People v. Torres

                                             THIRD DIVISION
                                             June 25, 1997













No. 1-95-3670

THE PEOPLE OF THE STATE OF ILLINOIS,

          Plaintiff-Appellant,

     v.

PORFIRIO TORRES,

          Defendant-Appellee.)
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)Appeal from the
Circuit Court of
Cook County

87 CR 473

Honorable
Colleen 
McSweeney-Moore,
Judge Presiding.


     JUSTICE CAHILL delivered the opinion of the court:
     We review dismissal of a criminal information charging
defendant, Porfirio Torres, with delivery of cocaine.  The
information was filed on January 13, 1987, and dismissed over
eight years later on September 11, 1995.  For much of that time
Torres was in Mexico.  The trial court found that the State
failed to provide Torres a speedy trial as required by the
Illinois and United States Constitutions, and failed to comply
with the Agreement on Detainers in the Illinois Unified Code of
Corrections (730 ILCS 5/3-8-9 (West 1994)).  We reverse and
remand with directions to reinstate the information.
     The events that led to dismissal of the information in this
case stretched over eight years.
     Torres, a Mexican citizen, entered the United States on a
visitor visa in 1977.  He came to Chicago, where he married a
United States citizen and fathered two children.  The Immigration
and Naturalization Service (INS) issued a show cause order in
February 1983, alleging that Torres was subject to deportation
for remaining in the United States longer than allowed under his
visa.  Then, in October 1983, Torres pled guilty in the circuit
court of Cook County to a felony charge of perjury on a voter's
registration application.  Though not incarcerated for the
offense, Torres was ineligible, as a result of the felony
conviction, to apply for legal residency or amnesty.
     The record is silent for three years.  But we know that
Torres was in Cook County on December 3, 1986.  He was arrested
in Cook County on that date by the Metropolitan Law Enforcement
Group and charged with delivery of cocaine having a street value
of $136,000.  The next day, at a preliminary hearing, a finding
of probable cause was entered and bond was set at $75,000 (a "D"
bond requiring a 10% deposit).  Torres demanded trial.  
     Torres posted bail on the evening of December 18, 1986, but
was held at the Cook County jail until the following day, when he
was transferred to the custody of the INS under a federal warrant
issued on that date.  The warrant was based on the allegations of
the show cause order entered in 1983.  Three days later Torres
posted bond on the federal charges.  He was now free on bonds on
both federal and state charges.
     The record over the next two years established the
following: Torres or his lawyer appeared in federal court on
January 22, May 18, September 9, and November 3, 1987.  Torres 
asked for continuances of the federal case to pursue a collateral
attack on the state perjury conviction of 1983.  Meanwhile the
state criminal case was continued by agreement 10 times between
January and December.  So passed 1987.
     1988 began as 1987, when on February 16, Torres was granted
another continuance in federal court until after a state court
date of March 16.  The federal judge continued the matter until
March 29.  
     At the March 29 hearing, Torres told the federal judge that
his state charge was set for trial on April 26.  The judge told
Torres he would allow him voluntary departure, instead of
deportation, so Torres' son could finish school and Torres could
wind up his criminal matter.  He then entered an order allowing
Torres to leave the country voluntarily no later than July 1.
     Neither Torres nor his attorney appeared on April 26 in the
state matter.  The assistant State's Attorney told the court that
Torres' attorney was on trial and agreed to a June 8 continuance. 
It was later learned that Torres left the country on or about
June 4, 1988.
     The story is not quite over.  A lawyer for Torres appeared
on June 8.  He represented that he had been in contact with
Torres within the last week and that Torres might have mistakenly
gone to another courtroom on the morning of June 8.  The trial
court entered a bond forfeiture but did not issue a warrant.  The
court set June 23 for entry of judgment on the bond and directed
the lawyer to bring Torres before the court earlier if possible. 
On June 23 the lawyer appeared and stated that Torres was in
Mexico "at the request of the INS."  He did not inform the trial
court that Torres had been granted a voluntary departure by the
federal court to occur no later than July 1 so his son could
finish school and he could wind up his state criminal charges. 
The trial court ordered notice of the bond forfeiture and a bench
warrant be sent to Torres' last known address, and set July 22
for judgment on the bond and issuance of the warrant.  Judgement
was entered on the bond and the warrant issued on that date.
     The final act began on November 18, 1988.  A lawyer for
Torres filed a motion to vacate the bond forfeiture with a refund
of the deposit to the attorney of record.  On December 19, 1988,
that motion was granted.  The warrant was not recalled.  On
December 23, 1995, 7 1/2 years later, Torres was arrested in Cook
County on the outstanding warrant.
     We first address the finding by the trial court that the
federal warrant dated January 19, 1989, amounted to a detainer
against Torres while in the custody of the State under article V
of Agreement on Detainers (730 ILCS 5/3-8-9 (West 1994)).  We
review the interpretation of a statute de novo.  People v.
Robinson, 172 Ill. 2d 452, 457, 667 N.E.2d 1305 (1996).
     The trial court appears to have misconstrued the Agreement
on Detainers.  The judge found that the INS took Torres from the
custody of the Cook County Department of Corrections under the
Agreement on Detainers.  730 ILCS 5/3-8-9 (West 1994).  The
Agreement on Detainers generally applies to persons who are
serving a term of imprisonment, not to persons bonded out of
state or federal custody (730 ILCS 5/3-8-9 (art. IV) (West 1994);
see People v. Hood, 223 Ill. App. 3d 157, 159, 583 N.E.2d 1173
(1991);  People v. Merryfield, 83 Ill. App. 3d 1017, 1019-20, 404 N.E.2d 907 (1980)), but may apply to persons committed to the
Illinois Department of Corrections after an arrest on pending
charges.  People v. Lykes, 124 Ill. App. 3d 604, 607, 464 N.E.2d 849 (1984).  
     A liberal reading of the Agreement on Detainers would allow
us, as Torres suggests, to construe the federal warrant as a
detainer executed to dovetail with the release of Torres on bond
from the state charges on January 18.  Federal law authorizes the
INS to issue detainers against an alien in federal, state or
local custody.  See 8 U.S.C.A. 1357(d) (West Supp. 1997)
(authorizing the INS to lodge detainers to hold pretrial
detainees).  But even if we do so, it does not explain the
reasoning employed by the trial court to find that the State
violated the Agreement on Detainers.  The court reasoned that,
when Torres was turned over to the federal government, he was in
the custody of Cook County and that the transfer was in
compliance with the Agreement on Detainers.  The federal
government, then, would have been required to return Torres to
Cook County once he posted bail on the federal charge.  730 ILCS
5/3-8-9 (art. V(e)) (West 1994).  That was not done.  The problem
with the court's analysis is clear: Torres was on bond for the
state charges when the federal government took him into custody
January 19, 1989.  We find no case holding that a person on bond
is serving a "term of imprisonment" under the Agreement on
Detainers.  Nowhere in the Agreement on Detainers is there
authority for applying its provision to the facts of this case. 
730 ILCS 5/3-8-9 (West 1994); see also People v. Carter, 193 Ill.
App. 3d 353, 354-55, 549 N.E.2d 763 (1989).  
     The court alternatively found that if the federal warrant
was not a detainer, then the State should have issued a detainer
once Torres was in federal custody.  Such a "detainer" warrant
would not have complied with the Agreement on Detainers because
Torres was free on bond on the State charge.  The State had no
custodial right that would underpin a detainer warrant.
     Even though the State could not lodge a detainer warrant
under the Agreement on Detainers in this case, we agree the
accused is still entitled to a speedy trial under the sixth and
fourteenth amendments of the federal constitution and article I,
section 8, of the Illinois Constitution.  U.S. Const., amends VI,
XIV; Ill. Const. 1970, art. 1, 8.
     The United States Supreme Court has enunciated a test to
determine if a defendant's constitutional right to a speedy trial
has been violated.  Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972); Doggett v. United States, 505 U.S. 647, 120 L. Ed. 2d 520, 112 S. Ct. 2686 (1992);  The Illinois
Supreme Court has adopted this test.  People v. Bazzell, 68 Ill. 2d 177, 369 N.E.2d 48 (1977).
     To determine whether the State, by excessive delay, has
violated the speedy trial rights of an accused, four factors are
considered: (1) whether the delay was "uncommonly long"; (2) who
was responsible for the delay; (3) defendant's assertion of his
right to a speedy trial; and (4) whether the delay prejudiced
defendant.  Barker, 407 U.S.  at 530-33, 33 L. Ed. 2d. at 116-18,
92 S. Ct.  at 2192-93.  
     We must decide whether the trial court, in light of Barker,
abused its discretion when it concluded that Torres' right to a
speedy trial was violated.  People v. Belcher, 186 Ill. App. 3d
202, 542 N.E.2d 419 (1989).
     We first address whether the delay was uncommonly long.  The
answer is self-evident.  A delay is considered presumptively
prejudicial if it approaches one year.  Doggett, 505 U.S. at 651-
52, 120 L. Ed. 2d  at 528, 112 S. Ct.  at 2690-91.  The State
concedes that a delay of 8 1/2 years is long enough to trigger
inquiry into a speedy trial violation.  
     Torres next argues that the order vacating his bond
forfeiture "collaterally estops" the State from arguing Torres
was responsible for the delay of his trial.  The judge who
dismissed this information stated that it was significant that
the court vacated the bond forfeiture and returned the bond money
to his attorney.  The argument is less than persuasive.  Had the
state trial court known of the circumstances that motivated the
federal court to grant a voluntary departure date of July 1,
1988, there would have been no basis for vacating the bond
forfeiture for failure to appear in June.  The record is clear
that the state court was led to believe that Torres missed his
June court date because he was forcibly deported beforehand.  The
significance of the vacatur of bond forfeiture is that it was
obtained based on a misrepresentation of the true state of
affairs relating to Torres' ability to appear in court in June. 
To suggest that the State should be charged with responsibility
for the trial delay under these circumstances is to suggest that
the State must suffer the consequences of Torres' wiles.
     Torres alternatively argues that he was effectively deported
when he was granted voluntary departure by July 1, 1988.  Torres
contends that he was not able to stand trial because the INS
ordered his departure by that date.  Again, the argument is less
than persuasive.
     At Torres' INS hearing, the court stated:
          "If I grant you volunteer departure and if you
     depart the United States, that may be a basis for ***
     your attorney in the criminal case to advise the Court
     that you were ordered to leave the country and that you
     cannot be present to stand trial."  
The judge then asked, "And you say next month you're supposed to
have your trial?  Is that a firm date?"  Torres responded,
"[T]hat's a firm date."  The judge then stated:
     "[I will] grant volunteer departure to July 1st.  That
     should give your *** son a chance to finish school and
     if you intend to go down to Mexico with your family,
     they can go down with you or they can stay here. 
     Depending on the outcome of your trial in your criminal
     case depends on what will happen to your visa
     application.  If you're convicted, you'll be ***
     spending time in *** jail for the conviction unless ***
     you're permitted to be out on bail." (Emphasis added.)
At the hearing, the immigration judge continually asked Torres if
he understood what he was saying and Torres answered yes.  The
INS hearing transcript makes clear that Torres' "effectively
deported" argument is without merit and conflicts with the plain
sense of the record.
     Torres next contends that, even if he did violate his bond,
the State still must provide a speedy trial.  
     Torres relies on United States v. Raffone, 405 F. Supp. 549,
550 (S.D. Fla. 1975).  We find the facts totally at odds with  
the case at hand.  In Raffone, the defendant was arrested for
counterfeiting and was released on bond, but he failed to appear. 
The government learned that the defendant fled to Canada but did 
nothing to bring the defendant to trial.  About a year later the
defendant wrote to the government on two different occasions,
requesting copies of detainers and warrants against him, and
stated his readiness to face all charges against him.  Raffone,
405 F. Supp.  at 550.  The proceedings did not begin until well
over a year after the defendant's request, and the court found
that his right to a speedy trial was violated.  Raffone, 405 F. Supp.  at 550.
     Torres, unlike the defendant in Raffone, left the country
before the required date of departure and did not appear at
scheduled hearings to inform the state court of the INS's
decision of voluntary departure.  He violated the directives of
the immigration judge, who granted voluntary departure on July 1,
1988, specifically so Torres could resolve his criminal matter. 
The voluntary departure  order was entered after Torres
represented to the federal judge that his state trial was set
"firm" for April 26, 1988.  
     Torres next argues that the State made no attempt to try to
prevent his forced departure.  This argument would have merit if,
on the date he was to appear in state court, April 26, he was
under a federal deportation order to be out of the country.  The
State was unaware of the voluntary departure order and continued
the matter to June 8, still within the time frame Torres was
allowed to remain in the country.  We find no merit to this
argument given the record we have traversed and set out.  
     In the alternative, Torres argues that the State could have
extradited Torres from Mexico by means of the United States-
Mexico Extradition Treaty, or had him returned by a less formal
means, but the State never attempted to do so.  31 U.S.T 5059,
T.I.A.S. No. 9656.  This argument has merit if, as in Raffone,
Torres made a request to face the charges against him.  Raffone,
405 F. Supp.  at 550; see also United States v. Pomeroy, 822 F.2d 718 (8th Cir. 1987) (defendant requested extradition from a
foreign country to face charges against him, but the government
made no attempt to extradite him);  Smith v. Hooey, 393 U.S. 374,
383, 21 L. Ed. 2d 607, 614, 89 S. Ct. 575, 579 (1969) (upon a
defendant's demand, the State has a constitutional duty to make a
diligent, good-faith effort to bring him to trial); United States
v. McConahy, 505 F.2d 770, 773-74 (7th Cir. 1974) (the state
conceded that defendant asserted his right to a speedy trial
while he was incarcerated in a foreign county, but the state made
no attempt to bring him to trial).  Torres cites to no case that
imposes an affirmative duty on the State to track down a felon
who has fled the country simply because he demanded trial before
flight.
     The next inquiry is whether Torres ever asserted his right
to a speedy trial.  Torres asserts that his oral and written
demand for trial at the bond hearing was his assertion of his
right to a speedy trial.  But, Torres did not appear on the date
set for trial in 1988.  He never reasserted his right while in
Mexico nor when he returned to the United States before he was
re-arrested.  Cf. McConahy, 505 F.2d at 773-74; Hooey, 393 U.S. 
at 383, 21 L. Ed 2d at 614, 89 S. Ct.  at 579 (1969) (defendants'
right to a speedy trial was violated when the state did not bring
them to trial promptly after defendants made a demand for trial
from another jurisdiction).
     Our final inquiry is whether Torres was prejudiced by the
delay.  Torres argues that prejudice is presumed because of the
long delay.  Doggett, 505 U.S.  at 657-58, 120 L. Ed. 2d  at 532,
122 S. Ct.  at 2694.  Additionally, Torres suffered actual
prejudice because he claims he had to live "under a cloud of
anxiety" about the eventual outcome of the charges.  Barker, 407 U.S.  at 533, 33 L. Ed. 2d  at 118, 92 S. Ct.  at 2193.   Torres was
also detained in Cook County jail for nearly seven months on this
charge, from February 23, 1995, when he was arrested on the
outstanding warrant, until September 11, 1995, when the trial
court finally dismissed the charge.  Torres also argues that the
State's negligence compounds over time as the presumption of
evidentiary prejudice grows.  Doggett, 505 U.S.  at 657, 120 L. Ed. 2d  at 532, 112 S. Ct.  at 2693.
     The trial judge found:
          "[W]ith regard to the anxiety, I think that it
     goes without saying that there would be anxiety about
     this type of case hanging over someone's head for that
     length of time.  And in addition, Mr. Torres every time
     he has appeared before the court has expressed anxiety
     about getting this case over with; about being in
     custody, and about being forced to leave the State of
     Illinois--to leave the country pursuant to the
     immigration judge's order."
     While we agree that Torres is presumed to be prejudiced by
the long delay, the anxiety Torres allegedly felt could have been
alleviated if he had informed the court of the INS order and
resolved this matter before he left for Mexico.  The prejudice
from the delay in this record is directly traceable to the
behavior of Torres and that includes the "cloud of anxiety" that
may have accompanied him to Mexico and on his illegal reentry.  
     The trial court's dismissal of this indictment was an abuse
of discretion.  The trial court's apparent presumption that
Torres bore no responsibility for the delay was arbitrary and
without factual support.  
     Reversed and remanded with directions.
     COUSINS, P.J., and LEAVITT, J., concur.