Appeal from the Circuit Court of Cook County. No. 09 CR 14982 The Honorable Timothy Joseph Joyce, Judge Presiding.
The opinion of the court was delivered by: Justice Hyman
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Neville and Justice Sterba concurred in the judgment and opinion.
¶ 1 Defendant contends his conviction must be reversed where it was obtained in violation of his statutory right to a speedy trial and where his trial counsel was ineffective for failing to move for dismissal of the charges based on those grounds. Defendant also contends his three-year mandatory supervised release term must be reduced to a two-year term because he was convicted of a Class 1 felony, although he was sentenced as a Class X offender. Lastly, defendant requests, and the State concedes, that his mittimus be corrected to reflect he was convicted for possession of a controlled substance with intent to deliver.
¶ 3 On July 24, 2009, undercover police officer Jose Velez and his partner, Officer Robert Ruiz, arrested defendant after observing him engage in two narcotics transactions. Defendant was charged with Class 1 possession with intent to deliver 1 to15 grams of heroin, as well as Class X possession with intent to deliver heroin within 1,000 feet of a church. 720 ILCS 570/401 (c)(1),(b)(1) (West 2010).
¶ 4 The day after defendant's arrest, July 25, 2009, the court held a bond hearing and set defendant's bond at $100,000. Defendant's appointed counsel filed a written demand for trial that day. Defendant did not post bond and remained in custody from the date of his arrest until his trial on June 2, 2011.
¶ 5 On August 18, 2009, the State filed its information. On September 3, 2009, defendant was arraigned and his attorney agreed to a continuance to obtain pretrial discovery. Between September 25, 2009, and April 22, 2010, the matter was continued nine more times by agreement of the parties. During that time, the parties completed discovery, engaged in plea negotiations and the court ordered a fitness examination of defendant. On April 22, 2010, the parties scheduled a mutually agreeable trial date of June 9, 2010.
¶ 6 The case went to trial on June 2, 2011. Following the bench trial, defendant was convicted of possession of a controlled substance with intent to deliver, a Class 1 offense, and sentenced to eight years' imprisonment as a Class X offender because of his criminal background. Defendant's counsel filed a motion for a new trial, arguing the State failed to prove defendant guilty beyond a reasonable doubt. On July 6, 2011, defendant filed a pro se motion claiming ineffective assistance of counsel. In response to the court's questioning, defendant stated that his witness, Michael Ball, would have testified that he and defendant were buying drugs when the officers arrested defendant and that defendant was not involved in the sale of any drugs.
Defendant also complained that, "[w]hen I was coming *** to court on my five times they were steady getting status dates of trial, and [Ball] was there, so after he died, you know, then the whole program changed. They was ready for trial, you know what I mean?" The court found defendant's claims of ineffective assistance were "without basis."
¶ 7 Defendant timely appealed.
¶ 9 Speedy Trial and Ineffective Assistance Claims
¶ 10 Defendant contends his conviction must be reversed because it was obtained in violation of his statutory right to a speedy trial. Defendant contends his trial counsel was ineffective for failing to move to have the charges dismissed based on this violation.
¶ 11 Defendant was brought to trial on June 2, 2011, 678 days after his arrest on July 24, 2009. Defendant remained in continuous custody the entire time. Defendant argues that of those 678 days, at least 145 days are ...