{ "id": 3739230, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL R. PECO, Defendant-Appellant", "name_abbreviation": "People v. Peco", "decision_date": "2004-01-14", "docket_number": "No. 2-02-0487", "first_page": "724", "last_page": "736", "citations": [ { "type": "official", "cite": "345 Ill. App. 3d 724" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "99 Ill. App. 3d 664", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3097187 ], "year": 1981, "pin_cites": [ { "page": "667", "parenthetical": "ruling that defense counsel's statement that defendant was ready for trial constituted a demand for speedy trial where the record showed that the trial court construed the request as a demand for trial and the State failed to object to trial court's interpretation" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0664-01" ] }, { "cite": "47 Ill. App. 3d 686", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3366916 ], "year": 1977, "pin_cites": [ { "page": "688", "parenthetical": "holding that defendant's \"adamant\" objection to any further continuances did not constitute a demand for trial" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0686-01" ] }, { "cite": "65 Ill. App. 3d 305", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3328306 ], "year": 1978, "pin_cites": [ { "page": "306", "parenthetical": "holding that defense counsel's statement that defendant was \" 'ready for trial' \" did not constitute a demand for trial" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0305-01" ] }, { "cite": "71 Ill. App. 3d 963", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5578597 ], "year": 1979, "pin_cites": [ { "page": "966-67", "parenthetical": "rejecting proposition that request for a jury trial constitutes a speedy-trial demand" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0963-01" ] }, { "cite": "50 Ill. App. 3d 40", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5642547 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "42" }, { "page": "41", "parenthetical": "holding that defense counsel's statement \" 'we're ready and willing to go to trial' \" and \" T think it would be a speedy trial if it were held next Wednesday' \" were insufficient to invoke the provisions of the speedy-trial statute" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0040-01" ] }, { "cite": "195 Ill. 2d 87", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725373 ], "year": 2001, "pin_cites": [ { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0087-01" ] }, { "cite": "332 Ill. App. 3d 632", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1034187 ], "year": 2002, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0632-01" ] }, { "cite": "339 Ill. App. 3d 677", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468860 ], "year": 2003, "pin_cites": [ { "page": "681", "parenthetical": "\"[A] court should avoid an interpretation of a statute that would render any portion of it meaningless or void\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/339/0677-01" ] }, { "cite": "338 Ill. App. 3d 585", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25430 ], "year": 2003, "pin_cites": [ { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/338/0585-01" ] }, { "cite": "138 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576867 ], "year": 1990, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0178-01" ] }, { "cite": "335 Ill. App. 3d 372", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637055 ], "year": 2002, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/0372-01" ] }, { "cite": "328 Ill. App. 3d 373", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2183307 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "376-77" }, { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/328/0373-01" ] }, { "cite": "185 Ill. 2d 602", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121986 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "613-14", "parenthetical": "declining to address the effect of Public Act 90 - 705 on section 103 - 5(a)" }, { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0602-01" ] }, { "cite": "273 Ill. App. 3d 579", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258583 ], "year": 1995, "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0579-01" ] }, { "cite": "185 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 122017 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "114-15" }, { "page": "114" }, { "page": "115" }, { "page": "117-18" }, { "page": "117-18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0081-01" ] }, { "cite": "248 Ill. App. 3d 538", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2946340 ], "year": 1993, "pin_cites": [ { "page": "544-45" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/248/0538-01" ] }, { "cite": "86 Ill. App. 3d 1022", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3187953 ], "year": 1980, "pin_cites": [ { "page": "1027-28", "parenthetical": "noting that trial counsel's failure to raise issue in posttrial motion constitutes ineffective assistance where it is demonstrated that the failure to address the issue affected the defendant's conviction" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/1022-01" ] }, { "cite": "251 Ill. App. 3d 473", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2959024 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "478-79" }, { "page": "479" }, { "page": "479" }, { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/251/0473-01" ] }, { "cite": "292 Ill. App. 3d 396", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725045 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "398" }, { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0396-01" ] }, { "cite": "309 Ill. App. 3d 839", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349598 ], "weight": 8, "year": 1999, "pin_cites": [ { "page": "844" }, { "page": "844" }, { "page": "843" }, { "page": "843" }, { "page": "843" }, { "page": "845" }, { "page": "845" }, { "page": "845" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0839-01" ] }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1984, "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "2064" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "196 Ill. 2d 105", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351267 ], "year": 2001, "pin_cites": [ { "page": "134-35", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0105-01" ] }, { "cite": "198 Ill. 2d 530", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29952 ], "weight": 5, "year": 2002, "pin_cites": [ { "parenthetical": "noting that the failure to raise an issue in a posttrial motion normally results in waiver" }, { "page": "536" }, { "page": "536" }, { "page": "536" }, { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0530-01" ] } ], "analysis": { "cardinality": 895, "char_count": 27916, "ocr_confidence": 0.724, "pagerank": { "raw": 2.960352780136193e-07, "percentile": 0.8495145855993921 }, "sha256": "e756098981352cb06769b68dc1778c5a6c041a0128ed70ba7640f8343751298f", "simhash": "1:fa3ed48a76e865e1", "word_count": 4714 }, "last_updated": "2023-07-14T15:40:04.128176+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BYRNE and KAPALA, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL R. PECO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GROMETER\ndelivered the opinion of the court:\nDefendant, Michael R. Peco, was found guilty after a bench trial in the circuit court of Du Page County of attempted residential burglary (720 ILCS 5/8 \u2014 4, 19 \u2014 3(a) (West 2000)). The court sentenced defendant to a term of 14 years\u2019 imprisonment. On appeal, defendant argues that he was deprived of his statutory right to a speedy trial (725 ILCS 5/103 \u2014 5(a) (West 2000)). We affirm.\nDefendant was arrested on May 7, 2001. On May 9, 2001, defendant was charged with attempted residential burglary (720 ILCS 5/8 \u2014 4, 19 \u2014 3(a) (West 2000)). On the same date, defendant was remanded to the sheriff of Du Page County in lieu of bond and given a court date of June 4, 2001. On May 31, 2001, defendant was indicted on one count of attempted residential burglary (720 ILCS 5/8 \u2014 4, 19\u2014 3(a) (West 2000)). On June 4, 2001, defendant appeared in court for arraignment, and the trial court appointed a public defender to represent defendant. The court ordered the parties to provide discovery and continued the matter until June 27, 2001. The written discovery order entered on that date contains a notation stating, \u201cspeedy tolled (once disclosure is tendered).\u201d The State filed its discovery disclosure on June 13, 2001. The case was continued from time to time between June 27, 2001, and November 7, 2001.\nOn November 7, 2001, defense counsel advised the trial court that her client \u201cis asking at this time that this be set for bench trial.\u201d The State asked the court to set trial for January 7 or 8, 2002. Defense counsel responded that her client \u201cwould like the soonest date possible,\u201d but that she \u201cunderstand[s] the schedule of the State.\u201d Ultimately, the court offered a trial date of January 9, 2002, and defense counsel responded, \u201c[t]hat would be fine.\u201d The written order setting trial for January 9, 2002, included boxes to indicate whether the continuance should be attributed to defendant, the State, or the court. The order also included a box to indicate that the speedy-trial term was tolled. None of these boxes was checked.\nOn December 31, 2001, the State filed a motion to continue the trial on the basis that a material witness for the prosecution would be unavailable for the scheduled trial date. Attached to the motion was an affidavit from the prosecutor attesting that the witness was out of state but would be available on or after January 24, 2002. At the January 3, 2002, hearing on the State\u2019s motion, the prosecution requested a trial date in the first or second week of February. The court granted the State\u2019s motion and rescheduled the trial to February 13, 2002. When asked whether the continuance was on the State\u2019s motion, the prosecutor responded in the affirmative. After introducing herself for the record, defense counsel said nothing during the hearing, except to confirm that the matter would be a bench trial and to thank the court at the conclusion of the hearing. The written order entered on January 3, 2002, indicated that the continuance was on the State\u2019s motion. However, the box indicating whether the speedy-trial term was tolled was not checked.\nOn February 13, 2002, defense counsel filed a motion for continuance resulting from an obligation related to another case. At the hearing on the motion, defendant stated that his \u201cspeedy trial has been running in this case\u201d and expressed opposition to any continuance. Defendant informed the court that he asked his public defender about being represented by another attorney from her office if she was unavailable. Defendant also stated that he was \u201cready today to proceed with or without the Public Defender\u2019s Office.\u201d The State noted that defendant had not previously made a speedy-trial demand and asked defendant whether he was then making such a demand. The court then told defendant that he \u201ccan put whatever motion [he] wish[es] in writing,\u201d but that it was granting defense counsel\u2019s motion and continuing the cause to March 20, 2002. The court also informed defendant that the delay was attributable to the defense. Defendant replied, \u201cI make the demand today,\u201d and he filed a written demand for speedy trial.\nOn March 20, 2002, before the commencement of defendant\u2019s bench trial, defense counsel informed the court that defendant had prepared a pro se motion to dismiss on speedy-trial grounds. Defense counsel then informed the court that she had \u201clooked into that issue,\u201d but believed it was without merit. Initially, the trial court allowed defendant to file the motion. The court then asked defendant whether he wished to represent himself at trial. Defendant responded, \u201c[o]h no. Not today.\u201d\nThe prosecutor questioned whether it was proper for defendant to file the pro se motion given that he was represented by counsel. The State also argued that since a speedy-trial demand was not filed until February 13, 2002, defendant\u2019s motion was without merit. The court then stated that it would not entertain defendant\u2019s pro se motion while he was represented by the public defender. We note that the record does not contain a copy of defendant\u2019s motion. The court added:\n\u201cAnd also for the record, I also reviewed the court file when [defendant] raised the speedy [sic] on the last court date.\nAnd I reviewed the file that the Court keeps on each case, and I show that up until January 3rd, every date was on the Defendant\u2019s motion or by agreement; okay?\u201d\nThe matter then proceeded to a bench trial at which the court found defendant guilty of attempted residential burglary (720 ILCS 5/8 \u2014 4, 19 \u2014 3(a) (West 2000)).\nOn April 19, 2002, defense counsel filed a motion for a new trial. The motion did not contain any allegation regarding the speedy-trial issue. On April 25, 2002, the trial court denied defendant\u2019s posttrial motion. Following defendant\u2019s sentencing hearing, the trial court imposed a term of 14 years\u2019 imprisonment. The court also entered an unsatisfied civil judgment order against defendant in the amount of $1,500 for the damages resulting from the offense of which he was convicted.\nDefendant filed a timely appeal, arguing that his statutory right to a speedy trial (725 ILCS 5/103 \u2014 5(a) (West 2000)) had been violated. As a preliminary matter, the State argues that defendant waived review of the speedy-trial issue by failing to argue it in his posttrial motion. An examination of the record in this case confirms that defendant failed to properly preserve this issue for appellate review. Accordingly, we agree that defendant has waived this issue. People v. Mayo, 198 Ill. 2d 530, 535 n.1 (2002) (noting that the failure to raise an issue in a posttrial motion normally results in waiver); People v. Kuntu, 196 Ill. 2d 105, 134-35 (2001) (same).\nDefendant urges, however, that even if the speedy-trial issue has been waived, we should consider the merits of his claim for two reasons. First, defendant argues that his attorney\u2019s failure to raise the issue in a posttrial motion resulted in ineffective assistance of counsel. Second, he asserts that the failure to raise the speedy-trial issue in his posttrial motion is reviewable as plain error under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)).\nWe turn first to defendant\u2019s claim of ineffective assistance of counsel. To determine whether a defendant was denied the effective assistance of counsel, we apply the two-pronged test developed by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504, 526 (1984). To prevail on a claim of ineffective assistance of counsel, the defendant must show both that (1) counsel\u2019s performance was deficient and (2) the deficient performance prejudiced defendant such that he was deprived of a fair trial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.\nIt is well settled that the failure of counsel to move for the discharge of his client on the basis of a speedy-trial violation will constitute ineffective assistance of counsel when there is at least a reasonable probability that the client would have been discharged had a timely motion been filed and there was no justification for the attorney\u2019s decision not to file a motion. People v. Cooksey, 309 Ill. App. 3d 839, 844 (1999); People v. Plair, 292 Ill. App. 3d 396, 398 (1997); People v. Garcia, 251 Ill. App. 3d 473, 478-79 (1993). In addition, the failure of trial counsel to file a posttrial motion raising a specific issue may form the basis for an ineffective assistance of counsel claim. See People v. Mick, 86 Ill. App. 3d 1022, 1027-28 (1980) (noting that trial counsel\u2019s failure to raise issue in posttrial motion constitutes ineffective assistance where it is demonstrated that the failure to address the issue affected the defendant\u2019s conviction); see also People v. Feazell, 248 Ill. App. 3d 538, 544-45 (1993). Thus, it necessarily follows that the failure of defense counsel to argue a speedy-trial violation in a posttrial motion will also constitute ineffective assistance where there is at least a reasonable probability that the client would have been discharged had the issue been addressed in the posttrial motion and there was no justification for counsel\u2019s decision not to raise the issue. We caution, however, that the failure of counsel to argue a speedy-trial violation in a posttrial motion cannot satisfy either prong of Strickland where there is no lawful basis for arguing a speedy-trial violation. See Cooksey, 309 Ill. App. 3d at 844; Garcia, 251 Ill. App. 3d at 479. Accordingly, a determination whether defendant was deprived of the effective assistance of counsel necessarily entails an examination of the merits of his speedy-trial-violation claim. Garcia, 251 Ill. App. 3d at 479.\nFollowing defendant\u2019s arrest, defendant remained in custody and was never released on bond. Section 103 \u2014 5(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103 \u2014 5(a) (West 2000)) governs an in-custody defendant\u2019s statutory right to a speedy trial. It provides:\n\u201c(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, by an examination for fitness ordered pursuant to Section 104 \u2014 13 of this Act, by a fitness hearing, by an adjudication of unfitness to stand trial, by a continuance allowed pursuant to Section 114 \u2014 4 of this Act after a court\u2019s determination of the defendant\u2019s physical incapacity for trial, or by an interlocutory appeal. 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.\u201d 725 ILCS 5/103 \u2014 5(a) (West 2000).\nThe last sentence of the paragraph cited above was added to section 103 \u2014 5(a) in 1999. See Pub. Act 90 \u2014 705, eff. January 1, 1999 (amending 725 ILCS 5/103 \u2014 5(a) (West 1996)). As noted previously, defendant was arrested on May 7, 2001, and his trial began on March 20, 2002. Thus, 317 days elapsed between the date defendant was taken into custody and the commencement of his trial. If more than 120 of these days are attributable to the State, defendant\u2019s statutory right to a speedy trial has been violated.\nCourts interpreting section 103 \u2014 5(a) prior to the language added by Public Act 90 \u2014 705 have uniformly held that the 120-day speedy-trial period begins to run automatically, without a formal demand for trial, from the day a defendant is taken into custody. Mayo, 198 Ill. 2d at 536; People v. Kliner, 185 Ill. 2d 81, 114-15 (1998); Cooksey, 309 Ill. App. 3d at 843; Plair, 292 Ill. App. 3d at 398; People v. Sojak, 273 Ill. App. 3d 579, 582 (1995); Garcia, 251 Ill. App. 3d at 476. However, our supreme court has not yet had the occasion to interpret the effect of Public Act 90 \u2014 705 on section 103 \u2014 5(a) (see People v. Ladd, 185 Ill. 2d 602, 613-14 (1999) (declining to address the effect of Public Act 90 \u2014 705 on section 103 \u2014 5(a))), and our research has not uncovered any other published case addressing the impact of the amendment. The State urges that the language added to section 103 \u2014 5(a) by Public Act 90 \u2014 705 requires an in-custody defendant to make an oral or written demand for a speedy trial before the 120-day period commences. We disagree.\nResolution of this issue involves a question of statutory construction. The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. People v. Redmond, 328 Ill. App. 3d 373, 376-77 (2002). The most reliable indicator of legislative intent is the plain language of the statute itself. Redmond, 328 Ill. App. 3d at 377. The statute should be read as a whole, considering all relevant provisions together. People v. Olsson, 335 Ill. App. 3d 372, 374 (2002). Moreover, the statute should be construed so that no word or phrase is rendered meaningless or superfluous. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990). Where the language of a statute is clear and unambiguous, it is given effect without resort to other aids of statutory construction. In re Estate of Weiland, 338 Ill. App. 3d 585, 602 (2003).\nHere, by requiring an in-custody offender to be tried \u201cwithin 120 days from the date he was taken into custody\u201d (emphasis added) (725 ILCS 5/103 \u2014 5(a) (West 2000)), the legislature plainly and unambiguously voiced its intention that the 120-day speedy-trial period run automatically, without a formal demand for trial, from the day a defendant is taken into custody. Adopting the State\u2019s position would render this language meaningless. See People v. Rodriguez, 339 Ill. App. 3d 677, 681 (2003) (\u201c[A] court should avoid an interpretation of a statute that would render any portion of it meaningless or void\u201d). Our conclusion is also supported by an examination of section 103 \u2014 5 as a whole. Notably, section 103 \u2014 5(b) expressly provides that the speedy-trial period begins to run for a person on bail or recognizance \u201cwithin 160 days from the date defendant demands trial.\u201d (Emphasis added.) 725 ILCS 5/103 \u2014 5(b) (West 2000). Had the legislature intended an in-custody defendant to expressly demand trial prior to the commencement of the speedy-trial period, it would have expressly so provided as it did in subsection (b). We agree with defendant that the purpose of the language added by Public Act 90 \u2014 705 is to aid courts in determining to whom certain delays shall be attributed once the speedy-trial period begins to run. Thus, we conclude that the 120-day term for an in-custody defendant begins to run as soon as the defendant is taken into custody.\nWe now must determine whether defendant was tried within 120 days. It is the State\u2019s duty to bring the defendant to trial within the statutorily mandated period. Mayo, 198 Ill. 2d at 536. The speedy-trial period is suspended during any delay occasioned by the defendant (725 ILCS 5/103 \u2014 5(f) (West 2000); People v. Izquierdo-Flores, 332 Ill. App. 3d 632, 636 (2002)), and the defendant bears the burden of affirmatively establishing a speedy-trial violation by showing that the delay was not attributable to his own conduct (Cooksey, 309 Ill. App. 3d at 843). A delay is occasioned by or attributable to the defendant when the defendant\u2019s acts caused or contributed to the delay resulting in the postponement of trial. Cooksey, 309 Ill. App. 3d at 843. Defense counsel\u2019s express agreement to a continuance may be considered an affirmative act contributing to a delay that is attributable to the defendant. Kliner, 185 Ill. 2d at 114. Moreover, \u201c[d]elay 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.\u201d 725 ILCS 5/103 \u2014 5(a) (West 2000). A defendant not tried within the statutory period shall be discharged from custody and have the charges dismissed. 725 ILCS 5/103 \u2014 5(d), 114 \u2014 1(a)(1) (West 2000); Mayo, 198 Ill. 2d at 536; Ladd, 185 Ill. 2d at 607. The trial court\u2019s determination as to who is responsible for a delay of the trial is entitled to much deference and should be sustained absent a clear abuse of discretion. Kliner, 185 Ill. 2d at 115. Here, the trial court determined that \u201cup until January 3rd, every date was on the Defendant\u2019s motion or by agreement.\u201d\nIn reviewing a speedy-trial claim, a court is required to examine both the transcript of proceedings and the common-law record to do justice to both the State and the defendant. Mayo, 198 Ill. 2d at 536. In this case, the speedy-trial period began to run on May 7, 2001, the date defendant was arrested and taken into custody. After defendant\u2019s arrest, he remained in custody and was never released on bond. The next significant hearing occurred on June 4, 2001. On that date, the trial court ordered the parties to provide discovery and continued the matter until June 27, 2001. The written discovery order entered on that date contains a notation stating \u201cspeedy tolled (once disclosure is tendered).\u201d The State filed its discovery disclosure on June 13, 2001. Thus, the period from May 7, 2001, to June 13, 2001, a total of 37 days, is chargeable to the State. It is not entirely clear from the record whether the trial court\u2019s finding that \u201cup until January 3rd, every date was on the Defendant\u2019s motion or by agreement\u201d related back to this period of time. To the extent that it did, we conclude that the trial court abused its discretion in charging this delay to defendant. Once the State tendered disclosure, however, the speedy-trial period was tolled. Thus, the period from June 14, 2001, to June 27, 2001, is chargeable to defendant. Between June 27, 2001, and November 7, 2001, the case was continued from time to time. All of the written orders entered during that time period indicate that the continuances were on defendant\u2019s motions and that the speedy-trial period was tolled. Thus, the speedy-trial period did not run between June 14 and November 7, 2001.\nThe disputed period is from November 7, 2001, to January 3, 2002. The record shows that on November 7, 2001, defense counsel advised the trial court that her client \u201cis asking at this time that this be set for bench trial.\u201d The State asked the court to set trial for January 7 or 8, 2002. Defense counsel responded that her client \u201cwould like the soonest date possible,\u201d but that she \u201cunderstand[s] the schedule of the State.\u201d Ultimately, the court offered a bench trial date of January 9, 2002, and defense counsel responded, \u201c[t]hat would be fine.\u201d The written order setting the matter for a bench trial on January 9, 2002, is silent regarding to whom the delay is attributable and whether the speedy-trial period was tolled.\nOn December 31, 2001, the State filed a motion to continue the trial on the basis that a material witness for the prosecution would be unavailable for the scheduled trial date. At a hearing on January 3, 2002, the State argued its motion, requesting a trial date in the first or second week of February. The court granted the State\u2019s motion and rescheduled the trial for February 13, 2002. When asked whether the continuance was on the State\u2019s motion, the prosecutor responded in the affirmative. After introducing herself for the record, defense counsel said nothing during the hearing, except to confirm that the matter would be a bench trial and to thank the court at the conclusion of the hearing. The written order entered on January 3, 2002, indicates that the continuance was on the State\u2019s motion. However, the box indicating that the speedy-trial term was tolled was not checked.\nDefendant argues that defense counsel\u2019s request on November 7, 2001, that the case be set for trial on \u201cthe soonest date possible\u201d amounted to \u201can oral demand for trial on the record\u201d within the meaning of section 103 \u2014 5(a) of the Code and demonstrated that he did not agree to any continuance. The State counters that the period from November 7, 2001, to January 3, 2002, is attributable to defendant, because the parties agreed to the continuance. The State notes that while defense counsel requested \u201cthe soonest date possible,\u201d she acknowledged that the schedule of the State might preclude an immediate trial. In addition, the State points out that once the trial court suggested a date, defense counsel responded, \u201cthat\u2019s fine.\u201d In support of its argument that defense counsel\u2019s conduct on November 7, 2001, constituted an agreement to the continuance, the State cites Kliner, 185 Ill. 2d at 117-18, and Cooksey, 309 Ill. App. 3d at 845. Although we find the authority cited by the State inapposite, we ultimately agree that the period from November 7, 2001, to January 3, 2002, is not chargeable to the State.\nIn Kliner, our supreme court held that defense counsel\u2019s reply, \u201c \u2018that would be just fine,\u2019 \u201d to a continuance constituted an express agreement to the continuance. Kliner, 185 Ill. 2d at 117-18. The Cooksey court held that defense counsel\u2019s statement, \u201c \u2018[y]es, Judge. That\u2019s fine[,]\u2019 \u201d indicated that the continuance was \u201cby agreement.\u201d Cooksey, 309 Ill. App. 3d at 845. However, in Kliner, the continuance was granted in part to resolve a defense motion. Kliner, 185 Ill. 2d at 117-18. In Cooksey, the continuance was granted to allow the defendant additional time to prepare a motion. Cooksey, 309 Ill. App. 3d at 845. In this case, the continuance was granted upon the State\u2019s request. Thus, the State\u2019s reliance on Kliner and Cooksey is misplaced.\nNevertheless, section 103 \u2014 5(a) of the Code now states that \u201c[djelay 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.\u201d 725 ILCS 5/103 \u2014 5(a) (West 2000). As discussed previously, the order entered on November 7, 2001, setting the matter for trial on January 9, 2002, is silent regarding to whom the delay should be attributed. Furthermore, the order does not indicate that the speedy-trial period was tolled and there is no written demand for trial on record for the court date in question. Thus, in order for the period to be attributable to the State, defendant must have made an oral demand for trial. Our research has disclosed no case law interpreting what constitutes an \u201coral demand for trial\u201d for purposes of section 103 \u2014 5(a). However, we find instructive case law interpreting section 103 \u2014 5(b).\nSection 103 \u2014 5(b) is the companion provision to section 103\u2014 5(a) and requires an individual on bail or recognizance to be tried within 160 days \u201cfrom the date defendant demands trial.\u201d Our supreme court has determined that this provision does not require a defendant to invoke the protections of the speedy-trial statute in any particular form. People v. Huff, 195 Ill. 2d 87, 92 (2001). Moreover, while no magic words are required to constitute a speedy-trial demand, there must be some affirmative statement requesting a speedy trial in the record and the demand should not be disguised in ambiguous language. People v. Coleman, 50 Ill. App. 3d 40, 42 (1977).\nIn this case, defendant urges that statements made by defense counsel at the November 7, 2001, hearing constituted an oral demand for speedy trial. At that hearing, defense counsel advised the trial court that her client \u201cis asking *** that this be set for bench trial.\u201d Defense counsel later indicated that her client \u201cwould like the soonest date possible.\u201d We do not construe these remarks as a request for a speedy trial. Requesting trial at the earliest possible date does not necessarily invoke a defendant\u2019s right to a speedy trial. Here, defense counsel\u2019s remarks did not contain any affirmative statement indicating defendant\u2019s intention to invoke his right to a speedy trial. Instead, the remarks merely informed the court that defendant wanted to schedule his trial as soon as possible. See People v. Althide, 71 Ill. App. 3d 963, 966-67 (1979) (rejecting proposition that request for a jury trial constitutes a speedy-trial demand); People v. Jenkins, 65 Ill. App. 3d 305, 306 (1978) (holding that defense counsel\u2019s statement that defendant was \u201c \u2018ready for trial\u2019 \u201d did not constitute a demand for trial); Coleman, 50 Ill. App. 3d at 41 (holding that defense counsel\u2019s statement \u201c \u2018we\u2019re ready and willing to go to trial\u2019 \u201d and \u201c T think it would be a speedy trial if it were held next Wednesday\u2019 \u201d were insufficient to invoke the provisions of the speedy-trial statute); People v. Wyatt, 47 Ill. App. 3d 686, 688 (1977) (holding that defendant\u2019s \u201cadamant\u201d objection to any further continuances did not constitute a demand for trial). But see People v. Moore, 99 Ill. App. 3d 664, 667 (1981) (ruling that defense counsel\u2019s statement that defendant was ready for trial constituted a demand for speedy trial where the record showed that the trial court construed the request as a demand for trial and the State failed to object to trial court\u2019s interpretation).\nBecause the record does not contain an objection in the form of an oral or written demand for trial as required by section 103 \u2014 5(a) of the Code, we conclude that defendant agreed to the delay for the period from November 7, 2001, to January 3, 2002. However, the period from January 3, 2002, to February 13, 2002, a total of 41 days, is attributable to the State as the record demonstrates that the continuance was on the State\u2019s motion.\nOn February 13, 2002, defense counsel filed a motion for continuance as a result of obligations with respect to another case. At the hearing on the motion, defendant stated that his \u201cspeedy trial has been running in this case\u201d and expressed opposition to any continuance. Defendant informed the court that he asked his public defender about being represented by another attorney from her office if she was unavailable and that he was \u201cready today to proceed with or without the Public Defender\u2019s Office.\u201d The State noted that defendant had not previously made a speedy-trial demand and asked defendant whether he was then making such a demand. The court then told defendant that he \u201ccan put whatever motion [he] wish[es] in writing,\u201d but that it was granting defense counsel\u2019s motion and continuing the cause to March 20, 2002. The court also informed defendant that the delay was attributable to the defense. Defendant replied, \u201cI make the demand today,\u201d and he filed a written demand for speedy trial. The delay from February 13, 2002, to March 20, 2002, is attributable to defendant for although defendant filed a speedy-trial demand on February 13, the continuance was on a defense motion. Defendant\u2019s trial commenced on March 20, 2002.\nIn sum, our examination of the record reveals that defendant was brought to trial within 78 days, well within the 120-day statutory limit. Because no violation of defendant\u2019s right to a speedy trial occurred, raising this issue in a posttrial motion would have been futile, and defendant cannot base a claim of ineffective assistance of counsel on his attorney\u2019s failure to file such a motion. Moreover, our finding that no speedy-trial violation occurred obviates the need for a discussion that defense counsel\u2019s failure to raise this issue in defendant\u2019s posttrial motion constituted plain error.\nFor the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nBYRNE and KAPALA, JJ., concur.", "type": "majority", "author": "JUSTICE GROMETER" } ], "attorneys": [ "G. Joseph Weller and Paul Alexander Rogers, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Martin E Moltz, of State\u2019s Attorneys Appellate Erosecutor\u2019s Office, of counsel), and Gunta Z. Hadac, of Grayslake, for the Feople." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL R. PECO, Defendant-Appellant.\nSecond District\nNo. 2-02-0487\nOpinion filed January 14, 2004.\nG. Joseph Weller and Paul Alexander Rogers, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Martin E Moltz, of State\u2019s Attorneys Appellate Erosecutor\u2019s Office, of counsel), and Gunta Z. Hadac, of Grayslake, for the Feople." }, "file_name": "0724-01", "first_page_order": 744, "last_page_order": 756 }