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                                Appellate Court                            Date: 2019.06.13
                                                                           08:52:00 -05'00'



                   People v. Mooney, 2019 IL App (3d) 150607



Appellate Court     THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption             BRYANT K. MOONEY JR., Defendant-Appellant.



District & No.      Third District
                    Docket No. 3-15-0607



Filed               March 1, 2019
Rehearing denied    March 28, 2019



Decision Under      Appeal from the Circuit Court of Will County, No. 14-TR-9140; the
Review              Hon. Daniel L. Kennedy, Judge, presiding.



Judgment            Reversed.


Counsel on          Michael J. Pelletier, Peter A. Carusona, and Dimitri Golfis, of State
Appeal              Appellate Defender’s Office, of Ottawa, for appellant.

                    James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino,
                    Lawrence M. Bauer, and Mark A. Austill, of State’s Attorneys
                    Appellate Prosecutor’s Office, of counsel), for the People.



Panel               JUSTICE McDADE delivered the judgment of the court, with
                    opinion.
                    Justices Holdridge and Lytton concurred in the judgment and opinion.
                                               OPINION

¶1       Defendant, Bryant K. Mooney Jr., appeals following his conviction for driving while
     license suspended. He argues, inter alia, that defense counsel was ineffective for twice
     agreeing to the State’s motions for continuances on the day of trial, thus tolling the speedy trial
     clock. We reverse defendant’s conviction outright. Defendant also seeks reversal based on his
     assertion that the offense in question occurred in Cook County rather than Will County.
     Because we reverse on speedy trial grounds, we need not address defendant’s second
     argument.

¶2                                                FACTS
¶3       Defendant was charged via citation and complaint on February 2, 2014, with driving while
     license suspended (625 ILCS 5/6-303(a) (West 2014)). On August 19, 2014, defense counsel
     filed a speedy trial demand, requiring that defendant be tried no later than January 26, 2015.
     That same day, pursuant to defense counsel’s request, the court set the matter for a jury trial on
     October 27, 2014.
¶4       Six days before the scheduled jury trial, the State filed a motion for continuance. In the
     motion, the State claimed that the arresting officer, James Jachymiak, would be unavailable on
     the scheduled trial date because of a previously scheduled court appearance in a different
     county. On October 27, 2014, defense counsel announced ready for trial, but the court granted
     the State’s motion and set the matter for trial on January 5, 2015.
¶5       On the morning of January 5, 2015, defense counsel again announced ready for trial,
     adding that defendant was requesting a bench trial. The court immediately told counsel,
     without further explanation: “[Y]ou understand the predicament I am in so if it is going to go, it
     is not going to go until this afternoon probably.” The prosecutor explained that its testifying
     officer in the case had not slept in two days and had to work that night at 6 p.m. The prosecutor
     opined that such a situation was not desirable but conceded “there is a speedy trial demand by
     the defendant so we have to fit it within a certain time frame.” The court agreed, stating, “[w]e
     have to get this done” and noting that only 20 days remained on the speedy trial clock. The
     court instructed the parties to return at 12:15 that afternoon in an attempt to begin the trial. The
     prosecutor commented: “And if we know it is going to go long, I will make my motion at that
     time.”
¶6       There are no further report of proceedings entries for that day. However, a written order
     bearing that date appears in the common law record. The order, a preprinted form with some
     items circled and blanks filled in, schedules a trial for March 24, 2015, a date significantly later
     than the January 26 deadline established by defendant’s speedy trial demand. The order
     indicates that the continuance is on the motion of defendant. It also indicates that “Defendant
     agrees that speedy is tolled.”
¶7       On March 24, 2015, defense counsel again requested a bench trial but told the court that
     she had been tendered a video instanter and would be requesting a new trial date. The court
     inquired as to why, in a matter originally scheduled for trial the previous October, a video was
     only now being tendered. The prosecutor responded that he did not know. The following
     colloquy ensued:
                  “THE COURT: Is there any way you can watch the video and try the case?


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                   [DEFENSE COUNSEL]: Today?
                   THE COURT: Well, yeah, we do have a short day today. We have to find
               something to do in the afternoons [sic].
                   [DEFENSE COUNSEL]: If [Y]our [H]onor prefers, I can try. I would prefer—
                   THE COURT: You can try? What does the video entail in driving?
                   [THE STATE]: Him driving? I have an expert on that topic coming up.
                   THE COURT: Because if [defense counsel is] vehemently moving for the motion
               to continue this date because you gave her the discovery late, she has grounds to do it.
               Are you vehemently moving for the motion for continuance?
                   [DEFENSE COUNSEL]: Judge, I am asking for a motion to continue.
                   THE COURT: All right, I am going to grant your continuance. Sorry, officer. She’s
               got grounds. New date. When can he be back?”
       The parties did not set a date while on the record. However, the written order (again a
       preprinted form) issued that day shows that the trial was set for April 21, 2015. The written
       order again indicates that the continuance was on the motion of defendant and that
       “[d]efendant agrees that speedy is tolled.”
¶8         The matter proceeded to a bench trial on April 21, 2015, at which the court found defendant
       guilty of driving while license suspended. The court sentenced defendant to a term of 24
       months’ probation.

¶9                                             ANALYSIS
¶ 10       On appeal, defendant argues that defense counsel rendered ineffective assistance by failing
       to move for dismissal based on a violation of his statutory speedy trial rights. Alternatively, he
       argues that counsel was ineffective for twice agreeing to continuances and agreeing that the
       speedy trial clock should be tolled when it was the State that needed the second continuance
       and the State’s actions that necessitated the third.

¶ 11                                         I. Right to Counsel
¶ 12        Defendant couches his ineffectiveness arguments expressly in constitutional terms. That is,
       he argues that counsel’s failures in the present case deprived him of the effective assistance
       guaranteed by the sixth amendment to the United States Constitution. See U.S. Const., amend.
       VI. This argument is, in a technical sense, erroneous. Because defendant was not sentenced to
       any jail time for his offense, he did not have a federal constitutional right to counsel. Scott v.
       Illinois, 440 U.S. 367, 373 (1979) (adopting “actual imprisonment as the line defining the
       constitutional right to appointment of counsel”).
¶ 13        In Illinois however, a defendant has a statutory right to counsel in any case except those
       where the penalty is a fine only. 725 ILCS 5/113-3(b) (West 2014). Because this right even
       applies where the sixth amendment right does not, it is often said that “Illinois provides a right
       to counsel that is broader than the sixth amendment right to counsel.” People v. Campbell, 224
       Ill. 2d 80, 85 (2006).
¶ 14        In the sixth amendment context, the United States Supreme Court has held that the right to
       assistance of counsel is the right to “effective assistance of competent counsel.” (Emphasis
       added.) McMann v. Richardson, 397 U.S. 759, 771 (1970). The same can be no less true of a


                                                   -3-
       statutory right to counsel. See In re Carmody, 274 Ill. App. 3d 46, 54 (1995) (holding that the
       right to counsel at involuntary commitment proceedings provided by the Mental Health and
       Developmental Disabilities Code (405 ILCS 5/3-805 (West 1992)) “implicitly includes the
       right to the effective assistance of that counsel”); see also In re J.C., 163 Ill. App. 3d 877, 891
       (1987) (“The right to counsel is specifically included in the Juvenile Court Act (Ill. Rev. Stat.
       1985, ch. 37, par. 701-20 (1)), and implicit within that right is that counsel’s representation be
       effective.”).
¶ 15        We would be remiss if we did not briefly acknowledge and distinguish the long-standing
       statutory exception to the rule that the right to counsel implies the right to effective
       counsel—the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)).
       While that Act provides a right to counsel to postconviction petitioners (id. § 122-4), our
       supreme court has held since 1990 that particular right only guarantees “a reasonable level of
       assistance in post-conviction proceedings.” (Emphasis in original.) People v. Owens, 139 Ill.
       2d 351, 364 (1990). The court explained the distinction by emphasizing that, in the trial
       context, counsel acts as a shield to protect defendants from the “prosecutorial forces of the
       State.” Id. at 365. In contrast, postconviction counsel’s role is merely to “shape [petitioners’]
       complaints into the proper legal form and to present those complaints to the court.” Id. Given
       that the right to counsel granted by section 113-3(b) of the Code of Criminal Procedure of 1963
       (Code) (725 ILCS 5/113-3(b) (West 2014)) pertains specifically to the trial context, it is clear
       that it must implicitly include the right to effective assistance of counsel.
¶ 16        Where effective assistance is required, the familiar two-part Strickland standard
       (Strickland v. Washington, 466 U.S. 668 (1984)) is applicable. E.g., Carmody, 274 Ill. App. 3d
       at 55 (“Although grounded in the sixth amendment, we believe that Strickland provides a
       reasonable and workable standard for reviewing claims of ineffective assistance of counsel.”).
       To prevail on an ineffectiveness claim, “[a] defendant must show that counsel’s performance
       fell below an objective standard of reasonableness and that there is a reasonable probability
       that, but for counsel’s unprofessional errors, the result of the proceeding would have been
       different.” People v. Manning, 241 Ill. 2d 319, 326 (2011). In order to satisfy the prejudice
       prong, a defendant must prove a reasonable probability exists that, but for counsel’s deficient
       performance, the outcome of the trial would have been different. People v. Smith, 195 Ill. 2d
       179, 188 (2000).
¶ 17        Thus, while defendant only references his constitutional right to counsel, the analysis by
       which his argument proceeds is, ultimately, the correct one. Notably, the State makes no
       reference to any of these issues in its brief. It does not contest that defendant was entitled to
       effective assistance of counsel nor does it dispute that the Strickland test applies. Insofar as the
       State could argue that defendant forfeited his argument by not referencing the statutory right to
       counsel, that argument is forfeited. See People v. De La Paz, 204 Ill. 2d 426, 433 (2003).

¶ 18                                          II. Speedy Trial
¶ 19       Section 103-5(b) of the Code holds that a defendant free on bail or recognizance must be
       brought to trial within 160 days of his speedy trial demand. 725 ILCS 5/103-5(b) (West 2014).
       The Code further dictates that “[d]elay occasioned by the defendant shall temporarily suspend
       for the time of the delay the period within which a person shall be tried.” Id. § 103-5(f). Thus,
       to show a violation of his speedy trial right, a defendant must show that he did not “cause[ ] or
       contribute[ ] to the delays.” People v. Staten, 159 Ill. 2d 419, 426 (1994). “A defense counsel’s

                                                    -4-
       express agreement to a continuance may be considered an affirmative act contributing to a
       delay which is attributable to the defendant.” People v. Kliner, 185 Ill. 2d 81, 114 (1998). The
       speedy trial statute is to be liberally construed in favor of a defendant. People v. Bonds, 401 Ill.
       App. 3d 668, 671 (2010).
¶ 20        The State concedes that the first continuance in defendant’s case, issued on October 27,
       2014, was wholly attributable to the prosecution. Between the filing of defendant’s speedy trial
       demand on August 19, 2014, and the second continuance on January 5, 2015, 139 days elapsed
       that are indisputably attributable to the State. Each of the second and third continuances
       resulted in delays of more than 21 days, and thus either continuance would have caused the
       speedy trial period to elapse unless attributable to defendant.
¶ 21        Defendant’s first argument on appeal is that counsel was ineffective for failing to move to
       dismiss the charges against him on speedy trial grounds after the 160-day period had lapsed. Of
       course, this argument relies on his contention that neither the second nor third continuances
       can be considered attributable to him. Yet, the record contains written orders from the circuit
       court on each occasion that indicate defense counsel actually agreed that the speedy trial clock
       would be tolled. Had counsel filed a motion to dismiss on speedy trial grounds, that motion
       would have been meritless because of counsel’s own agreements. See People v. Cordell, 223
       Ill. 2d 380, 392-93 (2006).
¶ 22        We therefore turn to defendant’s alternative argument, that counsel was ineffective for
       twice agreeing to toll the speedy trial clock. Defendant’s argument requires this court to ask the
       questions: (1) Why would counsel agree that the speedy trial clock would be tolled and
       (2) what impact did these agreements have on defendant’s right to a speedy trial?
¶ 23        Notably, the reports of proceedings from the dates of the second and third continuances
       demonstrate unequivocally that neither continuance was factually attributable to defendant. On
       January 5, 2015, the date of the second continuance, defense counsel announced ready for trial.
       Thereafter, the court and prosecutor discussed an apparent scheduling issue with the testifying
       officer, and the matter was ultimately continued. Delays occasioned by the unavailability of a
       State’s witness or by the court’s schedule cannot be attributed to a defendant. See Bonds, 401
       Ill. App. 3d at 677; Kliner, 185 Ill. 2d at 119. While the third continuance, on March 24, 2015,
       was explicitly on defense counsel’s motion, that motion was made only after the State tendered
       a video of the arrest moments before trial. The delay caused by defense counsel’s motion
       should not be held attributable to a defendant if that motion was necessitated by the State’s late
       filing of discovery.1 People v. Perkins, 90 Ill. App. 3d 975, 979-80 (1980).
¶ 24        Despite these facts and the relevant law, counsel twice agreed that the speedy trial clock
       would be tolled. On the occasion of the second of the three continuances, counsel even allowed

           1
             At oral argument, the State emphasized that the prosecutor was under no obligation to tender the
       video at all in this misdemeanor case. We find this to be irrelevant. Whether or not any obligation
       existed, the fact is that the prosecutor did tender the video, and it would have been inappropriate for
       defense counsel to proceed to a trial without thoroughly reviewing that piece of evidence. To that point,
       the State also downplays the significance of the video, pointing out that the video does not show
       defendant driving and suggesting that counsel could have reviewed the video in the morning and gone
       to trial that afternoon. However, as the only physical evidence of the location of the offense, that video
       was extremely significant to defendant’s second argument on appeal, that he was improperly
       prosecuted in Will County when the offense occurred in Cook County. See supra ¶ 1.

                                                       -5-
       an order to be entered indicating that the continuance was on her motion. Having announced
       she was ready for trial on January 5, 2015, there is no apparent trial strategy motive for
       agreeing to any delay. Similarly, on March 24, 2015, there is no apparent strategic benefit to
       defendant from counsel agreeing to toll the speedy trial clock.
¶ 25        Defendant having asserted his statutory right to a speedy trial, defense counsel was
       duty-bound to zealously protect that right. Instead, counsel twice agreed, despite her expressed
       readiness for trial on both of the scheduled dates, to allow both continuances and concessions
       of tolling to be attributed to defendant. This, failure was objectively unreasonable under
       prevailing professional norms, and it rendered counsel’s performance deficient.2
¶ 26        The more difficult question is that of prejudice. Had counsel’s performance not been
       deficient—that is, had counsel not agreed to twice toll the speedy trial clock—is there a
       reasonable probability that the outcome would have been different? See Manning, 241 Ill. 2d at
       326.
¶ 27        At the very least, of course, counsel would have been able to file a motion to dismiss on
       speedy trial grounds. Her agreements to toll the speedy trial clock had completely foreclosed
       that course of action. See supra ¶ 21. Determining whether such a motion would be
       meritorious, had counsel not agreed to toll the speedy trial clock, inevitably involves a certain
       amount of speculation. On the one hand, had counsel not agreed to toll the speedy trial clock,
       the court could have—on either occasion—set the matter for trial within the 21 days remaining
       on the clock. On the other hand, it is just as possible that the court, in any event, set the matter
       for trial at its next available date, and counsel’s nonagreement could not have changed that. In
       short, there is no perfect way to reconstruct what would have happened had counsel acted
       appropriately.
¶ 28        Hanging over this uncertainty is the actuality that defendant was—had the final two
       continuances been properly attributed—brought to trial outside of the 160-day window. In a
       similar situation, our supreme court found that a continuance was attributable to the circuit
       court, even though the record indicated it had been on defendant’s motion. People v. Beyah, 67
       Ill. 2d 423, 426, 428-29 (1977). The Beyah court did not engage in any reconstruction, or
       speculate as to what would have happened had the circuit court’s order been correct in the first
       place. Instead, the court found that the defendant had been tried outside of the applicable
       window and reversed defendant’s conviction outright. Id. at 429. In so doing, the court
       commented: “To conclude, under these circumstances ***, that the delay was occasioned by
       defendant would be a mockery of justice.” Id. at 428.
¶ 29        The same is no less true here. Defendant’s speedy trial period should have ended on
       January 26, 2015, but because of counsel’s deficient performance, it did not. To pretend
       otherwise would be a mockery of justice.
¶ 30        On a broader scale, a finding of no prejudice here would leave this defendant, and myriad
       other defendants who might find themselves in this situation, with absolutely no recourse. The
       legislature has granted criminal defendants a statutory right to a speedy trial. Where counsel’s
       actions serve to undermine that right, those actions must be subject to an ineffectiveness
       challenge. “[A] right without a remedy is no right at all.” People ex. rel Endicott v. Huddleston,
       34 Ill. App. 3d 799, 807 (1975). To hold the inevitable speculation against a defendant would

          2
            We note that the State has not responded to defendant’s alternative argument and thus does not
       dispute that counsel’s performance was deficient for agreeing to toll the speedy trial clock.

                                                    -6-
       be to hold that counsel’s actions in agreeing to the continuances or agreeing to toll the speedy
       trial clock are, essentially, unreviewable.
¶ 31        Accordingly, we find that defense counsel’s performance was deficient and that this
       deficiency was prejudicial in that it resulted in defendant being brought to trial outside of the
       statutorily prescribed 160-day period. We therefore reverse defendant’s conviction for driving
       while license suspended outright. See Beyah, 67 Ill. 2d at 429.

¶ 32                                       CONCLUSION
¶ 33      The judgment of the circuit court of Will County is reversed.

¶ 34      Reversed.




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