APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This cause is an appeal by the defendant, Carl Neafus, from a judgment of conviction for the crimes of taking indecent liberties with a child and contributing to the sexual delinquency of a child, entered by the circuit court of Williamson County pursuant to a jury verdict of guilty.
The defendant was arrested on October 17, 1972, and was held on a two-count information charging the above noted crimes. The indecent liberties charge was premised upon the defendant's alleged performance of an act of deviate sexual conduct upon a female child of five years of age; the contributing to the sexual delinquency charge was premised upon the defendant's alleged performance of a lewd act done in the presence of that child, i.e., the display of pictures of nudes, with the intent to arouse the defendant's sexual desires.
A bill of indictment was returned November 15, 1972. The defendant's father filed a petition for hospitalization on November 21, 1972. A hearing was held on November 24, 1972, at which time the court found the defendant in need of mental treatment. The defendant was ordered hospitalized. He indicated to the court that he understood the proceedings and agreed to the commitment. At all times pertinent, the defendant was represented by counsel. The defendant was released from jail November 24, 1972, and was taken to the Anna State Hospital. Defendant was discharged absolutely from the hospital April 13, 1973, and was released into his own custody.
The State filed discovery motions against the defendant on January 18, 1974. Trial commenced January 6, 1975. Defendant was convicted of both counts and sentenced to the State penitentiary to serve a term of from 6 2/3 years to 20 years.
The first issue presented on this appeal is whether the defendant was denied his constitutional right under the Sixth Amendment to the United States Constitution to a speedy trial, and whether or not he properly preserved the issue for appeal to this court.
In People v. Price, 32 Ill. App.3d 610, 336 N.E.2d 56, the defendant was convicted of involuntary manslaughter. In his motion for arrest of judgment, or motion for new trial, defendant did not raise the question of whether he was denied a speedy trial. The court said at page 612:
"* * * [W]e consider the fact that neither the defendant's oral argument on his post-trial motion nor the motion itself contained any reference to his contention that he was denied a speedy trial a waiver of such contention. We further note that defendant made neither an oral nor written motion for a speedy trial; and was admitted to bail on the day of his arrest."
Defendant Neafus did not properly preserve this issue at the trial level. Even had he done so in his post-trial motion, this court, applying the rule of Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182, would find that the defendant's fundamental right to a speedy trial had not been abridged. We consider the matter here only because of the contention that failure to raise the issue below is the foundation of defendant's contention that he was denied effective counsel and competency of counsel.
The United States Supreme Court has formulated a balancing test for determining when the right to a speedy trial has been denied. The court said:
"The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.
A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.
"The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is ...