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People v. Bowman

OPINION FILED MAY 6, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

GREGORY BOWMAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. STEPHEN M. KERNAN, Judge, presiding.

MR. PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Defendant, Gregory Bowman, was convicted of kidnaping and unlawful restraint and was sentenced to an extended term of imprisonment of 14 years on the kidnaping offense. No judgment was entered on the unlawful restraint conviction.

Defendant raises the following issues on review: (1) whether defendant was denied his right to a speedy trial; (2) whether defendant was denied effective assistance of counsel; (3) whether the State improperly bolstered the complaining witness' in-court identification of defendant through the use of prior consistent statements; (4) whether the State improperly introduced evidence of defendant's prior criminal history; and (5) whether defendant's sentence to an extended prison term violated defendant's right to equal protection under the law.

The pertinent aspects of the evidence adduced at trial are as follows. At approximately 10:30 on the evening of July 20, 1978, Jeanne Taylor was seated in the Helpee Selfee Laundromat in Belleville, Illinois, reading a book. A man approached her, requesting change for a dollar. He stood as close as two feet from her, and she had an unobstructed view of his face in a room illuminated by fluorescent lights. After she informed him that she had no change, the man remained standing in front of her for about a minute until she told him to keep trying the change machine. Finally, Ms. Taylor volunteered to make change for him. She made several attempts before she succeeded in getting the machine to accept his wrinkled dollar bill. After the machine made the change, the man grabbed her around the neck from behind, placed a knife against her throat and told her to be quiet or she would get hurt. The man forced her outside of the laundromat into an automobile and sped off. The fleeing vehicle was observed by several persons, including Mark Penseneau, who was able to identify the make, model, color, and approximate year of the vehicle. Ms. Taylor repeatedly struggled with the man in an effort to escape. He held her down and proceeded to drive through the streets of Belleville, apparently without a specific destination. At one point the man changed lanes and narrowly missed striking a motorcycle driven by Darl Lipps, who then gave chase. Eventually Lipps caught up with the vehicle when it was held up in traffic at a stop light. As Lipps approached the vehicle, a woman, who he later learned was Ms. Taylor, leaped out of the passenger side and ran. Sensing her to be in trouble, Lipps took the woman to a nearby bowling alley where she summoned the police. Lipps' description of the automobile was similar to Penseneau's. In addition, Lipps told the police that the license number of the vehicle he followed was AD 6752. Ms. Taylor viewed a photographic array on July 22, 1978, and, from a group of 10 photographs, selected defendant as the man who accosted her. Two days later she identified defendant at a lineup on the basis of his appearance and his high-pitched voice.

Defendant was taken into custody on July 22, 1978, and charged by criminal complaint with kidnaping and armed violence. The charges were amended by a bill of indictment to kidnaping and unlawful restraint. On September 22, 1978, defendant filed a motion for change of venue to a county other than St. Clair. On November 27, 1978, the motion was granted and the trial was transferred to Perry County. Defendant appeared at trial but then entered a negotiated plea of guilty to count I of the indictment charging him with kidnaping. In exchange for the plea, the State agreed to dismiss count II, the unlawful-restraint charge, and agreed not to seek an extended-term sentence, which was available. During the course of the proceedings, the court, in commenting on the fact that defendant was already on parole for a prior conviction, referred to its understanding as to the policies of the parole board concerning revocation of defendant's parole. The trial court then accepted the plea and directed, without objection by defendant or his counsel, that the sentencing hearing and all other proceedings in the case be conducted in St. Clair County.

At the sentencing hearing on January 5, 1979, in St. Clair County, the trial court indicated that previously it had misunderstood the policy of the parole board with respect to parole revocation. The court stated that at the time the plea was accepted, it had been under the impression that the guilty plea would result in an automatic revocation of parole, requiring defendant to serve the 25 years remaining on his prior conviction. The court stated that it now understood that it was not a certainty that the board would require defendant to serve out the complete unexpired term on his prior conviction but instead would look to the sentence imposed for the current offense before determining the sentence to be imposed on the revocation. The trial court thereupon vacated defendant's guilty plea sua sponte, and a new trial day was set for January 16, 1979, in St. Clair County. The trial judge then recused himself from the case.

When the case was called for trial, the State announced ready, but defendant moved for another change of venue outside of St. Clair County. The motion was granted and trial commenced February 5, 1979, in Randolph County. However, prior to the start of trial, defendant petitioned for discharge, alleging a violation of his right to a speedy trial within 120 days as required by section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(a)). The motion was denied, which defendant now urges was error.

The record discloses that defendant was incarcerated from July 22, 1978, up to his trial date of February 5, 1979, a period of 198 days. Defendant concedes that 66 days of the delay in bringing the case to trial are attributable to him as a result of his initial motion for a change of venue; however, he urges that the remaining 132 days' delay must be charged against the State, thereby entitling him to discharge under the 120-day rule (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(a)). The State contends that the guilty plea waived any delay occasioned during the 39 days the plea was in effect between November 27, 1978, and January 5, 1979. According to the State, this delay, when added to the 66 days admittedly attributable to defendant, would reduce the delay chargeable to the State to 93 days, a period well within the 120-day limitation.

• 1 Although we are aware of no case addressing this specific issue, it is well settled that a guilty plea waives the right of an accused to have his conviction reversed for want of a speedy trial. (People v. De Cola (1959), 15 Ill.2d 527, 155 N.E.2d 622; People v. Ike (1973), 10 Ill. App.3d 933, 295 N.E.2d 250.) Left unanswered by these decisions, however, is the question of the consequence of the subsequent vacation of the plea which resulted in the waiver.

• 2 We conclude that defendant's plea of guilty operated to toll the running of the 120-day rule during the period that elapsed between the entry of such plea and the order vacating it. Our primary consideration for such determination of this issue is best illustrated by the dictum of the court in People v. Hickman (1971), 3 Ill. App.3d 919, 930, 280 N.E.2d 787, 794, rev'd on other grounds (1973), 56 Ill.2d 175, 306 N.E.2d 32, in which the court stated:

"This court is of the opinion that where a defendant has plead guilty he waives the 120 day rule and cannot avail himself of it by changing his plea to not guilty a day or two before the expiration of the 120 days."

We agree.

We therefore conclude that defendant's waiver of the benefits of the 120-day rule, referred to in Hickman, is operative so long as defendant's plea of guilty remains in effect as his plea to the charge. Were we to hold otherwise, the rationale of the cases involving waiver of the 120-day rule by a defendant who has pleaded guilty would be circumvented on all occasions in which, after the expiration of the 120-day period, a plea of guilty entered before the expiration of 120 days was withdrawn or vacated or the proceedings surrounding its entry were reversed on appeal. Consequently, in the instant case, any delay in defendant's prosecution was waived by the entry of his plea of guilty on November 27, 1978, and such waiver would continue until such plea was vacated on January 5, 1979, thereby tolling the 120-day rule during the period between the entry of his plea of guilty and its vacation. Trial was held 31 days later on February 5, 1979. Assuming that the 31 days were completely attributable to the State, there was full compliance with the provisions of section 103-5(a).

Next, defendant contends that he was denied effective assistance of counsel where defense counsel's law partner was a former assistant State's Attorney who participated in the preliminary stages of the prosecution of this case.

The State informed the trial court at defendant's arraignment that defense counsel's law partner, Stephen Rice, was a former assistant State's Attorney who took part in the early stages of the prosecution. Stephen Rice was present when defendant was initially interviewed by the police, and he personally drafted a warrant for the search of defendant's automobile. Stephen Rice is currently a partner in the law firm of Rice & Durso; and defense counsel, Robert Rice, is also a partner in the firm.

• 3 Under the sixth amendment, defendant is guaranteed the right to counsel. Further, an accused is entitled to the undivided loyalty of his attorney. (Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457.) This right uniformly is protected, and convictions have been overturned where court-appointed counsel had participated only to a minor extent in the early phases of the prosecution prior to representing the defendant. (People v. Kester (1977), 66 Ill.2d 162, 361 N.E.2d 569; People v. Wyatt (1977), 47 Ill. App.3d 582, 362 N.E.2d 122.) Kester and Wyatt would preclude Stephen Rice from representing defendant despite his limited role in the case as an assistant State's Attorney. Further, where one member of a law firm is disqualified from representing a defendant due to a conflict of interest, all members of the firm are disqualified. Nevertheless, a defendant may waive his right to be defended by counsel free from a conflict of interest, thereby permitting representation by counsel otherwise deemed disqualified, if the waiver is knowingly and intelligently made. People v. Robinson (1979), 79 Ill.2d 147, 402 N.E.2d 157.

• 4 In the instant case, when the trial court was confronted with the possibility of a conflict arising out of Stephen Rice's relationship to the case, the following colloquy occurred:

"THE COURT: Mr. Robert Rice, what do you think about this?

MR. RICE: The data that my new partner was privy to was that which would be supplied to us anyway. To my knowledge he is not privy to any confidence that would be of prejudice to the State.

THE COURT: The further question would be, though, whether the — in the event that — I am not saying there would be, but should, looking ahead, should there be a conviction, I wouldn't want them to have that — to raise that point.

MR. RICE: Well, your Honor, as I kidded the prosecutor it could be a matter that the State might feel prejudiced by, and I have explained this fully with my client. It is hard to — difficult to conceive of any prejudice to the defendant.

THE COURT: I can't of any prejudice that would arrise [sic], but that is his decision.

MR. RICE: He understands that, your Honor, and is willing to waive that.

THE COURT: You waive that, do you?

DEFENDANT BOWMAN: Yes, I do.

THE COURT: That settles that."

We conclude that this colloquy is dispositive of this issue because it establishes that defendant knowingly and intelligently waived any conflict of interest attendant to the representation afforded him by Robert Rice.

Defendant next contends that the trial court erred in not granting a mistrial where the prosecution bolstered the complaining witness' identification testimony with testimony of prior consistent statements.

Detective Sergeant James Rokita of the Belleville Police Department testified for the State that he conducted a lineup at the St. Clair County jail for viewing by Jeanne Taylor. According to Rokita, each person in the lineup wore a jumpsuit upon which a number had been affixed, and Ms. Taylor was asked to write down the number of any person she recognized as her abductor. The following colloquy ensued during Sergeant Rokita's testimony:

"Q. And in regards to that after the lineup had been conducted, did Jeanne Taylor write down a number?

A. Yes, she did.

Q. What number was that?

A. She wrote number six on the slip of paper.

Q. After writing that number down, what, if ...


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