2022 IL App (4th) 210746-U NOTICE FILED This Order was filed under December 14, 2022 NO. 4-21-0746 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Logan County GERALD L. THOMAS JR., ) No. 17CF202 Defendant-Appellant. ) ) Honorable ) William G. Workman, ) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court. Justice Steigmann concurred in the judgment. Justice Turner specially concurred.
ORDER ¶1 Held: The appellate court (1) denied defendant’s motion to proceed pro se on appeal and (2) affirmed the circuit court’s second-stage dismissal of defendant’s postconviction petition, concluding defendant failed to make a substantial showing of ineffective assistance of trial and appellate counsel.
¶2 Defendant, Gerald L. Thomas Jr., appeals from the Logan County circuit court’s
second-stage dismissal of his petition for relief under the Post-Conviction Hearing Act
(Postconviction Act) (725 ILCS 5/122-1 to 122-7 (West 2020)) alleging, inter alia, ineffective
assistance of appellate and trial counsel for failing to protect his statutory right to a speedy trial.
Specifically, defendant argues the trial court’s finding that the delay attributable to the State was
fewer than 120 days was erroneous, and he therefore made a substantial showing of ineffective
assistance of trial and appellate counsel. The State argues the trial court’s determination that the speedy trial clock stood at fewer than 120 days when trial commenced was correct and dismissal
of defendant’s petition was proper.
¶3 On appeal, the Office of the State Appellate Defender (OSAD) was appointed to
represent defendant. Following the filing of defendant’s opening brief and the State’s responsive
brief, OSAD moved to withdraw as counsel on the basis defendant wished to proceed pro se,
which this court denied. Defendant, pro se, has filed motions to stay the entry of judgment, strike
OSAD’s opening brief, and leave to file his pro se brief instanter.
¶4 We (1) deny defendant’s pro se motions and (2) affirm the circuit court’s
dismissal of defendant’s postconviction petition.
¶5 I. BACKGROUND
¶6 On December 11, 2017, a grand jury charged defendant by indictment with two
counts of attempt (first degree murder), a Class X felony (720 ILCS 5/8-4(a), 9-1(a)(1) (West
2016)) (counts I and II); aggravated battery, a Class X felony (id. § 12-3.05(e)(1)) (count III);
aggravated discharge of a firearm, a Class 1 felony (id. § 24-1.2(a)(2)) (count IV); and unlawful
possession of a weapon by a felon, a Class 3 felony (id. § 24-1.1(a)) (count V).
¶7 A. Pretrial Appearances and Guilty Verdicts
¶8 Because this appeal challenges the calculation of delays attributable to defendant
with respect to the speedy trial clock, we chronologize defendant’s pretrial court appearances
below.
¶9 Defendant’s arraignment occurred on December 29, 2017, and the trial court
scheduled his trial for February 26, 2018. On January 2, 2018, defendant appeared in custody
with his attorney, and the trial court denied his motion to reduce his bond. At a January 31 status
-2- hearing, defense counsel requested to reset the trial date, as there was outstanding discovery.
Following this request, the trial court addressed defendant as follows:
“[Y]our counsel is asking that we continue this case from the February jury
calendar to the April jury calendar. You are in custody; and because you are in
custody, you have the right to a speedy trial; that is, a trial within 120 days. That’s
by statute. But any time that you or your attorney cause any continuance or delay
in the cause, that stops the running of that speedy trial clock, and it will not start
again until the case could be set down for trial.”
Defendant indicated he understood and agreed to proceed with an April jury trial. The trial court
found defendant’s waiver of his right to a speedy trial to be knowing and voluntary, vacated the
February jury trial date, and reset the trial date for April 16.
¶ 10 Defense counsel requested to continue the trial at three consecutive status
hearings held on March 21, May 23, and July 18, citing outstanding discovery. Upon each
request, the court admonished defendant of his speedy trial rights and informed him that each
continuance would toll the speedy trial clock. On all three occasions, defendant agreed he
understood and wished to continue the trial, and the trial count found his waivers to be knowing
and voluntary. At the July 18 hearing, the court set the case for an October 15 jury trial.
¶ 11 On September 19, the parties informed the court they were prepared to proceed to
trial. Because the State had filed a motion to join defendant’s case with that of his codefendant,
Casey Cottrill, the court set the matter for a hearing on September 28. The case remained set for
an October 15 jury trial.
¶ 12 At the September 28 hearing, the court granted the State’s motion to join
defendant’s case with Cottrill’s on a preliminary basis. At an October 4 status hearing, Cottrill’s
-3- counsel requested to move the trial date back, noting Cottrill had a number of pending motions
that could not be heard by the October 15 trial date. At the same hearing, defendant’s counsel
requested defendant’s case be heard by a separate jury because certain evidence Cottrill wished
to have admitted at trial, if allowed, implicated the fairness of a joint trial. Defendant’s counsel
further emphasized defendant’s desire to proceed to trial on October 15. The State had no
objection to moving the trial date to December, and the court vacated the October 15 trial date
and reset the trial date to December 7.
¶ 13 At a November 7 status hearing, the court allowed the State’s unopposed motion
to sever defendant and Cottrill’s jury trials. The court noted defendant’s trial was still set for
December 7.
¶ 14 On December 7, defendant waived his right to a jury trial, electing instead to have
a bench trial. Following the bench trial, the trial court found defendant guilty of counts I, II, III,
and V. Defendant filed a motion for a new trial, arguing the evidence was insufficient to find
defendant guilty of any of the charged offenses beyond a reasonable doubt, which the trial court
denied. At sentencing, the court found count III merged with count II and sentenced defendant to
consecutive sentences of 55, 21, and 10 years in prison on counts I, II, and V, respectively.
Defendant filed a motion to reconsider his sentences, arguing they were excessive, which the
trial court denied. Defendant filed a timely notice of appeal, which was docketed as case No.
4-19-0099.
¶ 15 B. Posttrial Proceedings
¶ 16 In August 2019, while defendant’s direct appeal was pending, defendant pro se
filed a postconviction petition, alleging, among other things, his trial counsel was ineffective for
failing to move to discharge his case on the grounds of a speedy-trial violation. After 90 days
-4- lapsed without a ruling on the petition, the trial court docketed defendant’s petition for further
proceedings and appointed postconviction counsel to represent him. In March 2021,
postconviction counsel filed an amended petition, incorporating defendant’s initial petition and
additionally asserting defendant’s appellate counsel was ineffective for failing to raise the speedy
trial issue on direct appeal. Postconviction counsel attached defendant’s appellate counsel’s
opening brief in case No. 4-19-0099 and acknowledged defendant’s direct appeal remained
pending.
¶ 17 On April 29, 2021, the State filed a motion to dismiss defendant’s amended
petition, arguing defendant failed to make a substantial showing his constitutional rights were
violated because the time attributable to the State with respect to the speedy trial clock was fewer
than 120 days, and therefore any claim trial and appellate counsel were ineffective for failing to
raise this issue was meritless.
¶ 18 On May 7, 2021, the trial court allowed defendant to discharge his postconviction
counsel and proceed pro se. Defendant thereafter filed a second amended postconviction petition,
which incorporated the previous two petitions and raised additional arguments which are not at
issue in this appeal.
¶ 19 On June 11, 2021, while defendant’s second amended petition was pending, this
court affirmed defendant’s convictions on direct appeal. People v. Thomas, 2021 IL App (4th)
190099-U, ¶ 3.
¶ 20 On June 21, 2021, the State filed a motion to dismiss defendant’s second amended
petition, again arguing any claim trial and appellate counsel were ineffective for failing to raise a
speedy trial violation was meritless.
-5- ¶ 21 Defendant filed a response to the State’s motion, arguing the State’s calculation of
the number of days of delay attributable to it was incorrect. Specifically, although both parties
agreed the speedy trial clock began to run on December 11, 2018, defendant argued it continued
running until February 26, 2018—and not January 31, 2018, as the State asserted. Citing People
v. Lendabarker, 215 Ill. App. 3d 540 (1991), and People v. Boyd, 363 Ill. App. 3d, 1027 (2006),
defendant argued “delay” meant a delay in the holding of defendant’s trial. Even though
defendant agreed on January 31, 2018, to set a new trial date for April 2018, defendant’s
argument continued, because the previous trial date had been set for February 26 by the State,
there was no delay caused by defendant until after February 26. When added to the 115 days the
State conceded were attributed to it, the delay between December 11, 2018, and February 26,
2018, constituted a violation of defendant’s speedy trial rights.
¶ 22 In December 2021, the trial court allowed the State’s motion to dismiss
defendant’s second amended petition. Specifically, the trial court found Boyd was factually
distinguishable and agreed with the State the speedy trial clock began to toll on January 31,
2018, and not February 26, 2018. The court concluded because there was no speedy trial
violation, trial and appellate counsel were not ineffective for failing to raise the issue.
¶ 23 Defendant filed a timely notice of appeal, and on December 28, 2021, this court
appointed OSAD to represent defendant. OSAD filed an opening brief on May 31, 2022.
¶ 24 On June 10, 2022, defendant filed a petition for leave to file a pro se brief, stating
he had discussed with defense counsel in a single phone call “what should and what should not
be raised in his brief.” Defendant asserted he “did not get to finish raising certain points to his
counsel” and requested counsel file a motion for extension of time to file an initial brief.
Defendant stated, thereafter, counsel had not returned his phone calls and “since he would not
-6- respond to him,” requested that his counsel withdraw from his case. Defendant asserted he filed
his pro se brief “in order to preserve his rights.”
¶ 25 The State filed its responsive brief on June 17, 2022.
¶ 26 On June 21, 2022, defendant filed a “motion to withdraw appellate counsel” and
to strike OSAD’s opening brief filed on May 31, 2022. In this motion, defendant asserted he
waived his right to counsel “under the Sixth Amendment” and reasserted the arguments he made
in his petition for leave to file a pro se brief: (1) that counsel failed to contact defendant after
their initial phone conversation and (2) counsel “waived multiple contentions that [defendant]
raised in his Post-Conviction Petition, and only raised a single violation” on appeal.
¶ 27 On June 22, 2022, OSAD filed a motion to withdraw as defendant’s counsel on
appeal and to permit defendant to proceed pro se. OSAD asserted that although defendant mailed
a letter requesting to proceed pro se prior to the filing of the opening brief, defense counsel did
not receive the letter until after the brief had been filed. OSAD did not provide any further details
regarding the letter and the letter is not a part of the record. The State objected, and this court
denied OSAD’s motion on July 5, 2022, stating: “IT IS ORDERED that the Motion to Withdraw
as Counsel and Allow Appellant to Proceed Pro se is denied.” On August 1, 2022, defendant
filed a motion to stay the entry of judgment and requesting a ruling be made on his various
motions.
¶ 28 II. ANALYSIS
¶ 29 On appeal, OSAD has filed a brief arguing the trial court erroneously dismissed
defendant’s second amended petition at the second stage of proceedings because the petition
made a substantial showing of ineffective assistance of trial and appellate counsel. The State
responds dismissal was proper because defendant’s speedy trial rights were not violated and
-7- therefore, he cannot make a substantial showing he was denied the effective assistance of trial
and appellate counsel. Defendant has pro se filed a motion to stay the entry of judgment, seeking
rulings on multiple motions he has filed seeking to proceed pro se on appeal. We (1) deny
defendant’s pro se motion and (2) affirm the trial court’s judgment.
¶ 30 A. Defendant’s Pro Se Motion
¶ 31 We first address defendant’s pro se motion to stay the entry of judgment filed on
August 1, 2022. Defendant seeks rulings on his motions to strike OSAD’s opening brief and for
leave to file his pro se brief instanter. This court has already denied defendant’s multiple
requests to proceed pro se on appeal. On June 22, 2022, OSAD filed a motion to withdraw as
defendant’s counsel on appeal and to permit defendant to proceed pro se. On July 5, 2022, this
court entered an order denying OSAD’s motion, stating: “IT IS ORDERED that the Motion to
Withdraw as Counsel and Allow Appellant to Proceed Pro se is denied.”
¶ 32 Moreover, we note that although the sixth amendment to the United States
Constitution guarantees a criminal defendant the right to represent himself at trial (see U.S.
Const., amend. VI; Faretta v. California, 422 U.S. 806 (1975)), there is no federal constitutional
right to self-representation on appeal. Martinez v. Court of Appeal of California, 528 U.S. 152,
154 (2000). Illinois Supreme Court Rule 651(d) (eff. Jul. 1, 2017), provides, “The procedure for
an appeal in a post-conviction proceeding shall be in accordance with the rules governing
criminal appeals.” Illinois Supreme Court Rule 607(a) (eff. Jul. 1, 2017), which governs criminal
appeals, provides that the trial court may appoint counsel for a defendant on appeal if it
“determines that the defendant is indigent and desires counsel on appeal.” (Emphasis added.)
Based on the language of Rule 607(d), “the appointment of counsel [on appeal]—and, arguably,
the counsel’s continuing tenure—is conditional on the defendant’s desire for such counsel.”
-8- People v. Jackson, 362 Ill. App. 3d 1196, 1199 (2006). However, “[e]ven when defendants have
a constitutional right to represent themselves, they must assert that right in a timely ***
manner.” (Emphasis in original.) Id. at 1200.
¶ 33 Defendant argues his request to proceed pro se was timely because he both
(1) sent a letter to OSAD requesting to proceed pro se prior to the filing of the opening brief and
(2) informed this court he wished to proceed pro se prior to the filing of the State’s responsive
brief.
¶ 34 We find this court’s decision in Jackson, 362 Ill. App. 3d at 1198, to be
instructive here. In that case, this court denied the defendant’s motion to proceed pro se on
appeal from the dismissal of his postconviction petition for two reasons. First, the defendant
failed to cite to relevant authority in support of his request, and therefore his motion did not
conform with Illinois Supreme Court Rule 361(a) (eff. Jan.1, 2006). Jackson, 362 Ill App. 3d at
1199 (stating, under Rule 361, a motion to proceed pro se must state both the relief sought and
the grounds therefore). Second, because the defendant made his request after defense counsel
and the State had filed their respective briefs, we found that “judicial efficiency outweigh[ed]
[the] defendant’s interest in individual autonomy.” Id. at 1200.
¶ 35 Here, as in Jackson, defendant’s motion to proceed pro se on appeal from the
dismissal of his postconviction petition contravenes Illinois Supreme Court Rule 361(a) (eff.
Dec. 1, 2021) because he states no relevant grounds on which his motion should be granted.
Defendant simultaneously (1) acknowledges that he does not have a constitutional right to
represent himself on appeal and (2) argues he has a “constitutional right of due process and the
right to petition.” Without citation to authority, defendant merely asserts appellate counsel did
not spend enough time speaking with him on the phone, did not respond to correspondence from
-9- his family members, and “waived multiple contentions that [he] raised in his *** petition” in the
name of “strategy.” As in Jackson, “[a] reviewing court ‘is not simply a repository in which
appellants may dump the burden of argument and research.’ ” Jackson, 362 Ill. App. 3d at 1199
(quoting People v. Chatman, 357 Ill. App. 3d 695, 703 (2005)).
¶ 36 Moreover, although this court received defendant’s June 7 request to file his
pro se brief prior to the filing of the State’s brief on June 17, we find that his request was
nonetheless not timely and effectively made because OSAD had already filed its brief. OSAD
was appointed to represent defendant in December 2021, and defendant had several months to
file a motion to proceed pro se prior to the filing of the opening brief. We find that although this
case is distinguishable from Jackson in that it was not fully briefed when defendant’s request was
received, the interest in judicial efficiency still outweighs defendant’s interest in individual
autonomy at this late point in the proceedings. See id. at 1200; see also Martinez v. Court of
Appeal of California, Fourth Appellate District, 628 U.S. 152, 163 (2000) (“[T]he States are
clearly within their discretion to conclude that the government’s interests outweigh an invasion
of the appellant’s interest in self-representation.”).
¶ 37 B. Ineffective Assistance of Trial and Appellate Counsel
¶ 38 On appeal, defendant argues the trial court erroneously dismissed his second
amended petition at the second stage of proceedings because he made a substantial showing he
was denied the effective assistance of both trial and appellate counsel. Specifically, defendant
argues but for trial counsel’s failure to raise the issue of a speedy trial violation, the charges
against him would have been dismissed, and but for appellate counsel’s failure to raise the issue
of trial counsel’s ineffectiveness, his conviction would have been reversed on appeal. The State
responds no speedy trial violation occurred, and therefore defendant has failed to make a
- 10 - substantial showing of ineffective assistance of trial and appellate counsel. We agree with the
State.
¶ 39 1. Postconviction Proceedings
¶ 40 The Postconviction Act “provides a mechanism for criminal defendants to
challenge their convictions or sentences based on a substantial violation of their rights under the
federal or state constitutions.” People v. Morris, 236 Ill. 2d 345, 354 (2010). Postconviction
proceedings are divided into three stages. People v. English, 2013 IL 112890, ¶ 23, 987 N.E.2d
371.
¶ 41 Here, the trial court allowed the State’s motion to dismiss defendant’s petition at
the second stage of proceedings. To survive a motion to dismiss at this stage, the defendant’s
petition “must make ‘a substantial showing of a violation of constitutional rights.’ ” People v.
Wingate, 2015 IL App (5th) 130189, ¶ 24 (quoting People v. Coleman, 183 Ill. 2d 366, 381
(1998)). “When a trial court dismisses a petition for postconviction relief at the second stage of
proceedings,” this court “review[s] [the] dismissal de novo, taking as true all well-pleaded facts
that are not positively rebutted by the trial record.” Id. ¶ 24 (citing People v. Pendleton, 223 Ill.
2d 458, 473 (2006)). Second stage dismissal is only appropriate when the petition’s allegations,
construed liberally, “cannot support a substantial showing of a constitutional violation.” People
v. Lamar, 2015 IL App (1st) 130542, ¶ 12. A substantial showing “ ‘is a measure of the legal
sufficiency of the petition’s well-pled allegations of a constitutional violation, which if proven at
an evidentiary hearing, would entitle petitioner to relief.’ ” (Emphasis in original.) Id. ¶ 13
(quoting People v. Domagala, 2013 IL 113688, ¶ 35).
¶ 42 2. Ineffective Assistance Claims
- 11 - ¶ 43 Defendant’s second amended petition, inter alia, alleged ineffective assistance of
(1) trial counsel for failing to raise the issue of the speedy trial violation before the trial court and
(2) appellate counsel for failing to raise the issue of trial counsel’s ineffectiveness on direct
appeal.
¶ 44 This court reviews claims of ineffective assistance of counsel under the standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984). At the second stage of postconviction
proceedings, the defendant must make a substantial showing (1) the conduct of trial counsel fell
below an objective standard of reasonableness (id. at 687-88) and (2) the deficient performance
prejudiced defendant such that a “reasonable probability” exists the result would have been
different but for the deficient performance (id. at 694). The defendant must satisfy both prongs,
and “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, *** that course should be followed.” Id. at 697; see also Coleman, 183 Ill. 2d at
397-98.
¶ 45 Claims of ineffective assistance of appellate counsel are judged under the same
standards. See People v. Salazar, 162 Ill. 2d 513, 521 (1994). To establish ineffective assistance
of appellate counsel, defendant must demonstrate (1) the failure to raise an issue was objectively
unreasonable and (2) but for the failure to raise the issue, the trial court’s ruling would have been
reversed. People v. Flores, 153 Ill.2d 264, 283 (1992).
¶ 46 3. Right to Speedy Trial
¶ 47 In order to demonstrate prejudice as to his ineffective assistance claims, defendant
was required to show a reasonable probability that (1) but for trial counsel’s failure to raise the
issue of a speedy trial violation, the charges against him would have been dismissed and (2) but
for appellate counsel’s failure to raise the issue of trial counsel’s ineffectiveness, this court
- 12 - would have reversed his convictions. See People v. Phipps, 238 Ill. 2d 54, 65 (2010) (“Counsel’s
failure to assert a speedy-trial violation cannot establish either prong of an ineffective assistance
claim if there is no lawful basis for raising a speedy-trial objection.”).
¶ 48 A criminal defendant’s right to a speedy trial in Illinois is codified at section
103-5(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(a) (West 2020)), which
states, in relevant part, as follows:
“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 or she was taken
into custody unless delay is occasioned by the defendant ***. 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.”
¶ 49 The supreme court has explained section 103-5(a)’s concept of “delay” as
follows:
“A defense counsel’s express agreement to a continuance may be
considered an affirmative act contributing to a delay which is attributable to the
defendant. [Citation.] The defendant bears the burden of affirmatively
establishing a speedy-trial violation, and in making his proof, the defendant must
show that the delay was not attributable to his own conduct. [Citation.] Any
period of delay occasioned by the defendant temporarily suspends the running of
the speedy-trial period until the expiration of the delay, at which point the statute
shall recommence to run. [Citations.] An accused not tried within the mandate of
section 103-5(a) must be discharged from custody, and the charges must be
dismissed. [Citation.] The trial court’s determination as to who is responsible for a
- 13 - delay of the trial is entitled to much deference, and should be sustained absent a
clear showing that the trial court abused its discretion. [Citations.]” People v.
Kliner, 185 Ill. 2d 81, 114-15 (1998).
¶ 50 In considering claims a defendant was denied a speedy trial, this court has
adopted definitions used by the Illinois Supreme Court. People v. Cross, 2021 IL App (4th)
190114, ¶¶ 79-83. Specifically, (1) the “speedy-trial term” refers to the 120 days referenced in
the statute, (2) “discharge date” refers to the final day of the speedy-trial term, and (3) “delay
attributable to the defendant” means “a delay of the speedy-trial term, with the effect of moving
back that defendant’s discharge date.” Id. ¶¶ 80-82.
¶ 51 4. Whether Defendant Demonstrated Prejudice
¶ 52 Defendant argues he demonstrated prejudice because (1) but for trial counsel’s
failure to raise the issue of a speedy trial violation, the charges against him would have been
dismissed and (2) but for appellate counsel’s failure to raise the issue of trial counsel’s
ineffectiveness, this court would have reversed his convictions. Specifically, defendant argues he
was not brought to trial within 120 days because the trial court erroneously concluded the period
of January 31, 2018, and February 26, 2018, constituted a delay occasioned by defendant rather
than the State. The State argues that because defendant’s counsel requested on January 31, 2018,
that the trial be reset for April, the trial court correctly attributed delay to defendant and not the
State. We agree with the State.
¶ 53 Defendant, relying on People v. Lendabarker, 215 Ill. App. 3d 540, 554 (1991),
contends that because the State set the original trial date of February 26, no delay was
attributable to defendant until that date—despite his request for a continuance on January 31. In
Lendabarker, in the midst of trial settings that began substantially earlier, the defendant’s case
- 14 - was continued to April 10 as a result of a motion filed by the State. Id. at 554. On April 6, the
defendant’s counsel sought a continuance due to a scheduling conflict on April 10. Id. On appeal,
the Second District found the trial court erroneously attributed the period of April 6 to April 10
to the defendant because “the actual delay chargeable to defendant did not begin until April 10,
when his attorney was engaged in another trial.” (Emphasis in original.) Id.
¶ 54 We conclude this case is distinguishable from Lendabarker. In Lendabarker, the
defendant’s case had actually been set for trial after completion of most of the normal pretrial
proceedings which might otherwise result in delays. The delay in Lendabarker was not because
of a motion to be addressed by the court, but a scheduling conflict making defendant’s counsel
unavailable for the trial date. The Second District properly found the existence of the conflict did
not “cause” a delay of the trial. In contrast, here, on January 31, defendant expressly requested a
later trial setting in April due to outstanding discovery, a request which, if allowed, necessitated
removing the case from the upcoming trial calendar and moving it to the requested date.
Defendant wanted more time to complete discovery, which was not an unreasonable request
considering the young age of the case.
¶ 55 We further conclude defendant has not met his burden of showing the trial court
abused its discretion when it found the period of January 31, 2018, to February 26, 2018,
constituted delay attributed to defendant. January 31 was the first status setting after arraignment,
well before any written discovery, or other pre-trial motions were filed—let alone answered. At
the arraignment just over a month prior, the case had been set “on the February 26, 2017 jury
trial calendar” by the trial court. A reasonably experienced trial judge and counsel would
understand that in a case of this nature, the likelihood of proceeding to trial at such an early date
was slight, if at all.
- 15 - ¶ 56 As expected, when defendant and counsel appeared at the status hearing on
January 31, defense counsel informed the court there was still discovery outstanding and asked
“if we can continue both the trial date and do another pre-trial.” He then suggested a date of
March 21, which the trial judge noted was the docket call for an April jury. The court advised
defendant his counsel was asking to have the case moved “from the February jury calendar to the
April jury calendar” and that this would toll his speedy trial time until the next trial setting.
Defendant acknowledged he understood and agreed. As a result, defendant “caused” the case to
be continued from the February call to the April call.
¶ 57 Unfortunately for defendant, it isn’t always just about him. Defendant’s argument
ignores the reality of a busy trial docket where multiple cases are set for a date, to then be tried
during that, or following weeks within that month as appears to be the case here. Once counsel
asked to continue the case to the April trial calendar, his February 26 jury trial date was vacated
and did not remain assigned to him. It was removed from the docketed date in February,
presumably to allow the court to schedule another trial in its place—a simple matter of
responsible trial management. Ergo the docket or status calls preceding each jury calendar date.
That way the trial court could determine which and how many cases will actually be proceeding
to trial during the next month’s jury calendar. This is why defendant’s acquiescence to counsel’s
actions, clearly reflected in the record on January 31, tolled his speedy trial term from that date.
¶ 58 We also note the court in Lendabarker held that the trial court properly charged
the defendant with a continuance he requested to examine new evidence discovered by the State.
Id. at 555. Similarly, in this case defendant was seeking additional time to continue discovery.
We find it was not arbitrary or unreasonable for the trial court to conclude defendant’s request
for a continuance on January 31 had “the effect of moving back *** defendant’s discharge date.”
- 16 - See Cross, 2021 IL App (4th) 190114, ¶ 82. It is well-settled that “an agreed continuance
constitutes an affirmative act of delay attributable to the defendant which tolls the speedy-trial
term.” Kliner, 185 Ill. 2d at 115. Accordingly, the trial court’s attribution of delay to defendant
was not an abuse of discretion.
¶ 59 Because no underlying speedy-trial violation occurred, defendant has failed to
show that but for trial and appellate counsels’ failure to raise this issue, the charges would have
been dismissed or that his conviction would have been reversed on direct appeal. Absent such a
showing of prejudice, defendant’s ineffective assistance claims must fail. Accordingly, we
conclude the trial court’s dismissal of defendant’s petition at the second stage of proceedings was
proper and affirm the trial court’s judgment.
¶ 60 III. CONCLUSION
¶ 61 For the reasons stated, consistent with Illinois Supreme Court Rule 23 (eff. Jan. 1,
2021), we affirm the trial court’s judgment.
¶ 62 Affirmed.
¶ 63 JUSTICE TURNER, specially concurring:
¶ 64 I agree we should affirm the trial court’s judgment dismissing defendant’s
postconviction petition because no speedy trial violation occurred, and defendant, therefore, has
not made a substantial showing he was denied effective assistance of counsel. Nonetheless, I
write separately for two reasons. Specifically, I find paragraph 57 of the majority order
confusing. Accordingly, in its stead, I would simply conclude defendant requested a new trial
date, and in doing so, he also continued the January 31, 2018, pretrial date to March 21, 2018.
See supra ¶ 56 (noting counsel inquired “ ‘if we can continue both the trial date and do another
pre-trial’ ”). Thus, all the days at issue are chargeable to defendant. Additionally, although I
- 17 - agree with the commentary in paragraph 55 of the majority order, I do not believe the majority’s
observations in that paragraph affect a speedy trial calculation.
- 18 -