People v. Prince

PRESIDING JUSTICE McCUSKEY,

dissenting:

I respectfully dissent from the majority’s opinion that the defendant’s rape conviction must be reversed. I conclude from the record that the defendant did not establish a violation of his right to a speedy trial.

I agree with the majority that the first two factors set out in Barker v. Wingo (1972), 407 U.S. 514, 530, 33 L. Ed. 2d 101, 117, 92 S. Ct. 2182, 2192, favor the defendant. I agree that the eight-year delay in this case must be considered extraordinary. Further, I agree that the State has not provided an adequate justification for the delay.

However, I strongly disagree with the majority opinion regarding the third factor, the defendant’s assertion of his right to a speedy trial. There is no dispute that, on August 25, 1983, the State of Illinois filed a detainer against the defendant pursuant to the interstate agreement on detainers (the Agreement) (111. Rev. Stat. 1983, ch. 38, par. 1003 — 8—9). The majority concludes that the fact the defendant was notified of the detainer in writing should not be weighed against the defendant because he was illiterate. The facts of this case do not support this conclusion. The defendant acknowledged that the detainer was lodged against him in 1983. Further, the facts presented in the majority opinion show that, several months after the defendant was sentenced in Texas, “he learned that charges were still pending in Illinois.” Obviously, despite his illiteracy, the defendant was aware of the Illinois detainer. Yet he did nothing.

Also, a “detainer” has been described by this court as:

“ ‘ “a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.” [Citations.] The detainer must be a formal notice initiated by a prosecuting or law enforcement agency within the member State where criminal charges are pending that the prisoner is wanted to face criminal charges and the notice must be filed with the institution in which the prisoner is serving a sentence.’ ” {People v. Hood (1991), 223 Ill. App. 3d 157, 160, 583 N.E.2d 1173, 1175, quoting People v. Befeld (1980), 90 Ill. App. 3d 772, 774, 413 N.E.2d 550, 552.)

The provisions of the Agreement apply when a detainer has been lodged against a prisoner who has entered a term of imprisonment in a party State. (Hood, 223 Ill. App. 3d at 159, 583 N.E.2d at 1175.) Article III(c) of the Agreement specifically provides:

“The warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.” (111. Rev. Stat. 1983, ch. 38, par. 1003-8-9.)

Not once has the defendant ever contended that these requirements were not carried out. {Cf People v. Uplinger (1977), 69 Ill. 2d 181, 188, 370 N.E.2d 1054, 1057.) Therefore, I conclude that the defendant was properly informed of the contents of the detainer lodged against him and was also informed of his right to make a request for a final disposition. Accordingly, the defendant’s illiteracy cannot excuse his inaction from 1983 to 1991.

Additionally, the majority’s reliance on the defendant’s illiteracy excuse is erroneous because that contention has been waived. The defendant did not present any evidence concerning his illiteracy until his sentencing hearing. This was after his motions to dismiss had already been denied. Also, the defendant did not argue in his appellate brief that his illiteracy excused his inaction after the detainer was filed. The defendant argues for the first time in his reply brief that the delay was excusable because he was unable to read when he was notified of the detainer. It is well established that an argument not raised in the trial court is considered waived on appeal. (People v. Adams (1989), 131 Ill. 2d 387, 395, 546 N.E.2d 561, 564-65.) Also, a point not argued in an appellant’s brief may not be raised in the reply brief. 134 111. 2d Rules 341(eX7), (g); People v. Thomas (1987), 116 Ill. 2d 290, 304, 507 N.E.2d 843, 849.

The defendant did argue in the trial court and in his brief that his delay “should be excused in light of the circumstances surrounding his Texas plea agreement.” This argument is not persuasive. The record clearly shows that the defendant could not have reasonably believed that the Illinois charge against him was dismissed pursuant to the plea agreement. The majority opinion admits that the defendant learned several months after being sentenced in Texas that the Illinois charge was still pending against him. Therefore, the defendant knew that the Illinois charge was pending and did nothing following his conviction in Texas.

Regarding the fourth Barker factor, the majority acknowledges that the defendant is unable to show that the delay caused the defendant actual prejudice. The majority relies on Doggett v. United States (1992), 505 U.S__, 120 L. Ed. 2d 520, 112 S. Ct. 2686, and People v. Belcher (1989), 186 Ill. App. 3d 202, 542 N.E.2d 419, in concluding that the protracted delay made it unnecessary for the defendant to show actual prejudice. However, I believe Doggett and Belcher are distinguishable. In both Doggett and Belcher, the defendant was not aware of the charges against him and therefore could not have asserted his right to a speedy trial. Here, in contrast to Doggett and Belcher, the defendant did not assert his right to a speedy trial for almost eight years after the detainer was lodged against him. Further, the defendant in the instant appeal has not shown that he was prejudiced by the delay in prosecuting the charge against him.

I conclude that the trial court properly denied the defendant’s motion to dismiss. Therefore, I would affirm the defendant’s conviction and sentence.