Village of Mundelein v. Bogachev

ILLINOIS OFFICIAL REPORTS
Appellate Court

Village of Mundelein v. Bogachev, 2011 IL App (2d) 100346

Appellate Court The Village of Mundelein, Plaintiff-Appellant, v. Andrey Bogachev,
Caption Defendant-Appellee.

District & No. Second District
Docket No. 2–10–0346

Filed May 27, 2011

Held In a prosecution for driving while under the influence of alcohol, the trial
(Note: This syllabus court properly granted defendant’s motion to dismiss the charge based on
constitutes no part of a violation of his right to a speedy trial, notwithstanding plaintiff
the opinion of the court village’s contention that he forfeited his statutory right to a speedy trial
but has been prepared by failing to object to the trial court’s decision to continue the trial date
by the Reporter of beyond the 160-day period and erred by refusing to attribute the delays
Decisions for the caused by certain continuances to defendant, since defendant’s motion
convenience of the was based on section 103–5(b), which applied to defendants released on
reader.)
bail or recognizance and requires a trial within 160 days, rather than
section 103–5(a), which applies to defendants in custody and requires a
trial within 120 days, and although section 103–5(a) provides that delay
shall be attributed to defendant unless he or she objects, subsection (b)
omits any statement that delay shall be attributable to defendant unless
he or she objects, and the appellate court agreed with defendant that
neither Cordell nor Hampton provided a basis for imposing a duty on
defendant to object to a delay before proceeding to seek a discharge
based on a violation of his right to a trial within 160 days, and
furthermore, the record showed that the continuances at issue were based
on matters outside defendant’s control or responsibility and plaintiff
village failed to show otherwise.
Decision Under Appeal from the Circuit Court of Lake County, No. 09–DT–272; the
Review Hon. Patrick N. Lawler and the Hon. Joseph R. Waldeck, Judges,
presiding.

Judgment Affirmed.

Counsel on Joel D. Gingiss, of Smith & LaLuzerne, Ltd., of Waukegan, for appellant.
Appeal
Thomas A Lilien and Darren E. Miller, both of State Appellate
Defender’s Office, of Elgin, for appellee.

Panel JUSTICE HUDSON delivered the judgment of the court, with opinion
Justices Zenoff and Schostok concurred in the judgment and opinion

OPINION

¶1 Plaintiff, the Village of Mundelein, charged defendant, Andrey Bogachev, with driving under
the influence of alcohol (DUI) (625 ILCS 5/11–501(a)(2) (West 2008)). After numerous
continuances, he moved to dismiss the charge, contending that he had been denied his statutory
right to be brought to trial within 160 days of demanding a speedy trial (see 725 ILCS 5/103–5(b)
(West 2008)). The trial court initially denied the motion, then granted it and dismissed the charge.
Plaintiff appeals, contending that (1) under our opinion in People v. Hampton, 394 Ill. App. 3d
683 (2009), defendant forfeited his statutory right to a speedy trial by failing to object to the
court’s decision to continue the trial date beyond the 160-day period; and (2) the trial court erred
reversibly in refusing to attribute delays caused by certain continuances to defendant.
¶2 We note that the record consists of the common-law record and a report of proceedings for
March 30, 2010, when the trial court heard defendant’s motion to reconsider the denial of his
motion to dismiss. We have no transcripts, bystander’s reports, or agreed statements of facts for
any other proceedings (see Ill. S. Ct. R. 323 (eff. Dec. 13, 2005)). The pertinent facts are as
follows.
¶3 On January 31, 2009, defendant was arrested and charged with DUI. He posted bond that day
and was out of custody thereafter. Judge Patrick N. Lawler was assigned to defendant’s case. On
February 20, 2009, defendant filed a demand for a speedy trial (see 725 ILCS 5/103–5(b) (West
2008)) and a petition to rescind the summary suspension of his driver’s license (see 625 ILCS
5/11–501.1 (West 2008)). On March 13, 2009, he filed a one-page motion to quash his arrest and
suppress statements (motion to suppress). A minute order for that day states that, on defendant’s
motion, the hearing on the rescission petition and the motion to suppress was continued. The next

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 entry of record, a minute order of April 3, 2009, states that the hearing on both the petition and
the motion was “Continued Present.” Next, a minute order for April 24, 2009, states that, on the
court’s motion, the hearing on both the petition and the motion was continued.
¶4 On May 22, 2009, the trial court, Judge Diane E. Winter presiding, granted defendant’s
rescission petition but took no action on his motion to suppress. A minute order for May 22,
2009, states, “Trial Priority Date Set” without elaboration. The next entry of record is a minute
order of July 17, 2009, reading, as pertinent here, “Trial Priority” and “Set Jury Trial Date.”
¶5 On July 28, 2009, on the court’s motion, per Judge Lawler, the trial was continued to
September 8, 2009, the written order explaining, “Attorney Unavailable.” On September 8, 2009,
the court, on its own motion, per Judge Lawler, continued the trial to September 29, 2009, the
written order stating, “Judge Unavailable.”
¶6 On September 29, 2009, defendant moved to dismiss the charge, alleging a violation of his
statutory right to a speedy trial. The motion incorrectly stated that the pertinent period was 120
days, the time limit in section 103–5(a) of the Code of Criminal Procedure of 1963 (725 ILCS
5/103–5(a) (West 2008)), which applies to defendants in custody. As defendant later conceded,
his claim arose under section 103–5(b) (725 ILCS 5/103–5(b) (West 2008)), with a term of 160
days.
¶7 Defendant’s motion alleged the following facts. On February 20, 2009, defendant filed his
rescission petition and his speedy-trial demand, and the court scheduled the hearing on the
rescission petition for March 13, 2009. On March 13, 2009, defendant moved for and obtained
a continuance, and the matter was set for a hearing on April 3, 2009. On April 3, 2009, and again
on April 24, 2009, the court continued the cause on its own motion, the latter time to May 22,
2009. On May 22, 2009, the court granted the rescission petition. Also on May 22, 2009, the
matter was set “for trial priority to be held on July 17, 2009.” On July 17, 2009, both sides
answered ready, and the trial was set for July 28, 2009. On July 28, 2009, and on September 8,
2009, both times on the court’s motion, the trial was continued, the latter time to September 29,
2009. Defendant argued that, by then, the speedy-trial term had expired.
¶8 Plaintiff filed a response to defendant’s motion, noting first that the proper speedy-trial
provision in this case was section 103–5(b). Plaintiff then argued as follows. On March 13, 2009,
defendant filed his motion to suppress. According to plaintiff, the delay up until March 13, 2009,
and the further delay caused by the proceedings on the motion to suppress were attributable to
defendant. Plaintiff contended that only the delay from May 22, 2009, to September 29,
2009–130 days–was not attributable to defendant.
¶9 Defendant replied as follows. As of September 29, 2009, 179 days had passed since he had
demanded a speedy trial. The crucial continuances were those granted on April 3, 2009, and April
24, 2009, both of which “were by motion of the court” and thus not attributable to him. Adding
the period from April 3, 2009, to May 22, 2009, made the total delay not attributable to defendant
179 days–19 days more than allowed.
¶ 10 After hearing arguments, Judge Lawler denied defendant’s motion. The court’s written order
states that the denial was based on Hampton, “in that defendant failed to object based on a speedy
trial violation on September 8, 2009[,] when his case was set for trial.” Defendant moved to
reconsider, arguing that Hampton is limited to the construction of section 103–5(a). Citing People
v. Cordell, 223 Ill. 2d 380 (2006), defendant argued that section 103–5(a) differs crucially from
section 103–5(b). As pertinent here, the sections state:

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 “(a) 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 ***. 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. ***
***
(b) Every person on bail or recognizance shall be tried by the court having
jurisdiction within 160 days from the date [the] defendant demands trial unless delay is
occasioned by the defendant ***.” (Emphasis added.) 725 ILCS 5/103–5(a), (b) (West
2008).
¶ 11 Defendant contended that, because the emphasized language is not in section 103–5(b),
Hampton cannot be applied to a speedy-trial issue arising thereunder. Thus, he reasoned, his
alleged failure to object when the judge set the trial for September 29, 2009, was irrelevant.
¶ 12 Plaintiff responded that, although Hampton involved a speedy-trial claim under section
103–5(a), its reasoning applies equally to one under section 103–5(b): a defendant should not be
able to remain silent when the trial court sets his trial beyond the statutory period, then later
maintain that he was denied his right to a speedy trial. Plaintiff contended that, at the September
8, 2009, hearing, defendant did not object to the setting of the September 29, 2009, trial date.
¶ 13 The trial court, Judge Joseph R. Waldeck presiding, held a short hearing on defendant’s
motion to reconsider. Judge Waldeck held first that Hampton is limited to speedy-trial claims
arising under section 103–5(a). Turning to the specifics of defendant’s claim, he then stated as
follows. As of April 3, 2009, the speedy-trial clock had not started. However, the continuances
of April 3, 2009, and April 24, 2009, were on the trial court’s motion and therefore counted
against the 160-day limit. The remaining continuances were not attributable to defendant. Thus,
by September 29, 2009, the period had expired. The trial court dismissed the case, and plaintiff
appealed.
¶ 14 On appeal, plaintiff contends first that Hampton applies here, even though defendant’s
speedy-trial claim is based on section 103–5(b) and not section 103–5(a). Plaintiff therefore
reasons that, because defendant did not object when Judge Lawler elected to set the trial beyond
the 160-day statutory period, he may not now obtain the dismissal of the charge. Defendant
responds that section 103–5(b) omits the affirmative obligation that section 103–5(a) imposes on
a defendant and that Hampton is limited to section 103–5(a).1 For the reasons that follow, we
agree with defendant.
¶ 15 Plaintiff’s argument raises a question of statutory construction, which we review de novo.
People v. Tidwell, 236 Ill. 2d 150, 156 (2010). We seek to effectuate the legislature’s intent. Id.
The best guide to this intent is the statutory language itself; if the language is unambiguous, we
must apply it directly. Id. at 157. We may not read in additions, exceptions, or limitations that the
legislature did not express. Blum v. Koster, 235 Ill. 2d 21, 44 (2009).
¶ 16 Section 103–5 contains two subsections. Subsection (a) applies when a defendant is in
custody, and it provides that the defendant must be tried within 120 days from the date that he

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Defendant does not dispute Judge Lawler’s finding that, at the September 8, 2009, hearing,
defendant did not object when the judge scheduled the trial for September 29, 2009. The record does
not include any report of the hearing, so there is no basis for us to disturb the finding in any event.

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 was taken into custody (with certain exclusions). It also states plainly that delay shall be attributed
to the defendant unless he or she objects in one of two prescribed ways. 725 ILCS 5/103–5(a)
(West 2008). Subsection (b), by contrast, applies to a defendant who is released on bail or
recognizance, and it provides that the defendant must be tried within 160 days of when he
demands trial (with the same exclusions as in subsection (a)). Section (b) omits any statement that
delay shall be attributable to the defendant unless he or she objects.
¶ 17 Plaintiff, in effect, asks us to read an addition, exception, or limitation into section 103–5(b),
one that conflicts with the legislature’s unambiguous choice of words. The legislature was
capable of incorporating a duty to object into section 103–5(b) (as in section 103–5(a)). However,
it chose not to do so. A statute cannot be amended or modified by judicial fiat. In interpreting a
statutory provision, we are obligated to apply its plain meaning. People v. Dixon, 359 Ill. App.
3d 938, 941 (2005).
¶ 18 Plaintiff maintains, however, that, under Hampton, out-of-custody defendants have the same
duty to object as do in-custody defendants. According to plaintiff, Hampton created, or
recognized, a duty based on fairness: if a defendant acquiesces in the court’s decision to set his
trial beyond the statutory period, then he should not be able to complain later that he was denied
a speedy trial. We cannot accede to the correctness of this assertion. Whatever the philosophical
appeal of such a doctrine, it has no support in the case law, any more than in the statutory
language that applies to this case.
¶ 19 Although plaintiff emphasizes Hampton (as did Judge Lawler), our opinion there was based
on Cordell, which, like Hampton, involved a claim under section 103–5(a). Therefore, we first
discuss Cordell to explain why it does not support plaintiff’s reading of section 103–5(b).
¶ 20 In Cordell, the defendant contended that his trial counsel had been ineffective for failing to
object to the alleged violation of his right to a speedy trial. Cordell, 223 Ill. 2d at 385. Thus, the
underlying issue was whether, in fact, section 103–5(a) had been violated. That, in turn, depended
on whether the delay caused by continuing the trial to a date beyond the 120-day limit was
attributable to the defendant. The appellate court said that it was not, because the defendant had
not affirmatively requested or explicitly agreed to the trial court’s scheduling decision. Id. at 384-
85.
¶ 21 In reversing the appellate court, the supreme court began by discussing the amendment that
had added the duty to object in section 103–5(a). The court observed that, in People v. Healy, 293
Ill. App. 3d 684 (1997), issued before the amendment was enacted, the appellate court reversed
the defendant’s conviction, holding that he was not responsible for a crucial series of
continuances that were granted on the State’s motion. The defendant had not objected to the
continuances; indeed, in response to the State’s final request, his attorney suggested the date that
the trial court set. The appellate court held that the defendant had acquiesced in, but not agreed
to, the continuances, so that the delay could not be charged to him. Id. at 694. The court reasoned
that, under section 103–5(a), the defendant had no duty to inform the trial court that the speedy-
trial term was about to expire; bringing the defendant to trial in time was the State’s
responsibility. Id.
¶ 22 Cordell noted that, effective January 1, 1999, section 103–5(a) was amended in order to
prevent a recurrence of Healy. Cordell, 223 Ill. 2d at 388; see Pub. Act 90–705, §5 (eff. Jan. 1,
1999). Now, a defendant may use section 103–5(a) as a “shield” to prevent an untimely trial, but
not as a “sword” to defeat a conviction after the fact. Cordell, 223 Ill. 2d at 390. Thus, in the case
before it, the supreme court explained:

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 “[W]hen the trial court set a date for trial that fell outside of the 120-day limit of section
103–5(a), it was ‘delaying’ trial and defendant was obligated to object in order to prevent
the speedy-trial clock from tolling.
Having determined that the setting of a trial date beyond the 120-day period provided
by section 103–5(a) was in fact a ‘delay,’ we now turn to the question of whether
defendant objected in the manner prescribed by section 103–5(a).” (Emphasis added.)
Id. at 390-91.
¶ 23 The court held that the defendant had failed to make the proper objections. It then noted, “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.” Id. at 391.
¶ 24 We conclude that Cordell based its holding on the specific language of section 103–5(a) and
on its legislative history. The court did not rely on a general principle of fairness or forfeiture that
would require any defendant to object to a proposed continuance that would place his trial date
outside the applicable statutory period. Notably, the court did not hold that Healy had been
wrongly decided–under the old section 103–5(a), a defendant indeed had no duty to object.
Additionally, the court did not hold that, by some sort of linguistic osmosis, the amendment made
only to section 103–5(a) flowed through to section 103–5(b), which the legislature had left alone.
¶ 25 Hampton is no more expansive than Cordell. As pertinent here, it did no more than apply
Cordell’s construction of section 103–5(a) to facts that also arose under section 103–5(a).
Hampton held that, because the defendant did not object when the trial court set a trial date
outside the 120-day limit, he could not prevail on his speedy-trial claim. Hampton, 394 Ill. App.
3d at 688-89. As was the supreme court’s opinion in Cordell, our opinion in Hampton was tied
to the language of section 103–5(a), which gave rise to the duty to object. Id.
¶ 26 In sum, we agree with defendant that Cordell and Hampton do not undercut the plain
meaning of section 103–5: a defendant who proceeds under section 103–5(a) has a duty to object
when the trial court sets a trial date outside the statutory period, but a defendant who proceeds
under section 103–5(b) has no such duty. To the extent that this differential treatment of in-
custody defendants and out-of-custody defendants is undesirable, it is the province of the
legislature to amend the statute, as it did in response to Healy.
¶ 27 Before proceeding further, we find it necessary to address this court’s earlier decision in
People v. DeCarlis, 88 Ill. App. 3d 634 (1980). In DeCarlis, the defendant alleged ineffective
assistance of counsel where his attorney failed to make a motion for discharge pursuant to section
103–5(b). Id. at 635. In that case, a question arose as to whether 32 days of delay were
attributable to the defendant where this delay was caused by continuances the trial court made on
its own motion. Id. at 637. The DeCarlis court, noting that the defendant never objected to
continuing the case, found that the defendant had concurred in the delay and that it was therefore
attributable to him. Id. at 638. The reviewing court found it particularly significant that, as part
of its orders continuing the case, the trial court had admonished the parties that “ ‘if the reset date
is inconvenient for counsel, please advise the court.’ ” Id. Initially, we note that DeCarlis is
distinguishable from the instant case in that the trial court issued no similar admonishment here.
Moreover, contrary to DeCarlis, numerous cases have subsequently held that delay will not be
attributed to a defendant based upon a silent record. E.g., People v. Ladd, 185 Ill. 2d 602, 608-09
(1999); People v. Turner, 128 Ill. 2d 540, 553 (1989). Indeed, as we explained above, section
103–5(b) contains no requirement that a defendant make any objection when a trial court
continues a case beyond the statutory period. Thus, DeCarlis is flatly inconsistent with the plain

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 language of the statute.
¶ 28 We now turn to plaintiff’s second argument on appeal: that the trial court erred in calculating
the delay that was not attributable to defendant. At the trial level, defendant conceded that the
speedy-trial clock did not start any earlier than April 3, 2009. Plaintiff conceded that, absent a
duty to object, defendant was not responsible for any of the delay from May 22, 2009, to
September 29, 2009–a total of 130 days. This left the parties to battle over the period between
April 3, 2009, and May 22, 2009–a total of 49 days. In dismissing the charge, the trial court held
that the pertinent continuances, both having been on the court’s motion, could not be attributed
to defendant.
¶ 29 On appeal, plaintiff contends that the period from April 3, 2009, to May 22, 2009, should
have been charged to defendant, because he occasioned the delay caused by the need for plaintiff
to respond to the motion to suppress and for the trial court to rule on it. For the reasons that
follow, we disagree.
¶ 30 The trial court’s ruling dismissing the charge must be affirmed unless plaintiff can establish
that the court abused its discretion. People v. Bowman, 138 Ill. 2d 131, 137 (1990). We note
again that the record on appeal consists only of the common-law record and one transcript, that
of the hearing on defendant’s motion to reconsider the original ruling on defendant’s motion to
dismiss. We lack reports of hearings that might shed light on why the two continuances at issue
were granted; why the trial was delayed at other times; and why, when defendant moved to
dismiss the charge, the trial court had yet to rule on his motion to suppress. To the extent that the
record is incomplete, we must construe any resultant ambiguity against plaintiff as the appellant.
See Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984); People v. Reimolds, 92 Ill. 2d 101, 107
(1982).
¶ 31 Plaintiff faces difficulties in demonstrating that, excluding delays attributable to defendant,
the 160-day statutory period had yet to run when defendant moved to dismiss the charge. Because
the trial court agreed with defendant that the total delay not attributable to him was 179 days,
plaintiff must establish that at least 19 of the 49 days at issue were chargeable to defendant.
Plaintiff contends that the proceedings necessitated by defendant’s motion to suppress caused
sufficient delay to meet this threshold, but plaintiff does not detail why this is so. Instead, plaintiff
relies on the general rule that, when a defendant files a pretrial motion, he is chargeable with the
time associated with processing the motion, including the time that the State (or plaintiff) needs
to respond and the court needs to rule. People v. Erickson, 266 Ill. App. 3d 273, 276 (1994).
¶ 32 As a threshold matter, even in the context of a defendant’s pretrial motion, delay may be
attributed to a defendant only if his actions did in fact cause or contribute to a delay. Ladd, 185
Ill. 2d at 608-09. Moreover, the defendant is not responsible for delay caused by crowded dockets
and prosecutorial caseloads. People v. Schmidt, 233 Ill. App. 3d 512, 516 (1992). Finally, “delay
will not be attributable to the defendant from a silent record.” Ladd, 185 Ill. 2d at 609.
¶ 33 For example, in Ladd, 185 Ill. 2d at 613, our supreme court affirmed the dismissal of the
charges against the defendant on speedy-trial grounds. In that case, the defendant had made a
motion to dismiss the charges (on grounds other than a speedy-trial violation). The motion was
set to be heard on July 12, 1995. No one appeared for the hearing, apparently because the
assistant State’s Attorney handling the case was on vacation. The motion was not resolved until
October. Meanwhile, on August 14, 1995, the defendant filed a motion for discharge on speedy-
trial grounds. The trial court denied the motion, finding much of the delay in bringing the
defendant to trial attributable to him due to his earlier motion to dismiss. The appellate court

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 reversed, and the supreme court agreed with the appellate court. It first acknowledged the general
rule that a delay caused by a defense motion is attributable to the defendant. Ladd, 185 Ill. 2d at
608. The court then explained that, though the defendant had moved to dismiss the charges, the
general rule was inapplicable because there was no explanation why the motion had not been
heard on July 12 (though, in a later hearing, it became apparent that the assistant State’s Attorney
was on vacation). Id. at 608. Thus, the court concluded that nothing showed that the defendant’s
motion contributed to the delay past July 12. Id. at 608-09. Accordingly, delay after that date was
not attributable to the defendant, and his speedy-trial right had been violated. Id. at 609. Similarly,
in this case, there is no indication that defendant contributed to the delay after the point at which
both parties answered ready on April 3, 2009. See also People v. Baker, 273 Ill. App. 3d 327, 330
(1995) (“Furthermore, where a defendant has made an open-ended request for a continuance, the
delay will not terminate and the speedy trial period will not begin to run again until the defendant
appears, ready for trial.”), abrogated on other grounds by People v. Dockery, 313 Ill. App. 3d
684, 688 (2000).
¶ 34 Here, on the matters pertinent to whether the trial court abused its discretion in allocating
responsibility for the delays at issue, the record is either silent or affirmatively hostile to
plaintiff’s position. The trial court stated that both of the continuances at issue were on its own
motion. Defendant’s motion to suppress was a one-page “boilerplate” document that raised only
the question of whether the arresting officer had had reasonable suspicion to stop defendant–an
issue that the rescission petition also raised, along with others limited to the rescission context
(i.e., whether defendant was read the warning to motorists and whether he refused blood- or
breath-alcohol testing).
¶ 35 We find no legal basis to conclude that any delay associated with processing the motion to
suppress, beyond what defendant has conceded, should have been charged to him under the facts
of this case. Moreover, a sentence in plaintiff’s reply brief undercuts plaintiff’s own argument.
Citing the April 3, 2009, minute order, plaintiff states that, on that date, “both sides answered
ready for hearing on defendant’s [rescission] petition and motions, not for trial.” (Emphasis in
original.) Plaintiff concedes that, on April 3, 2009, both parties were ready to proceed on
defendant’s motion to suppress. If this is so–which we may presume to the extent that it supports
the judgment on appeal–then we cannot agree that a continuance granted on the court’s motion
represents delay attributable to defendant. See also People v. Hawkins, 212 Ill. App. 3d 973, 983-
84 (1991) (holding that delays caused by trial court’s inability to bring the defendant to trial due
to its crowded calendar were not attributable to the defendant). Here, the record reveals that the
continuances of April 3, 2009, and April 24, 2009, were based on matters outside defendant’s
control or responsibility, such as the court’s busy schedule. In any event, plaintiff has completely
failed to show otherwise.
¶ 36 Accordingly, the judgment of the circuit court of Lake County is affirmed.

¶ 37 Affirmed.

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