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The Village of Mundelein v. andrey Bogachev

May 27, 2011

THE VILLAGE OF MUNDELEIN,
PLAINTIFF-APPELLANT,
v.
ANDREY BOGACHEV,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 09-DT-272 Honorable Patrick N. Lawler and Joseph R. Waldeck, Judges, Presiding.

The opinion of the court was delivered by: Justice Hudson

JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.

OPINION

Plaintiff, the Village of Mundelein, charged defendant, Andrey Bogachev, with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2008)). After numerous continuances, he moved to dismiss the charge, contending that he had been denied his statutory right to be brought to trial within 160 days of demanding a speedy trial (see 725 ILCS 5/103-5(b) (West 2008)). The trial court initially denied the motion, then granted it and dismissed the charge. Plaintiff appeals, contending that (1) under our opinion in People v. Hampton, 394 Ill. App. 3d 683 (2009), defendant forfeited his statutory right to a speedy trial by failing to object to the court's decision to continue the trial date beyond the 160-day period; and (2) the trial court erred reversibly in refusing to attribute delays caused by certain continuances to defendant.

We note that the record consists of the common-law record and a report of proceedings for March 30, 2010, when the trial court heard defendant's motion to reconsider the denial of his motion to dismiss. We have no transcripts, bystander's reports, or agreed statements of facts for any other proceedings (see Ill. S. Ct. R. 323 (eff. Dec. 13, 2005)). The pertinent facts are as follows.

On January 31, 2009, defendant was arrested and charged with DUI. He posted bond that day and was out of custody thereafter. Judge Patrick N. Lawler was assigned to defendant's case. On February 20, 2009, defendant filed a demand for a speedy trial (see 725 ILCS 5/103-5(b) (West 2008)) and a petition to rescind the summary suspension of his driver's license (see 625 ILCS 5/11-501.1 (West 2008)). On March 13, 2009, he filed a one-page motion to quash his arrest and suppress statements (motion to suppress). A minute order for that day states that, on defendant's motion, the hearing on the rescission petition and the motion to suppress was continued. The next entry of record, a minute order of April 3, 2009, states that the hearing on both the petition and the motion was "Continued Present." Next, a minute order for April 24, 2009, states that, on the court's motion, the hearing on both the petition and the motion was continued.

On May 22, 2009, the trial court, Judge Diane E. Winter presiding, granted defendant's rescission petition but took no action on his motion to suppress. A minute order for May 22, 2009, states, "Trial Priority Date Set" without elaboration. The next entry of record is a minute order of July 17, 2009, reading, as pertinent here, "Trial Priority" and "Set Jury Trial Date."

On July 28, 2009, on the court's motion, per Judge Lawler, the trial was continued to September 8, 2009, the written order explaining, "Attorney Unavailable." On September 8, 2009, the court, on its own motion, per Judge Lawler, continued the trial to September 29, 2009, the written order stating, "Judge Unavailable."

On September 29, 2009, defendant moved to dismiss the charge, alleging a violation of his statutory right to a speedy trial. The motion incorrectly stated that the pertinent period was 120 days, the time limit in section 103-5(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(a) (West 2008)), which applies to defendants in custody. As defendant later conceded, his claim arose under section 103-5(b) (725 ILCS 5/103-5(b) (West 2008)), with a term of 160 days.

Defendant's motion alleged the following facts. On February 20, 2009, defendant filed his rescission petition and his speedy-trial demand, and the court scheduled the hearing on the rescission petition for March 13, 2009. On March 13, 2009, defendant moved for and obtained a continuance, and the matter was set for a hearing on April 3, 2009. On April 3, 2009, and again on April 24, 2009, the court continued the cause on its own motion, the latter time to May 22, 2009. On May 22, 2009, the court granted the rescission petition. Also on May 22, 2009, the matter was set "for trial priority to be held on July 17, 2009." On July 17, 2009, both sides answered ready, and the trial was set for July 28, 2009. On July 28, 2009, and on September 8, 2009, both times on the court's motion, the trial was continued, the latter time to September 29, 2009. Defendant argued that, by then, the speedy-trial term had expired.

Plaintiff filed a response to defendant's motion, noting first that the proper speedy-trial provision in this case was section 103-5(b). Plaintiff then argued as follows. On March 13, 2009, defendant filed his motion to suppress. According to plaintiff, the delay up until March 13, 2009, and the further delay caused by the proceedings on the motion to suppress were attributable to defendant. Plaintiff contended that only the delay from May 22, 2009, to September 29, 2009-130 days-was not attributable to defendant.

Defendant replied as follows. As of September 29, 2009, 179 days had passed since he had demanded a speedy trial. The crucial continuances were those granted on April 3, 2009, and April 24, 2009, both of which "were by motion of the court" and thus not attributable to him. Adding the period from April 3, 2009, to May 22, 2009, made the total delay not attributable to defendant 179 days-19 days more than allowed.

After hearing arguments, Judge Lawler denied defendant's motion. The court's written order states that the denial was based on Hampton, "in that defendant failed to object based on a speedy trial violation on September 8, 2009[,] when his case was set for trial." Defendant moved to reconsider, arguing that Hampton is limited to the construction of section 103-5(a). Citing People v. Cordell, 223 Ill. 2d 380 (2006), defendant argued that section 103-5(a) differs crucially from section 103-5(b). As pertinent here, the sections state:

"(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***. Delay shall be considered to be agreed to by the defendant unless he or she objects to the ...


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