                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Bauman, 2012 IL App (2d) 110544




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ERIC M. BAUMAN, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0544


Filed                      December 12, 2012


Held                       The trial court erred in finding that defendant waived his demand for a
(Note: This syllabus       speedy trial by failing to appear in person at a status hearing set for a
constitutes no part of     prosecution subpoena, since the date was set by the State, and was not a
the opinion of the court   date “set by the court” as required under section 103-5(b) of the Code of
but has been prepared      Criminal Procedure in order to find a waiver of a valid speedy-trial
by the Reporter of         demand, and, furthermore, defendant’s failure to appear did not cause any
Decisions for the          delay in the proceedings.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of McHenry County, No. 10-DT-304; the
Review                     Hon. Gordon E. Graham, Judge, presiding.



Judgment                   Reversed.
Counsel on                 Matthew J. Haiduk, of Geneva, for appellant.
Appeal

                           Louis A. Bianchi, State’s Attorney, of Woodstock (Lawrence M. Bauer
                           and Diane L. Campbell, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


Panel                      JUSTICE BIRKETT delivered the judgment of the court, with opinion.
                           Justices Zenoff and Hudson concurred in the judgment and opinion.



                                             OPINION

¶1          After a stipulated bench trial, defendant, Eric M. Bauman, was found guilty of driving
        under the influence of alcohol (DUI). 625 ILCS 5/11-501(a)(2) (West 2010). He was
        sentenced to 10 months’ supervision and assessed fines and fees. On appeal, defendant
        argues that the trial court erred in denying his motion to dismiss this action for a violation
        of his right to a speedy trial. See 725 ILCS 5/103-5(b) (West 2010). For the following
        reasons, we find that the trial court erred in denying defendant’s motion to dismiss.
        Therefore, we reverse the judgment of the trial court.

¶2                                      I. BACKGROUND
¶3          On March 27, 2010, defendant was charged with possession of drug paraphernalia (720
        ILCS 600/3.5 (West 2010)), possession of cannabis (720 ILCS 550/4 (West 2010)), failure
        to reduce speed to avoid an accident (625 ILCS 5/11-601 (West 2010)), improper lane usage
        (625 ILCS 5/11-709 (West 2010)), and DUI (625 ILCS 5/11-501(a)(2) (West 2010)). He
        secured bond and was released that day. One of the conditions of his bond was that he
        “appear to answer this charge in the Court having jurisdiction of the day certain set for
        hearing of this cause and thereafter as Ordered by the Court until discharged.”
¶4          On April 26, 2010, defendant filed a written document entitled “SPEEDY TRIAL
        DEMAND” and served a copy on the McHenry County State’s Attorney’s office. The written
        demand states, “[p]ursuant to 725 ILCS 5/103, the Defendant hereby demands a speedy trial
        as of the date of this order.” On April 27, 2010, defendant filed a notice of motion and a
        subpoena duces tecum. The subpoena was directed to the McHenry County sheriff’s
        department. In the notice of motion the return date on the subpoena was listed as May 11,
        2010.
¶5          On May 6, 2010, defendant appeared in court and notified the court that he had filed a
        speedy-trial demand. The case was continued to May 10, 2010, in another courtroom. On
        May 10, 2010, defendant again notified the court of his speedy-trial demand and answered

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       ready for trial. The court then set a trial date of August 9, 2010.
¶6          On May 19, 2010, the State filed a notice of motion along with a subpoena duces tecum.
       The subpoena was directed to Marengo Rescue, a fire protection and emergency services
       agency in Marengo, Illinois. The notice of motion was also sent to defendant’s attorney and
       stated that on June 18, 2010, the State would request status on the subpoena.
¶7          On June 17, 2010, the State filed another notice of motion to set a status date of July 9,
       2010, on a subpoena it had sent to the Westchester Forensic Science Laboratory. That notice
       was served by fax on defendant’s attorney. On June 18, 2010, defendant appeared in court
       with his attorney for return on the subpoena directed to Marengo Rescue.
¶8          On June 29, 2010, the State filed another notice of motion directed at Marengo Rescue.
       In that notice, the State sought a July 21, 2010, date for status on the subpoena. Defendant’s
       attorney was also served a copy of the notice.
¶9          On July 9, 2010, the status date on the State’s subpoena to the Westchester Forensic
       Science Laboratory, defense counsel appeared in court but defendant did not personally
       appear. Defense counsel notified the court that a jury trial date had been set for August 9,
       2010, and that there was a speedy-trial demand on file. Counsel answered ready for trial and
       noted that the parties were in court for status on one of the State’s subpoenas. In response,
       the State informed the court that defendant was not present and asked the court to find that
       defendant had waived the speedy-trial demand. The State also requested a warrant for
       defendant’s arrest. Defense counsel argued that the parties were in court only because of a
       date set by the State, not the court. The court, relying on People v. Zakarauskas, 398 Ill. App.
       3d 451 (2010), responded that Illinois law indicates that it does not make a difference
       whether the State or the court sets the date, because either way the defendant must be present.
       Defense counsel responded that, applying such logic, the State could set five court dates a
       week that would require defendant’s personal appearance or his speedy-trial demand would
       be waived. The court ruled that it was bound by Illinois law and held that defendant had
       waived his speedy-trial demand.
¶ 10        On August 6, 2010, the State filed a motion to continue the trial due to the unavailability
       of one of its witnesses. On August 9, 2010, the parties appeared in court on that motion. At
       that time, defense counsel again argued that defendant had filed a speedy-trial demand and
       was answering ready for trial. The court referred to its earlier ruling that defendant had
       waived his speedy-trial demand and that it was therefore no longer in effect. Over defense
       objection, the State’s motion to continue was granted and the case was continued for trial to
       October 25, 2010.
¶ 11        The record does not reflect what, if anything, occurred on October 25, 2010. On
       November 24, 2010, the parties appeared in court. Defense counsel asked leave of court to
       file a motion to dismiss based upon a speedy-trial violation. The trial court granted counsel
       leave to file the motion, but again referenced Zakarauskas as dispositive of that issue.
¶ 12        On November 29, 2010, defendant filed a motion to dismiss based on a violation of his
       right to a speedy trial. The State responded, and the court heard arguments from both parties.
       On January 14, 2011, the court denied defendant’s motion to dismiss, again relying on
       Zakarauskas.

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¶ 13       On May 17, 2011, the State nol-prossed all the charges against defendant except the DUI
       charge. After a stipulated bench trial, defendant was found guilty of DUI. 625 ILCS 5/11-
       501(a)(2) (West 2010). He later filed a “Motion for Judgment Notwithstanding the Verdict
       or in the Alternative a New Trial.” That motion was denied. Defendant timely appeals.

¶ 14                                        II. ANALYSIS
¶ 15       On appeal, defendant argues that the trial court erred in denying his motion to dismiss,
       when he had a valid speedy-trial demand on file and he was not tried until after the 160-day
       speedy-trial time frame had run. Specifically, he argues: (1) he did not waive his valid
       speedy-trial demand where he caused no delay; and (2) even if he did not have to cause a
       delay to waive his right to a speedy trial, he did not fail to appear at a date “set by the court,”
       as required in the speedy-trial statute. See 725 ILCS 5/103-5(b) (West 2010).
¶ 16       In Illinois, a defendant has both a constitutional and a statutory right to a speedy trial.
       U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; 725 ILCS 5/103-5 (West 2010).
       The Illinois speedy-trial statute contained in the Code of Criminal Procedure of 1963 (Code)
       implements the constitutional right to a speedy trial. People v. Cordell, 223 Ill. 2d 380, 385-
       86 (2006). The speedy-trial provisions of the Code are to be liberally construed in favor of
       a defendant because they were enacted to avoid infringements of the defendant’s
       constitutional speedy-trial right. People v. Kohler, 2012 IL App (2d) 100513, ¶ 23. Section
       103-5(b) of the Code was amended in 2000 by Public Act 91-123 (eff. Jan. 1, 2000). That
       section provides, in pertinent part:
               “(b) Every person on bail or recognizance shall be tried *** within 160 days from the
           date [the] defendant demands trial unless delay is occasioned by the defendant ***. The
           defendant’s failure to appear for any court date set by the court operates to waive the
           defendant’s demand for trial made under this subsection.” (Emphasis added.) 725 ILCS
           5/103-5(b) (West 2010).
¶ 17       Section 103-5(f) of the Code relates to delays caused by a defendant, and provides, in
       pertinent part:
               “(f) Delay occasioned by the defendant shall temporarily suspend for the time of the
           delay the period within which a person shall be tried as prescribed by subsections (a), (b)
           or (e) of this Section and on the day of expiration of the delay the said period shall
           continue at the point at which it was suspended.” 725 ILCS 5/103-5(f) (West 2010).
¶ 18       Prior to the 2000 amendment of section 103-5(b), a delay occasioned by a defendant’s
       failure to appear in court only suspended the 160-day speedy-trial term. See People v.
       Dotson, 173 Ill. App. 3d 541, 545 (1988) (the defendant’s failure to appear at a scheduled
       court hearing temporarily tolled the speedy-trial term).
¶ 19       Generally, the trial court’s ruling on a speedy-trial challenge shall be affirmed absent an
       abuse of discretion. People v. Buford, 374 Ill. App. 3d 369, 372 (2007). However, an issue
       on appeal that involves a question of statutory interpretation is subject to de novo review.
       Zakarauskas, 398 Ill. App. 3d at 453. “ ‘The fundamental rule of statutory construction is to
       ascertain and give effect to the legislature’s intent.’ ” Id. (quoting Cordell, 223 Ill. 2d at 389).
       The language of the statute is the best indication of legislative intent, and that language will

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       be given its plain and ordinary meaning. Cordell, 223 Ill. 2d at 389. However, “[a] statute
       capable of two interpretations should be given that which is reasonable and which will not
       produce absurd, unjust, unreasonable or inconvenient results that the legislature could not
       have intended.” Collins v. Board of Trustees of the Firemen’s Annuity & Benefit Fund, 155
       Ill. 2d 103, 110 (1993).
¶ 20        We initially note that this issue requires us to interpret section 103-5(b) of the Code in
       order to determine if defendant waived his speedy-trial demand by not appearing in court on
       July 9, 2010. See 725 ILCS 5/103-5(b) (West 2010). Therefore, our standard of review is de
       novo.

¶ 21                       A. A Date “Set by the Court” in Section 103-5(b)
¶ 22       Since the facts of this case involve defendant’s failure to appear in court, we will first
       address defendant’s argument that he did not waive his speedy-trial demand because he did
       not fail to appear at a date “set by the court,” as required by section 103-5(b) of the Code.
       725 ILCS 5/103-5(b) (West 2010).
¶ 23       The State agrees that defendant made a valid speedy-trial demand. However, it maintains
       that defendant’s failure to appear on July 9, 2010, a status date on one of its subpoenas,
       waived his speedy-trial demand under section 103-5(b) of the Code. 725 ILCS 5/103-5(b)
       (West 2010). Specifically, it argues that by amending that section to include the phrase “[t]he
       defendant’s failure to appear for any court date set by the court operates to waive the
       defendant’s demand for trial made under this subsection,” the legislature intended to
       differentiate between a failure to appear in court and other types of delays, such as from a
       motion to continue made by the defendant or by agreement. As support for this contention,
       the State cites to Zakarauskas, 398 Ill. App. 3d 451.
¶ 24       In Zakarauskas, the trial court ultimately granted the defendant’s motion to dismiss based
       upon a speedy-trial violation after the 160-day term of his first speedy-trial demand had run,
       even though during that period the defendant had failed to appear in court on a day that was
       set for trial. Id. at 452. In reversing the trial court, the Zakarauskas court made it clear that
       the plain language of section 103-5(b) as amended in 2000 “manifested the legislature’s
       intent to distinguish a defendant’s failure to appear in court from other types of delay, a
       motion for a continuance, for example, either by the defendant or by agreement.” Id. at 454.
       We agree with the State that the Zakarauskas court properly interpreted the amended section
       103-5(b). See 725 ILCS 5/103-5(b) (West 2010). However, the ruling in Zakarauskas is not
       dispositive of the issue in the instant case. Unlike in Zakarauskas, the issue presented in this
       case is whether, under the speedy-trial statute, any failure to appear by a defendant
       constitutes a waiver of his speedy-trial demand. Specifically, we are asked to address the
       meaning of the phrase “[t]he defendant’s failure to appear for any court date set by the court
       operates to waive the defendant’s demand for trial made under this subsection.” (Emphasis
       added.) 725 ILCS 5/103-5(b) (West 2010). Defendant argues that a status date on a State
       subpoena is not a date “set by the court” and therefore his failure to appear in court on that
       date did not waive his speedy-trial demand.
¶ 25       In response to this argument, the State contends that, since a party does not have a right

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       to set a return date on a subpoena for a Sunday or another time when the court is not open,
       it is the court, and not a particular party, that has the final authority on the setting of dates
       when parties may appear before it. It also notes that defendant did not cite any case law
       differentiating between court dates set by the court and court dates set by “somebody else.”
¶ 26        We are not persuaded by the State’s argument. First, the fact that the court has final
       authority on the setting of dates when parties may appear before it does not change the fact
       that here the State, not the court, set the status date on the subpoena. This is made clear by
       McHenry County local rules, which specifically provide that “subpoenas shall be returnable
       before the judge assigned to the case at a time that the court is normally in session.” 22d
       Judicial Cir. Ct. R. 10.17(a) (June 1, 2007). The local rules do not refer to the trial court
       setting a court date for return on a subpoena. More important, to find that all court dates, no
       matter whether set by the trial court (i.e., a trial date) or by a party (i.e., a status date for
       return on a subpoena), should be considered dates “set by the court” for purposes of section
       103-5(b) of the Code would make the phrase “any court date set by the court” in section 103-
       5(b) superfluous. See 725 ILCS 5/103-5(b) (West 2010). Our supreme court has repeatedly
       held that statutes should be read as a whole and construed so that no part is rendered
       meaningless or superfluous. People v. Edwards, 2012 IL 111711, ¶ 26.
¶ 27        The fact that defendant has not cited any cases that discuss the difference between a date
       set by the court versus a date set by a party does not mean that such a distinction does not
       exist. Instead, it highlights the fact that this particular issue, at least with respect to the
       language in section 103-5(b) of the Code, has not yet been addressed by Illinois courts. Here,
       in determining the plain meaning of this statute in its entirety, we hold that a date set by a
       party as a status date for return on a subpoena is not a date “set by the court,” as section 103-
       5(b) of the Code requires in order to find a waiver of a valid speedy-trial demand. 725 ILCS
       5/103-5(b) (West 2010).
¶ 28        Along with Zakarauskas, the State cites to People v. Higgenbotham, 2012 IL App (1st)
       110434, and People v. Minor, 2011 IL App (1st) 101097, as support for its claim that the
       court did not err in denying defendant’s motion to dismiss on speedy-trial grounds because
       he waived his demand by his failure to appear on a status date on one of its subpoenas. We
       have reviewed these cases and find that, like Zakarauskas, they do not aid the State, because
       they each involve a defendant’s failure to appear in court on a date “set by the court.” See
       Higgenbotham, 2012 IL App (1st) 110434, ¶ 34 (defendant waived valid speedy-trial demand
       when she failed to show up for a court date that had been set by the court after she received
       a court-sanctioned continuance due to hospitalization); Minor, 2011 IL App (1st) 101097,
       ¶ 15 (defendant waived her speedy-trial demand when she failed to appear at a date set by
       the court even though she appeared and explained her absence the next day).
¶ 29        At oral argument, the State suggested that because defendant appeared for status on the
       return of his own subpoena he should have known that he was required to appear for status
       on the return of the State’s subpoenas. It also argued that if it was required to appear for
       status on defendant’s subpoena then defendant was required to appear for status on the
       State’s subpoenas.
¶ 30        The State misapprehends the ramification of a party not appearing on a return date for


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       a subpoena.
¶ 31        The use of subpoenas or “ ‘compulsory process for obtaining witnesses in his favor’ ” in
       all criminal proceedings is a right guaranteed by the sixth amendment to the United States
       Constitution and is applicable to State criminal proceedings. People ex rel. Fisher v. Carey,
       77 Ill. 2d 259, 265 (1979) (quoting Washington v. Texas, 388 U.S. 14, 23 (1967)). This
       guarantee encompasses the production of documentary evidence by subpoenas duces tecum.
       Id.
¶ 32        On a return date for a subpoena, the trial court may ask the party subpoenaed, or any
       other person with a legitimate interest in the proceedings, whether an objection is raised.
       The court can then address the objection before releasing the subpoenaed documents. See
       People v. Hathaway, 263 Ill. App. 3d 426, 430 (1994).
¶ 33        The State confuses both parties’ conduct in taking advantage of their right “to have
       compulsory process” with defendant’s obligations to appear “as ordered by the court,” as
       stated on defendant’s bail bond sheet as one of the conditions of his bail bond. See 725 ILCS
       5/110-10(a)(1) (West 2010) (if a person is released upon payment of bail security, he shall
       appear to answer the charge in the court having jurisdiction on a day certain and thereafter
       as ordered by the court). Here, notices of the State’s subpoenas were given to defendant so
       that, as an interested party, he had the opportunity to object to the production of the
       documents requested in those subpoenas. Id. If defendant had failed to appear on July 9,
       2010, for the return date on one of the State’s subpoenas1 he would have waived only his
       right to object to the production of the subpoenaed documents. However, as we previously
       held, since defendant did not fail to appear on any court date “set by the court,” he did not
       waive his valid speedy-trial demand.

¶ 34                             B. Delay Occasioned by Defendant
¶ 35        Next, defendant argues that he did not waive his speedy-trial demand because he caused
       no delay in the proceedings. Specifically, he contends that the only delay during his 160-day
       speedy-trial window was attributed to the State when it requested and was granted a
       continuance on August 9, 2010.
¶ 36        We initially note that defendant’s argument is based upon the incorrect assumption that
       if he caused delay in the proceedings he would have waived his speedy-trial demand. Instead,
       sections 103-5(b) and (f) of the Code make it clear that: (1) a defendant’s failure to appear
       for any court date set by the court waives a valid speedy-trial demand; and (2) any other
       delay occasioned by the defendant temporarily suspends his demand. See 725 ILCS 5/103-
       5(b), (f) (West 2010). We have held that defendant did not fail to appear for a court date set
       by the court and that he could not have waived his speedy-trial demand. Therefore, we need
       to determine only if defendant’s absence on July 9, 2010, caused any delay in the proceedings
       such that the time period for his speedy-trial demand should have been suspended from that


               1
                 We note, however, that defendant did not fail to appear on July 9, 2010, since he appeared
       in court through his counsel.

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       date until defendant next appeared in court on August 9, 2010, and if the State brought
       defendant to trial within that additional time frame.
¶ 37        As we have noted, the date for which defendant did not personally appear was only a
       status date for return on one of the State’s subpoenas. Therefore, defendant’s absence on that
       day did not cause any delay in the proceedings. Accordingly, his absence could not have
       temporarily tolled the speedy-trial time period that began when he filed his demand on
       April 26, 2010. See 725 ILCS 5/103-5(f) (West 2010). As an aside, we note that, even if a
       delay had been attributable to defendant, and we fail to see how it could have been, the State
       still did not bring this case to trial in time to avoid violating defendant’s right to a speedy
       trial. Since defendant filed a valid speedy-trial demand on April 26, 2010, he should have
       gone to trial by October 3, 2010. Even adding in the period of time from July 9, 2010, when
       defendant did not appear in court, until he next appeared in court, on August 9, 2010,
       defendant should have been tried by early November 2010. Instead, he did not go to trial
       until May 17, 2011.
¶ 38        Finally, at oral argument the State moved to cite People v. Wigman, 2012 IL App (2d)
       100736, as additional authority. Defendant did not object, and we granted that motion. After
       oral argument the State also followed up with a written motion to that effect. We take that
       motion with this case and also grant it. However, the Wigman decision is of no help to the
       State here. In its written motion the State notes that in Wigman this court addressed the same
       statutory section at issue in the instant case and cited the same cases relied upon here in the
       parties’ briefs. While it is true that Wigman also dealt with section 103-5(b) of the Code, the
       similarities between Wigman and the instant case end at that point. Whether the defendant
       failed to appear for a date “set by the court” was not an issue in Wigman. Here, however,
       such a determination is dispositive of the issue of whether defendant waived his speedy-trial
       demand. Therefore, we find that Wigman does not aid our analysis. See id.

¶ 39                                    III. CONCLUSION
¶ 40       For these reasons, we hold that the trial court erred in denying defendant’s motion to
       dismiss based upon a violation of defendant’s right to a speedy trial. Accordingly, the trial
       court’s order finding defendant guilty of DUI, along with his sentence of supervision and
       assessment of fines and fees, is reversed.
¶ 41       The judgment of the circuit court of McHenry County is reversed.

¶ 42      Reversed.




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