Opinion
No. 1-12-0454
06-17-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEVON PRYOR, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. TT 610-020
Honorable
Terence MacCarthy,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Pierce and Liu concurred in the judgment.
ORDER
Held: Defendant is procedurally defaulted from raising his claim that the circuit court violated his statutory right to a speedy trial pursuant to section 103-5(b) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(b) (West 2010)) because he invited the claim of error below and failed to preserve this issue for our review. Defendant's alternative argument that he did not receive the effective assistance of counsel fails because defendant has not overcome the presumption that his counsel's actions were a matter of trial strategy. We additionally order the correction of the mittimus to clearly reflect a single conviction for driving with an alcohol concentration over .08 on count II. 625 ILCS 5/11-501(a)(1) (West 2010). ¶ 1 A jury convicted defendant, Devon Pryor, of two counts of driving under the influence of alcohol pursuant to the Illinois Vehicle Code: count I, for driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2010)); and count II, for driving with an alcohol concentration over .08 (625 ILCS 5/11-501(a)(1)(West 2010)). Prior to trial, defendant filed several written demands for a speedy trial pursuant to section 103-5(b) of the Code of Criminal Procedure of 1963 (Code). 725 ILCS 5/103-5(b) (West 2010). On day 155 of the 160 day statutory speedy trial term, the circuit court, by order of the court, ordered a 21 day extension of the term. At issue is whether the circuit court violated defendant's statutory right to a speedy trial when it ordered the 21 day extension. We hold defendant is procedurally defaulted from raising this issue because he invited the claim of error below and failed to preserve the issue for our review. ¶ 2 Alternatively, defendant argues he did not receive the effective assistance of counsel due to his counsel's failure to properly preserve the issue of his statutory right to a speedy trial for our review. We hold defendant has not satisfied his burden of proving ineffective assistance of counsel because he has not overcome the presumption that his counsel's actions were a matter of trial strategy. ¶ 3 Defendant additionally argues, and the State concedes, that his mittimus must be corrected to clearly reflect that his conviction under count I for driving under the influence of alcohol (625 ILCS 5/11-501(a)(2)(West 2010)) merged under his count II conviction for driving with an alcohol concentration over .08 (625 ILCS 5/11-501(a)(1) (West 2010)). We agree and order the correction of the mittimus to clearly reflect a single conviction for driving with an alcohol concentration over .08 under count II. 625 ILCS 5/11-501(a)(1) (West 2010).
In his opening brief, defendant also raised the following issues, as numbered in his brief: (II) whether the circuit court erred when it denied his motion to exclude the breath test log book; (III) whether the State made improper closing argument; and (IV) whether the circuit court failed to order a new trial, or to advise defendant of his attorney's conflict of interest, where defense counsel failed to obtain an expert witness. Defendant withdrew the above claims of error in his reply brief.
¶ 4 JURISDICTION
¶ 5 The circuit court sentenced defendant on January 19, 2012. Defendant timely filed his notice of appeal on February 7, 2012. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. Feb. 6, 2013).
¶ 6 BACKGROUND
¶ 7 The Chicago police stopped defendant on September 10, 2010, at a roadside safety checkpoint. Defendant agreed to take several standard field sobriety tests, which resulted in his arrest. After his arrest, defendant agreed to submit a breathalyzer sample. The breathalyzer machine calculated defendant's blood-alcohol level at .139. ¶ 8 On October 4, 2010, the State charged defendant with two counts of driving under the influence of alcohol pursuant to the Illinois Vehicle Code. 625 ILCS 5/11-501(a)(1), (2) (West 2010). Count I alleged defendant drove while under the influence of alcohol (625 ILCS 5/11-501(a)(2)(West 2010)), and count 2 alleged he drove with a blood-alcohol level above .08 (625 ILCS 5/11-501(a)(1) (West 2010)). On that same day, the Cook County Public Defender appeared on defendant's behalf and filed a motion for discovery seeking, in relevant part, "[f]ull information concerning any chemical test or tests [he] submitted to[,]" and "[a]ny physical or scientific evidence or reports of any testing, that may be or would be favorable to the defense." ¶ 9 On November 12, 2010, the State tendered the following discovery to defendant: the arrest report, the "ADIR," "CPD Criminal History," "CB photo," and the "BAC Subject Test Record." The State noted that "[t]here is additional discovery, codified logs, that we should have by the next court date." The parties agreed to set the matter for status on February 1, 2011. ¶ 10 On February 1, 2011, defense counsel acknowledged receipt of "roadsides" tendered by the State. The State noted that the "logs are still outstanding." After several agreed continuances, the matter was set for trial on April 26, 2011. ¶ 11 On April 26, 2011, defendant answered ready for trial. The State answered not ready citing an unavailable police officer. Defendant made his initial written demand for a speedy trial pursuant to section 103-5(b) of the Code. 725 ILCS 5/103-5(b) (West 2010). Defendant continued to answer ready for trial, while the State answered not ready for trial, on June 27, August 1, and September 12 of 2011. On each those dates, defendant made written demands for a speedy trial. ¶ 12 On September 28, 2011, in front of circuit court judge Lorna Propes, defendant indicated he was ready for trial. The State responded that it would also be ready when it received the breath-test logbook. The State indicated that it had the breath-test logbook at the prior court date and that it was "being faxed over as we speak." Defendant replied that the State had an obligation to disclose the breath-test logbook at the prior hearing and did not do so. Defendant argued that the breath-test logbook should be excluded as a discovery sanction. The State argued that no violation occurred because they could tender discovery up until trial, and trial had not yet started. Judge Propes found that the issue was one for the trial judge to decide, and transferred the matter to circuit court judge Lionel Jean-Baptiste. ¶ 13 Before Judge Jean-Baptiste later that day, defendant presented his motion to exclude the breath-test logbook and argued that the State had it a month prior, but improperly failed to disclose it until immediately before trial. He asserted that it was day 155 of his 160 day speedy trial term and that the newly tendered evidence changed his case "entirely." As a sanction, defendant asked that the breath-test logbook be excluded at trial. The State maintained that no discovery violation occurred because it tendered the evidence prior to trial and, thus, complied with the rules governing discovery. The circuit court denied defendant's motion to exclude, reasoning "[t]he issue is whether or not *** defense counsel has an opportunity to prepare, and at this particular point in time, you do have an opportunity to prepare. It's a choice as to whether or not to get a continuance." The court noted that if defense counsel did not want a continuance, then " its just - - the preparation to respond or to cross or to challenge *** the breath tech would be the same, regardless of whether or not you had more time to do so." The court reasoned further that defense counsel could still get another date for trial "or proceed and still have the opportunity to challenge the evidence in terms of the foundation." The court then took a brief recess. ¶ 14 After the recess, defense counsel proposed "in light of the Court's ruling, at this time we propose that this go motion State to term." Defense counsel argued that he needed time to consider the evidence and whether an expert could rebut the evidence. According to defense counsel, the delay was occasioned by the State. The State responded that defendant caused the delay by requesting more time to investigate a possible expert to testify. The State stressed its readiness for trial on that day. After determining that the police officers the State had brought in for trial that day would not be able to attend a trial on day 160 of defendant's speedy trial term, the following exchange occurred between the court and the parties:
"THE COURT: All the officers cannot come?The State continued to strenuously object to any agreed continuance and continued to state its readiness for trial on that day. One of defendant's counsels, APD Elizabeth Payette, then suggested to the court that "[i]t could go order of Court, Judge, and it would have the same effect, if that's how you'd like to do it." Over the State's continued objection, the court ordered a 21 day extension by "order of Court." The State objected to any continuance considered to be on the State's motion or by order of court. Both sides then offered their interpretation of the court's ruling. The court then explained its ruling as follows:
MR. MARTINEZ [Assistant State's Attorney (ASA)]: Correct, Judge.
THE COURT: *** So I've got to take that into account. That means that we cannot have a trial on Monday. Although I realize that *** the State bears some responsibility, at this particular point in time I've already concluded that the evidence could come in, and so we have to either proceed today or get a - - motion Defendant.
I know - - but its just the relationship between saying, let's go forward, admit the evidence, the officers cannot come in. And I understand procedurally the impact on - - on not being able to go forward on term by term date, that this matter would be nolled altogether; and from a general policy standpoint, where there is a charge of a DUI in this case, I'm going to take a position to grant you the extension on the basis of not being ready today.
MR. CHATMAN [Assistant Public Defender (APD)]: And Judge, the State has already suggested that they're going to ask for a 21-day extension of term, based on any motion by Defendant for an extension of term. So at this time, Judge, we'd ask that the matter go by agreement and the Court deny any extension of term to the State.
ASA MARTINEZ: Judge, the State's ready for trial.
THE COURT: Let's do by agreement.
ASA MARTINEZ: Respectfully, Judge, the State's ready.
THE COURT: I understand.
ASA MARTINEZ: We cannot go by agreement, Judge. The State is ready."
"If we review the facts of the day, the State, after having had this case for some 155 days and after having had access and even possession of the breath log, decided to submit that to the Defense today.After the court explained its ruling, the State maintained its readiness for trial on that date and refused to schedule a future date for trial. Defendant allowed the court to set the trial date, which it did, setting the matter for trial on October 13, 2011. ¶ 15 On October 13, 2011, circuit court judge Terrence MacCarthy presided over the jury trial. The jury found defendant guilty of both counts. Defendant filed a motion for a new trial arguing that the circuit court violated his right to a speedy trial when it ordered the 21-day extension on the 155th day of the speedy trial term. Defendant argued the circuit court granted the extension over his objection. The circuit court denied defendant's motion. The circuit court accepted the parties "agreed" sentence of 24 months of supervision, significancy treatment, one victim impact panel, a $500 fine, and 30 days of SWAP.
The Defense came and made a motion to suppress the evidence. And on policy consideration to allow the State to be able to maximize presentation of its case, submit all available evidence, the Court - - and in the face of stringent argument from the defense against the admission of this evidence, the Court denied the motion to suppress the evidence.
Having done that, the Court also acknowledged the fact that the evidence that was presented today would have a significant
impact on the outcome of the case if it is not rebutted, if the Defense doesn't have the opportunity to - - to neutralize that particular piece of evidence.
So therefore *** the Court granted a[] *** 21 days extension of term to allow this case to go forward. That is 26 days for you, during which time you will be able to *** reschedule the trial, get your officers - - subpoena them, whatever you have to do to get them here.
And so, I think that on balance I cannot say that *** the fault for the delay is occasioned strictly by the Defense. I think had the State presented this piece of evidence ahead of time then we would not be where we are today.
So where we are today is that by order of Court, 21 days extension to term. And so this matter then will be rescheduled[.]"
¶ 16 ANALYSIS
¶ 17 Defendant argues the circuit court violated his right to a speedy trial when it ordered a 21-day continuance of the trial date after the State tendered evidence, a breath-test logbook, in its possession on day 155 of the 160 day speedy trial term. According to defendant, the circuit court allowed the extension on the State's behalf in order to avoid dismissal of the charges. Defendant acknowledges that the State did not file a motion requesting the extension, and in fact objected to the extension, but maintains the circuit court abused its discretion in ordering the extension because the State was not diligent in disclosing the evidence. Defendant contends he preserved this issue for our review. ¶ 18 The State responds that defendant misconstrues the facts and misapplies the law, and that defendant should be barred from raising this issue because he invited and injected the error below. According to the State, the circuit court granted a continuance because defendant wanted more time to review the recently tendered breath-test logbook evidence. The State maintains the evidence did not have to be tendered prior to trial according to the rules governing discovery in misdemeanor cases. The State argues that it did not request the extension and that defense counsel's attempts to have the extension charged to the State were properly rebuffed by the circuit court. ¶ 19 Section 103-5(b) of the Code, provides in relevant part, that "[e]very person on bail or recognizance shall be tried by the court *** within 160 days from the date defendant demands trial unless delay is occasioned by the defendant[.]" 725 ILCS 5/103-5(b) (West 2010). Such a demand must be in writing and served on the State. 725 ILCS 5/103-5(b) (West 2010); People v. Staten, 159 Ill. 2d 419, 425 (1994). A defendant not tried in accordance with the speedy trial provisions of the Code "shall be discharged from custody or released from the obligations of his bail or recognizance." 725 ILCS 5/103-5(d) (West 2010). "The duty is upon the State to bring the defendant within the applicable statutory time period." People v. Campa, 217 Ill. 2d 243, 251 (2005). ¶ 20 The procedural default of invited error, also described as acquiescence or estoppel, precludes a party from raising a claim of error on appeal that it either induced or suggested the court to make, or to which it had consented. In re Detention of Swope, 213 Ill. 2d 210, 217 (2004); People v. Abston, 263 Ill. App. 3d 665, 671 (1994) (" In such an instance, where the trial court's course of action is taken at defendant's suggestion and the defendant thereafter acquiesces in the court's expressed course of conduct, the defendant should be precluded from raising such course of conduct as error on appeal."). Our supreme court has explained "it would be manifestly unfair to allow a party a second trial upon the basis of error which that party injected into the proceedings." In re Detention of Swope, 213 Ill. 2d at 217. Furthermore, to properly preserve an issue for appeal, a party must both object at trial and in a written post-trial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). ¶ 21 In the case at bar, the record shows the following occurred on the date of the claimed error, September 28, 2011. Defendant first motioned the court to exclude the breath-test logbook tendered that day as a discovery sanction. The circuit court denied the motion, and noted that defendant could either obtain a continuance or proceed to trial and challenge the evidence on foundational grounds. The court then took a recess. After the recess, defense counsel stated to the court that "in light of the Court's ruling, at this time we propose that this go motion State to term" and indicated that he needed time to consider the recently tendered evidence and whether to bring in an expert. The State objected and maintained its readiness for trial on that day. The court indicated that it was going to grant an extension, to which defense counsel responded "at this time, Judge, we'd ask that the matter go by agreement and the Court deny any extension of term to the State." The court proposed that the order be by agreement, stating "Let's do by agreement." The State, however, continued to strenuously object to any agreed continuance and maintained its readiness for trial. At this point, defense counsel suggested, "[i]t could go order of Court, Judge, and it would have the same effect[.]" The State continued its objection to any agreed continuance or a continuance by order of the court. The court ordered, "by order of Court, 21 days extension to term." After this final ruling, the State continued to state its readiness for trial. Defendant did not object after the circuit court announced that the extension would go by order of court. ¶ 22 The proceedings below make clear defendant is procedurally defaulted from raising this issue for our review because he invited any claim of error and failed to preserve the issue for our review. The record shows that defense counsel first asked that an extension should be granted by agreement, and later suggested one should be given by order of court. Eventually, over the State's objections, the court entered an extension by order of the court. It would be unfair to allow defendant to contest the 21 day extension on appeal after inviting the error below. In re Detention of Swope, 213 Ill. 2d at 217. As such, defendant is precluded from raising the issue before this court. ¶ 23 Additionally, once the court concluded that a 21-day extension would be given by order of court, defendant did not object. To properly preserve an issue for appeal, a party must both object at trial and in a written post-trial motion. Enoch, 122 Ill. 2d at 186. Although defendant raised the issue in his post-trial motion, he did not object before the trial court. Accordingly, defendant is procedurally defaulted from raising this issue. ¶ 24 Alternatively, defendant argues he did not receive the effective assistance of counsel due to his counsel's failure to properly preserve the issue of his statutory right to a speedy trial for our review. The State maintains defendant received the effective assistance of counsel and argues that defendant cannot overcome the strong presumption that his counsel's performance was competent. ¶ 25 The right to the effective assistance of counsel is guaranteed under both the federal and Illinois Constitutions. People v. Domagala, 2013 IL 113688, ¶ 36 (citing U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8). Ineffective assistance claims are analyzed under the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), as adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504 (1984). Id. To prove he was denied the effective assistance of counsel, defendant "must show both that his counsel was deficient and that his deficiency prejudiced defendant." People v. Givens, 237 Ill. 2d 311, 330-331 (2010); People v. Easley, 192 Ill. 2d 307, 317 (2000) ("The test is composed of two prongs: deficiency and prejudice."). In order to establish deficient performance, a defendant "must prove that counsel's performance, as judged by an objective standard of competence under prevailing professional norms, was so deficient that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment." People v. Bew, 228 Ill. 2d 122, 127-28 (2008). In doing so, the "defendant must overcome the strong presumption that the challenged action or inaction of counsel was the product of sound trial strategy and not of incompetence." People v. Clendenin, 238 Ill. 2d 302, 317 (2010). ¶ 26 Typically, defense counsel's decision concerning whether to object is considered a matter of trial strategy. People v. Pecoraro, 144 Ill. 2d 1, 13 (1991). Our supreme court has held that counsel's failure to object to testimony does not, by itself, establish incompetent representation. Id. Counsel's performance is measured under "an objective standard of competence under prevailing professional norms." Easley, 192 Ill. 2d at 317. Defendant has the burden of proving that he did not receive the effective assistance of counsel. People v. Rucker, 346 Ill. App. 3d 873, 885 (2004). ¶ 27 We hold defendant has not satisfied his burden of proving ineffective assistance of counsel. Defense counsel first motioned the court to exclude the breath-test logbook. The court denied the motion, mentioned to defense counsel that he could either proceed to trial or ask for a continuance, and then took a brief recess. After the recess, at defense counsel's suggestion, the court ordered, by order of the court, a 21-day extension. Defendant is not challenging the circuit court's ruling on his motion to exclude. Rather, he is challenging the court's order of the 21-day extension that occurred after the denial of his motion to exclude the evidence. At that point in time, defense counsel had to choose between either having a trial that day without reviewing the newly tendered evidence or to seek an extension. The extension allowed defense counsel to review the newly discovered evidence. Based on the record of events that occurred on the day in question, defendant cannot overcome the presumption that defense counsel's failure to object to the 21-day extension was a matter of trial strategy. Clendenin, 238 Ill. 2d at 317; Pecoraro, 144 Ill. 2d at 13. Counsel only had two choices: (1) stand trial that day, as the State answered ready; or (2) seek a continuance to provide a chance to review the new evidence, which defense counsel did. It is not unreasonable for defense counsel to fail to object to a continuance to allow time to review newly tendered evidence. Accordingly, defendant has not shown that he received the ineffective assistance of counsel. ¶ 28 Defendant additionally argues, and the State concedes, that his mittimus must be corrected to clearly reflect that his conviction under count I for driving under the influence of alcohol (625 ILCS 5/11-501(a)(2)(West 2010)) merged under his conviction for driving with an alcohol concentration over .08 (625 ILCS 5/11-501(a)(1) (West 2010)) under count II. Based on our review of the record, we agree with the parties that the mittimus must be corrected to clearly reflect that defendant's convictions merged. See People v. Harper, 387 Ill. App. 3d 240, 244 (2009). Accordingly, we order the correction of the mittimus to clearly reflect a single conviction for driving with an alcohol concentration over .08 under count II. 625 ILCS 5/11-501(a)(1) (West 2010).
We note defendant only challenges his statutory right to a speedy trial and does not raise any constitutional claims before this court. See People v. Gooden, 189 Ill. 2d 209, 216-17 (2000) (explaining a defendant has both constitutional and statutory right to a speedy trial and that although the statute implements the constitutional right to a speedy trial, the statutory and constitutional right are not coextensive.)
We note defendant has not raised any argument under the plain error doctrine before this court.
Defendant did raise this issue in his opening brief, but later withdraw this contention in his reply brief.
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¶ 29 CONCLUSION
¶ 30 We affirm the judgment of the circuit court of Cook County and direct the clerk of the circuit court to correct the mittimus to reflect a single conviction on count II. ¶ 31 Affirmed; mittimus corrected.