APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
S. TESCHNER, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 26, 1981.
Following a bench trial defendant, Frank A. Manna, was convicted of two counts of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1977, ch. 56 1/2, pars. 1401(a) and 1401(b)) and sentenced to a term of 18 years imprisonment. He appeals assigning as error (1) the denial of his motion for discharge pursuant to the speedy trial provisions of section 103-5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(a)); (2) the failure of the State to disclose the identity and address of the government's paid informant until one week before trial; (3) the denial of his motion to suppress tape recordings; (4) the granting of his co-defendant's motion for a continuance of his trial on the day set for their joint trial which effectively severed the cases, thereby depriving defendant of his testimony; (5) improper reference by the State's Attorney to defendant's prior criminal record during closing arguments; (6) the denial of his motion to suppress certain evidence; (7) the failure of the State to show a continuous chain of possession of evidence; and (8) that his sentence was excessive.
Defendant was arrested on July 28, 1978, following the sale of cocaine, which had been arranged by an informant, to an undercover Federal agent. Defendant posted $10,000 bail, was released on the following day and on August 11, 1978, he filed a written demand for trial pursuant to 103-5(b)) of the Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(b)). The grand jury returned a nine-count indictment against defendant and his co-defendant on August 17, 1978, and when defendant appeared in court for arraignment on the indictment on August 22, 1978, he was arrested for a parole violation based upon his arrest for the charges then pending before the court. The court continued the case until September 11 and again until October 27 for completion of discovery by the parties. On October 27 defendant's retained counsel was given leave to withdraw and the public defender was appointed in his stead. Defendant stated he had not been given prior notice of his attorney's intention to withdraw and objected to it and to the appointment of the public defender on his behalf. The court then continued the case until November 9 to enable defendant to retain counsel and his new attorney appeared on November 9 and was granted a continuance until November 13 in order to file additional motions. The new attorney, however, failed to appear on that date and the court continued the matter until November 22.
Defendant's counsel did appear on November 22 and filed a motion to suppress, a motion for disclosure and production of the informant, and a motion to suppress contents of recorded conversations. Despite the lack of notice to the State of the motions defendant filed on that day, the prosecutor acknowledged that defendant's motion to suppress evidence was sufficiently similar to the motion by the co-defendant set to be heard on that day and agreed to proceed with both. After hearing testimony and arguments for most of the day, the court denied defendant's motion to suppress evidence and continued the hearing on the other motions to December 28, which was also the date set for hearing of the co-defendant's similar motions. Defense counsel objected to the long date and advised the court that defendant was demanding trial.
Defendant's motion to suppress the tape-recorded conversations was heard on December 28 and denied by the court. His motion for disclosure of the identity of the informant, however, was granted, as was defendant's motion to revoke his bail. Defense counsel again generally demanded trial and the court set the case for trial on February 5, 1979. Defendant's subsequent motion for discharge for the State's failure to bring him to trial within 120 days of his arrest on August 22, 1978, was denied on February 6, 1979.
We consider first defendant's contention that he was denied his right to a speedy trial. Resolution of this issue involves a determination of whether defendant's incarceration for a parole violation based upon his arrest on the charges for which he had been released on bail will be considered as time "in custody" for purposes of computing the 120-day period within which a person in custody must be tried; or whether defendant was not in custody for purposes of this rule until he surrendered his bond on December 28, 1978. We conclude that the time spent in jail because of the parole violation charge must be counted and the question then becomes whether any delay is attributable to defendant. No issue is raised concerning the effect of defendant's arrest for a parole violation upon the 160-day trial period (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(b)), triggered by defendant's demand on August 11, 1978, while he was free on bond.
The effect upon a defendant's right to a speedy trial where he is incarcerated for a parole violation based upon the same charge for which he had been initially arrested was first raised in People v. Patheal (1963), 27 Ill.2d 269, 189 N.E.2d 309. In rejecting the State's contention that the time spent in custody for violation of parole based upon defendant's arrest for the underlying charges should not be counted towards computing the speedy trial period, the court noted:
"Fiction would supplant fact if we were to say that this entire period of confinement * * * is to be disregarded on the ground that Coles County had no legal authority to put the defendant in jail because he was technically within the custody of the Department of Public Safety. The constitutional right to a speedy trial does not depend upon such technicalities." (27 Ill.2d 269, 271, 189 N.E.2d 309, 310.)
The court did not, however, base its decision upon this rationale, but held that "[e]ven if the [period defendant was incarcerated for the parole violation] is excluded from consideration, he was still held by the authorities of Coles County, without a trial, for a period just short of five months." (27 Ill.2d 269, 262-73, 189 N.E.2d 309, 311.) Patheal was followed in People v. Burchfield (1978), 62 Ill. App.3d 754, 379 N.E.2d 375, which held that where a defendant is in custody for a parole violation based upon the charge for which he is later to be tried, he is within the jurisdiction of the court and must be brought to trial within the 120-day period.
• 1 Another district of the appellate court had earlier declined to follow Patheal, reasoning that the issue was there raised but not decided, and held in People v. Daily (1975), 30 Ill. App.3d 413, 332 N.E.2d 146, that an arrest warrant for a criminal offense and a parole violation warrant were not interchangeable, and that defendant was not in custody for purposes of the 120-day rule until he asked for the return of his bail money. The Burchfield court, however, reasoned that Daily was inconsistent with Patheal and their earlier decision in People v. Powell (1976), 43 Ill. App.3d 934, 357 N.E.2d 725. The Daily court also alternately based its ruling on the fact defendant had been released from jail on a recognizance bond before the expiration of the 120-day period. (30 Ill. App.3d 413, 415, 332 N.E.2d 146, 148.) In the present case, the State argues that Burchfield's reliance on Patheal was misplaced and this court should follow Daily and hold that the 120-day period did not begin to run until defendant surrendered his bond on December 28, 1978. We believe the better view is as espoused in People v. Patheal (1963), 27 Ill.2d 269, 189 N.E.2d 309, and People v. Burchfield (1978), 62 Ill. App.3d 754, 379 N.E.2d 375, and conclude defendant was in custody for purposes of the speedy-trial statute from the time of his arrest on August 22, 1978. The question now becomes whether delay attributable to him will reduce the elapsed time to within the statutory 120 days.
The first time period to consider is that from defendant's arrest to the completion of discovery on October 27, 1978. The State apparently concedes this 66-day period is not chargeable to defendant and, as defendant correctly points out, he has a right to discovery and therefore the time necessary to complete it is not always attributable to delay. People v. Crawford Distributing Co. (1979), 78 Ill.2d 70, 397 N.E.2d 1362; People v. Nunnery (1973), 54 Ill.2d 372, 297 N.E.2d 129; People v. Uryasz (1975), 32 Ill. App.3d 825, 336 N.E.2d 813.
• 2 Defendant next contends that the delay occasioned by the withdrawal of his privately retained counsel on October 27, 1979, should not be attributable to him since he objected to his attorney's withdrawal and to the appointment of the public defender on his behalf. Defendant maintains that these facts bring this case outside this court's opinion in People v. Eason (1976), 44 Ill. App.3d 308, 357 N.E.2d 1191, relied upon by the State, which held that delay occasioned by the withdrawal of counsel, to which defendant agrees or acquiesces, may be chargeable to him. He also relies upon People v. Wyatt (1962), 24 Ill.2d 151, 180 N.E.2d 478, to support his contention that where a defendant takes advantage of an offer by the court of a continuance in order to find an attorney, the resulting delay will not be attributable to him. Wyatt, however, did not concern delay occasioned by withdrawal of counsel, but involved a defendant who had not yet retained a lawyer at the time he was arraigned. Defendant's argument is thus without merit since he did ask for time to find a new attorney, and the time from October 27, 1978, until November 9, 1978, when his new lawyer appeared, is chargeable to him. See People v. Evans (1979), 75 Ill. App.3d 949, 394 N.E.2d 710.
• 3 When his new lawyer appeared, he was granted until November 13, 1978, to file any motions and this delay is clearly occasioned by defendant. (People v. Donalson (1976), 64 Ill.2d 536, 356 N.E.2d 776.) Similarly, the delay caused by his counsel's failure to appear on that date, necessitating a continuance until November 22, 1978, is chargeable to defendant. People v. Hairston (1970), 46 Ill.2d 348, 263 N.E.2d 840, cert. denied ...