                                                                      THIRD DIVISION
                                                                      September 27, 2006

No. 1-05-1559

THE PEOPLE OF THE STATE OF ILLINOIS,                  )      Appeal from the
                                                      )      Circuit Court of
       Plaintiff-Appellee,                            )      Cook County.
                                                      )
v.                                                    )      No. 98 CR 30440
                                                      )
WINFRED OLIVER,                               )       The Honorable
                                                      )      Garritt E. Howard,
       Defendant-Appellant.                   )       Judge Presiding.


       JUSTICE GREIMAN delivered the opinion of the court:

       After a jury trial, defendant Winfred Oliver was found guilty of two counts of predatory

criminal sexual assault of a child and was sentenced to two consecutive 50-year terms of

imprisonment. On direct appeal, we affirmed defendant=s conviction, vacated the imposition of

consecutive sentences, finding that the trial court did not make a determination as to whether

defendant=s actions constituted a single course of conduct before imposing mandatory

consecutive sentences, and remanded the case for resentencing. People v. Oliver, No. 1-00-2089

(December 12, 2002) (unpublished order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23)).

On remand, the trial court determined that consecutive sentences were appropriate and

sentenced defendant to the same 50-year terms. Defendant appealed and we affirmed the trial

court=s judgement. People v. Oliver, 1-03-3388 (June 30, 2005) (unpublished order pursuant to

Supreme Court Rule 23 (166 Ill. 2d R. 23)). Thereafter, defendant filed a pro se postconviction

petition, alleging, inter alia, that his constitutional rights were violated when he was not

provided with effective assistance of appellate counsel. The trial court assigned an assistant

public defender to defendant=s case and defendant=s postconviction petition was supplemented.
1-05-1559

The trial court dismissed defendant=s petition, finding that the issues raised therein were barred

by the doctrine of res judicata. Defendant appeals, contending that the trial court erred in

dismissing his postconviction petition when he made a substantial showing that his appellate

counsel on direct appeal was ineffective. Defendant further contends that the issues raised in his

postconviction petition are not barred by the doctrine of res judicata.

          Defendant was arrested on December 15, 1997, and was charged with two counts of

predatory criminal sexual assault occurring in 1995 and 1996. A public defender was assigned

to defendant=s case two days later. On May 5, 1998, the trial court conducted a Supreme Court

Rule 402 (177 Ill. 2d R. 402) conference, then continued the case by agreement to May 12, 1998.

That day, defendant requested to represent himself and to plead guilty and provided the court

with a written plea request, which the court characterized as Abizarre@ and Arambling.@

Accordingly, the court ordered a fitness examination to determine defendant=s fitness to stand

trial. Inexplicably, the court=s order was not followed. On June 18, 1998, the court reordered a

fitness examination. Again, the examination was not completed. On July 22, 1998, the court

ordered a fitness examination for the third time, returnable August 3, 1998, by agreement of the

public defender. The examination was completed on July 30, 1998. On August 3, 1998,

defendant was found able with medication to assist in his defense.

          On March 23, 1999, the trial court heard defendant=s motion to dismiss the charges

against him because his right to a speedy trial had been violated. As we explained on direct

appeal:

                 A[T]he trial court informed the defendant that the administrative delays



                                                 -2-
1-05-1559

       with regard to the fitness exams would not be chargeable to him if he was

       >running a term at that time.= Implicitly, the trial court was referencing the

       requirements of sections 103-5(d) and 114-1(a)(1) of the Speedy Trial Act (725

       ILCS 5/103-5(d), 114-1(a)(1) (West 1998)), which state that a defendant not tried

       within the 120 day period under that statute shall be discharged from custody and

       have the charges dismissed. Apparently, the trial court was advising the

       defendant that if the 120 day period had begun to toll or was running at the time

       of the administrative delays, those delays would not be attributable to the

       defendant. Nevertheless, the court found that the statute of limitations had not

       begun to toll and did not credit the time to the defendant for purposes of the

       Speedy Trial Act. The motion to dismiss was then denied.@ Oliver, No. 1-00-

       2089, slip op. at 6.

       The case proceeded to a jury trial on October 6, 1999. Defendant was found guilty of

two counts of predatory criminal sexual assault and was sentenced to two consecutive 50-year

prison terms.

       Defendant appealed, contending, inter alia, Athat because it took nearly 2 years to try

him-well beyond the 120-day requirement listed in the Speedy Trial Act - his conviction must be

reversed and the charges dismissed.@ Oliver, No. 1-00-2089, slip op. at 36. Specifically,

defendant argued that the administrative delay resulting from the unsuccessful fitness hearing

orders should not have been charged to him because he had not occasioned the delay. Instead,

defendant argued, the delay should be attributed to the trial court.



                                                -3-
1-05-1559

       We rejected defendant=s contention. On the subject, we wrote in our modified order upon

denial of rehearing disposing of defendant=s appeal:

               AWhile the defendant claims that the two continuances totaling 71 days

       (granted for the purpose of obtaining a fitness evaluation of the defendant) should

       not be charged to him, the State correctly argues that it is well-established that

       such continuances do, in fact, toll the Speedy Trial term. See, e.g., People v.

       Plair, 292 Ill. App. 3d 396, 399 (held that where the defendant put in a fitness

       request the Speedy Trial term was tolled). This is true regardless of whether the

       defendant, the State, or the court sua sponte moves or orders the evaluation, for

       purposes of tolling the statute. See People v. Seaman, 203 Ill. App. 3d 871, 878-

       81, appeal denied, 135 Ill. 2d 564 (1990) (statute tolled where the state moved ex

       parte for a fitness exam); People v. Clark, 148 Ill. App. 3d 669, 672-77 (1986)

       (statute tolled where the state moved for a fitness hearing over the defense

       counsel=s objections, even though no fitness hearing was found to be necessary

       following the examination); People v. Browry, 8 Ill. App. 3d 599 (1972) (trial

       court=s order for competency hearing tolled this paragraph); People v. Murdock, 3

       Ill. App. 3d 746, 749-50 (statute tolled where the trial court ordered a fitness

       hearing). The fact that such a hearing was occasioned by a 83-day delay is also of

       little consequence, where delays of 87 days (People v. Turley, 235 Ill. App. 3d

       917, 921 (1992)) and as much as six months (Murdock, 3 Ill. App. 3d at 750)

       have been found not to be >unreasonable and oppressive, therefore violating



                                                -4-
1-05-1559

        Defendant=s right to a speedy trial.= Murdock, 3 Ill. App. 3d at 750. Accordingly,

        we agree with the trial court that defendant had not begun >running a term= and,

        therefore, that his right to a speedy trial was not violated. Defendant was correct

        in stating that >[t]he delay with respect to the fitness orders will be determinative=

        .@ Oliver, No. 1-00-2089, slip op. at 37-38.

        Thereafter, defendant filed a pro se postconviction petition raising several allegations of

ineffective assistance. The court assigned an assistant public defender to defendant=s case and

his petition was supplemented. The State filed a motion to dismiss the postconviction petition,

arguing that defendant=s claims were barred by the doctrine of res judicata and waiver and that

his petition failed to state a substantial violation of defendant=s constitutional rights.

        The court granted the State=s motion to dismiss, finding that the issues raised by

defendant were barred by the doctrine of res judicata and noting that the trial court was obliged

to order a fitness evaluation and thereafter Aeverything else is placed on hold.@ The court further

held that defendant could not meet the standard for establishing ineffective assistance of counsel.

        On appeal, defendant contends that the trial court erred in dismissing his post-conviction

petition when he made a substantial showing that his appellate counsel was ineffective for failing

to raise the issue of his trial counsel=s ineffectiveness when his trial counsel failed to demand

trial when a fitness examination of defendant that had been ordered by the court was not

submitted to the court and the parties within 30 days of the court=s order. In support of his

argument, defendant notes that section 104-15(a) of the Code of Criminal Procedure of 1963 (the

Code) (725 ILCS 5/104-15(a) (West 1994)) requires that, when a court orders a fitness



                                                  -5-
1-05-1559

examination of a defendant, the person conducting the examination must submit a written report

to the court, the State and the defense within 30 days of the order for examination. Defendant

cites People v. Harris, 113 Ill. App. 3d 663 (1983), and People v. Guttierez, 271 Ill. App. 3d 301

(1995), for the proposition that discharge of a defendant is required when the requirements of

section 104-15(a) of the Code are not satisfied. Accordingly, defendant argues that, had his trial

counsel raised an objection to the delay pursuant to seciton 104-15(a), defendant would have

been discharged or the ensuing delay would have been charged to the State.

       Defendant further contends that the trial court erred in dismissing his postconviction

petition when he made a substantial showing that his appellate counsel was ineffective in failing

to alert this court that we had wrongly based our ruling on direct appeal on an amendment to

section 103-5(a) of the Code that did not apply to defendant=s case. Defendant points out that in

our order, we quoted an amendment to section 103-5(a) of the Code that was not effective until

January 1, 1999, after the commission of defendant=s crimes and after the court=s orders for a

fitness examination.

       The State first responds that these issues are barred by the doctrine of res judicata.

       AA post-conviction petition >represents a collateral attack on a prior judgment; it is

       not an appeal from the underlying conviction and sentence.= [Citation.] As a

       result, in post-conviction proceedings the >[d]eterminations of the reviewing court

       on the prior direct appeal are res judicata as to issues actually decided.= [Citation.]

       A post-conviction petitioner may not avoid the bar of res judicata simply by

       rephrasing issues previously addressed in direct appeal.@ People v. Williams, 186



                                                -6-
1-05-1559

        Ill. 2d 55, 62 (1999).

        We agree with defendant that neither of these issues was addressed on direct appeal. On

appeal, we determined that the speedy trial term was not tolled by the delay while the court and

parties waited for the return of defendant=s fitness examination. We did not, however, assess

what the result would have been had defendant=s trial counsel invoked section 104-15(a) of the

Code when the examination report was not submitted within 30 days. On appeal, we also did not

address whether the preamendment or postamendment version of section 103-5(a) of the Code

applied or whether such a determination would change our analysis of the speedy trial issue.

Because we do not believe that the specific issues raised by defendant in his postconviction

petition were actually decided on direct appeal, we believe that it was improper to dismiss the

petition on the basis that it was barred by the doctrine of res judicata. However, we nonetheless

find that summary dismissal of the petition was proper because defendant failed to state a

constitutional claim of ineffective assistance of appellate counsel.

        A defendant is entitled to effective assistance of counsel on appeal. People v. Coleman,

168 Ill. 2d 509, 522 (1995). Ineffective-assistance-of-appellate-counsel claims are evaluated

pursuant to the standard set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,

104 S. Ct. 2052 (1984). Coleman, 168 Ill. 2d at 523. Pursuant to Strickland, a defendant must

prove A(1) that his counsel made errors so serious, and his performance was so deficient, that he

was not functioning as >counsel= guaranteed the defendant by the sixth amendment to the United

States Constitution, and (2) that these deficiencies so prejudiced the defendant as to deprive him

of a fair trial, a trial whose result is reliable.@ People v. Caballero, 126 Ill. 2d 248, 259-60 (1989),



                                                  -7-
1-05-1559

citing Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. AWe note that

appellate counsel >has no obligation to raise every conceivable argument which might be made,

and counsel=s assessment of what to raise and argue will not be questioned unless it can be said

that his judgment in this regard was patently erroneous.= @ Coleman, 168 Ill. 2d at 523, quoting

People v. Collins, 153 Ill. 2d 130, 140 (1992). If the issue underlying a defendant=s claim of

ineffective assistance of appellate counsel is not meritorious, obviously the defendant did not

suffer prejudice due to appellate counsel=s failure to raise it. Coleman, 168 Ill. 2d at 523.

        Concerning defendant=s first contention, that his appellate counsel was ineffective for

failing to raise the issue of his trial counsel=s effectiveness for failing to raise an objection,

pursuant to section 104-15(a) of the Code, when defendant=s fitness examination report was not

submitted within 30 days from the date it was ordered, we note that, contrary to defendant=s

assertions, Harris and Guttierez do not stand for the proposition that failure to comply with

section 104-15(a) requires discharge of a defendant, and, indeed, our independent research has

revealed no Illinois case standing for such a proposition.

        In Harris, neither the parties nor the court questioned the defendant=s fitness before or

during trial. After the defendant was convicted, but before his sentencing hearing, he attempted

suicide. Defense counsel requested a fitness examination. The court ordered an examination,

limited to the question of whether the defendant was fit to participate in his sentencing hearing

and the resulting report was so limited. The defendant=s presentencing investigation report

revealed a history of mental health problems. The court never conducted a fitness hearing and

proceeded to sentence the defendant. On appeal, we held that the court should have held a fitness



                                                  -8-
1-05-1559

hearing and reversed and remanded the cause for a new trial. Because the issue could recur on

remand, we addressed the defendant=s contention that the fitness report failed to comply with the

requirements of section 104-15(a) of the Code. We observed that the report did not comply

because it did not include an explanation as to how the diagnosis was reached and the facts upon

which it was based. We expressed hope that, on remand, such errors would not be repeated. See

also People v. Matthews, 126 Ill. App. 3d 710, 713 (1984) (noting that, in Harris, Awe granted

defendant a new trial because of the trial court=s failure to hold a competency hearing despite

evidence which we felt gave rise to a reasonable doubt as to the defendant=s fitness to stand trial.

This holding obviated the need to address the defendant=s contention concerning the adequacy of

his psychological fitness report. However, in an effort to avoid a second appeal involving this

issue, we addressed it@).

       In Guttierez, we again noted that section 104-15(a) of the Code required that a fitness

examination report include a diagnosis, an explanation as to how the diagnosis was reached, the

facts upon which the diagnosis was based and a description of the defendant=s mental disability.

We noted that the report in Guttierez failed to comply with those requirements because it did not

explain how the examining doctor=s findings were reached or the facts upon which the findings

were based. However, we found that the information contained in the report was sufficient to

trigger the court=s duty to conduct a fitness hearing and that clearly such a hearing should have

been conducted. Accordingly, we reversed and remanded the cause.

       A more instructive case is People v. Durham, 142 Ill. App. 3d 473 (1986). In Durham,

the defendant contended on appeal that he should have been discharged when the court failed to



                                                -9-
1-05-1559

conduct a fitness hearing within 45 days of receipt of the defendant=s fitness examination report

as was required by section 104-16(a) of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 104-16(a)

(now see 725 ILCS 5/104-16(a) (West 2004))). We wrote:

       ADefendant is correct in his contention that he had no fitness hearing within the

       time frame set therein. However, section 104-16 provides no sanction for such a

       violation. Section 103-5(d) of the Code [citation] requires a discharge if speedy

       trial provisions are not met, but when other statutory or constitutional

       requirements for a prompt hearing are not accompanied by provisions for

       sanctions, no dismissal or imposition of other sanction has been required.

       [Citations.] Ordering a discharge here for tardiness in holding the fitness hearing

       is neither appropriate nor required.@ Durham, 142 Ill. App. 3d at 484.

       Like section 104-16 of the Code, discussed in Durham, section 104-15 itself provides no

sanction for a violation of its mandate that a fitness examination should be submitted to the

parties and the court within 30 days from when it is ordered. Accordingly, even if trial counsel

had raised the objection contemplated by defendant, he would not have been successful in

obtaining defendant=s discharge. Additionally, defendant has not cited authority supporting his

position that, had his trial counsel raised an objection due to noncompliance with section 104-

15(a), the subsequent delay would not have been charged to defendant. As discussed in our

order on direct appeal, continuances to obtain a fitness examination toll the term set out in

section 103-5 of the Code. See Oliver, No. 1-00-2089, slip op. at 37-38. Because we find that

the issue underlying this claim of ineffective assistance of appellate counsel is without merit, we



                                               -10-
1-05-1559

find that defendant failed to adequately state this particular claim of ineffective assistance.

Accordingly, this claim was properly dismissed.

       Defendant next contends that appellate counsel was ineffective for failing to bring to this

court=s attention that, in deciding defendant=s direct appeal, we cited an inapplicable amendment

to section 103-5(a) of the Code.

       At the time that of the commission of defendant=s crimes and during the delay caused by

the court=s request for a fitness examination of defendant, section 103-5(a) of the Code provided

that every person in custody for an alleged offense shall be tried

       Awithin 120 days from the date he was taken into custody unless delay is

       occasioned by the defendant, by an examination for fitness pursuant to Section

       104-13 of this Act, by a fitness hearing, by an adjudication of unfitness to stand

       trial, by a continuance allowed pursuant to Section 114-4 of this Act after a

       court=s determination of the defendant=s physical incapacity for trial, or by an

       interlocutory appeal.@ 725 ILCS 5/103-5(a) (West 1996).

However, Public Act 90-705 amended section 103-5(a) of the Code, providing, ADelay 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.@ Pub. Act 90-705 ' 5, eff.

January 1, 1999. This amendment did not take effect until January 1, 1999.

       Here, defendant and the State dispute whether Public Act 90-705 applied to defendant=s

case. Defendant argues that the preamendment statute, which was in effect when the crimes

were committed, when the trial court ordered the fitness examination and when the fitness



                                                -11-
1-05-1559

examination report was tendered to the court and the parties, should apply to his case. The State

argues that the amended statute should apply retroactively to defendant=s case because the

amendment was a procedural rather than a substantive change in the law. We need not address

whether the amendment applied to defendant=s case because, in any case, the amendment did not

affect our finding on direct appeal that the speedy trial term was tolled by the order for a fitness

examination of defendant.

       If, as defendant contends, we had indeed based our holding on the amendment to section

103-5(a) of the Code, and defendant were correct that the amendment did not apply to

defendant=s case, appellate counsel may in fact have been ineffective for failing to bring the error

to this court=s attention. However, on direct appeal, we based our holding on the language of the

statute and on the many cases, decided prior to the effective date of Public Act 90-705, which

provide that a delay occasioned by a fitness examination tolls the speedy trial term regardless of

whether the defendant objected to the delay. Accordingly, while we quoted section 103-5(a) of

the Code as amended by Public Act 90-705, our holding was not based on the fact that defendant

did not object to the delay. Defendant has not shown that he was prejudiced by his appellate

counsel=s failure to argue to the court that Public Act 90-705 did not apply to defendant=s case.

We therefore find that the trial court did not err in dismissing this allegation of defendant=s

postconviction petition.

       For the above-stated reasons, we affirm the judgment of the trial court.

       Affirmed.

       CAMPBELL and MURPHY, JJ., concur.



                                                -12-
1-05-1559




            -13-
