Motion to publish granted, April 28, 2015.
Rule 23 order filed: April 6, 2015.
Appeal from the Circuit Court of Perry County. No. 07-CF-112. Honorable James W. Campanella, Judge, presiding.
For Appellant: Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, Richard J. Whitney, Assistant Appellate Defender, Office of the State Appellate Defender, Mt. Vernon, IL.
For Appellee: Hon. David Stanton, State's Attorney, Perry County Courthouse, Pinckneyville, IL; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Vernon, IL.
JUSTICE STEWART delivered the judgment of the court, with opinion. Justices Schwarm and Moore concurred in the judgment and opinion.
[¶1] The defendant, Sammy Moore, appeals the denial of his motion for reconsideration of an order dismissing a petition for leave to file an untimely posttrial motion and notice of appeal. He seeks review of a prior order denying his oral motion to dismiss the case for failure to timely conduct a preliminary examination to determine probable cause. We affirm.
[¶3] On August 23, 2007, the State charged the defendant by information with one count of aggravated battery in violation of section 12-4(b)(18) of the Criminal Code of 1961 (720 ILCS 5/12-4(b)(18) (West 2006)). The State alleged that the defendant struck correctional officer Peter Liszewski, knowing him to be a correctional officer engaged in the execution of his official duties. This was a Class 2 felony.
[¶4] On September 24, 2007, the court held a preliminary hearing, and the defendant appeared with court-appointed counsel. The defendant, acting pro se, objected to the hearing, arguing that it was beyond the 30-day statutory limitation for a prompt preliminary hearing. The defendant asserted that he was arrested on March 2, 2007. He stated that after the incident with Officer Liszewski, officers at the Pinckneyville Correctional Center read him his rights, booked him, took his fingerprints, and told him he was under arrest. The trial court informed the defendant that what happened at the Pinckneyville Correctional Center " had to be something that they, the police officers, did without the sanctions of a warrant that the state's attorney normally asks [the court] to issue. Apparently it was something they did long before the state's attorney decided to bring the formal charge." The court explained that the charges against the defendant were filed on August 23, 2007, and that the day of the preliminary hearing was within 30 days because the thirtieth day had fallen on Saturday, September 22, 2007, and the closest business day was the thirty-second day after the defendant was charged, which was Monday, September 24, 2007, the day of the hearing. The court denied the defendant's motion.
[¶5] The trial court proceeded to conduct the preliminary hearing. Steve Stroka, a correctional officer at the Pinckneyville Correctional Center assigned to internal affairs investigations, testified for the State. The defendant did not call any witnesses. The court found probable cause to hold the defendant to answer the information. The defendant entered a plea of not guilty.
[¶6] On November 12, 2008, the State filed an amended information alleging that on March 2, 2007, the defendant, in committing a battery, knowingly made contact of an insulting or provoking nature with Peter Liszewski, in that he slapped Officer Liszewski's hand away when the officer attempted to secure the defendant's name tag, while the officer was on public property, being the Pinckneyville Correctional Center. This constituted an aggravated battery in violation of section 12-4(b)(8) of the Criminal Code of 1961 (720 ILCS 5/12-4(b)(8) (West 2006)), a Class 3 felony. On that same day, the defendant filed a written waiver of trial by jury.
[¶7] At a hearing that day, the parties agreed to a stipulated bench trial. The court reviewed the amended charge and the possible penalties. The court informed the defendant that if he was found guilty it would impose a sentence of two years' imprisonment in the Department of Corrections to run consecutive to his current term, no fines would be imposed, and that he would have one year of mandatory supervised release. The court informed the defendant that he could not appeal the sentence without first filing a motion within 30 days to withdraw the agreement to a stipulated bench trial. The court admonished the defendant as follows:
" What can you appeal? I am sure [defense counsel] has told you, earlier rulings that I made that perhaps at some juncture played a part in your going along with the program here. I understand you have an issue with this 30 days preliminary hearing. I don't have any problem with that. I would love for somebody to tell me that I was wrong in that respect and it's not going to bother me. I am thick skinned. Interstate detainer, I understand you have some issues with that. Again, I don't see how in the world that you can be prohibited from appealing those type of issues. So I am just trying to make perfectly clear ...