                               2013 IL 113216

                            IN THE
                       SUPREME COURT
                              OF
                     THE STATE OF ILLINOIS


                    (Docket No. 113216)
     THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                 ELIJAH S. LACY, Appellee.

                         Opinion filed July 11, 2013.

        JUSTICE BURKE delivered the judgment of the court, with
     opinion.
        Chief Justice Kilbride and Justices Freeman, Thomas, and
     Karmeier concurred in the judgment and opinion.
        Justice Garman dissented, with opinion, joined by Justice Theis.



                                 OPINION

¶1       Section 103-5(c) of the Illinois speedy-trial statute (725 ILCS
     5/103-5(c) (West 2010)) authorizes a circuit court to continue a
     criminal case for “not more than an additional 60 days” to allow the
     State to obtain “evidence material to the case” if the State has
     exercised “due diligence” to obtain the evidence and “there are
     reasonable grounds to believe that such evidence may be obtained at
     a later day.” In this case, the circuit court granted the State two
     separate continuances prior to trial under section 103-5(c) because
     two of the State’s witnesses were, for different reasons and at
     different times, temporarily unavailable. The two continuances, when
     added together, totaled more than 60 days.
¶2       Following a substitution of judge, the defendant moved for
     dismissal of the charges against him, arguing that section 103-5(c)
     limited the State to not more than 60 days’ continuance in total, and
     that when this limitation was taken into account, the statutory speedy-
     trial period had expired. The circuit court agreed with defendant,
     granted his motion and dismissed the charges against him. The
     appellate court affirmed. 2011 IL App (5th) 100347. For the reasons
     that follow, we reverse the judgments of the lower courts and remand
     this cause to the circuit court for further proceedings.

¶3                              BACKGROUND
¶4        The defendant, Elijah S. Lacy, was arrested on February 8, 2009,
     and subsequently charged in the circuit court of Jackson County with
     first degree murder and home invasion. After defendant was granted
     several continuances, a trial date was set for February 1, 2010.
     Defendant remained in custody throughout the proceedings.
¶5        On January 25, 2010, the State filed a motion to continue pursuant
     to section 103-5(c) of the speedy-trial statute (725 ILCS 5/103-5(c)
     (West 2010)). In this motion, the State explained that Rebecca Pope,
     the only eyewitness to the events that gave rise to the charges against
     defendant, would be unable to travel from her home in Missouri to
     attend the scheduled trial because she was in the midst of a high-risk
     pregnancy and travel restrictions had been placed on her by her
     doctor. The motion included documentation from Pope’s doctor and
     stated that Pope’s due date was March 1, 2010. The circuit court
     granted the State’s motion over defendant’s objection and set a new
     trial date of April 26, 2010.
¶6        On April 19, 2010, the State filed a “pretrial motion regarding
     witness availability,” which asserted that the crime scene technician,
     Officer Dale Reamy of the Carbondale police department, was
     unavailable to testify at the scheduled trial because he had been
     deployed by the army reserve to Afghanistan. The motion requested
     the agreement of defendant to allow Lt. Paul Echols, who was present
     at the crime scene when evidence was collected, to testify in Reamy’s
     stead. The motion also stated that, in the absence of defendant’s
     agreement, the State would be forced to seek a continuance of the
     trial date until Reamy returned from overseas.
¶7        On April 23, 2010, defendant filed his own motion to continue,
     arguing in part that the continuance was necessary so Reamy would
     be available for cross-examination. The circuit court granted
     defendant’s motion and rescheduled the trial for June 21, 2010.



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¶8          On June 14, 2010, defendant filed a motion stating that he would
       not agree to the State’s request that Echols be allowed to testify in
       place of Reamy. Consequently, the State filed a second motion
       requesting an extension of the speedy-trial period under section 103-
       5(c). In this motion, the State asserted that Reamy would be
       unavailable to attend the trial on the scheduled date because he would
       still be serving in Afghanistan. The motion further stated that Reamy
       would be back in the area on July 15, 2010, and would be able to
       testify at that time. Over defendant’s objection, the circuit court
       granted the State’s motion and rescheduled the trial for July 19, 2010.
       Including the continuance allowed with respect to Rebecca Pope, the
       two continuances granted the State under section 103-5(c) totaled
       more than 60 days.
¶9          On July 9, 2010, a different trial judge was assigned to
       defendant’s case. On July 15, 2010, defendant filed a motion to
       dismiss on the basis that the statutory speedy-trial period had expired.
       In his motion, defendant argued that section 103-5(c) allows a total
       of only 60 days’ continuance, regardless of the circumstances
       confronted by the State. The motion further alleged that the general,
       120-day speedy-trial period provided under section 103-5(a) of the
       speedy-trial statute (725 ILCS 5/103-5(a) (West 2010)), plus the
       additional 60 days of continuance allowed under section 103-5(c) (a
       total of 180 days), had elapsed on June 26, 2010. Thus, defendant’s
       motion contended that the statutory speedy-trial period had expired,
       and the case against him should be dismissed.
¶ 10        On July 19, 2010, following a hearing, the circuit court
       “reluctantly” granted defendant’s motion. The circuit court held:
       “[T]he State can request multiple continuances per 103-5(c) upon
       proper proof of due diligence. This was done. This Court does not
       believe that the total of these continuances may exceed 60 days. This
       Court believes the total maximum time for defendant to be tried is
       180 days.” The circuit court determined that July 19, 2010, was the
       203rd day of defendant’s pretrial custody that was attributable to the
       State, or 23 days past the maximum permitted, in the view of the
       court, under the speedy-trial statute. Accordingly, the circuit court
       dismissed the charges and ordered defendant released from custody.
¶ 11        The State appealed, arguing that section 103-5(c) of the speedy-
       trial statute does not limit it to a total of 60 days’ continuance. The
       appellate court rejected this contention, concluding that under the
       statute, a defendant must be brought to trial no later than 180 days


                                         -3-
       after he is taken into custody. 2011 IL App (5th) 100347. We granted
       the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,
       2010).

¶ 12                                  ANALYSIS
¶ 13       At issue in this case is whether the State is limited to a total of 60
       days’ continuance under section 103-5(c) of the speedy-trial statute
       (725 ILCS 5/103-5(c) (West 2010)). The parties acknowledge that
       this precise issue has not been addressed in any prior case law and,
       thus, is one of first impression. Because the issue presented raises a
       question of statutory interpretation, our review is de novo. Mattis v.
       State Universities Retirement System, 212 Ill. 2d 58, 76 (2004).
¶ 14       Section 103-5(c) of the speedy-trial statute provides:
                “If the court determines that the State has exercised without
                success due diligence to obtain evidence material to the case
                and that there are reasonable grounds to believe that such
                evidence may be obtained at a later day the court may
                continue the cause on application of the State for not more
                than an additional 60 days. If the court determines that the
                State has exercised without success due diligence to obtain
                results of DNA testing that is material to the case and that
                there are reasonable grounds to believe that such results may
                be obtained at a later day, the court may continue the cause on
                application of the State for not more than an additional 120
                days.” 725 ILCS 5/103-5(c) (West 2010).
¶ 15       As he did in the courts below, defendant maintains that, because
       section 103-5(c) states that the cause may be continued “for not more
       than an additional 60 days,” the State may not, under any
       circumstances, be granted more than 60 days in total to obtain
       material evidence. The State counters by arguing that the plain
       language of section 103-5(c) “sets no limits on the number of times”
       a continuance may be granted and, therefore, the statute allows the
       State to obtain multiple continuances of not more than 60 days each
       upon a showing of due diligence, materiality of the evidence, and
       reasonable grounds to believe the evidence may be obtained at a later
       date. In our view, neither of these arguments hits the mark.
¶ 16       Section 103-5(c) provides that where the State has exercised due
       diligence to obtain material evidence and “there are reasonable
       grounds to believe that such evidence may be obtained at a later day”


                                          -4-
       (emphasis added) (725 ILCS 5/103-5(c) (West 2010)), the State may
       be granted up to 60 days to obtain that evidence. From this language
       it is clear that the 60-day time period is tied to the specific evidence
       for which the continuance is being sought. So, for example, in this
       case, when the circuit court granted the State a continuance to obtain
       the testimony of Rebecca Pope, the continuance was granted with
       respect to that evidence alone. Officer Reamy’s testimony was
       different evidence and when that testimony became unavailable, the
       State was entitled under section 103-5(c) to seek a separate
       continuance to obtain “such evidence.”
¶ 17        In arguing that the State may receive no more than a total of 60
       days’ continuance, defendant is, in effect, saying that the phrase “such
       evidence” refers to all material evidence for which the State may seek
       continuances, regardless of when or why those continuances are
       sought. This is a strained reading of the statute. The more natural
       reading is that the phrase “such evidence” refers to that evidence for
       which the State is seeking a continuance and, therefore, the State in
       this case was entitled to seek one continuance of not more than 60
       days to obtain the testimony of Rebecca Pope, and a separate
       continuance of not more than 60 days to obtain the testimony of
       Officer Reamy. Indeed, in our view, had the General Assembly
       intended the meaning argued by defendant, i.e., that the maximum
       time period under section 103-5(c) is 60 days in total, it could have
       easily said so. It did not.
¶ 18        At the same time, the State’s contention that section 103-5(c)
       “sets no limits on the number of times” a continuance may be granted
       is also incorrect. Where the conditions of section 103-5(c) are
       satisfied, the State may seek separate continuances in order to obtain
       different items of material evidence, but the statute plainly indicates
       that the State is only entitled to one continuance of not more than 60
       days for each item. Thus, contrary to the State’s assertion, section
       103-5(c) does not permit an unlimited number of continuances.
¶ 19        Further, there are significant restraints placed on the use of the
       continuances under section 103-5(c). Before granting a continuance,
       the circuit court must find, in the exercise of its discretion, that the
       evidence for which the continuance is sought is material to the case,
       that the State has exercised due diligence to obtain such evidence, and
       that there are reasonable grounds to believe that such evidence will
       be available at a later date. These requirements prevent the State from
       using the statute to create unnecessary delay. For example, if the State


                                         -5-
       is aware, at the outset, that two different witnesses are unavailable,
       due diligence requires that the unavailability of both witnesses be
       disclosed to the circuit court at that time. The State cannot move for
       a continuance to obtain the testimony of one witness, exhaust that
       continuance, and then move for a continuance for the second witness.
       In this way, the statute prevents the State from unnecessarily
       prolonging the proceedings but allows the State additional time to
       obtain material evidence when, as in this case, a second witness
       unexpectedly becomes unavailable.
¶ 20        Defendant also contends that reading section 103-5(c) as allowing
       for more than a total of 60 days’ continuance would be “inconsistent
       with the purpose of the speedy trial statute,” which is to implement
       the right to a speedy trial guaranteed by the federal and state
       constitutions. The constitutional speedy-trial provisions do not
       contain a specific time limit within which a defendant must be tried.
       See U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Rather,
       to determine whether a constitutional speedy-trial violation has
       occurred, four factors are considered as part of a balancing analysis:
       (1) the length of the delay, (2) the reasons for the delay, (3) the
       defendant’s assertion of the speedy-trial right, and (4) prejudice to the
       defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530
       (1972); People v. Crane, 195 Ill. 2d 42, 46-48 (2001). Illinois’
       speedy-trial statute implements the constitutional right to a speedy
       trial by setting forth a definite time limit within which a defendant
       must be brought to trial. People v. Sandoval, 236 Ill. 2d 57, 67
       (2010); Crane, 195 Ill. 2d at 47-48. According to defendant, only a
       limit of 60 days’ continuance in total under section 103-5(c) would
       be sufficiently definite to serve this purpose. We disagree.
¶ 21        Under the constitutional speedy-trial analysis, the State’s inability
       to obtain material evidence after exercising due diligence, and in
       particular the inability to obtain the testimony of a material witness,
       is considered a presumptively valid reason for delay. Barker, 407
       U.S. at 531; see generally Kristine Cordier Karnezis, Annotation,
       Illness or Incapacity of Judge, Prosecuting Officer, or Prosecution
       Witness as Justifying Delay in Bringing Accused Speedily to
       Trial—State Cases, 78 A.L.R.3d 297, § 5 (1977). Recognizing this
       fact, many speedy-trial statutes place no limit on the amount of time
       allowed when the government is diligently seeking material evidence.
       See, e.g., Alaska R. Crim. P. 45(d)(3)(a) (2012); Ark. R. Crim. P. R.
       28.3(d)(1) (2013); Fla. R. Crim. P. 3.191(l)(3) (2013); Haw. R. Penal


                                          -6-
       P. 48(c)(4)(i) (2013); Neb. Rev. Stat. § 29-1207(4)(c)(i) (2012); N.Y.
       Crim. Proc. Law § 30.30(4)(g) (McKinney 2013); see also, e.g., 18
       U.S.C. § 3161(h)(3)(A) (2006) (excluding period of delay when an
       essential witness is unavailable); Mass. R. Crim. P. 36(b)(2)(B)
       (2013) (same). However, as we have explained, section 103-5(c)
       places an explicit limit on the length of the permitted continuance,
       tying the extension of time to the evidence being sought and
       providing for one, and only one, continuance of not more than 60
       days to obtain an item of material evidence. This is a sufficiently
       defined period of time to serve the purpose of implementing the
       constitutional right to a speedy trial.
¶ 22       In the case at bar, the State was entitled to seek one continuance
       of not more than 60 days under section 103-5(c) to obtain the
       testimony of Rebecca Pope. The State was also entitled to seek a
       second continuance of not more than 60 days to obtain the testimony
       of Officer Reamy, since that testimony constituted different evidence.
       Further, defendant does not contend that the circuit court abused its
       discretion when it initially found that the State acted with due
       diligence in attempting to secure the testimony of the two witnesses,
       that their testimony was material, and that there were reasonable
       grounds to believe that their testimony would be obtained at a later
       day. Accordingly, the circuit court erred when it subsequently held
       that the speedy-trial statute was violated.

¶ 23                             CONCLUSION
¶ 24      For the foregoing reasons, the judgments of the circuit and
       appellate courts are reversed. The cause is remanded to the circuit
       court for further proceedings consistent with this opinion.

¶ 25      Judgments reversed.
¶ 26      Cause remanded.

¶ 27        JUSTICE GARMAN, dissenting:
¶ 28        The majority holds that section 103-5(c) allows the trial court to
       grant the State one 60-day continuance to obtain each piece of
       evidence or each witness that is unavailable during the speedy-trial
       period. Because I believe the majority’s interpretation of the statute
       is incorrect, I respectfully dissent.


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¶ 29        Defendants have the right to a speedy trial under the United States
       and Illinois constitutions (U.S. Const., amends. VI, XIV; Ill. Const.
       1970, art. I, § 8). As the majority notes, under the constitutional
       analysis, whether a defendant’s right to a speedy trial has been
       violated depends on four factors: (1) the length of the delay in the
       trial, (2) the reasons for the delay, (3) the defendant’s assertion of the
       speedy-trial right, and (4) prejudice to the defendant caused by the
       delay. Barker v. Wingo, 407 U.S. 514, 530 (1972). Illinois’ speedy-
       trial act implements the constitutional right to a speedy trial and this
       court has recognized that the act is to be liberally construed. People
       v. Staten, 159 Ill. 2d 419, 427 (1994). Although the statute
       implements a defendant’s constitutional right to a speedy trial, the
       constitutional right and the right conferred by the statute are not
       precisely equivalent. A defendant need not show prejudice under the
       statutory right and all that is required is that the defendant has not
       been brought to trial within the statutory period and that the defendant
       has not caused or contributed to the delay. When a statutory speedy-
       trial violation is alleged, the statute operates to prevent the
       constitutional issue from arising except in cases involving prolonged
       delay or novel issues. Id. at 426-27.
¶ 30        The majority relies on the plain language of section 103-5(c) in
       concluding that the phrase “such evidence” refers to the evidence for
       which the State is seeking a continuance. Thus, according to the
       majority, the State was entitled to one 60-day continuance to obtain
       Rebecca Pope’s testimony and one 60-day continuance to obtain
       Officer Reamy’s testimony. Supra ¶ 17. In my view, the majority
       focuses on the wrong language. The question before this court is
       whether the phrase “not more than an additional 60 days” permits the
       State more than one continuance of 60 days past the expiration of the
       speedy-trial period under the statute. The majority’s emphasis on the
       phrase “such evidence” is misplaced. When the State seeks a
       continuance to obtain material evidence, the continuance, if granted,
       would obviously refer to that evidence. Thus, the phrase “such
       evidence” lacks the significance the majority ascribes to it. Rather,
       the key phrase is “not more than an additional 60 days.”
¶ 31        The majority rightly rejects the State’s argument that “additional”
       means that it may obtain multiple continuances of not more than 60
       days each. However, the majority errs in holding that the State may
       obtain one 60-day continuance for each piece of evidence and each
       witness. What the majority withholds with one hand, it bestows with


                                          -8-
       the other. Under the majority’s holding, the State may not obtain an
       unlimited number of 60-day continuances for each separate witness
       or separate item of evidence. However, the majority would allow the
       State to obtain a potentially unlimited number of continuances, as
       long as each continuance does not exceed 60 days for each witness or
       item of evidence. In a complex case with many witnesses and much
       evidence, the State may be able to obtain continuances that would
       take the case long past the 120-day speedy-trial period. Such a result
       may encourage a defendant to invoke his constitutional right to a
       speedy trial, something the legislature sought to avoid in limiting the
       State’s ability to obtain continuances under section 103-5(c).
¶ 32        I would find the language “no more than an additional 60 days”
       in section 103-5(c) to be ambiguous. While I would reject the State’s
       construction of that language, I do not find that construction to be
       inherently unreasonable. Where the language of a statute is
       ambiguous, we may consider the purposes of the statute. Reda v.
       Advocate Health Care, 199 Ill. 2d 47, 55 (2002). As noted above,
       section 103-5(c) implements a defendant’s constitutional right to a
       speedy trial and this court has recognized that the statute is to be
       liberally construed. When a statutory speedy-trial violation is alleged,
       the statute operates to prevent the constitutional issue from arising
       except in cases involving prolonged delay or novel issues. Staten, 159
       Ill. 2d at 426-27. This court has noted that the balancing analysis in
       the constitutional speedy-trial right is inherent in our speedy-trial
       statute and that this balancing is the prerogative of the General
       Assembly. People v. Sandoval, 236 Ill. 2d 57, 67 (2010). Since, under
       the majority’s analysis, especially in complex cases, the State can
       have potentially unlimited 60-day continuances for as many witnesses
       and items of evidence it cannot obtain within the speedy-trial period,
       defendants may be forced to invoke their constitutional speedy-trial
       rights. This is contrary to the purpose of the statute. Had the
       legislature wished to provide not more than one 60-day continuance
       for each witness and each item of evidence, it could easily have used
       language in the statute to make that clear. It did not and that omission
       is telling.
¶ 33        The majority’s reliance on statutes of our sister states to support
       its holding is misplaced. Not only do none of the cited statutes place
       any time limits on continuances granted at the State’s request, a
       review of these statutes reveals that they are considerably more liberal
       than our statute with respect to the reasons the State may be granted


                                         -9-
       continuances. For example, most of the statutes cited by the majority
       except from the speedy-trial period delay caused by continuances
       granted the State in cases where the prosecutor requires additional
       time to prepare the State’s case due to the complexity of the case or
       due to other exceptional circumstances. These exceptions are in
       addition to continuances sought for the unavailability of witnesses or
       material evidence. See Alaska R. Crim. P. 45(d)(3)(b) (2012); Ark.
       R. Crim. P. R. 28.3(d)(2) (2013); Fla. R. Crim. P. 3.191(l)(2) (2013);
       Haw. R. Penal P. 48(c)(4)(ii) (2013); Neb. Rev. Stat. § 29-
       1207(4)(c)(ii) (2012); N.Y. Crim. Proc. Law § 30.30(4)(g)(ii)
       (McKinney 2013).
¶ 34        In contrast, section 103-5(c) of our speedy-trial statute is much
       more restrictive. The open-ended continuances allowed under the
       cited statutes require a balancing analysis similar to that required
       under the constitutional speedy-trial right. Our legislature has sought
       to avoid that possibility by providing for continuances totaling no
       more than 60 days beyond the speedy-trial period. The majority’s
       holding undermines that intent.
¶ 35        I note that the State was not without options in this case. When it
       became clear that Reamy’s presence at trial could not be secured
       within the maximum allowable time, the State could have asked the
       trial court to lower defendant’s bond or release him on his own
       recognizance. The State could have sought a plea bargain with
       defendant. It could have gone to trial without Reamy’s testimony.
       Instead, the State sought a continuance that would have caused
       defendant’s trial to take place beyond the 180-day maximum speedy-
       trial period. The trial and appellate courts rightly concluded that this
       was not permissible under the statute. The majority errs in reversing
       those decisions.

¶ 36      JUSTICE THEIS joins in this dissent.




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