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03/16/87 the People of the State of v. Phillip Helton

March 16, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PHILLIP HELTON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

506 N.E.2d 307, 153 Ill. App. 3d 726, 106 Ill. Dec. 600 1987.IL.314

Appeal from the Circuit Court of Logan County; the Hon. William M. Roberts, Judge, presiding.

APPELLATE Judges:

Presiding Justice Spitz delivered the opinion of the court. Green and Knecht, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

Convicted following a jury trial of aggravated criminal sexual assault (Ill. Rev. Stat., 1984 Supp., ch. 38, pars. 12-14(a)(1), (2)), defendant raises five points of alleged error on appeal: (1) that he was deprived of his right to a speedy trial; (2) his motion to suppress identification testimony based upon unduly suggestive procedures was improperly denied; (3) the trial court erroneously limited cross-examination of the alleged victim's mental health history for purposes of impeachment; (4) his guilt was not proved beyond a reasonable doubt; and (5) the 25-year sentence imposed was excessive.

For the reasons to follow, however, we find none of the defendant's contentions persuasive, and we affirm.

To resolve this matter in full, we shall undertake an examination of the substantive issues raised in the order presented to us, providing relevant facts where necessary.

Defendant first maintains that, for purposes of the speedy-trial provision contained in section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 103-5), he was not brought to trial within 120 days of incarceration. He therefore contends that his motion to dismiss based upon a purported violation of his right to a speedy trial should have been granted.

The so-called speedy-trial statute provides that every person in custody for an alleged offense shall be tried within 120 days from the date he was taken into custody, unless a delay is caused by that person. (Ill. Rev. Stat. 1983, ch. 38, par. 103-5(a).) Any such delay occasioned by a defendant will temporarily toll the running of the 120-day period within which defendant must be tried. (Ill. Rev. Stat. 1983, ch. 38, par. 103-5(f); People v. Davis (1983), 114 Ill. App. 3d 537, 449 N.E.2d 237.) The appropriate test to determine whether a delay is chargeable to a defendant under this statute is whether an act of the defendant in fact caused or contributed to the delay. People v. Shields (1974), 58 Ill. 2d 202, 317 N.E.2d 529.

A review of the record reveals that defendant was returned to Illinois to face charges on July 27, 1985. The cause was originally set for trial on December 9, 1985, or 135 days later. Defendant concedes, correctly so, that the delays between December 9, 1985, and the actual trial date of May 12, 1986, were directly attributable to him. We therefore need only consider the time frame between July 27 and December 9, 1985.

Defendant engages in some curious calculation to conclude that the total delay between July 27 and December 9, notwithstanding delays directly attributable to him, was 122 days. For example, defendant filed his initial motion for substitution of Judges on September 3, 1985. While an order for substitution was entered on September 6, 1985, referring the matter back to the chief Judge for assignment, the cause was not actually reassigned until September 12. Defendant maintains that only the time period between the September 3 motion and the September 6 order is attributable to him. He stresses the six-day period between the September 6 order allowing the motion for substitution of Judges and the actual order on September 12 reassigning the matter to a new Judge represents mere bureaucratic delay which should not be counted against him.

We do not agree. A delay chargeable to a defendant encompasses not only the time period required to hear a motion, but also the additional time necessary to implement the relief requested. (People v. Ortiz (1979), 70 Ill. App. 3d 684, 388 N.E.2d 891.) Common sense dictates that the entire length of the delay occasioned by the defendant's own conduct must run from his motion for substitution until the actual reassignment nine days later. Nothing could be done on the case until another Judge could be appointed to hear it. Likewise, defendant's second motion for substitution of Judges, filed September 17, 1985, tolled the running of the 120-day period until the September 24, 1985, order assigning the case to Judge William Roberts.

Defendant also suggests that the time frame surrounding this second reassignment should not be held against him. Defendant postulates that, given his prior history of delinquency and criminality as disclosed by a presentence report, his first motion for reassignment based upon alleged prejudice should somehow have been construed to apply to all Logan County Judges. Defendant presupposes that his "familiarity" with the Logan County judicial system automatically entitled him, upon one motion, to have all Judges in the county excluded from presiding over his case. We cannot, however, indulge the defendant in this regard. His September 3 motion expressly raises general prejudice on the part of one particular Judge. Nowhere in the motion is prejudice alleged as to all Logan County Judges; nor can such an allegation be inferred. The delay occasioned by both motions is in fact attributable to defendant.

In any event, defendant caused several other delays in this matter prior to December 9, 1985. On September 6, 1985, defendant filed a motion to suppress evidence taken from him pursuant to a court order. The hearing on that motion was continued upon defendant's own motion filed October 17, 1985. Thereafter, on November 12, 1985, the suppression motion was heard and denied. Delays occasioned by a defendant's own motions, including those caused by a motion to suppress evidence, have been held to be delays attributable to the defendant. (People v. Jones (1984), 104 Ill. 2d 268, 472 N.E.2d 455; People v. Donalson (1976), 64 Ill. 2d 536, 356 N.E.2d 776.) In addition, defendant filed a motion for a continuance on December 6, 1985, which may also be considered a delay attributable to him. (People v. Brown (1982), 110 Ill. App. 3d 443, 442 N.E.2d 534.) Also, on December 3, 1985, defendant filed a motion challenging the constitutionality of the statute under which he was charged.

It is the duty of the State to bring defendants to trial within the statutory time period. It is then incumbent upon a defendant in his motion for discharge to affirmatively establish a violation of his right to a speedy trial. (People v. Reimolds (1982), 92 Ill. 2d 101, 106, 440 N.E.2d 872, 875.) In making his proof, a defendant must establish that the delay was not attributable to his conduct. (People v. Jones (1965), 33 Ill. 2d 357, 361, 211 N.E.2d 261, 263, cert. denied (1966), ...


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