                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Brexton, 2012 IL App (2d) 110606




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JAMES A. BREXTON, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0606


Filed                      December 28, 2012


Held                       When defendant’s counsel agreed to a trial date outside the 120-day
(Note: This syllabus       period, the trial court did not err in denying defendant’s subsequent
constitutes no part of     motion to dismiss on speedy-trial grounds; furthermore, defendant’s
the opinion of the court   conviction for retail theft was vacated pursuant to the one-act, one-crime
but has been prepared      rule, since defendant’s convictions for theft and theft by emergency exit
by the Reporter of         were based on the single theft of a television.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Stephenson County, No. 09-CF-151; the
Review                     Hon. Michael P. Bald, Judge, presiding.



Judgment                   Affirmed in part and vacated in part.
Counsel on                  Thomas A. Lilien and Barbara R. Paschen, both of State Appellate
Appeal                      Defender’s Office, of Elgin, for appellant.



                            John H. Vogt, State’s Attorney, of Freeport (Lawrence M. Bauer and
                            David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s
                            Office, of counsel), for the People.


Panel                       JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                            Presiding Justice Burke and Justice Jorgensen concurred in the judgment
                            and opinion.




                                              OPINION

¶1          Following a bench trial, defendant, James A. Brexton, was convicted of burglary (720
        ILCS 5/19-1(a) (West 2008)), retail theft (720 ILCS 5/16A-3(a) (West 2008)), and theft by
        emergency exit (720 ILCS 5/16A-3.5 (West 2008)). On appeal, defendant argues that his
        convictions must be vacated because he was denied his right to a speedy trial. Defendant
        alternatively argues that his retail theft conviction should be vacated under the one-act, one-
        crime rule. We agree with defendant’s second argument and therefore affirm in part and
        vacate in part.

¶2                                       I. BACKGROUND
¶3          Defendant was arrested on June 11, 2009, the date of the incident. On September 21,
        2009, he was charged by amended information with four counts of burglary, two counts of
        retail theft, and theft by emergency exit. The charges alleged that defendant used an
        emergency exit to take a television worth over $150 from the Freeport K-Mart.
¶4          On October 1, 2009, defense counsel filed a motion to appoint a clinical psychologist to
        ascertain defendant’s sanity at the time of the offense and his fitness to stand trial. The trial
        court granted the motion the same day. On December 7, 2009, a jury found defendant unfit
        to stand trial, and he was ordered to undergo treatment.
¶5          On February 12, 2010, the trial court found that defendant had been restored to fitness.
        The following exchange then occurred, which is central to the speedy-trial issue on appeal:
                “THE COURT: Now, as I recall, we were trying to keep this on a somewhat
            expedited schedule in regard to pretrial and trial dates.
                Madam Clerk, can we have something hopefully within the range of about a month
            if we could? Assuming that it fits in the schedules of everyone involved here.

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                THE CLERK: How about a pretrial March 12 at 9:00 and a jury trial March 15 at
           9:00?
                THE COURT: Pretrial March 12 at 9:00, and the jury trial March 15 at 9:00. Would
           that be acceptable, Mr. Peska?
                MR. PESKA [Assistant Public Defender]: Those dates are fine, Judge.
                THE COURT: Okay. Mr. Lentz?
                MR. LENTZ [Assistant State’s Attorney]: Yes, Judge. That’s fine.
                THE COURT: Now, at this time we’ll also remand the defendant from the
           Department of Human Services to the Stephenson County jail under the same bond, same
           conditions.
                So Mr. Brexton, you’ll be returning here. Your attorney is right here. We’re trying
           to set this on about as quick a schedule as we can possibly do.
                MR. PESKA: Judge, I think the Court facilitated what I would be asking anyways,
           but just so it’s on the record, I would note that Mr. Brexton has demanded a speedy trial,
           and I realize the Court has scheduled this in such a fashion, but I just wanted to go on
           the record and say that.
                THE COURT: Very good. And I think that the State is aware of that also at this
           time.” (Emphases added.)
¶6         On March 12, 2010, defendant moved to dismiss the charges on speedy-trial grounds, and
       the trial court granted the motion on March 15. However, on March 23, the State filed a
       motion to reconsider and reinstate the charges. Based on the case law submitted by the State,
       the trial court granted the motion on March 31.
¶7         On April 15, 2010, the trial court allowed defendant to proceed pro se. However, on June
       2, defendant asked for counsel to be reappointed, and the trial court granted his request.
¶8         Defendant’s bench trial began on June 14, 2010. The trial court ultimately found
       defendant guilty of two of the four burglary counts, both counts of retail theft, and theft by
       emergency exit. On July 13, defendant filed motions for a new trial and to set aside the
       verdict.
¶9         On August 11, 2010, defendant again chose to proceed pro se. He adopted defense
       counsel’s posttrial motions in addition to filing his own pro se motions. Defendant’s
       arguments ultimately included a claim that his counsel was ineffective for failing to object
       to the trial court setting a trial date outside the 120-day speedy-trial period. The trial court
       denied defendant’s motion for a new trial on February 16, 2011. Regarding his other
       motions, defendant called his prior defense counsel, Assistant Public Defender Peska, as a
       witness on April 26, 2011. Peska testified that February 12, 2010, was his first appearance
       for defendant. At that hearing, he had not yet calculated when 120 days would lapse for
       speedy-trial purposes, and he assumed that the dates given by the court were within that time
       period. When he later realized that they were not, he filed the motion to dismiss the charges
       on speedy-trial grounds.
¶ 10       The trial court denied defendant’s remaining motions on May 11, 2011, and it denied his
       motion to reconsider on June 3, 2011. At the sentencing hearing on June 20, 2011, the trial

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       court merged the two counts of burglary and sentenced defendant to 12 years’ imprisonment
       for that conviction. It similarly merged the two counts of retail theft and sentenced him to
       concurrent terms of seven years’ imprisonment for that conviction and the conviction of theft
       by emergency exit. Defendant timely appealed.

¶ 11                                       II. ANALYSIS
¶ 12                                       A. Speedy Trial
¶ 13        Defendant first argues that his convictions must be reversed because his statutory right
       to a speedy trial was violated. The right to a speedy trial for a defendant in custody is covered
       by section 103-5(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-5(a)
       (West 2010)). Under that statute, a defendant in custody must be tried within 120 days from
       the date that he was taken into custody. Id. While a defendant on bail must make a demand
       for a speedy trial to commence the running of the statute, such a demand is not required of
       a defendant who remains in custody after arrest, for whom the 120-day period begins to run
       automatically. People v. Adams, 404 Ill. App. 3d 405, 414 (2010). Pretrial delays caused by
       the defendant or by the parties’ agreement are not counted in determining the speedy-trial
       period. 725 ILCS 5/103-5(a), (f) (West 2010); Adams, 404 Ill. App. 3d at 414. A “[d]elay
       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). The defendant has the burden of establishing a violation of his or her
       speedy-trial rights. People v. Higgenbotham, 2012 IL App (1st) 110434, ¶ 16. If a defendant
       is not tried within the statutorily mandated period, the charges against him must be
       dismissed. 725 ILCS 5/103-5(d), 114-1(a)(1) (West 2010); People v. Woodrum, 223 Ill. 2d
       286, 299 (2006).
¶ 14        The parties dispute the applicable standard of review. Defendant recognizes that this
       court stated in People v. Weddell, 405 Ill. App. 3d 424, 431 (2010), that, generally, a trial
       court’s determination of who is responsible for a delay is entitled to deference and will be
       affirmed absent an abuse of discretion. However, citing People v. Crane, 195 Ill. 2d 42, 52
       (2001), defendant argues that de novo review is applied to the ultimate issue of whether a
       speedy-trial violation occurred. We note that Crane dealt with a constitutional speedy-trial
       claim (id. at 51), and this court has recently applied different standards of review to
       constitutional speedy-trial claims as compared to statutory speedy-trial claims. Compare
       People v. Totzke, 2012 IL App (2d) 110823, ¶ 17 (applying de novo review to ultimate
       determination of whether a defendant’s constitutional speedy-trial right was violated), with
       People v. Kohler, 2012 IL App (2d) 100513, ¶ 16 (stating that a trial court’s ruling on a
       speedy-trial challenge is generally reviewed for an abuse of discretion). In any event, we need
       not definitively determine whether de novo review or the abuse-of-discretion standard should
       be applied here, as our result would be the same under either standard. See Kohler, 2012 IL
       App (2d) 100513, ¶ 16.
¶ 15        In arguing that his trial was held outside of the 120-day statutory period, defendant
       contests only the period of time from February 12, 2010, when the trial court found that he
       was restored to fitness and set the matter for trial on a date that turned out to be outside of


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       the speedy-trial term, to March 12, 2010. Defendant asserts that his pro se motions leading
       up to the February 12 hearing clearly demonstrated that he wished to preserve his right to a
       speedy trial.
¶ 16        Defendant further points out that the trial court initially granted his motion to dismiss the
       charges on speedy-trial grounds, based on People v. Schmidt, 233 Ill. App. 3d 512 (1992).
       In that case, at a hearing where the defendant was found to be restored to fitness, the trial
       court and the parties discussed the possibility that the 120-day speedy-trial period might have
       run, but the parties were not sure how much time was attributable to each side. Id. at 513. A
       few days later, the defendant filed a motion to dismiss on speedy-trial grounds, but the trial
       court deferred its ruling and proceeded to trial. The defendant renewed his motion several
       times, including in a posttrial motion. The trial court denied the motion without making
       specific findings. Id. The appellate court reversed, stating that a “defendant has no duty to
       advise the court that the date set for trial presents a speedy trial problem” and that the
       defendant was “not accountable for delay that took the case outside the term.” Id. at 516-17.
¶ 17        Here, the trial court granted the State’s motion to reconsider and reversed its ruling,
       based on the State’s citations to People v. Cordell, 223 Ill. 2d 380 (2006), and People v.
       Hampton, 394 Ill. App. 3d 683 (2009). In Cordell, defense counsel did not object to a trial
       date that was outside the 120-day speedy-trial period. The defendant subsequently alleged
       that his counsel was ineffective for not seeking dismissal of the charges on speedy-trial
       grounds. Cordell, 223 Ill. 2d at 385. Our supreme court stated that, before 1999, section 103-
       5(a) did not contain the provision requiring a defendant to object to any delay in his trial for
       the delay to be attributable to the State. Id. at 386; see 725 ILCS 5/103-5(a) (West 2010)
       (“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.”).
       Therefore, under the prior version of the statute, only a defendant’s affirmative acts that
       caused or contributed to the delay, such as express agreements to continuances on the record,
       would toll the speedy-trial period. Conversely, a defendant’s silence or the failure to object
       to continuances that the State or the trial court requested were not considered affirmative
       acts, and the delays were not attributable to the defendant. Cordell, 223 Ill. 2d at 386.
¶ 18        Our supreme court determined that the word “delay,” as used in the amended version of
       section 103-5(a), refers to any action by either party or the trial court that moves the trial date
       outside of the 120-day period. Id. at 390. It stated that “[t]his ruling does not prohibit a
       defendant from objecting to a trial date set outside the 120-day period by trial courts, but
       rather allows courts the opportunity to propose such a date in the interest of efficiency and
       convenience to both parties and the court, and gives defendants the option of accepting or
       rejecting the proposed date.” (Emphasis in original.) Id. The supreme court stated that, in this
       manner, a defendant could object and use section 103-5 as a shield against any attempt to
       schedule the trial date outside of the 120-day period, but he could not use the statute as a
       sword after the fact to defeat a conviction. Id. The supreme court stated that in the case
       before it, once the trial court set a date for trial outside of the speedy-trial period, the
       defendant was obligated to object to stop the speedy-trial clock from tolling. Id. at 390-91.
       It further stated that, although the defendant did make some demands for a speedy trial, they
       occurred before the trial court had proposed any trial dates. Id. at 391. The supreme court

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       continued:
            “A simple request for trial, before any ‘delay’ is proposed, is not equivalent to an
            objection for purposes of section 103-5(a). [Citation.] As amended, section 103-5(a)
            places the onus on a defendant to take affirmative action when he becomes aware that his
            trial is being delayed. To allow basic requests for trial, made before any delay was even
            proposed, to qualify as objections to ‘delays’ not yet proposed would provide defendants
            with another sword to use after the fact to overturn their convictions.” Id. at 391-92.
       The supreme court concluded that, because the defendant did not object to any of the delays
       of his trial, they were considered to be “ ‘agreed to,’ ” and thus his claim of ineffective
       assistance of counsel failed. Id. at 392.
¶ 19        In Hampton, the State moved to continue the trial due to the unavailability of a material
       witness. Hampton, 394 Ill. App. 3d at 684. At a hearing on the motion on February 28, 2008,
       the following exchange occurred:
                 “ ‘[DEFENSE COUNSEL]: Judge, we have previously demanded a speedy trial. We
            would continue in that demand.
                 THE COURT: It’s People’s time now. Do you want me to go forward or backwards?
            Should I go past this date, or do you want me to try and advance the date?
                 [DEFENSE COUNSEL]: March 31st.
                 [ASSISTANT STATE’S ATTORNEY]: March 31st would be fine. Ms. Mosser
            [another assistant State’s Attorney] says the week before or week after, and court is still
            unavailable the 17th.
                 Is that an accurate statement?
                 THE COURT: Yes. All right. Then I shall mark you down for March 31st. People’s
            motion to continue is granted. Final pretrial conference is the Friday before, March
            28th.’ ” Id.
       The trial court granted the defendant’s motion to dismiss the charge against him based on a
       speedy-trial violation. Id. at 685. In doing so, it attributed the delay from February 28 to
       March 28 to the State. Id. at 687.
¶ 20        On appeal, the State argued that, inter alia, it was not responsible for the aforementioned
       delay. This court agreed, stating that, when the trial court set the defendant’s trial beyond the
       120-day limit, the defendant did not object, and instead his attorney had proposed the date.
       Id. at 688-89. We stated, “Defendant could either assert his right to be tried within the
       speedy-trial term or agree to be tried outside the term, but he could not agree to be tried
       outside the term and then complain that the trial court should have given him a speedy trial.”
       Id. at 689. We recognized that the situation differed from Cordell in that the Hampton
       defendant initially objected on speedy-trial grounds when the State moved for the
       continuance. Id. However, we stated that the difference was not “material” because, after the
       trial court decided to grant the State a continuance, the defendant “could not stand mute (or
       affirmatively propose a date outside the speedy-trial term) if he wanted to successfully
       invoke his rights under section 103-5(a) later.” Id. We therefore held that the trial court erred
       in granting the defendant’s motion to dismiss the charge.


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¶ 21        Defendant argues that this case is distinguishable from Cordell because there, defense
       counsel acquiesced in the new date set by the court and did not say anything about a speedy
       trial, and the defendant did not move to dismiss on speedy-trial grounds until after the trial.
       Defendant argues that the Cordell court was concerned that a defendant should not be
       allowed to use a procedural loophole to obstruct justice (see Cordell, 223 Ill. 2d at 390),
       which he argues implies a knowing failure to object until after the fact. Defendant cites
       Cordell’s statement that amended “section 103-5(a) places the onus on a defendant to take
       affirmative action when he becomes aware that his trial is being delayed” (emphasis added)
       (id. at 391), and he argues that here counsel asserted defendant’s right to a speedy trial both
       on February 12 and again when he realized that the new trial date had been set outside the
       speedy-trial term. Defendant maintains that what Cordell required was that an objection be
       made when the defense realizes that the date exceeded the term, and he argues that his
       counsel fulfilled this requirement.
¶ 22        Defendant argues that Hampton is also distinguishable because there this court relied on
       the fact that defense counsel did not simply acquiesce in the disputed date but, rather,
       affirmatively requested it.
¶ 23        We note that, while defendant references pro se motions demanding a speedy trial that
       he filed before the February 12 hearing at issue, Cordell teaches us that basic requests for
       trial that are made before the delay is proposed do not qualify as objections to the delay.
       Cordell, 223 Ill. 2d at 391-92. Defendant’s citation to Schmidt is also unavailing, as that case
       involved the preamended version of section 103-5(a), which did not require a defendant to
       object to trial delays (see id. at 386), whereas the current version of section 103-5(a) requires
       a defendant to object once the trial court sets a date for trial outside of the speedy-trial period
       (see id. at 390-91).
¶ 24        Moreover, we disagree with defendant that Cordell requires only that an objection be
       made when the defense realizes that the trial is being set beyond the 120-day period. While
       Cordell did state that a defendant is obligated to take action when he becomes aware that his
       trial is being delayed, it also stated that, when the trial court set the trial beyond the speedy-
       trial period, the “defendant was obligated to object in order to prevent the speedy-trial clock
       from tolling.” Id. at 391. Tellingly, our supreme court cautioned that section 103-5(a) is to
       be used only as a shield against any attempt to place the trial date outside the 120-day period,
       not as a sword to defeat a conviction after the fact (id. at 390), which defendant’s
       interpretation would permit. Thus, Cordell requires that a defendant object to a trial delay
       in order to avoid tolling the speedy-trial period, regardless of whether the defendant realizes
       at the time that the trial is set outside of the 120-day window. Here, the defense did not
       object to the trial date, but to the contrary stated that the trial date was “fine” and that the trial
       court had scheduled the trial in accordance with defendant’s right to a speedy trial. As such,
       the continuance is considered “agreed to” by defendant. See id. at 392.
¶ 25        Hampton, which was decided by this court, is consistent with our analysis. There, as in
       this case, the defense mentioned a speedy-trial demand during the hearing at which the trial
       date was set, but we held that a defendant must specifically object to the proposed trial date
       so as not to use section 103-5(a) as a sword rather than a shield. Hampton, 394 Ill. App. 3d
       at 689. Defendant claims that Hampton covers only situations where defense counsel did not

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       simply acquiesce in the disputed date, as his counsel did, but rather affirmatively requested
       it. However, as mentioned, in Hampton we stated that “after the trial judge did decide to
       grant the State a continuance, defendant could not stand mute (or affirmatively propose a
       date outside of the speedy-trial term) if he wanted to successfully invoke his rights under
       section 103-5(a) later.” (Emphasis added.) Id. Thus, Hampton is not limited to situations
       where the defense offers a particular trial date. As we stated, “what [a defendant] may not
       do is acquiesce in the setting of a date outside the period, then later obtain a dismissal on the
       ground that he was denied a speedy trial.” Id. at 688. Here, defense counsel clearly
       acquiesced to a trial date that was outside of the 120-day period, so the trial court did not err
       in granting the State’s motion to reconsider and denying defendant’s motion to dismiss the
       charges on speedy-trial grounds.

¶ 26                               B. One-Act, One-Crime Rule
¶ 27       Defendant also argues that his conviction of retail theft must be vacated under the one-
       act, one-crime rule enunciated in People v. King, 66 Ill. 2d 551 (1977), because both that
       conviction and the conviction of theft by emergency exit were based on a single theft of a
       television. Under the one-act, one-crime rule, multiple convictions may not be based on the
       same physical act. People v. Kuntu, 196 Ill. 2d 105, 130 (2001). Defendant did not raise his
       one-act, one-crime argument at the trial level, but forfeited one-act, one-crime arguments
       may be addressed under the plain-error doctrine because they affect the integrity of the
       judicial process. People v. Harvey, 211 Ill. 2d 368, 389 (2004). We review de novo the
       application of the one-act, one-crime rule. People v. Artis, 232 Ill. 2d 156, 161 (2009).
¶ 28       We agree with defendant that both the retail theft and theft-by-emergency-exit
       convictions were based on the same physical act of stealing a television. See People v.
       Hardin, 2012 IL App (1st) 100682, ¶ 35 (“a defendant may be convicted of only one crime
       of theft where he has committed a single act of theft”). The State concedes error on this issue.
       Where a defendant is convicted of two crimes based on the same physical act, we vacate the
       conviction of the less serious offense. People v. Johnson, 237 Ill. 2d 81, 97 (2010). Retail
       theft of property valued at over $150, as charged here, is a Class 3 felony. 720 ILCS 5/16A-
       10(3) (West 2008). Theft by emergency exit of property valued at over $150 is a Class 2
       felony. Id. Accordingly, we vacate the retail theft conviction.

¶ 29                                     III. CONCLUSION
¶ 30       For the reasons stated, we affirm the judgment of the Stephenson County circuit court
       insofar as it pertains to defendant’s convictions of burglary and theft by emergency exit, but
       we vacate defendant’s conviction of retail theft.

¶ 31       Affirmed in part and vacated in part.




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