                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Goad, 2013 IL App (4th) 120604




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    WILLIAM G. GOAD, Defendant-Appellee.–THE PEOPLE OF THE
                           STATE OF ILLINOIS, Plaintiff-Appellant, v. WILLIAM G. GOAD,
                           Defendant-Appellee.


District & No.             Fourth District
                           Docket Nos. 4-12-0604, 4-12-0605 cons.


Filed                      April 30, 2013


Held                       The dismissal of two charges of unlawful possession of a hypodermic
(Note: This syllabus       needle on the ground that the State unreasonably delayed filing the
constitutes no part of     charges was reversed, since defendant’s claim that he was “forced to stop
the opinion of the court   his life” to deal with the charges did not amount to actual and substantial
but has been prepared      prejudice for purposes of defendant’s motion.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Livingston County, Nos. 11-CF-102,
Review                     11-CF-103; the Hon. Jennifer H. Bauknecht, Judge, presiding.



Judgment                   Reversed; cause remanded.
Counsel on                 Thomas J. Brown, State’s Attorney, of Pontiac (Patrick Delfino, Robert
Appeal                     J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.

                           Michael J. Pelletier and Karen Munoz, both of State Appellate
                           Defender’s Office, of Springfield, for appellee.


Panel                      PRESIDING JUSTICE STEIGMANN delivered the judgment of the
                           court, with opinion.
                           Justices Knecht and Turner concurred in the judgment and opinion.




                                             OPINION

¶1          In January 2012, defendant, William G. Goad, filed separate motions to dismiss the
        State’s charge of unlawful possession of a hypodermic needle (720 ILCS 635/1 (West 2008))
        in two different cases contending that the State unreasonably delayed filing the charges. In
        April 2012, the trial court granted defendant’s motions to dismiss, finding that defendant had
        suffered actual and substantial prejudice because of the State’s preindictment delay.
¶2          The State appeals, arguing that the trial court erred by granting defendant’s motion to
        dismiss on grounds of preindictment delay. We agree and reverse.

¶3                                      I. BACKGROUND
¶4                                    A. The State’s Charges
¶5          In April 2011, the State charged defendant with two separate counts of unlawful
        possession of a hypodermic needle in violation of section 1 of the Hypodermic Syringes and
        Needles Act (Act) (720 ILCS 635/1 (West 2008)). Specifically, the State alleged that on
        October 1, 2009 (Livingston County case No. 11-CF-102), and November 22, 2009
        (Livingston County case No. 11-CF-103), defendant possessed a hypodermic needle adapted
        for the subcutaneous injection of a controlled substance. The State considered each charge
        a Class 4 felony because defendant had a prior conviction for a violation of the Act in
        Livingston County case No. 08-CF-56. See 720 ILCS 635/4 (West 2008) (a second or
        succeeding violation of the Act is a Class 4 felony). The State’s charges also advised that if
        convicted, defendant was eligible for an extended-term sentence of up to six years in prison
        because of his previous felony conviction for possession of a controlled substance in
        Livingston County case No. 09-CF-273.


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¶6                             B. Defendant’s Motions To Dismiss
¶7         In January 2012, defendant filed separate motions to dismiss the State’s charges in case
       Nos. 11-CF-102 and 11-CF-103. The following facts were gleaned from defendant’s separate
       motions, which, aside from the arrest date, were identical.
¶8         On October 1, 2009, police arrested defendant for possessing a hypodermic needle in
       violation of section 1 of the Act, a Class A misdemeanor. Defendant was later provided
       notice to appear in court. (Defendant did not identify the appearance date.)
¶9         On November 16, 2009, the State arraigned defendant on a charge of possession of a
       controlled substance in case No. 09-CF-273. On November 22, 2009, police arrested
       defendant for a second violation of section 1 of the Act. Defendant was issued another notice,
       requiring him to appear in court. (Defendant did not identify the appearance date.)
¶ 10       Defendant later complied with the notices by appearing at the respective date and time
       specified therein. However, upon his arrival at the courthouse, he “was advised by the State
       that no charges were being filed.”
¶ 11       On September 9, 2010, defendant pleaded guilty in case No. 09-CF-273. During guilty-
       plea negotiations in that case, neither the State nor defendant mentioned the October and
       November 2009 arrests at issue. (The trial court sentenced defendant to one year in prison
       followed by a one-year mandatory supervised release (MSR) term.)
¶ 12       In April 2011, the State charged defendant in two separate filings with unlawful
       possession of a hypodermic needle based on his October and November 2009 arrests (case
       Nos. 11-CF-102 and 11-CF-103, respectively). On September 9, 2011, defendant had served
       his sentence in case No. 09-CF-273 and successfully complied with the conditions of his
       MSR.
¶ 13       In January 2012, defendant filed a motion to dismiss the State’s charges in case Nos. 11-
       CF-102 and 11-CF-103, arguing that the State’s “scheme of prosecution moving back in time
       *** resulted in substantial prejudice against [him] with no demonstration of reasonableness
       [for] the delay.”

¶ 14                C. The Evidence Presented at the March 2012 Hearing
                              on Defendant’s Motion To Dismiss
¶ 15      At the March 2012 hearing on defendant’s motion to dismiss, the following questioning
       took place:
              “[DEFENSE COUNSEL: Defendant], did *** both these cases begin in fairly close
          proximity to each other?
              [DEFENDANT:] Yeah. It was in October 2009 and November 2009. Three years
          ago.
              [DEFENSE COUNSEL:] That’s when you were contacted by the police?
              [DEFENDANT:] Arrested by the *** police. Yes.
              [DEFENSE COUNSEL:] After the police did their investigation, did they give you
          a summons to appear in court?


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               [DEFENDANT:] Yes, they did. I got arrested; and I bonded out on a misdemeanor
           bond of about [$]120 ***; and I was [told] to come back to court *** the following
           month.
                                               ***
               [DEFENSE COUNSEL:] You came to court?
               [DEFENDANT:] I came to court.
               [DEFENSE COUNSEL:] You looked for your name on a list?
               [DEFENDANT:] I looked for my name on the list.
               [DEFENSE COUNSEL:] Did you find your name?
               [DEFENDANT:] I did not.
               [DEFENSE COUNSEL:] Did you talk to someone from the State’s Attorney’s office
           or clerk’s office?
               [DEFENDANT:] Yes, I did.
               [DEFENSE COUNSEL:] What did they tell you?
               [DEFENDANT:] They told me that at this time they were not filing charges and if
           they decided to, I would be let known [sic] through the mail.”
¶ 16       Defendant also explained that in September 2010 he pleaded guilty in case No. 09-CF-
       273 and was sentenced to one year in prison. A month after his release from prison,
       defendant received a letter informing him of the State’s intent to charge him with two counts
       of unlawful possession of a hypodermic needle (case Nos. 11-CF-102 and 11-CF-103,
       respectively). Defendant noted that in September 2011, he was released six months early
       from his one-year MSR term in case No. 09-CF-273 because he had consistently complied
       with the obligations imposed. Defendant planned to move to Arizona and accept a job offer
       from a relative to perform landscaping labor but was prevented from doing so because of the
       pending charges in case Nos. 11-CF-102 and 11-CF-103. Defendant stated that he had lost
       some wages by appearing in court and was motivated to move to Arizona to accept the
       landscaping job.
¶ 17       Defendant argued that (1) he was prejudiced by being “forced to stop his life” to respond
       to charges filed in case Nos. 11-CF-102 and 11-CF-103 and (2) the State abused its
       prosecutorial discretion by not resolving the unlawful possession of a hypodermic needle
       charges when defendant negotiated his guilty plea in case No. 09-CF-273. The State
       responded that (1) defendant was required to show that the delay in filing charges prejudiced
       his case instead of inconvenienced his personal plans and (2) the charges in case Nos. 11-CF-
       102 and 11-CF-103 were filed well within the statute of limitations.

¶ 18                             D. The Trial Court’s Ruling
¶ 19       At an April 2012 hearing, the trial court granted defendant’s motion to dismiss. In
       support of that determination, the court found that the “most important factor” was
       defendant’s being “told at that time that no charges were being filed.” The court then
       recounted defendant’s argument that “had defendant known that these charges were being


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       filed, he may have not gone through with [the guilty plea] agreement [in case No. 09-CF-
       273] for a number of reasons.” In this regard, the court noted as follows:
               “At some point, a person needs to be allowed to move forward. Had the [d]efendant
           known these charges were out there, he could have dealt with the charges at the time. He
           was specifically told by the State and that is unrefuted that charges were not going to be
           filed. He relied on that indication from the *** State’s Attorney’s Office in making
           decisions in his life, decisions to accept a plea and go to DOC for one year, decisions to
           obtain certain employment and move forward, decisions to try to relocate to Arizona.
               So *** based upon those factors, [the court] think[s] there has been actual and
           substantial prejudice to the [d]efendant.”
¶ 20       This appeal followed.

¶ 21       II. THE TRIAL COURT’S DISMISSAL OF THE STATE’S CHARGES
¶ 22      The State appeals, arguing that the trial court erred by granting defendant’s motion to
       dismiss on grounds of preindictment delay. We agree.

¶ 23                    A. Preindictment Delay and the Standard of Review
¶ 24       In People v. Lawson, 67 Ill. 2d 449, 456, 367 N.E.2d 1244, 1247 (1977), the Supreme
       Court of Illinois held that a trial court’s inherent authority to ensure a fair trial permits the
       court to dismiss an indictment when a defendant has been denied due process because of
       actual and substantial prejudice resulting from preindictment delay. See United States v.
       Lovasco, 431 U.S. 783, 789 (1977) (the due-process clause of the fourteenth amendment
       protects defendants from oppressive preindictment delay).
¶ 25       A defendant’s claim of a prejudicial preindictment delay is subject to the following two-
       part analysis:
           “ ‘Where there has been a delay between an alleged crime and indictment or arrest or
           accusation, the defendant must come forward with a clear showing of actual and
           substantial prejudice. Mere assertion of inability to recall is insufficient. If the accused
           satisfies the trial court that he or she has been substantially prejudiced by the delay, then
           the burden shifts to the State to show the reasonableness, if not the necessity of the
           delay.’ ” (Emphasis in original.) People v. Delgado, 368 Ill. App. 3d 661, 663, 858
           N.E.2d 603, 605 (2006) (quoting Lawson, 67 Ill. 2d at 459, 367 N.E.2d at 1248).
       We review de novo a trial court’s ruling on a motion to dismiss an indictment due to
       oppressive and unreasonable preindictment delay. People v. Carini, 357 Ill. App. 3d 103,
       112-13, 827 N.E.2d 1015, 1024 (2005).

¶ 26                               B. The State’s Claim of Error
¶ 27      In this case, the State argues that the trial court erred by granting defendant’s motion to
       dismiss the charges in case Nos.11-CF-102 and 11-CF-103 because defendant did not make
       a clear showing of actual and substantial prejudice as required under Lawson.


                                                 -5-
       Defendant–arguing in his brief to this court that the court did not err by dismissing the
       State’s charges–contends that he was substantially prejudiced by the State’s preindictment
       delay because (1) the unlawful possession of a hypodermic needle charges disrupted his
       attempt to secure meaningful employment and hampered his rehabilitation progress, (2) the
       State’s initial representation that it would not charge him with unlawful possession of
       hypodermic needles prohibited the later resolution of those charges in a comprehensive plea
       agreement, and (3) the State delayed charging him with unlawful possession of hypodermic
       needles until he had served his sentence in case No. 09-CF-273 to subvert the legislature’s
       limit on consecutive sentences.
¶ 28       The State responds that preindictment delay violations are based on prejudice to a
       defendant’s case, not the inconveniences to a defendant’s personal life. The State also posits
       that defendant’s remaining contentions regarding (1) resolution of the charges at issue during
       guilty-plea negotiations in case No. 09-CF-273 and (2) the State’s supposed intent to
       effectively obtain consecutive sentences through preindictment delay are–at best–speculative.
¶ 29       Although we commend defendant for the positive steps he has taken after serving his
       sentence in case No. 09-CF-273, we agree with the State that in cases where a defendant
       claims prejudice due to preindictment delay, the prejudice contemplated by Lawson concerns
       actual damage to a defendant’s ability to obtain a fair trial because of the State’s
       unreasonable delay. See People v. Holcomb, 192 Ill. App. 3d 158, 168, 548 N.E.2d 613, 621
       (1989) (“The prejudice required by Lawson and Lovasco to establish a fourteenth amendment
       claim, however, is a showing that a defendant was denied an opportunity of a fair trial, such
       as an impairment of defendant’s ability to prepare a defense.”). Here, defendant essentially
       claims (as he argued at his March 2012 hearing on his motion to dismiss) that he was
       prejudiced by being “forced to stop his life” to respond to charges filed approximately 18
       months after the incidents in question. However, this amounts to an inconvenience, not the
       type of prejudice sufficient to shift the burden to the State to explain the reasonableness or
       necessity of the delay. Accordingly, we reject defendant’s claim that disruptions to his
       attempts to secure meaningful employment and continue his rehabilitation constituted
       substantial prejudice that denied him his right to a fair trial.
¶ 30       As an aside, we note defendant’s testimony at the March 2012 hearing on his motion to
       dismiss that although the State declined to charge him with unlawful possession of a
       hypodermic needle shortly after his arrests in October and November 2009, the State did not
       foreclose the possibility that charges would be filed at a future date. Thus, contrary to his
       claim in his motion to suppress that he “was advised by the State that no charges were being
       filed,” defendant–by his own admission–was aware that charges could have been filed at a
       later date as occurred in this case. As a result, at the time of his guilty-plea negotiations in
       case No. 09-CF-273, defendant’s counsel could have inquired about the status of any
       potential charges and, if warranted, sought to have those charges included in the guilty-plea
       agreement with the State. We note that such a course of action is routine in guilty-plea
       negotiations.
¶ 31       We also reject defendant’s contention that People v. Bredemeier, 346 Ill. App. 3d 557,
       805 N.E.2d 261 (2004), supports his claim that he suffered actual and substantial prejudice
       when the State delayed charging him with unlawful possession of hypodermic needles until

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       he had served his sentence in case No. 09-CF-273. In this regard, defendant asserts that the
       delay allowed the State to subvert the legislature’s limit on consecutive sentences. We are
       unpersuaded.
¶ 32       In Bredemeier, 346 Ill. App. 3d at 562, 805 N.E.2d at 266, the appellate court affirmed
       the trial court’s finding that the State’s six-year delay denied the defendant his right to due
       process. The evidence presented in that case showed that (1) the State acknowledged it knew
       the defendant was in an Indiana prison when it filed the petition to revoke his Illinois
       probation, (2) the State admitted it could have extradited the defendant to Illinois but did not
       do so, and (3) the State ignored the defendant’s numerous requests to be transported from
       Indiana to Illinois for a hearing on the State’s revocation petition. Id. In so concluding, the
       appellate court noted that under the facts of that case, the State violated the defendant’s due-
       process rights because the delay prevented the defendant from serving any imposed Illinois
       prison sentence concurrent to his Indiana prison sentence. Id.
¶ 33       Simply put, unlike the evidence presented in Bredemeier, defendant has failed to present
       any evidence that demonstrates actual or substantial prejudice. Instead, defendant’s self-
       serving assertions demonstrate only the possibility of prejudice, which is insufficient. See
       People v. DiBenedetto, 93 Ill. App. 3d 483, 488, 417 N.E.2d 654, 657 (1981) (“The
       possibility of prejudice is not enough to shift the burden to the State to show the
       reasonableness, if not the necessity, of the [preindictment] delay.”).
¶ 34       Accordingly, we conclude that defendant failed to show actual and substantial prejudice
       as a result of the State’s preindictment delay. Therefore, we need not determine whether the
       State’s delay was reasonable or necessary. See People v. Holman, 103 Ill. 2d 133, 157, 469
       N.E.2d 119, 130-31 (1984) (citing Lawson, 67 Ill. 2d at 459-60, 367 N.E.2d at 1249) (in the
       absence of evidence showing actual or substantial prejudice, we need not inquire into the
       motives of the State’s actions).

¶ 35                                 III. CONCLUSION
¶ 36      For the reasons stated, we reverse the trial court’s dismissal and remand for further
       proceedings.

¶ 37      Reversed; cause remanded.




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