People v. Thomas

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

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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

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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

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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.

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¶ 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

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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

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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.”

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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

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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

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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

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¶ 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

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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

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 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

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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.

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¶ 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.”

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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

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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.

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