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09/09/94 PEOPLE STATE ILLINOIS v. JEROLD STANLEY

September 9, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JEROLD STANLEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 9th Judicial Circuit, McDonough County, Illinois. No. 87-CF-53. Honorable James B. Stewart Judge, Presiding

Petition for Leave to Appeal Denied December 6, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice.

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

Defendant, Jerold Stanley, appeals from the denial of his petition for post-conviction relief. The primary issue before us is whether trial counsel was constitutionally ineffective for failing to move for a dismissal of charges on statutory speedy trial grounds. For reasons that follow, we reverse and remand this cause for a new trial.

The record on appeal establishes that defendant and his wife, Kathleen, were taken into custody on May 13, 1987, on a joint charge of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(b)(1)) allegedly committed on or about May 13, 1986. The cause was thereafter continued on several occasions on motion of defendant and his wife. On August 31, 1987, the State amended its information to charge defendant individually with three counts of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(b)(1)). Defendant's motions for a continuance to prepare for trial on the new charges were denied.

On September 14, 1987, 125 days after having been taken into custody, defendant was tried by a jury and found guilty on all five counts of the amended information. He was subsequently sentenced to serve a 25-year term of imprisonment on count I for aggravated criminal sexual assault. On direct appeal, this court affirmed defendant's conviction. People v. Stanley (3rd Dist. 1988), No. 87-0777 (unpublished order under Supreme Court Rule 23).

Defendant thereafter filed a five-paragraph pro se petition for post-conviction relief alleging ineffective assistance of trial counsel for: (1) failing to move for a discharge under the Speedy Trial Act (Ill. Rev. Stat. 1985, ch. 38, par. 103-5(a)); (2) failing to move for a dismissal of charges on the basis of violations of the statute of limitations; (3) failing to object to an improper jury instruction; (4) failing to provide the State with timely notice of the name of a vital witness; and (5) failing to move for dismissal of charges committed before the enactment of the statute allegedly violated.

The court appointed counsel and docketed the petition for further consideration of the allegation in paragraph 1 pursuant to section 122-4 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-4). In all other respects, the court dismissed the petition as patently without merit. After an evidentiary hearing on the speedy trial issue, the court denied defendant's petition. This appeal followed.

Defendant argues that the trial court erred in denying his post-conviction petition because trial counsel was ineffective for failing to move for a speedy trial discharge, and that appellate counsel was ineffective to the extent that counsel failed to raise the issue on direct appeal. The State contends that the issue has been waived. In the alternative, the State suggests that the trial court properly concluded that the State's August 31, 1987, amendment to the charging instrument was merely a technical correction. Having duly considered the parties' arguments, we agree with defendant that the trial court erred in denying post-conviction relief.

By statute, a defendant is entitled to be tried within 120 days from the date he was taken into custody unless his own acts occasioned delay. (Ill. Rev. Stat. 1985, ch. 38, par. 103-5(a).) The rule for determining the number of speedy trial days attributable to the State when new and additional charges are brought against a previously charged defendant was stated in People v. Williams (1981), 94 Ill. App. 3d 241, 248-49, 418 N.E.2d 840, 846, 49 Ill. Dec. 820:

"Where new and additional charges arise from the same facts as did the original charges and the State had knowledge of these facts at the commencement of the prosecution, the time withinwhich trial is to begin on the new and additional charges is subject to the same statutory limitation that is applied to the original charges. Continuances obtained in connection with the trial of the original charges cannot be attributed to defendants with respect to the new and additional charges because these new and additional charges were not before the court when those continuances were obtained."

Counsel's failure to move for a speedy trial discharge of new and additional charges may constitute ineffective assistance of counsel. People v. Alcazar (1988), 173 Ill. App. 3d 344, 527 N.E.2d 325, 122 Ill. Dec. 827; People v. Hawkins (1991), 212 Ill. App. 3d 973, 571 N.E.2d 1049, 157 Ill. Dec. 30.

In this case, defendant was originally charged with one count of aggravated criminal sexual assault, a Class X felony. The charging instrument recited that on or about May 13, ...


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