                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Wade, 2013 IL App (1st) 112547




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    AARON WADE, Defendant-Appellant.



District & No.             First District, Third Division
                           Docket No. 1-11-2547


Filed                      March 20, 2013


Held                       The appellate court rejected defendant’s contention that his counsel was
(Note: This syllabus       ineffective in failing to seek a reversal on speedy trial grounds where such
constitutes no part of     a motion would have been futile, and although his mittimus was amended
the opinion of the court   to correctly reflect a conviction for possession of a controlled substance
but has been prepared      with intent to deliver, rather than manufacture or delivery of a controlled
by the Reporter of         substance, the three-year term of mandatory supervised release was
Decisions for the          upheld on the ground that he was sentenced as a Class X offender due to
convenience of the         his background.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CR-14982; the
Review                     Hon. Timothy Joseph Joyce, Judge, presiding.



Judgment                   Affirmed; mittimus corrected.
Counsel on                 Rachel Moran, of State Appellate Defender’s Office, of Chicago, for
Appeal                     appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                           Jon Walters, Assistant State’s Attorneys, of counsel), for the People.


Panel                      JUSTICE HYMAN delivered the judgment of the court, with opinion.
                           Presiding Justice Neville and Justice Sterba concurred in the judgment
                           and opinion.



                                              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.

¶2                                        BACKGROUND
¶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,

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       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.

¶8                                             ANALYSIS
¶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 attributable to the State and its unpreparedness for trial.
¶ 12       The State contends defendant received effective assistance of counsel where the record
       shows his trial began within the 120-day statutory period and, therefore, had his counsel filed
       a motion to dismiss on speedy trial grounds, it would have been futile.
¶ 13       To prove ineffective assistance of counsel, the defendant must allege facts showing
       counsel’s representation was both objectively unreasonable and counsel’s deficiency
       prejudiced him. Strickland v. Washington, 466 U.S. 668 (1984); People v. Albanese, 104 Ill.
       2d 504, 526 (1984) (adopting the two-part test developed in Strickland). The defendant bears
       the burden of demonstrating he received ineffective assistance of counsel. People v. Burks,
       343 Ill. App. 3d 765, 774 (2003). To do so, the defendant must overcome a strong
       presumption that counsel’s performance fell within a wide range of reasonable professional
       assistance. People v. Pecoraro, 175 Ill. 2d 294, 319-20 (1997). In determining the adequacy
       of the defendant’s legal representation, we consider the totality of the circumstances. See
       People v. Long, 208 Ill. App. 3d 627, 640 (1990).
¶ 14       The failure of counsel to raise a speedy trial violation cannot satisfy either prong of
       Strickland where there is no lawful basis for arguing a violation. Accordingly, we must first
       determine whether defendant’s speedy trial rights were violated, before addressing whether
       counsel was ineffective for failing to raise the issue.
¶ 15       In Illinois, the right to a speedy trial is protected by both the constitution and statute. U.S.
       Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; 725 ILCS 5/103-5(a) (West 2010); see
       People v. Crane, 195 Ill. 2d 42, 48 (2001). Section 103-5(a) of the Code of Criminal


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       Procedure of 1963 (hereinafter Speedy Trial Act) provides:
                “(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 delay by making a written demand for trial
            or an oral demand for trial on the record.” 725 ILCS 5/103-5(a) (West 2010).
       Here, defendant only raises a violation of his statutory right to a speedy trial, not his
       constitutional rights.
¶ 16        The Speedy Trial Act provides that an accused in custody must be brought to trial within
       120 days from the date defendant was taken into custody. 725 ILCS 5/103-5(a) (West 2010).
       It is the State’s duty to bring the defendant to trial within the 120-day period. People v.
       Mayo, 198 Ill. 2d 530, 536 (2002). The speedy trial period is suspended during any delay
       caused by the defendant (725 ILCS 5/103-5(f) (West 2010); People v. Izquierdo-Flores, 332
       Ill. App. 3d 632, 636 (2002)), and the defendant bears the burden of affirmatively
       establishing a speedy trial violation by showing that the delay was not attributable to him or
       her (People v. Cooksey, 309 Ill. App. 3d 839, 843 (1999)). A delay is caused by the defendant
       and charged to him or her when “his [or her] acts caused or contributed to a delay resulting
       in the postponement of trial.” People v. Kliner, 185 Ill. 2d 81, 114 (1998). A “delay” for
       purposes of the Speedy Trial Act is “a term of art used to describe any event that places a
       trial date beyond the 120-day period.” People v. Cordell, 223 Ill. 2d 380, 388-89 (2006). Our
       supreme court explained:
                “Should a defendant wish to employ section 103-5(a) as a shield against any attempt
            to place his trial date outside the 120-day period, he is free to do so. To allow section
            103-5(a) to be used as a sword after the fact, to defeat a conviction, however, would be
            contrary to our holding in [People v. Gooden, 189 Ill. 2d 209 (2000),] and allow
            defendants to use a procedural loophole to obstruct justice.” Cordell, 223 Ill. 2d at 390.
¶ 17        “A simple request for trial, before any ‘delay’ is proposed, is not equivalent to an
       objection for purposes of section 103-5(a).” Cordell, 223 Ill. 2d at 391 (citing People v.
       Peco, 345 Ill. App. 3d 724, 734 (2004) (“while no magic words are required to constitute a
       speedy-trial demand, there must be some affirmative statement requesting a speedy trial in
       the record” (emphasis added))). Under section 103-5(a), the defendant bears the burden to
       take affirmative action when he or she becomes aware that the trial is being delayed. To
       allow a request for trial, made before any delay was proposed, to qualify as an objection to
       the delay not yet proposed gives defendants a sword to use after the fact to overturn their
       convictions, contravening the intention of section 103-5(a). Cordell, 223 Ill. 2d at 390.
¶ 18        The State concedes it was responsible for 41 days of pretrial delay in defendant’s case,
       but attributes the remaining delay of 637 days to defendant. The State takes responsibility for
       the 41-day delay from July 24, 2009, the date of arrest, to September 3, 2009, the date of
       defendant’s arraignment.
¶ 19        Both defendant and the State agree that from September 3, 2009, to June 9, 2010, a 279-
       day delay is attributable to defendant and, therefore, does not count against the speedy trial
       term.

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¶ 20        Defendant contends the 75-day period between June 9, 2010, and August 23, 2010, is
       attributable to the State for purposes of the speedy trial term. The State argues that even
       though the case was set for trial on both June 9 and July 13, 2010, and the defense answered
       ready to proceed to trial on those days and the State did not, the State is not responsible for
       that delay because defendant’s counsel agreed to continuances on both of those dates and
       failed to file a written trial demand.
¶ 21        Defendant argues that he did not agree to any “delay” as defined by Cordell when the
       State requested a new trial date on both June 9 and July 13, 2010. Neither request delayed
       his trial beyond the speedy trial period because the new dates still fell within the 120-day
       period and, therefore, he was not required to “take affirmative action” by objecting to the
       new trial dates. See Cordell, 223 Ill. 2d at 388-89.
¶ 22        The State cites People v. Woodrum, 223 Ill. 2d 286, 299 (2006), and People v. Kliner,
       185 Ill. 2d 81, 115 (1998), for the proposition that “an agreed continuance [generally]
       constitutes an affirmative act of delay attributable to the defendant.” Defendant agrees with
       this proposition and acknowledges that all of the dates on which he agreed to a continuance,
       rather than a trial date within the 120-day period, are attributable to him.
¶ 23        Defendant argues that there is a crucial difference between a continuance and setting a
       trial date within the 120-day period. Agreement on a trial date within the 120-day period
       furthers the purpose of the Speedy Trial Act by scheduling the trial within the 120-day
       period, unlike continuances, which do not. Defendant argues that Woodrum and Kliner are
       not helpful because neither addressed which party the delay should be attributed to when the
       delay is because of an agreement to a trial date within the 120-day window.
¶ 24        Defendant acknowledges that an agreement to a date outside the 120-day period, whether
       by continuance or in setting a new trial date, is a delay attributable to the defendant unless
       he makes a written or oral demand for trial. Cordell, 223 Ill. 2d at 388-92. Defendant only
       contends that an agreement to a trial date inside the 120-day period for the Speedy Trial Act
       is not a “delay” attributable to him, citing People v. Workman, 368 Ill. App. 3d 778 (5th Dist.
       2006), People v. LaFaire, 374 Ill. App. 3d 461 (3d Dist. 2007), and People v. Zeleny, 396
       Ill. App. 3d 917 (2d Dist. 2009).
¶ 25        Defendant agreed to continuances on both June 9 and July 13, 2010. On July 9, 2010, the
       State requested a continuance because of the recent discovery of 911 tapes which neither
       party had. At the conclusion of the proceeding, the court stated the continuance was “[b]y
       agreement for bench *** 7/13.” On July 13, the 911 tapes were still not available. Defense
       counsel answered ready for trial, but then suggested the next court date of August 23, 2010.
       The court stated, “[t]his will be apparently by agreement to August 23 for bench.” Defense
       counsel did not object to either continuance.
¶ 26        Defendant contends the agreed continuances are attributable to the State because the case
       was set for trial on those dates and, therefore, he was merely acquiescing to a trial date within
       the 120-day period, which did not toll the statutory term. Nothing in the plain language of
       section 103-5 supports defendant’s interpretation. As our supreme noted in Cordell, the
       statute “places the onus on a defendant to take affirmative action when he becomes aware
       that his trial is being delayed.” Cordell, 223 Ill. 2d at 391. To invoke speedy trial rights, the


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       statute requires a clear objection and demand for trial from defendant. There is no language
       in the statute suggesting this requirement does not apply when the case has been set for trial.
       An agreed continuance tolls the speedy trial period, whether or not the case has been set for
       trial. Defendant’s contention illustrates what the Cordell court sought to prevent, the use of
       section 103-5(a), not as a shield to protect defendant’s right to a speedy trial, but as a sword
       to defeat his conviction. See People v. Hampton, 394 Ill. App. 3d 683, 689 (2009) (defendant
       employed similar strategy).
¶ 27        Moreover, defendant offers no case law supporting his contention that an agreed
       continuance does not toll the speedy trial period and is, thus, a delay attributable to the State
       when a case has been set for trial; no authority addressing the distinction he makes between
       mere continuances and agreement to trial dates; and no analysis of the difference between
       agreements to trial dates within the 120-day window versus those outside that 120-day
       period, a difference defendant argues has significance in determining to whom the delay is
       attributable.
¶ 28        Defendant’s reliance on Workman is unpersuasive. In Workman, the court held that,
       under the unique circumstances of the case, the State exercised due diligence in seeking to
       obtain DNA tests that were material and, therefore, the trial court properly granted the State’s
       request for a 60-day continuance, which tolled the 120-day speedy trial period. Workman,
       368 Ill. App. 3d at 786-87. In support of his position, defendant relies on the following
       statement from the court:
            “Although we acknowledge that a defendant is considered to have agreed to any delay
            unless he or she objects by demanding a trial [citation], we find that Workman had not
            agreed to any ‘delay’ in this case. She had merely agreed that the original trial setting of
            June 13, 2000, which was within the speedy-trial time limit, was amenable with her
            schedule. This agreement, however, did not toll the speedy-trial ‘clock.’ ” Workman, 368
            Ill. App. 3d at 785.
       Defendant contends that the court, when faced with whether to charge the delay between the
       hearing date and the trial date to the defendant, found that agreeing to a trial date within the
       speedy trial term is different from agreeing to a continuance and, therefore, a different result
       is warranted. Workman, 368 Ill. App. 3d at 785. We find defendant’s interpretation to be too
       broad. The decision in Workman is based on the specific facts before the court and cannot
       be read to generally support the conclusion that an agreed continuance on a trial date should
       be treated differently than a mere agreed continuance. In Workman, the court merely states
       that the new trial date would be amenable to defense counsel’s schedule, but fails to specify
       the facts the court relied on in determining that defense counsel was not agreeing to a
       continuance. We find Workman unhelpful in deciding the matter before us. Moreover,
       LaFaire and Zeleny are distinguishable as well because section 103-5(a) was not applicable
       to those cases. LaFaire, 374 Ill. App. 3d 461; Zeleny, 396 Ill. App. 3d 917 (defendants were
       on bail, section 103-5(b) applied).
¶ 29        Here, defendant failed to make a proper demand for trial and agreed to the continuances
       on June 9 and July 13, 2010. That the case had been set for trial on those dates is of no
       moment. The 75-day delay between June 9, 2010, and August 23, 2010, is attributable to


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       defendant for purposes of the speedy trial term. With the delays attributable to defendant, he
       is unable to show he was tried beyond the 120-day statutory term of the Speedy Trial Act.
¶ 30       Defendant cannot base a claim of ineffective assistance of counsel on his attorney’s
       failure to claim a speedy trial violation where no violation of defendant’s rights occurred and,
       therefore, raising the issue would have been futile. See Cordell, 223 Ill. 2d at 392-93; Peco,
       345 Ill. App. 3d at 735-36.

¶ 31                             Mandatory Supervised Release Term
¶ 32       Defendant contends the trial court improperly imposed a three-year term of mandatory
       supervised release where it was required to sentence defendant as a Class X offender based
       on his background, but he was actually convicted of a Class 1 offense of possession of a
       controlled substance with intent to deliver. Defendant contends he should only have to serve
       the two-year MSR term that attaches to Class 1 offenses.
¶ 33       The State contends defendant has forfeited review of this issue because he failed to object
       at sentencing or raise it in his motion to reconsider his sentence. See Marshall v. Burger King
       Corp., 222 Ill. 2d 422, 430-31 (2006) (issues raised for the first time on appeal are forfeited).
¶ 34       Defendant argues his sentence was imposed in violation of statutory authority and,
       therefore, may be challenged at any time. Defendant contends the three-year MSR term
       violated section 5-8-1(d)(2) of the Unified Code of Corrections (730 ILCS 5/5-8-1(d)(2)
       (West 2010)), which limits the MSR term for Class 1 felonies to two years and, therefore,
       his sentence is void. Defendant argues the plain language of the statute makes clear the
       length of his MSR term is based on the classification of the felony conviction, not the
       classification of the sentencing range.
¶ 35       Defendant argues the decision in People v. Pullen, 192 Ill. 2d 36 (2000), should be read
       to hold that his three-year MSR term should be reduced to the two-year term applicable to
       Class 1 felonies. In Pullen, the offenses were mandatorily enhanced to Class X for
       sentencing, but the aggregate maximum sentence was limited to the maximum available for
       the underlying Class 2 felonies, despite the defendant being subject to Class X sentencing.
       Pullen, 192 Ill. 2d at 46. Defendant argues that because his offense was also mandatorily
       subject to Class X sentencing, just like in Pullen, his sentence, including the MSR term,
       should be limited to that available for the underlying felony, a Class 1 felony. Defendant
       contends that because the language of the mandatory Class X statute did not affect the
       maximum sentence available in Pullen, it should not affect the MSR term he received.
       Defendant requests that based on Pullen, we order his MSR term be reduced to two years,
       the term available for Class 1 felonies.
¶ 36       This court has repeatedly rejected claims that Pullen requires the imposition of a two-year
       MSR term, rather than a three-year term when defendant is convicted of a lower class offense
       but sentenced as a Class X offender. See People v. Lee, 397 Ill. App. 3d 1067, 1072-73
       (2010); People v. McKinney, 399 Ill. App. 3d 77, 82-83 (2010) (both courts considered the
       application of Pullen and held a defendant sentenced as a Class X offender is required to
       serve the Class X three-year MSR term).
¶ 37       This court has addressed this issue in multiple districts and has repeatedly rejected

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       defendant’s argument, holding instead that, under these circumstances, the statutes require
       the imposition of the three-year MSR term applicable to Class X sentences. See, e.g., People
       v. Rutledge, 409 Ill. App. 3d 22, 26 (1st Dist. 2011); People v. Allen, 409 Ill. App. 3d 1058,
       1078 (4th Dist. 2011); People v. Lampley, 405 Ill. App. 3d 1, 13-14 (1st Dist. 2010), vacated
       on other grounds, People v. Lampley, 2011 IL 111572 (Ill. Sept. 28, 2011) (supervisory
       order); People v. Holman, 402 Ill. App. 3d 645, 652-53 (2d Dist. 2010); People v. Watkins,
       387 Ill. App. 3d 764, 767 (3d Dist. 2009); People v. Smart, 311 Ill. App. 3d 415, 417-18 (4th
       Dist. 2000); People v. Anderson, 272 Ill. App. 3d 537, 541-42 (1st Dist. 1995).
¶ 38       We are unpersuaded that departure from these well-reasoned decisions is appropriate.
       Accordingly, we hold defendant was properly ordered to serve a three-year MSR term.

¶ 39                                   Correction of Mittimus
¶ 40        Lastly, defendant contends, and the State concedes, that defendant’s mittimus must be
       amended to correctly reflect his conviction for possession of a controlled substance with
       intent to deliver, rather than manufacture or delivery of a controlled substance. The record
       shows defendant was convicted of possession of a controlled substance with intent to deliver
       one gram or more, but less than 15 grams, of heroin in violation of section 401(c)(1) of the
       Controlled Substances Act (720 ILCS 570/401(c)(1) (West 2010)). Defendant’s mittimus
       reflects the proper statute defendant violated in support of his conviction; however, it
       incorrectly lists the offense as manufacture or delivery of heroin. Accordingly, under
       authority of Illinois Supreme Court Rule 615(b)(1), we order defendant’s mittimus be
       corrected to accurately reflect his conviction: possession of a controlled substance with intent
       to deliver. See People v. Blakney, 375 Ill. App. 3d 554, 560 (2007) (where wrong offense is
       listed, this court may order corrected mittimus be issued to reflect actual offense of
       conviction).

¶ 41                                     CONCLUSION
¶ 42       Defendant’s claim of ineffective assistance of counsel fails because any motion for
       reversal on speedy trial grounds would have been futile. Accordingly, we affirm defendant’s
       conviction. The trial court properly sentenced defendant to a three-year term of mandatory
       supervised release. Defendant’s mittimus must be amended to reflect his actual conviction
       for possession of a controlled substance with intent to deliver.

¶ 43      Affirmed; mittimus corrected.




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