{ "id": 5676959, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD McGUIRE, Defendant-Appellant", "name_abbreviation": "People v. McGuire", "decision_date": "1984-05-10", "docket_number": "No. 4\u201483\u20140674", "first_page": "908", "last_page": "912", "citations": [ { "type": "official", "cite": "123 Ill. App. 3d 908" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "396 N.E.2d 1341", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 1039", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3290628 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/1039-01" ] }, { "cite": "257 N.E.2d 3", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. 2d 38", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2895594 ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0038-01" ] }, { "cite": "357 N.E.2d 1191", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 308", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2816928 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0308-01" ] }, { "cite": "424 N.E.2d 440", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 385", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499333 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0385-01" ] }, { "cite": "375 N.E.2d 854", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 536", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3355945 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0536-01" ] } ], "analysis": { "cardinality": 517, "char_count": 9736, "ocr_confidence": 0.745, "pagerank": { "raw": 8.585116888842114e-08, "percentile": 0.48914454085933196 }, "sha256": "53747ecbc6b691c0d6ac1203f0132f815edfccba1126f72d0c0985c050035f1a", "simhash": "1:996bd8c62e27e460", "word_count": 1635 }, "last_updated": "2023-07-14T17:44:31.202001+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD McGUIRE, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE MILLS\ndelivered the opinion of the court:\nResidential burglary and misdemeanor theft.\nBench trial.\nConcurrent sentences of six years and 364 days.\nHe now appeals.\nThe sole issue: Did the court err in refusing to discharge him even though he was incarcerated for more than 120 days prior to his trial?\nNo.\nWe affirm.\nSection 103 \u2014 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 \u2014 5(a)) provides:\n\u201cEvery 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 ***.\u201d\nAnd section 103 \u2014 5(d) then provides:\n\u201cEvery person not tried in accordance with subsections (a) *** of this Section shall be discharged from custody or released from the obligations of his bail or recognizance.\u201d Ill. Rev. Stat. 1981, ch. 38, par. 103-5(d).\nMcGuire was arrested on May 9, 1983, and tried on September 12, 1983, the intervening period being 126 days. He moved for discharge on September 8, 1983. The trial court denied the motion, holding that a continuance granted at the request of his newly appointed attorney tolled the running of the statutory period. We agree.\nSince the entire case rises or falls on the nature of a continuance granted the defendant, a rather extensive explication of the circumstances is warranted. McGuire and two codefendants were arrested on May 9, indicted by a grand jury on May 19, and arraigned on May 20, the record showing them represented by Bruce Ratcliff. (The record does not reflect whether Ratcliff was retained or appointed counsel.) The record does show that the cause was set for a criminal docket call on July 8. By at least June 1 the record shows defendants being represented by the public defender\u2019s office of Champaign County. Following the arraignment, discovery was had and both sides appeared at the July 8 docket call. Both sides answered ready for trial and the cause was set for July 18.\nFrom this point forth, the plot takes some bizarre twists.\nAfter answering ready for trial on July 8, the public defender appeared in court on July 13. A hearing was held, the subject of which was a motion to withdraw as counsel for McGuire and one of his codefendants. The public defender, Mr. Faddish, stated for the record:\n\u201c[T]he thrust of my motion is that after getting this case and receiving discovery from this date and after speaking with Mr. Duckworth and Mr. McGuire and Mr. Williams, I have arrived at a conclusion that a conflict exists between Mr. Duckworth, Mr. McGuire, and Mr. Williams on the other side, so it will be Mr. Duckworth and Mr. McGuire having a potential conflict with Mr. Williams and that conflict \u2014 I have reached the conclusion that a conflict exists based on the discovery and the information supplied to me by Mr. Williams, and on that basis I would ask leave to withdraw as to either Mr. Duckworth, McGuire, or Mr. Williams, and for appointment of counsel for\nIn response iu questions from the court, Faddish expressed his opinion that he coulKbest represent Williams without compromising the interest of the others.\nThe State vigorously opposed the motion, arguing that any problems should be cured by severing the cases and trying the defendants separately rather than allowing the public defender to withdraw. Following argument, the court allowed the motion to withdraw and appointed two new attorneys to represent McGuire and Duckworth. McGuire\u2019s attorney was Lonnie Lutz, the Coles County Public Defender. (He was apparently available to the office of the Champaign County Public Defender as a result of their having previously defended a client of his in Coles County.)\nOn July 14, Lonnie Lutz appeared on behalf of McGuire and requested a continuance of the July 18 trial date. The continuance was granted. The cause was continued to September 2 for a criminal docket call. (The cause was not set for August, since Champaign County does not hold trials during that month.) On August 29, Lutz moved to continue the docket call but no ruling on this motion was ever made, and Lutz appeared at the docket call on September 2. At the docket call, McGuire\u2019s trial was set for September 12. On September 8, Lutz filed a motion to dismiss, based on the fact that the 120-day period of the statute had run. The motion was heard at a hearing prior to the bench trial on September 12. The trial court ruled against the defendant, finding that the July 14 continuance \u2014 which had been granted at defense attorney\u2019s request \u2014 was a delay attributable to the defendant, thereby tolling the running of the 120-day period until the cause was set for trial. Since the cause had been set for September 12, and the parties were presently prepared to go to trial, the running of the period had been tolled until the current date and no 120-day violation had occurred. Following this hearing, the trial was had on stipulations, the defendant was found guilty of the offenses charged and was later sentenced.\nFrom this scenario it is clear that the July 14 continuance is the tincture which colors McGuire\u2019s trek along the trial trail. If the continuance was properly attributed to McGuire, it effectively tolled the running of the 120-day speedy-trial provisions of the Code of Criminal Procedure.\nDefendant urges that we must reverse the decision of the trial court based on the reasoning of the courts in People v. McKinney (1978), 59 Ill. App. 3d 536, 375 N.E.2d 854, and People v. Collum (1981), 98 Ill. App. 3d 385, 424 N.E.2d 440. In both McKinney and Collum, the Appellate Court of Illinois, Fifth District, developed a doctrine whereby delays occasioned by the withdrawal of defense counsel, based on that counsel\u2019s perceived conflict of interest, but not at the behest of the defendant, are not charged to the defendant, unless the withdrawal was made under circumstances from which it may be inferred that the defendant acquiesced in the delay, or in situations where the withdrawal was followed by a request that the defendant\u2019s attorney be given additional time to prepare for trial.\nWhile we do not pass on the merits of this doctrine, we find that under the facts of this case, McGuire acquiesced in the delay caused by the withdrawal of his attorney. Shortly after his arrest and indictment in May, the defendant and his two codefendants were represented by the Champaign County Public Defender\u2019s office. The cause was set for trial July 18. Just five days prior to trial, the public defender appeared and moved to withdraw based on a perceived conflict of interest. New counsel was appointed immediately. However, the appointment was just four days before the trial date. It seems patently clear that the newly appointed counsel could not possibly prepare adequately to conduct a proper defense when being appointed only four days before a trial. The record supports the view that he had never spoken with the defendant prior to his appointment nor had he seen any of the discovery materials. Faced with this situation, the court granted the new defense attorney\u2019s motion for a continuance and eventually scheduled the trial for September 12.\nWe note in passing that the State was prepared to go to trial at all times and actively opposed all attempts at delaying the trial.\nUnder these circumstances we feel that defendant was bound by the action of his attorneys. The record shows that McGuire\u2019s first appointed attorney withdrew from the case after consulting with him. Yet, the defendant, who was conversant in spoken English, said nothing in open court when his counsel withdrew and his new counsel was appointed. McGuire\u2019s silence is pregnant in that the court at the time of the withdrawal specifically addressed the speedy-trial problem and yet McGuire said nothing. Under these circumstances, we find that the defendant \u2014 though silent \u2014 acquiesced in the withdrawal of his counsel and the ensuing delay.\nSupport for this view is found in People v. Eason (1976), 44 Ill. App. 3d 308, 357 N.E.2d 1191. There, the court held that under Illinois law it is clear that a delay occasioned by the withdrawal of counsel to which a defendant acquiesces may be chargeable to the defendant, thereby tolling the running of the 120-day period. Eason cited People v. Johnson (1970), 45 Ill. 2d 38, 257 N.E.2d 3, for the proposition that where a defendant fails to object to the withdrawal of his counsel, or a continuance necessitated by the withdrawal, he may be found to have acquiesced in the delay resulting from the continuance.\nHere, the trial court, at the motion for discharge, ruled against the defendant based on the fact that he acquiesced in the delay resulting from the withdrawal of his attorney. We will affirm the decision of the trial court unless it amounts to an abuse of discretion. (People v. Keagbine (1979), 77 Ill. App. 3d 1039, 396 N.E.2d 1341.) Since the record reflects adequate information from which the court could have found that the continuance granted on July 14 was properly chargeable to the defendant, and that he acquiesced in the face of likely delay, we affirm the decision denying McGuire\u2019s motion for discharge.\nAffirmed.\nTRAPP and WEBBER, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE MILLS" } ], "attorneys": [ "Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Thomas J. Difanis, State\u2019s Attorney, of Urbana (Robert J. Biderman and Rebecca L. White, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD McGUIRE, Defendant-Appellant.\nFourth District\nNo. 4 \u2014 83\u20140674\nOpinion filed May 10, 1984.\nRehearing denied June 8, 1984.\nDaniel D. Yuhas and David Bergschneider, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nThomas J. Difanis, State\u2019s Attorney, of Urbana (Robert J. Biderman and Rebecca L. White, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0908-01", "first_page_order": 930, "last_page_order": 934 }