 2009, defendant appeared in court, still in "Will County custody." The court entered an order stating that "defendant's motion to reconsider is hereby denied based on case People v. Wiseman. " On defendant's motion the "writ" was continued to February 2, 2009. On January 15, 2009, defendant filed a pro se notice of appeal, requesting review of the denial of the motion to dismiss. In the notice, defendant states:

"The Honorable Judge refused to dismiss case citing People v. Wiseman, App. 5 Dist.1990, 142 Ill.Dec. 696, 195 Ill.App.3d 1062, 553 N.E.2d 46.

Defendant believes his case should be dismissed citing People v. Parsons, App. 2 Dist.1977, 6 Ill.Dec. 715 [714], 48 Ill.App.3d 618, 363 N.E.2d 396."

¶ 10 The appeal was docketed in this court as No. 2–09–0083. On February 2, 2009, defendant appeared in Kendall County but remained in Will County's custody. He filed a pro se "Motion For Case Dismissal For Violation of Due Process." The motion alleged that on March 6, 2007, a warrant was issued for defendant's arrest and that, on the dates of May 1, 2007, September 16, 2007, and October 3, 2007, the trial court "ordered a writ of habeas at the request of defendant which was not done by the State." Defendant further alleged, "[t]he State violated the Defendant's constitutional right to due process by not allowing the court's writ of habeas corpus and therefore also denied Defendant's right to a speedy trial." The court heard the motion and, finding no basis for it, denied it. The order entered by the court reflected that on February 5, 2009, defendant elected to proceed pro se. The public defender appointment was modified to the status of "standby counsel." The order also noted that "there may be an issue of jurisdiction." On defendant's motion, the court continued the case to April 9, 2009, to check on the status of the appeal. This court entered an order dismissing defendant's appeal on March 10, 2009, for failure to comply with a previous order of this court.

¶ 11 On April 9, 2009, defendant appeared in Kendall County while still in the custody of Will County. The case was continued to May 14, 2009, for "plea or setting." The court's order noted, "State to writ in defendant from IDOC." The order also reflected, "speedy trial tolled." On April 16, 2009, the court entered an order for a writ of habeas corpus, on application of the State, directing the sheriff of Will County to produce defendant for a May 14, 2009, court appearance in Kendall County. The court also issued an order directing the warden at Stateville Correctional Center to produce defendant on that date.

¶ 12 On May 14, 2009, defendant appeared in open court pursuant to the writ. The trial court's order reflected that defendant remained "in Will County custody" and that on defendant's motion the matter was continued to June 25, 2009. The court's order further reflected that there was to be a hearing on a motion to dismiss and that: (1) a bench trial date was set for July 20, 2009; (2) the State objected to a new trial date; (3) all warrants on this case were quashed² ; (4) the speedy-trial period was tolled; (5) defendant had two weeks to file any motions; and (6) the State had two weeks to respond. The record contains a signed jury waiver taken in open court on May 14, 2009.

¶ 13 The record reflects that on June 25, 2009, defend...