             NOTICE
                                      2016 IL App (5th) 130223
 Decision filed 07/14/16.   The
 text of this decision may be              NO. 5-13-0223
 changed or corrected prior to
 the filing of a Peti ion for
 Rehearing or the disposition of               IN THE
 the same.

                                   APPELLATE COURT OF ILLINOIS

                            FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,        )     Appeal from the
                                            )     Circuit Court of
      Plaintiff-Appellee,                   )     St. Clair County.
                                            )
v.                                          )     No. 12-CF-990
                                            )
BERNARD MOSLEY,                             )     Honorable
                                            )     John Baricevic,
      Defendant-Appellant.                  )     Judge, presiding.
________________________________________________________________________

          JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.
          Justices Welch and Moore concurred in the judgment and opinion.

                                           OPINION

¶1           After a jury trial in the circuit court of St. Clair County, defendant, Bernard

Mosley, was convicted of aggravated battery (720 ILCS 5/12-3.05(c) (West 2012)) and

sentenced to two years in the Department of Corrections followed by one year of

mandatory supervised release. The only issue in this appeal is whether defendant's

conviction should be vacated on the basis that his right to a speedy trial was violated. We

affirm.




                                                 1
¶2                                 BACKGROUND

¶3    On July 6, 2012, a Washington Park police officer arrested defendant on a charge

of misdemeanor domestic battery due to an incident that took place that day between him

and Brenda Mosley. On that date, defendant was serving a period of supervised release

due to a federal conviction. On July 9, 2012, defendant's supervised release was revoked

on the basis of a parole violation stemming from the July 6, 2012, domestic battery. The

police turned defendant over to his federal parole officer, and defendant was taken into

federal custody. Ultimately, his parole was revoked.

¶4    On July 10, 2012, the State charged defendant with two felony counts of

aggravated battery. Count I charged defendant with aggravated battery based on the use

of a deadly weapon (720 ILCS 5/12-3.05(f)(1) (West 2012)). Count II charged defendant

with aggravated battery based on its commission in a public place (720 ILCS 5/12-

3.05(c) (West 2010)). A warrant was issued for defendant's arrest on the same day

defendant was charged but was not served on him until October 2, 2012, after he was

returned to state custody on October 1, 2012. Defendant filed a motion for speedy trial

on November 9, 2012.

¶5    Trial commenced on the instant charges on January 8, 2013. On January 9, 2013,

a jury found defendant not guilty on count I but guilty on count II. On February 19,

2013, the trial court sentenced defendant to two years in prison, plus one year mandatory

supervised release. The trial court credited defendant with time served in the county jail

from October 1, 2012, when he was returned to state custody, to February 18, 2013.


                                            2
¶6     Defendant filed a motion to reduce or modify sentence, contending, inter alia, he

is entitled to receive additional credit for time served since his arrest by Washington Park

police on July 6, 2012. After a hearing, the trial court denied defendant's motion to

modify sentence. Defendant now appeals, raising the speedy trial issue for the first time.

¶7                                      ANALYSIS

¶8     Defendant contends his conviction for aggravated battery should be vacated on the

basis that his right to a speedy trial was violated because he was not tried within 120 days

from the time he was taken into custody as required by section 103-5 of the Code of

Criminal Procedure of 1963 (Code) (725 ILCS 5/103-5 (West 2012)).                Defendant

specifically asserts that because 187 days elapsed from the time he was arrested on July

6, 2012, until his jury trial began on January 8, 2013, his conviction must be vacated and

the cause dismissed because he was denied his statutory right to a speedy trial. We

disagree.

¶9     Section 103-5(a) of the Code provides: "Every person in custody in this State for

an alleged offense shall be tried by the court having jurisdiction within 120 days from the

date he was taken into custody unless delay is occasioned by the defendant ***."

(Emphases added.) 725 ILCS 5/103-5(a) (West 2012). The speedy trial statute enforces

the constitutional right to a speedy trial guaranteed by the federal and Illinois

Constitutions (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8). People v.

Zeleny, 396 Ill. App. 3d 917, 919-20, 920 N.E.2d 1129, 1131 (2009). Despite defendant's

failure to raise the issue below, we will address the issue under the plain-error doctrine


                                             3
because a speedy trial is a substantial fundamental right. People v. Gay, 376 Ill. App. 3d

796, 799, 878 N.E.2d 805, 808 (2007).

¶ 10   When a defendant is not tried within the 120-day period, he should be discharged

from custody and the charges dismissed. People v. Mayo, 198 Ill. 2d 530, 536, 764

N.E.2d 525, 529 (2002). Here, the standard of review is de novo because the construction

and application of the speedy trial statute to undisputed facts such as we have here raises

a question of law. People v. Stanitz, 367 Ill. App. 3d 980, 983, 857 N.E.2d 288, 290

(2006). While it is the State's duty to bring the defendant to trial within the statutory

period (Mayo, 198 Ill. 2d at 536, 764 N.E.2d at 529), defendant bears the burden of

showing that his or her right to a speedy trial has been violated. People v. Patterson, 392

Ill. App. 3d 461, 467, 912 N.E.2d 244, 250 (2009).

¶ 11   The burden includes a showing that the defendant caused no delay, which must be

affirmatively established by the record. Patterson, 392 Ill. App. 3d at 467, 912 N.E.2d at

250.   A defendant causes delay if he or she requests a continuance or agrees to a

continuance, or defendant's actions otherwise cause or contribute to a delay. Patterson,

392 Ill. App. 3d at 467, 912 N.E.2d at 250. Any period of delay occasioned by a

defendant tolls the statutory period. Mayo, 198 Ill. 2d at 537, 764 N.E.2d at 530.

¶ 12   Relying on Stanitz, defendant contends he has been in State custody since July 6,

2012, when he was arrested for misdemeanor domestic battery, because the State

voluntarily released him to federal authorities.         Stanitz, however, is factually

distinguishable from the instant case.


                                            4
¶ 13   In Stanitz, the defendant was charged by information with attempting to obtain a

drug prescription using a false name. At some point prior to September 30, 2004, he was

arrested and held in jail, and an order appointing a public defender noted that the

defendant was "in custody." Stanitz, 367 Ill. App. 3d at 981, 857 N.E.2d at 288-89. The

defendant was never released on bail. On September 30, 2004, the defendant demanded a

speedy trial. On January 18, 2005, the State allowed federal authorities to remove the

defendant from the Du Page County jail to a facility in Chicago to await trial on an

unidentified federal charge; therefore, the defendant could not appear for trial on January

26, 2005, which was the 119th day after he filed his speedy trial demand. Stanitz, 367 Ill.

App. 3d at 982, 857 N.E.2d at 289. The defendant was not returned to Du Page County

until May 2005. Stanitz, 367 Ill. App. 3d at 981-82, 857 N.E.2d at 288-89.

¶ 14   On appeal, the State asserted the speedy trial period was tolled when federal

officials placed the defendant in the custody of Cook County pending the disposition of

his federal charge. Our colleagues in the Second District found that the speedy trial

period set forth in section 103-5(a) was not tolled because the State voluntarily

surrendered the defendant to federal authorities. Stanitz, 367 Ill. App. 3d at 989, 857

N.E.2d at 294-95. That court held the State could not evade its speedy trial obligations

by surrendering the defendant to federal authorities. Stanitz, 367 Ill. App. 3d at 989, 857

N.E.2d at 294-95.

¶ 15   In Stanitz, however, the State surrendered the defendant to federal authorities on

January 18, 2005, less than 10 days before his trial date of January 26, 2005, which

would have been the 119th day after he filed his speedy trial demand. Stanitz, 367 Ill.
                                          5
App. 3d at 982, 857 N.E.2d at 289. Thus, in Stanitz the State's surrender of the defendant

to federal authorities was a clear attempt by the State to evade its speedy trial obligations.

Moreover, in Stanitz, "the record strongly suggest[ed] that the defendant was entitled to a

dismissal of the charge [on speedy trial grounds] even before he was surrendered to

federal authorities in January 2005." Stanitz, 367 Ill. App. 3d at 984, 857 N.E.2d at 290.

¶ 16   To the contrary, in the instant case, there is nothing to indicate the State was

attempting to evade its speedy trial obligations by surrendering defendant to federal

authorities. Here, defendant was arrested for misdemeanor domestic battery on July 6,

2012. On July 9, 2012, defendant's supervised release on a prior federal conviction was

revoked on the basis of a parole violation stemming from the July 6 domestic battery, and

defendant was taken into federal custody.         Under these circumstances, the delay in

prosecuting defendant is clearly attributable to defendant because, but for his parole

violation and removal from state custody to federal custody, he could have been tried

within 120 days. Section 103-5(a) specifically states a defendant must be tried "within

120 days from the date he was taken into custody unless delay is occasioned by the

defendant." (Emphasis added.) 725 ILCS 5/103-5(a) (West 2012).

¶ 17   Furthermore, unlike Stanitz, in the instant case defendant was not in continuous

custody for the felony offense of which he was ultimately convicted. On July 10, 2012,

the State charged defendant with two counts of aggravated battery. A warrant for his

arrest was issued on that same day, but was not served on defendant until October 2,

2012, after he was returned from federal custody to state custody. Defendant's trial on


                                              6
the instant charge commenced on January 8, 2013, well within 120 days after he was

arrested on the charge on which he was ultimately convicted.

¶ 18   We agree with the State that the instant case is similar to People v. Neumann, 148

Ill. App. 3d 362, 499 N.E.2d 487 (1986), which held that the state's speedy trial term did

not begin until a federal case was resolved and the defendant was in state custody. In

Neumann, the defendant was indicted by a Cook County grand jury with several counts

of murder on October 4, 1982. Neumann, 148 Ill. App. 3d at 367, 499 N.E.2d at 490.

The defendant was arrested on November 12, 1982, at which time he was in federal

custody awaiting sentencing on a federal weapons violation. Neumann, 148 Ill. App. 3d

at 367, 499 N.E.2d at 490. On November 12, 1982, the defendant demanded a speedy

trial on state charges, but he was kept in federal custody until the end of February 1983.

His trial started on March 14, 1983. Neumann, 148 Ill. App. 3d at 367, 499 N.E.2d at

490. On appeal, the defendant argued the time he was in federal custody after November

12, 1982, must be included in the computation of the statutory period set forth in section

103-5(a). Neumann, 148 Ill. App. 3d at 367, 499 N.E.2d at 490. Our colleagues in the

First District held the speedy trial term did not begin until after the defendant was

released from federal custody. Neumann, 148 Ill. App. 3d at 368, 499 N.E.2d at 490.

¶ 19   Similar to Neumann, in the instant case, defendant was not charged or served with

a warrant until after he was already in federal custody for a parole violation. While he

was arrested for misdemeanor domestic battery on July 6, 2012, he was not charged with

the felony offense of which he was actually convicted until July 10, 2012, after he was

already in federal custody. He was not arrested on that charge until October 2, 2012,
                                         7
after he was released from federal custody. Accordingly, we agree with the State that the

120 days did not begin to run until defendant was returned from federal custody and

arrested on the charge of which he was ultimately convicted.

¶ 20   We disagree with defendant that this outcome defies common sense or requires a

tortured reading of section 103-5(a) of the Code. It is generally accepted that the right to

a speedy trial is not a sword to be used to extricate oneself from criminal charges; it is a

shield to protect the accused from unjust and prejudicial delays occasioned by the State.

People v. Tetter, 42 Ill. 2d 569, 576, 250 N.E.2d 433, 437 (1969). Unlike Stanitz, there is

nothing in the record before us to indicate the State caused any type of unjust or

prejudicial delay. Therefore, we decline defendant's invitation to use the speedy trial

statute as a sword rather than a shield.

¶ 21                                  CONCLUSION

¶ 22   We find defendant's actions caused the delay. Defendant was serving a period of

supervised release for a prior federal offense when he was arrested on July 6, 2012.

Defendant's supervised release was then revoked on the basis of a domestic battery, and

he was taken into federal custody on July 9, 2012. Defendant was not charged with the

instant offense until July 10, 2012, after he was already in federal custody. The federal

matter was not resolved until October 1, 2012. Defendant was not arrested on the instant

charge until October 2, 2012, after he was returned by federal authorities. Accordingly,

the 120 day period was either tolled or never even started until defendant was in state




                                             8
custody on this particular charge on October 2, 2012. In either instance, defendant was

tried within 120 days of being in state custody.

¶ 23   Finally, we point out defense counsel was not ineffective for failing to file what

would have been a fruitless motion for discharge.

¶ 24   For the foregoing reasons, we hereby affirm the judgment of the circuit court of St.

Clair County.



¶ 25   Affirmed.




                                             9
                                    2016 IL App (5th) 130223

                                          NO. 5-13-0223

                                              IN THE

                                APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,                      )      Appeal from the
                                                          )      Circuit Court of
       Plaintiff-Appellee,                                )      St. Clair County.
                                                          )
v.                                                        )      No. 12-CF-990
                                                          )
BERNARD MOSLEY,                                           )      Honorable
                                                          )      John Baricevic,
       Defendant-Appellant.                               )      Judge, presiding.
______________________________________________________________________________

Opinion Filed:         July 14, 2016
______________________________________________________________________________

Justices:            Honorable Richard P. Goldenhersh, J.

                  Honorable Thomas M. Welch, J., and
                  Honorable James R. Moore, J.,
                  Concur
______________________________________________________________________________

Attorneys         Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy
for               Defender, Richard J. Whitney, Assistant Appellate Defender, Office of
Appellant         the State Appellate Defender, Fifth Judicial District, 909 Water Tower
                  Circle, Mt. Vernon, IL 62864
______________________________________________________________________________

Attorneys         Hon. Brendan F. Kelly, State's Attorney, St. Clair County, 10 Public
for               Square, Belleville, IL 62220; Patrick Delfino, Director, David J.
Appellee          Robinson, Acting Deputy Director, Patrick D. Daly, Staff Attorney, Office
                  of the State's Attorneys Appellate Prosecutor, Fifth District Office, 730 E.
                  Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
______________________________________________________________________________
