People v. Schaefer , 2020 IL App (5th) 180461 ( 2020 )

Rule 23 order filed 2020 IL App (5th) 180461December 3, 2020.
Motion to publish granted NO. 5-18-0461
December 21, 2020.
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Randolph County.
)
v. ) No. 17-CF-78
)
CHARLES SCHAEFER, ) Honorable
) Richard A. Brown,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE CATES delivered the judgment of the court, with opinion.
Justices Barberis and Wharton concurred in the judgment and opinion.
OPINION
¶1 Following a stipulated bench trial, the defendant was convicted of two counts of aggravated
fleeing or attempting to elude a peace officer (625 ILCS 5/11-204.1(a)(1), (4) (West 2016)). The
trial court sentenced the defendant to concurrent terms of 30 months in the Illinois Department of
Corrections (IDOC), followed by one year of mandatory supervised release. On appeal, the
defendant raises three points of error. First, the defendant contends that trial counsel was
ineffective for not moving to revoke the defendant’s bond, thereby allegedly forfeiting his right to
a speedy trial. Next, the defendant asserts that trial counsel suffered a conflict of interest because
counsel was required to argue his own ineffectiveness. Finally, the defendant asks this court to
vacate one of his convictions for aggravated fleeing or attempting to elude a peace officer under
1
the one-act, one-crime doctrine. For the reasons that follow, we affirm the defendant’s convictions
and sentence.
¶2 BACKGROUND
¶3 On May 6, 2017, Officer Ralph Jones attempted to stop a vehicle being driven by the
defendant. Officer Jones recognized the defendant from a prior arrest in March 2017 for driving
with a suspended license. Officer Jones initiated the sirens on his police car, but the defendant
refused to stop his vehicle. Instead, the defendant led Officer Jones on a chase through Sparta,
Illinois, to outside the city limits in Randolph County. During this chase, the defendant failed to
stop at several stop signs and reached speeds of more than 21 miles per hour over the posted speed
limit. Officer Jones informed police dispatch of a speed of 89 miles per hour, where the posted
speed limit was 55 miles per hour. Officer Jones eventually terminated his pursuit of the defendant
for safety reasons and sought a warrant for the defendant’s arrest.
¶4 On May 10, 2017, the State charged the defendant by criminal information with two counts
of aggravated fleeing or attempting to elude a peace officer (625 ILCS 5/11-204.1 (West 2016))
and a warrant was issued for the defendant’s arrest. Count I of the criminal information alleged
that the defendant, after being directed by a police officer to stop his vehicle, increased his speed
to a rate of at least 21 miles per hour over the speed limit (id. § 11-204.1(a)(1)), and count II alleged
that the defendant, after being directed by a police officer to stop his vehicle, disobeyed two or
more traffic control devices (id. § 11-204.1(a)(4)).
¶5 On May 11, 2017, the defendant was taken into Perry County’s custody where he was
charged with possession of methamphetamine (720 ILCS 646/60 (West 2016)), cause No. 2017-
2
CF-79. 1 On July 24, 2017, the defendant was transferred from the Perry County jail to the
Randolph County circuit court for his first appearance. At this hearing, the State informed the trial
court that the defendant had recently pled guilty to possession of methamphetamine in the Perry
County circuit court and was awaiting sentencing on that case. The State told the trial court that
the Perry County judge gave the defendant a recognizance bond so that he could appear in
Randolph County “and try to get something worked out” before his sentencing in Perry County.
The Randolph County trial judge then explained the charges against the defendant in Randolph
County. The trial judge entered a plea of not guilty on the defendant’s behalf and appointed the
public defender, James Kelley, to represent the defendant. The case was also set for a preliminary
hearing. The defendant signed a written notice indicating his understanding that he was to appear
at the Randolph County circuit court on August 7, 2017, for a preliminary hearing. That same day,
the defendant posted bond in Randolph County and was released from custody.
¶6 On August 7, 2017, the defendant failed to appear for his preliminary hearing. Kelley
informed the trial court that the defendant had not made any effort to contact Kelley’s office, and
Kelley requested 48 hours to ascertain the defendant’s whereabouts. The State requested a “no
bond, no limit warrant,” but did not object to Kelley’s request for time to locate the defendant. The
trial court granted Kelley’s request and stated that the court would stay an arrest warrant until
August 10, 2017. On August 8, 2017, however, the trial court issued a warrant for the defendant’s
arrest.
1
This charge is unrelated to the issues in this case but explains why the defendant was arrested in
Perry County.
3
¶7 Nothing occurred on the defendant’s case until November 2, 2017, when the defendant
filed, from IDOC, 2 a “Demand for Speedy Trial and/or Quash Warrant,” a “Motion to Dismiss,” a
“Petition to Vacate Bond Forfeiture and Judgment,” a “Petition for Return of Forfeitured [sic]
Bond,” and an affidavit. In his pro se pleadings, the defendant stated that Randolph County
mistakenly released him after he posted bond because Perry County had a hold on the defendant.
The defendant further claimed that, after he was released from Randolph County, he received a
phone call and was told to return to the Perry County jail. The defendant alleged that his attorney
“knew this but did nothing,” as the defendant was never brought back to Randolph County for his
preliminary hearing.
¶8 After the defendant’s pleadings were filed, the arrest warrant for the defendant was
quashed, and the case was set for a case management conference on December 4, 2017. On this
date, the defendant was brought before the trial court and new counsel, Beth Heaton, was
appointed. 3 At this case management conference, the defendant addressed the trial court regarding
the pleadings he filed on November 2, 2017. The defendant was concerned that his bond had been
forfeited while he was incarcerated in either Perry County or IDOC. The State informed the trial
court that the arrest warrant had been quashed and the defendant’s bond had not been forfeited.
¶9 On January 29, 2018, the trial court held another case management conference. The State
announced that it was ready for trial, had turned over discovery, and made the defendant a plea
offer. Heaton advised that the defendant was persistent in his demand for a jury trial and requested
the case be set on the next jury trial date. Heaton also indicated that “this remains Kelley’s case.”
2
On September 11, 2017, the defendant was sentenced in the Perry County circuit court to 30
months in IDOC.
3
The record indicates that attorney James Kelley had become incapacitated, and unable to represent
the defendant, but does not reveal when Kelley became temporarily incapacitated.
4
The defendant then inquired about the pro se pleadings he filed on November 2, 2017, regarding
a speedy trial and bond forfeiture. The State reminded the trial court that the arrest warrant for the
defendant had been quashed and that his bond was not forfeited. The State asserted that the
defendant did not have an automatic speedy trial right because the defendant was not in custody
on a Randolph County warrant. The defendant stressed that he was asking for a speedy trial, and
the trial court told defendant his trial date would be April 2, 2018. Neither defendant nor Heaton
objected to this trial setting. The trial court also informed the defendant that Kelley was ill and set
the defendant’s case for another case management conference prior to the trial date when Kelley
would be present.
¶ 10 On March 1, 2018, the trial court held a hearing at which Kelley was reappointed to
represent the defendant. Kelley indicated that this was the first time he had met with the defendant
since being appointed on July 24, 2017. Kelley then argued for the dismissal of the defendant’s
case based on a violation of the defendant’s right to a speedy trial. Kelley argued that the defendant
filed a speedy trial demand on November 2, 2017, and that the defendant had been in continuous
custody since that date. The State replied that the defendant’s demand was improper, and even if
the trial court accepted his demand, defendant’s speedy trial time had not yet run. The State
asserted that the April 2, 2018, jury trial date was within 160 days from the date the defendant
mailed his speedy trial demand, October 26, 2017. Kelley responded that, because the defendant
was incarcerated, the defendant’s speedy trial time was 120 days, but Kelley had no authority to
support his position. The trial court denied the defendant’s motion to dismiss and explained that
the defendant’s motion was premature because the defendant’s speedy trial time had not yet run.
The trial court stated that it would bring the defendant to trial within the 160 days of the defendant’s
request for a speedy trial.
5
¶ 11 On April 2, 2018, the defendant waived his right to a jury trial, and the case proceeded to
a stipulated bench trial. The parties stipulated that Officer Jones would testify to the previously
described events that occurred on May 6, 2017. The State also introduced dash camera footage
from Officer Jones’s vehicle and an audio recording of police radio traffic, both of which
corresponded with the May 6, 2017, incident. The defense presented no evidence, but Kelley
reasserted the defendant’s contention that his right to a speedy trial had been violated because he
had not been brought to trial within 120 days of his arrest. The trial court stated that the defendant’s
request for dismissal was denied and found the defendant guilty of two counts of aggravated
fleeing or attempting to elude a peace officer. The trial court ordered a presentence investigation
report to be prepared and set the matter for sentencing.
¶ 12 On May 31, 2018, the trial court sentenced the defendant to 30 months in IDOC, followed
by one year of mandatory supervised release. Both convictions were ordered to run concurrent
with each other, and concurrent with the defendant’s sentence from Perry County. With the
agreement of the State, the trial court gave the defendant sentencing credit for all of the time he
was incarcerated, from his original arrest date of May 11, 2017, through May 31, 2018, even
though the defendant was not in Randolph County’s custody.
¶ 13 On June 28, 2018, the defendant filed a pro se motion to reconsider, alleging that “due
process was not followed.” The defendant argued that his right to a speedy trial was violated
because he received sentencing credit for being continuously incarcerated. On September 10, 2018,
the parties appeared before the trial court on the defendant’s motion to reconsider. The defendant
argued that his due process rights were violated “when it took 11 months to try [the defendant]
instead of six.” The State responded that it would stand on its previous argument made during the
hearing on March 1, 2018. The trial court stated that it did not believe defendant’s speedy trial or
6
due process rights were violated and denied the defendant’s motion to reconsider. This appeal
followed.
¶ 14 ANALYSIS
¶ 15 On appeal, the defendant raises three points of error. First, the defendant argues that
Kelley’s failure to revoke the defendant’s bond, thus allegedly forfeiting his right to a speedy trial,
constituted ineffective assistance of counsel. Defendant next alleges that Kelley suffered a conflict
of interest because Kelley would have had to argue that the defendant’s speedy trial right was
violated due to Kelley’s own ineffectiveness. Finally, the defendant contends that one of his
convictions for aggravated fleeing or attempting to elude a peace officer should be vacated under
the one-act, one-crime doctrine because both convictions were based on one continuous act. We
disagree.
¶ 16 Claims of ineffective assistance of counsel may be raised on a direct appeal when the basis
for the claim can be ascertained from the record. People v. Veach, 2017 IL 120649, ¶ 46; People
v. Watson, 2012 IL App (2d) 091328, ¶ 21. In reviewing an ineffective assistance of counsel claim,
we defer to the trial court’s findings of fact unless they are against the manifest weight of the
evidence but review the ultimate legal issue of whether counsel was ineffective de novo. People v.
Berrier, 362 Ill. App. 3d 1153, 1166-67 (2006).
¶ 17 In determining whether trial counsel was ineffective, we apply the two-pronged test set
forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in People v. Albanese, 104
Ill. 2d 504, 626 (1984). Under Strickland, a defendant must show that trial counsel’s performance
fell below an objective standard of reasonableness, and that there is a reasonable probability that,
but for counsel’s deficient performance, the outcome of the proceedings would have been different.
Albanese, 104 Ill. 2d at 525. A reasonable probability that the outcome of the proceedings would
7
have been different is a probability sufficient to undermine confidence in the result of the
proceedings. People v. Colon, 225 Ill. 2d 125, 135 (2007). A reviewing court is not required to
consider whether trial counsel’s performance was deficient before determining whether the
defendant was prejudiced by counsel’s alleged deficiencies because a claim of ineffective
assistance of counsel fails if either prong of the Strickland test is not met. People v. Perry, 224 Ill.
2d 312 (2007).
¶ 18 Section 103-5(a) of the Code of Criminal Procedure of 1963 mandates that: “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
***.” 725 ILCS 5/103-5(a) (West 2016). Under subsection (a), the defendant’s right to a speedy
trial is automatic, and the State must bring the defendant to trial within 120 days. People v. Staten,
159 Ill. 2d 419, 424 (1994).
¶ 19 In contrast, section 103-5(b) provides that: “Every person on bail or recognizance shall be
tried by the court having jurisdiction within 160 days from the date defendant demands trial unless
delay is occasioned by the defendant ***.” 725 ILCS 5/103-5(b) (West 2016). To invoke the 160-
day period of subsection (b), defendants who are released on bail or recognizance must serve the
State with a demand for a speedy trial. Staten, 159 Ill. 2d at 424. Here, the defendant posted bond
after his first appearance in Randolph County. The defendant was then released from Randolph
County’s custody. Accordingly, the defendant no longer had an automatic right to a speedy trial
and was required to file a motion demanding that he be brought to trial within 160 days.
¶ 20 Following his release from Randolph County, the defendant claims he received a phone
call instructing him to return to the Perry County jail because Randolph County mistakenly
released the defendant from confinement. The defendant alleged that he complied and returned to
8
Perry County’s custody. A defendant who is released on bond for one charge, and who is
subsequently arrested or returned to custody on a different charge, is not returned to custody on
the first charge until his bond is withdrawn or revoked. People v. Arnhold, 115 Ill. 2d 379, 383
(1987). Once a defendant’s bond is withdrawn or revoked, he is then considered in custody. Id. at
384. Therefore, even though the defendant returned to custody in Perry County, his bond in
Randolph County was still in effect and he was not in simultaneous custody for his Perry County
and Randolph County charges.
¶ 21 The record shows that the defendant did not make a demand for a speedy trial until
November 2, 2017, while he was incarcerated in IDOC. Following the defendant’s November 2,
2017, pro se filings, the warrant for his arrest was quashed, and he remained on bond in Randolph
County. The record also shows, and the defendant does not dispute, that the defendant was tried
within 160 days of his written demand for a speedy trial. Thus, no speedy trial violation occurred
under section 103-5(b).
¶ 22 The defendant argues, however, that, had Kelley sought revocation of the defendant’s
bond, the 120-day period of section 103-5(a) would have applied to his case. The defendant
assumes, therefore, that he would not have been brought to trial within 120 days and his charges
in Randolph County would have been dismissed. It is, however, exceedingly speculative to
conclude that the defendant would not have been brought to trial within 120 days of any date the
defendant’s bond may have been revoked. The defendant submits that we may not speculate what
might have happened had his bond been revoked. We need not speculate, however, as the record
refutes any such speculation.
¶ 23 The record shows that both the trial court and the State were well aware of the requirements
of the speedy trial statute, and the defendant’s trial was scheduled with the statute’s time constraint
9
in mind. Had the defendant’s bond been revoked, the trial court would have had 120 days from the
date of any such revocation to schedule the defendant’s trial. See 725 ILCS 5/103-5(a) (West 2016)
(“The 120-day term must be one continuous period of incarceration. In computing the 120-day
term, separate periods of incarceration may not be combined. If a defendant is taken into custody
a second (or subsequent) time for the same offense, the term will begin again at day zero.”). We
find that the defendant is unable to demonstrate a reasonable probability that, had his bond been
revoked, the defendant would have been tried outside the 120-day speedy trial period.
Accordingly, the defendant cannot establish he was prejudiced by Kelley’s alleged ineffective
assistance. Because we find that the defendant’s claim of ineffective assistance of counsel fails,
his contention that Kelley operated under a conflict of interest is moot, and we need not address it.
¶ 24 The defendant next argues that one of his convictions for aggravated fleeing or attempting
to elude a peace officer (625 ILCS 5/11-204.1 (West 2016)) must be vacated under the one-act,
one-crime doctrine because both convictions were based on one continuous act of fleeing from
Officer Jones. The defendant did not raise this claim in the trial court and requests that this court
review his claim for plain error. The plain error rule allows a reviewing court to consider an error
not properly preserved for appellate review when the evidence is closely balanced, or the error is
so serious that the defendant was denied a fair trial. People v. Harvey, 211 Ill. 2d 368, 387 (2004).
An alleged violation of the one-act, one-crime doctrine, and the potential for a surplus conviction
and sentence, satisfies the second prong of the plain error rule because such a violation affects the
integrity of the judicial process. Id. at 389. Therefore, we will consider the defendant’s contention
that his convictions for two counts of aggravated fleeing or attempting to elude a peace officer
violate the one-act, one-crime doctrine. Alleged violations of the one-act, one-crime doctrine are
subject to de novo review. People v. Bush, 2015 IL App (5th) 130224, ¶ 6.
10
¶ 25 Pursuant to the one-act, one-crime doctrine, a defendant cannot be convicted of more than
one offense “carved from the same physical act.” People v. King, 66 Ill. 2d 551, 566 (1977). In
this sense, our supreme court defined an “act” as any overt or outward manifestation that will
support a separate offense. Id. Where two offenses share a common act, multiple convictions are
permissible if the defendant commits a second act which supports a second offense. Bush, 2015 IL
App (5th) 130224, ¶ 7. Multiple convictions are improper, however, if the offenses are based on
the same physical act. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). To sustain convictions
where multiple offenses share a common act, the charging document must indicate the State’s
intent to treat the defendant’s conduct as multiple acts. People v. Shines, 2015 IL App (1st) 121070,
¶ 44.
¶ 26 To determine whether a defendant’s multiple convictions violate the one-act, one-crime
doctrine, we follow a two-step analysis. Under King, a reviewing court must first determine
whether a defendant committed multiple acts. Rodriguez, 169 Ill. 2d at 186. If the reviewing court
determines that the defendant committed multiple acts, the court must then determine if any of the
offenses are lesser included offenses. Id. In King, our supreme court stated that “when more than
one offense arises from a series of incidental or closely related acts and the offenses are not, by
definition, lesser included offenses, convictions with concurrent sentences can be entered.” King,
66 Ill. 2d at 566.
¶ 27 Here, the record shows that the defendant committed multiple acts which support separate
offenses. The State charged the defendant with two counts of aggravated fleeing or attempting to
elude a peace officer, based upon the following acts: (1) the defendant’s driving at a high rate of
speed and (2) the defendant’s refusal to obey multiple traffic control devices. The evidence
presented in the stipulated bench trial showed that the defendant reached speeds of at least 21 miles
11
per hour over the legal speed limit and failed to stop for multiple stop signs. The trial court accepted
the stipulated evidence, found the defendant guilty of both counts of aggravated fleeing or
attempting to elude a peace officer, and entered concurrent sentences. Furthermore, neither of the
defendant’s convictions is a lesser included offense of the other. Thus, the defendant’s convictions
do not violate the one-act, one crime doctrine.
¶ 28 Our analysis in this case is analogous to the First District’s decision in People v. Shines. In
Shines, the defendant led police officers on a high-speed chase and failed to stop for multiple traffic
control devices. Shines, 2015 IL App (1st) 121070, ¶¶ 7-8. The State charged the defendant,
inter alia, with two counts of aggravated fleeing and or attempting to elude a peace officer. Id. ¶ 4.
Following a trial, the defendant was found guilty of both offenses and argued on appeal that his
convictions violated the one-act, one-crime doctrine. Id. ¶¶ 20, 41-46. The defendant claimed that
the different acts giving rise to his two convictions were mere attendant circumstances or
alternative theories of culpability for the same conduct. Id. ¶ 46. The First District found, as we do
here, that, because the defendant committed multiple acts, his convictions did not violate the one-
act, one crime doctrine. Id. ¶ 46.
¶ 29 The defendant contends that the aggravated fleeing or attempting to elude a peace officer
statute creates a single offense which may be violated in a number of ways. The defendant argues
that “the presence of two aggravating factors does not turn one flight into two crimes” but merely
provides the State with alternative ways to elevate a misdemeanor crime to a felony. In making
this argument the defendant relies on our supreme court’s decision in People v. Price, 221 Ill. 2d
182 (2006). In Price, our supreme court restated its prior ruling that the theft statute (720 ILCS
5/16-1 (West 2002)) did not “ ‘undertake to create a series of separate offenses, but rather to create
12
a single offense of theft which may be performed in a number of ways.’ ” Price, 221 Ill. 2d at 189(quoting People v. Graves, 207 Ill. 2d 478, 484 (2003)).
¶ 30 Price did not hold, however, that multiple convictions cannot arise from different
subsections of the same statute. In Price, the defendants were charged, inter alia, with two counts
of theft (720 ILCS 5/16-1(a)(1), (4) (West 2002)) for stealing the same “ ‘office-related property
having a total value exceeding $300.’ ” Price, 221 Ill. 2d at 186. One count of theft charged the
defendants with violating section 16-1(a)(1) of the statute, which provided that “one commits theft
who knowingly ‘[o]btains or exerts unauthorized control over property of the owner.’ ” Id. at 189(quoting 720 ILCS 5/16-1(a)(1) (West 2002)). The second count alleged the defendants also
violated section 16-1(a)(4) of the statute, which provided that “one commits theft who ‘[o]btains
control over stolen property knowing the property to have been stolen or under such circumstances
as would reasonably induce him to believe that the property was stolen.’ ” Id. (quoting 720 ILCS
5/16-1(a)(4) (West 2002)). A jury found the defendants guilty of both counts and the trial court
entered concurrent sentences on both counts. Id. at 188. On review, our supreme court determined
that the defendants’ two theft convictions were not legally inconsistent but could not stand under
the one-act, one crime doctrine because the convictions were “for the same offense and [arose]
from the same conduct.” Id. at 194. Accordingly, our supreme court vacated one of the theft
convictions for each of the defendants. Id. at 195.
¶ 31 Conversely, the defendant’s convictions in the present case, while sharing the common act
of refusing to stop at the direction of a police officer, are based upon separate acts—the defendant’s
high rate of speed and failure to stop for traffic control devices. The defendant’s convictions are
not, as was the case in Price, convictions for the same offense that arose from precisely the same
13
conduct. Therefore, we find that the defendant’s convictions for two counts of aggravated fleeing
or attempting to elude a peace officer and concurrent sentences were properly imposed.
¶ 32 For the foregoing reasons, we affirm the trial court’s judgment and sentence.
¶ 33 Affirmed.
14
2020 IL App (5th) 180461NO. 5-18-0461
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Randolph County.
)
v. ) No. 17-CF-78
)
CHARLES SCHAEFER, ) Honorable
) Richard A. Brown,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
Rule 23 Order Filed: December 3, 2020
Motion to Publish Granted: December 21, 2020
Opinion Filed: December 21, 2020
______________________________________________________________________________
Justices: Honorable Judy L. Cates, J.
Honorable John B. Barberis, J., and
Honorable Milton S. Wharton, J.
Concur
______________________________________________________________________________
Attorneys James E. Chadd, Appellate Defender, Ellen J. Curry, Deputy
for Defender, Christina O’Connor, Assistant Appellate Defender,
Appellant Office of the State Appellate Defender, Fifth Judicial District, 909 Water
Tower Circle, Mt. Vernon, IL 62864
______________________________________________________________________________
Attorneys Hon. Jeremy R. Walker, State's Attorney, Randolph County Courthouse,
for Chester, IL 62233; Patrick Delfino, Director, Patrick D. Daly, Deputy
Appellees Director, Valerie A. Ozment, Staff Attorney, Office of the State's
Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2,
P.O. Box 2249, Mt. Vernon, IL 62864
______________________________________________________________________________