2020 IL App (2d) 180066-U No. 2-18-0066 Order filed May 5, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE ) Appeal from the Circuit Court STATE OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 02-CF-2763 ) WILLIAM J. PEARSON, ) Honorable ) Brendan A. Maher, Defendant-Appellant. ) Judges, Presiding. ______________________________________________________________________________
PRESIDING JUSTICE BIRKETT delivered the judgment of the court. Justices Zenoff and Hudson concurred in the judgment.
ORDER
¶1 Held: Defendant’s statutory speedy-trial claim was not cognizable in his postconviction petition; his allegation of ineffective assistance of appellate counsel for failure to raise the speedy-trial claim on appeal failed to make a substantial showing of constitutional deprivation or to allege prejudice; as a substantive matter, the trial court did not clearly abuse its discretion in holding that the State demonstrated due diligence.
¶2 Defendant, William J. Pearson, appeals from the second-stage dismissal of his
postconviction petition. In August 2003, defendant was convicted of the first-degree murder (720 2020 IL App (2d) 180066-U
ILCS 5/9-1(a)(2) (West 2002)) 1 of Scott R. Bowers and sentenced to a 50-year term of
imprisonment. Defendant appealed to this court, raising only the single issue of whether the trial
court erred in admitting other-crimes evidence that defendant possessed illegal drugs at the time
of this arrest. We affirmed. People v. Pearson, No. 2-04-0815 (May 24, 2006) (unpublished order
under Illinois Supreme Court Rule 23). In March 2007, defendant filed his pro se postconviction
petition. It was advanced to the second stage and, in August 2016, defendant’s amended
postconviction petition was filed. Upon motion by the State, defendant’s amended postconviction
petition was dismissed. On appeal, defendant argues that the trial court erred in dismissing his
amended postconviction petition because the State failed to make the necessary showing of due
diligence to obtain a 120-day extension to accomplish DNA testing, and his appellate counsel
provided ineffective assistance for failing to raise the speedy-trial issue. We affirm.
¶3 I. BACKGROUND
1 The jury returned a guilty verdict on “First Degree Murder (strong probability)” and a not
guilty verdict on “First Degree Murder (forcible felony).” The “strong probability” theory of first-
degree murder is codified in section 9-1(a)(2) of the Criminal Code (720 ILCS 5/9-1(a)(2) (West
2002)). Despite this, the indictment and sentencing order reflect the “forcible felony” theory of
first-degree murder codified in section 9-1(a)(3) of the Criminal Code (720 ILCS 5/9-1(a)(3) (West
2002)). This apparent scrivener’s error has never been raised and no conceivable prejudice
accrues; we simply point out the incongruity: defendant has been convicted of first-degree murder
under the “strong probability” theory, while his sentence mistakenly reflects the “forcible felony”
theory.
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¶4 We summarize the pertinent facts. On the night of September 22, 2002, Scott Bowers was
fatally shot in the head and the car he was driving crashed into an apartment building on Score
Street in Rockford. Three days later, defendant was arrested in connection with the offense. Of
relevance, when the crime scene was processed, two cigarette butts were taken into evidence for
DNA testing.
¶5 On October 17, 2002, defendant, who had been in custody since his arrest, was arraigned
for the offense. On November 9, 2002, defendant filed, among other things, a motion to reduce
his bond. On November 13, 2002, the State moved to obtain blood from defendant. On December
9, 2002, the trial court granted the State’s motion to withdraw blood and denied defendant’s bond
motion. Defendant had a pending motion for a protective order to receive copies of the discovery
in his case. The matter was continued several times on defendant’s motion for a protective order
and on his renewed bond-reduction motion.
¶6 On January 31, 2003, defendant’s renewed bond-reduction motion was denied. When the
substitute public defender indicated he wished to continue the case by agreement, defendant
interjected. Following an off-the-record consultation, defendant demanded trial. The trial court
set the matter for an April 7, 2003, trial. During the hearing that day, the court queried the State
about the progress of the scientific testing. The State replied that defendant’s blood sample had
been taken and delivered to the lab, but the testing had not been completed.
¶7 On April 3, 2003, at the final pretrial conference, the State moved for an extension to
accomplish the DNA testing pursuant to section 103-5(c) of the Code of Criminal Procedure
(Code) (725 ILCS 5/103-5(c) (West 2002)). According to the prosecutor:
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“The crime lab [was] not going to be finished with their testing of the evidence for DNA
purposes until June 1[, 2003]. I had spoken to them months ago when I first sent them the
evidence, and they informed me that it would be approximately two months. It’s been
approximately two months, so apparently they’re more behind than they thought. So at
this this time I don’t believe I can proceed to trial.”
Defendant objected to continuing the trial.
¶8 The following colloquy ensued:
“THE COURT: Jury status this morning. You consulted with your client, Mr. Doll
[(defense counsel)]?
MR. DOLL: Yes. It’s my understanding the State would be making a motion for
continuance, and we’d be opposed to that motion.
MS. MEASON [(prosecutor)]: For the reasons I previously stated, I would ask to
[sic] the first June setting.
We don’t have DNA evidence. I will follow that up with a written motion to
continue, citing the statutory section that does allow the State additional time for testing of
DNA evidence, since by my calculations, that date would be two days over the 120 days.
THE COURT: What date would that be again?
MS. MEASON: June 2. If the Court would like, I can set — we can set this for
status to address the written motion. I don’t know how the Court wants to proceed on that.
THE COURT: I will require you to file a written motion in support of your request.
Mr. Doll, any other comment?
MR. DOLL: No, your Honor.
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THE COURT: I refer you to [section 103-5(c) of the Criminal Code (725 ILCS
5/103-5(c) (West 2002))].
‘If the Court determines that the State has exercised without success due diligence
to obtain evidence material to the case and that there are reasonable grounds to believe that
such evidence may be obtained at a later day, the court may continue the cause on
application of the State.’
And that — also, that section talks about DNA testing that is material to the case
and that there are reasonable grounds to believe that such results may be obtained at a later
day, the court may continue the case at the request of the State for not more than an
additional 120 days.
So, [defendant], in response to the State’s motion, your objection to the request for
continuance, the law specifically provides for DNA testing, the Court can continue the
case.
I need to know, however, is this evidence of a material nature?
MS. MEASON: Yes, it would link this defendant to the crime scene.
THE COURT: I do find the State exercised due diligence several months ago
delivering that evidence to the crime lab, and it is material to the case.
The motion is granted over objection of the defendant pursuant to the statute cited, and I
will assign a new status date to determine return of the evidence.”
¶9 Defendant orally objected, arguing that there was other evidence in the discovery he had
received that would satisfy the State’s requirement of showing that it was defendant himself who
was on the scene. Based on this, defendant contended that the DNA evidence was not material to
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the State’s case. The trial court rebuffed defendant’s oral objection but expressly stated that, based
on the State’s forthcoming written motion, defendant could raise the issue of the materiality of the
DNA evidence, or any other objection, as necessary.
¶ 10 On April 7, 2003, the State filed its written motion for a continuance pursuant to section
103-5(c). Defendant did not file a motion or objection to the written motion for continuance at
that time.
¶ 11 On June 4, 2003, the matter was before the trial court for status and to set a trial date. The
State acknowledged that it had received the results of the DNA testing from the lab, and without
waiving his objection and demand for trial, and based on defense counsel’s schedule, trial was
scheduled for August 4, 2003.
¶ 12 On August 4, 2003, defendant filed a motion to dismiss based on a speedy-trial violation.
Defendant argued he had not been brought to trial within 120 days, and that, between the date of
the extension granted pursuant to section 103-5(c) and the trial date, 124 days had elapsed, which
was greater than the 120-day extension allowed by section 103-5(c). In denying defendant’s
motion to dismiss, the trial court ruled:
“The Court has reviewed the statute, [section 103-5(c) (725 ILCS 5/103-5(c) (West
2002))], the appropriate language. It says, ‘If the Court determines that the State has
exercised without success due diligence to obtain results of DNA testing that is material to
the case and that there are reasonable grounds to believe that such results may be obtained
at a later day, the Court may continue the cause on application of the State for not more
than an additional 120 days.’
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Of course, an issue presented by the Motion to Dismiss is what is meant by
‘additional 120 days.’ The Court does note that the [statute] does not say an additional 120
from the date the motion was filed. It just says generally ‘additional 120 days.’ The
language is construed in [People v. Johnson, 323 Ill. App. 3d 284 (2001)]. The Court will
adopt the evaluation of that case or the statutory construction announced in that case where
it says, ‘The Trial Court,’ I quote, ‘properly set the 120-day continuance requested by the
State in prosecution for armed robbery to enable it to obtain DNA test results to commence
upon [the] conclusion of [the] 120-day statutory speedy trial period, rather than from [the]
date [the] State’s motion for such continuance was granted.’
That’s what the case is here. I rule that the 120-day rule has not been violated;
therefore, the Motion to Dismiss is denied.”
¶ 13 The trial ensued. The evidence showed that defendant had been near the victim’s car at
the time of the offense. One witness observed defendant running alongside the car and hearing a
gunshot just before the vehicle crashed into the apartment building. One witness testified that, on
the evening of the offense, defendant gave him a .38 caliber chrome handgun to hold. That witness
eventually gave the gun to the police; testing revealed that it the weapon matched a shell casing
found at the scene. Defendant’s statement to the police admitted that he had pointed a gun at the
driver of the car to scare him, and that when the driver tried to drive away, defendant’s arm was
jostled causing the gun to discharge. Defendant’s girlfriend testified that defendant instructed her
to attribute the shooting to an individual nicknamed “Spade.” The jury returned a not guilty verdict
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on count I of the indictment (720 ILCS 5/9-1(a)(3) (West 2002)) and a guilty verdict on count II
of the indictment (720 ILCS 5/9-1(a)(2) (West 2002)). 2
¶ 14 On September 9, 2003, defendant filed a timely motion for a new trial. Among other things,
defendant alleged that the trial court erred in denying his motion to dismiss due to the claimed
speedy-trial violation. On October 1, 2003, defendant filed a pro se motion for a new trial alleging
the ineffectiveness of his trial counsel. On October 2, 2003, the trial court denied the motion for
a new trial filed by counsel. On June 14, 2004, the trial court denied defendant’s motion alleging
ineffective assistance of counsel.
¶ 15 On July 26, 2004, the matter proceeded to sentencing. The trial court sentenced defendant
to a 50-year term of imprisonment. Defendant timely appealed. On appeal, defendant raised the
single issue regarding whether the trial court properly admitted evidence that defendant possessed
illegal drugs at the time of his arrest. We affirmed. Pearson, No. 2-04-0815.
¶ 16 On March 28, 2007, defendant filed a pro se postconviction petition that serves as the basis
of the instant appeal. In May 2007, defendant’s postconviction petition was advanced to the
second stage. Some delay was encountered determining whether defendant wished to have counsel
appointed to represent him during the second-stage proceedings, and, on February 20, 2008,
counsel was appointed. Postconviction counsel encountered difficulties in communicating with
defendant and his supporting witnesses, resulting in the continuance of the matter until, on August
16, 2016, counsel filed defendant’s amended postconviction petition. Two of defendant’s claims
from the amended postconviction petition are germane: first, defendant argued that the trial court
2 See footnote 1 above.
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erred in granting the State’s motion to continue pursuant to section 103-5(c) (ground four in the
amended petition). Defendant contended that the evidence was not material, so the motion was
made in bad faith to evade the 120-day speedy trial period. Second, defendant argued that his
appellate counsel was ineffective for failing to raise the speedy-trial issue on direct appeal (ground
seven).
¶ 17 The State moved to dismiss defendant’s amended postconviction petition. On August 21,
2017, the trial court heard argument. Trial counsel, apparently prompted by defendant, mentioned
the case of People v. Battles, 311 Ill. App. 3d 991 (2000), but focused on the aspect of materiality
of the DNA evidence. The court also allowed defendant, pro se, to make some statements. The
State was granted leave to file a response focused on defendant’s August 21 statements and the
response discussed Battles. Following its consideration of the record of the trial and
postconviction proceedings, as well as the parties’ arguments, the trial court granted the State’s
motion to dismiss.
¶ 18 First, the trial court held that, as an independent claim, the speedy-trial contention in ground
four of the amended postconviction petition could have been raised on direct appeal and was thus
barred by the doctrine of res judicata or waiver. Alternatively, and specifically addressing
defendant’s contentions, the trial court held that the facts supporting the speedy-trial ground
existed at the time of the jury trial and that defendant had raised the claim and had preserved the
claim for direct appeal by raising it in his posttrial motion. However, the claim was not pursued
on direct appeal and was barred from postconviction consideration by the doctrine of res judicata.
Moreover, the trial court appears to have rejected on substantive grounds defendant’s arguments
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regarding the alleged speedy-trial violation. As a result, the trial court granted the State’s motion
to dismiss ground four of the amended postconviction petition.
¶ 19 Turning to the ineffective-assistance-of-appellate-counsel claim, the trial court noted that
the amended petition provided “a one sentence, factually unsupported claim” effectively
incorporating grounds one through six (and pertinently ground four) by “assert[ing] that his
‘appellate counsel’ (in the direct appeal that resulted in the Second District’s Rule 23 Order in this
case) was ‘ineffective’ for failing to assert [defendant’s] ‘ineffective assistance’ claims with
respect to his representation by [trial counsel] at his jury trial.” The trial court noted that defendant
included no factual support, such as affidavits specifically addressing appellate counsel’s
arguments, and no allegations (even conclusory ones) that appellate counsel’s appraisal of the
merits of the properly preserved potential appellate claims was erroneous. Finally, the court
observed that the claim was unsupported by citation to authority and unsupported by argument or
analysis of how defendant was prejudiced (i.e., that the claim had a reasonable probability of
resulting in reversal of the trial court’s judgment). The court held that defendant’s “single-
sentence, factually and legally unsupported claim of ‘ineffective assistance’ directed at his
appellate counsel [was] patently without merit” and granted the State’s motion to dismiss ground
seven.
¶ 20 Defendant timely appeals the dismissal of his amended postconviction petition.
¶ 21 II. ANALYSIS
¶ 22 On appeal, defendant attacks the trial court’s judgment granting the State’s motion to
dismiss the amended postconviction petition. Defendant argues first that, as a substantive matter,
the State failed to demonstrate that it had exercised due diligence within the original 120-day term
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in attempting to obtain the results of the DNA testing before requesting the extension for testing
pursuant to section 103-5(c). Next, defendant argues that appellate counsel was ineffective for
failing to raise the speedy-trial-violation issue on direct appeal. Before we address the issues raised
by defendant on appeal, we first discuss the principles governing postconviction petitions and our
review.
¶ 23 A. Principles Governing Postconviction Petitions
¶ 24 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) provides
a remedy to a criminal defendant whose state or federal constitutional rights were substantially
violated at trial or sentencing. People v. Pabello, 2019 IL App (2d) 170867, ¶ 19. As such, it is
not a direct appeal from the underlying judgment, but a collateral attack on it. Id. The defendant
is constrained to raising constitutional issues that were not and could not have been raised on direct
appeal. Id.
¶ 25 The Act contemplates a three-stage process for adjudicating a postconviction petition.
People v. Hommerson, 2014 IL 115638, ¶ 7. In the first stage, the trial court is to determine
whether the petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2018).
The court independently assesses whether the petition’s allegations, liberally construed and taken
as true, set forth the gist of a constitutional claim. People v. Edwards, 197 Ill. 2d 239, 244 (2001).
If the petition is advanced to the second stage, the State may answer the petition or move to dismiss
it. People v. Dupree, 2018 IL 122307, ¶ 28. If the State moves to dismiss the petition, the trial
court must decide whether to grant the motion or to advance the petition to the third stage. Id. A
petitioner is entitled to an evidentiary hearing only if the allegations of the petition along with the
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affidavits, record, and evidence make a substantial showing of a deprivation of constitutional rights
(either state, federal, or both). Id.
¶ 26 At the second stage, the trial court does not engage in fact-finding or determinations of
credibility because those determinations are reserved for the third, evidentiary, stage of the
proceedings. Id. ¶ 29. At the second stage, the court examines the petition to determine its legal
sufficiency, and any allegations not affirmatively rebutted by the record are taken as true. Id. The
substantial showing of a constitutional violation required at the second stage is a measure of the
legal sufficiency of the well-pleaded allegations of a constitutional violation in the petition, which,
if proven at an evidentiary hearing, would entitle petitioner to relief. Id. We review de novo the
second-stage dismissal of a postconviction petition. Id.
¶ 27 B. Statutory Speedy-Trial Violation
¶ 28 Defendant argues that the trial court abused its discretion in determining that the State
exercised due diligence before requesting the extension pursuant to section 103-5(c) of the Code
(725 ILCS 5/103-5(c) (West 2002)). Section 103-5(c) provides:
“If the court determines that the State has exercised without success due diligence to obtain
results of DNA testing that is material to the case and that there are reasonable grounds to
believe that such results may be obtained at a later day, the court may continue the cause
on application of the State for not more than an additional 120 days.” 725 ILCS 5/103-
5(c) (West 2002)).
¶ 29 When the State orally (and later, in writing) moved to invoke the 120-day extension, it also
noted that it had delivered the samples to the lab “months ago” and had just learned that the testing
could not be completed before the beginning of June. The trial court expressly requested an
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explanation about the materiality of the evidence, and the State replied that the DNA evidence was
material because it “would link this defendant to the crime scene.” The trial court held: “[the court
does] find the State exercised due diligence several months ago delivering that evidence to the
crime lab, and it is material to the case.” In its written motion, the State provided a timeline of the
handling of the evidence, noting that it had requested the testing immediately, that, on September
27, 2002, and December 17, 2002, the evidence had been delivered to the lab for testing, and that
the lab had not yet tested the evidence but expected to have completed the testing by June 1, 2002.
It appears that the December 17, 2002, submission of evidence was defendant’s blood standard;
on November 13, 2002, the State had moved to collect defendant’s blood and the motion was not
decided for about a month due to counsel’s and the trial court’s occasional unavailability due to
illness and scheduling conflicts.
¶ 30 Based on this factual background, defendant argues that the State did not sufficiently
demonstrate its due diligence in seeking the DNA evidence under section 103-5(c). Defendants
statutory argument, however, is misplaced.
¶ 31 It is well established that a claim that the State did not bring a defendant to trial within the
statutory 120-period is not constitutional in scope. People v. French, 46 Ill. 2d 104, 107 (1970)
(“an allegation of a violation of the 120-day rule in bringing a defendant to trial is not
constitutional in scope”); People v. Tatum, 2019 IL App (1st) 162403, ¶ 83 (statutory speedy-trial
claim may not be raised in a postconviction petition because it is not of constitutional dimension).
Here, defendant’s claim is based only on the statutory speedy-trial right; defendant does not argue
or allege the elements of a constitutional claim, notably, prejudice is neither alleged nor argued.
See People v. Crane, 195 Ill. 2d 42, 48 (2001) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972))
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(the factors to be considered in a constitutional speedy-trial claim include length of the delay;
reasons for the delay; prejudice, if any, accruing to the defendant; and defendant’s assertion of the
speedy-trial right). Additionally, we note that defendant couches his argument solely in terms of
a violation of the 120-day statutory period: e.g., “Violation of the speedy trial statute *** warrants
a reversal of conviction;” “the trial court abused its discretion by not holding the [S]tate to their
burden to prove that it exercised due diligence to obtain the lab results within the original 120 day
speedy trial term ***.”
¶ 32 Because defendant raises only a statutory speedy-trial claim, it is not cognizable in a
postconviction petition. Accordingly, we hold that the trial court properly dismissed defendant’s
substantive speedy-trial claim at the second stage of the postconviction proceeding. 3
¶ 33 C. Ineffective Assistance of Appellate Counsel
¶ 34 Defendant also argues that his appellate counsel was ineffective for failing to raise the
speedy-trial issue on direct appeal. Defendant correctly notes that an ineffective-assistance claim
circumvents the doctrines of res judicata and waiver in a postconviction proceeding. People v.
3 Although the trial court did not decide defendant’s postconviction speedy-trial claim on
this ground, we may affirm the trial court’s judgment on any ground supported in the record.
People v. Snow, 2012 IL App (4th) 110415, ¶ 17 (“a reviewing court may affirm a trial court’s
dismissal at the second stage [of postconviction proceedings] on any grounds substantiated by the
record, regardless of the trial court's reasoning”). As a result, we need not address the grounds of
res judicata or forfeiture or the alternative substantive grounds relied upon by the trial court.
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Childress, 191 Ill. 2d 168, 175 (2000). In addition, it presents an appropriate way to get the
statutory speedy-trial claim before the trial court in a postconviction petition.
¶ 35 A claim of ineffective assistance of appellate counsel is considered in the same fashion as
a claim of ineffective assistance of trial counsel. Id. The defendant who alleges that appellate
counsel was ineffective must show that the decision not to raise the issue was objectively
unreasonable and that the decision resulted in prejudice to the defendant. Id. Unless the underlying
issue is meritorious, the defendant cannot have been prejudiced by the appellate attorney’s failure
to raise it. Id.
¶ 36 Before addressing the merits of defendant’s claim, we note that the trial court was
nevertheless justified in dismissing the ineffective-assistance claim. In the amended
postconviction petition, defendant’s allegation of ineffective assistance amounted to the following
single sentence: “The defendant’s appellate counsel was ineffective and Defendant was denied his
rights under the Sixth and Fourteenth Amendments to the U.S. Constitution when appellate counsel
failed to allege and argue each of the previously stated Constitutional violations.” As noted, the
elements of an appellate ineffective-assistance claim include: (1) counsel’s decision not to raise
the issue was objectively unreasonable; and (2) resulting prejudice from the decision. Childress,
191 Ill. 2d at 175. Obviously, defendant’s single-sentence, factually bereft, allegation in the
amended postconviction petition does not make the necessary substantial showing of deprivation
of defendant’s right to effective assistance of appellate counsel. Dupree, 2018 IL 122307, ¶ 28.
In defendant’s substantive speedy-trial claim, defendant only alleged that the DNA testing was not
material and the extension was sought in bad faith to avoid the 120-day deadline for holding trial.
We note that the trial court determined that the evidence was material: even though defendant
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asserted that his girlfriend lived at the location of the offense, so a cigarette butt with his DNA
could have been left at any time, had none of defendant’s DNA been found, it would have
substantially undercut the State’s eyewitnesses, who observed the offense at night and under
uncertain lighting conditions. Thus, the test could have been reasonably exculpatory as well as
inculpatory (as the butt was found in the precise area the victim’s car occupied at the time of the
offense). For this reason, the trial court was justified in dismissing the claim of ineffective
assistance of appellate counsel.
¶ 37 In addition, we note that the argument that the State did not exercise due diligence in
obtaining the DNA testing before it requested the extension pursuant to section 103-5(c) is made
for the first time on appeal. It is axiomatic that that an issue may not be raised for the first time on
appeal. Super Mix of Wisconsin, Inc. v. Natural Gas Pipeline Co. of America, LLC, 2020 IL App
(2d) 190034, ¶ 25. A close corollary is that the defendant may not offer an argument in support of
an appellate-ineffective-assistance claim for the first time on appeal where that argument was not
raised in support of his or her postconviction petition in the trial court. People v. Shief, 2016 IL
App (1st) 141022, ¶¶ 53-54. Thus, the argument is not properly before this court on appeal. This
rationale also precludes our review resulting in an affirmance of the trial court’s judgment.
¶ 38 The foregoing preliminary considerations notwithstanding, even if we address the merits
of defendant’s argument, it fails to persuade. Defendant relies on Battles, 311 Ill. App. 3d 991, in
arguing that the State did not exercise due diligence under section 103-5(c). In Battles, the Fifth
District devised a painstaking scrutiny by which to measure the State’s efforts at securing DNA
evidence before requesting the section 103-5(c) extension:
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“the State should tender a full explanation of each and every step taken to complete DNA
testing within the 120-day speedy trial term. The steps articulated should comprise a course
of action that a reasonable and prudent person intent upon completing tests within 120 days
would follow. Further, the showing should explain why the efforts engaged in fell short of
their objective and resulted in an unavoidable need for delay.” Id. at 998.
The court concluded that the State had consumed most of the 120-day speedy-trial period debating
whether to submit evidence for DNA testing and utilized section 103-5(c) as a means of evading
the time limit, instead of completing testing that otherwise, through no fault of its own, could not
be timely completed. Id. at 1004.
¶ 39 This court repudiated the rigid scrutiny of Battles in People v. Spears, 395 Ill. App. 3d 889
(2009). We rejected Battles as not being grounded in the language of the statute, but we
ameliorated the rejection by noting that the three requirements of Battles could be useful
considerations in the required case-by-case determination of due diligence under the statute. Id.
at 895.
¶ 40 Here, unlike Battles, there is no question of the State seeking to evade the speedy-trial term
by employing section 103-5(c). The State promptly submitted the relevant evidence to the lab
within a day of defendant’s arraignment. It also sought permission to obtain a blood standard from
defendant withing a reasonable amount of time and, while the decision granting permission was
delayed due to the trial court’s and defense counsel’s occasional unavailability due to illness or
scheduling conflicts, the State promptly submitted the blood standard to the lab and was told that
the testing would be completed in a couple of months. Nearly five months later, the lab indicated
that the tests were not complete and could not be completed for approximately another two months.
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At this point, the State sought the section 103-5(c) extension. The trial court held that the State
had exercised due diligence based on these facts.
¶ 41 We review the trial court’s judgment on whether a state exercised due diligence for a clear
abuse of discretion. People v. Swanson, 322 Ill. App. 3d 339, 342 (2001). A clear abuse of
discretion occurs when the trial court’s judgment is arbitrary, fanciful, unreasonable or where no
reasonable person would adopt the view taken by the trial court. Blum v. Koster, 235 Ill. 2d 21,
36 (2009). Based on the foregoing, we cannot say that the trial court engaged in a clear abuse of
discretion in holding that the State had exercised due diligence. Quite clearly, the State’s
explanation does not approach the thoroughness required under the Battles requirements.
However, the Battles decision was in part motivated by the State’s effort to evade the speedy-trial
term. Here, no such abuse is apparent. Instead, the State moved quickly to obtain the necessary
DNA testing. That testing was material to the case and the results linked defendant to the scene
of the crime. While the State could have done better, 4 its efforts were reasonable and constituted
due diligence, and the trial court’s determination did not constitute a clear abuse of discretion.
¶ 42 For the foregoing reasons, then, defendant has failed to adequately present his claim of
ineffective assistance of appellate counsel. Alternatively, on the merits, the trial court did not
4 See Spears, 395 Ill. App. 3d at 896 (while it may have been preferable for the State to
have pushed the lab to complete testing more quickly, in light of the State’s promptness and lack
of unreasonable delay (unlike Battles, where there was no evidence of expedience and the delay
was calculated to evade the speedy-trial limit), the State acted reasonably).
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clearly abuse its discretion in holding that the State exercised due diligence under section 103-
5(c).
¶ 43 III. CONCLUSION
¶ 44 For the foregoing reasons, the judgment of the circuit court of Winnebago County is
affirmed.
¶ 45 Affirmed.
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