                                        2017 IL App (3d) 150213

                                 Opinion filed June 9, 2017
     _____________________________________________________________________________

                                                   IN THE


                                   APPELLATE COURT OF ILLINOIS


                                           THIRD DISTRICT


                                                    2017

     THE PEOPLE OF THE STATE OF                       )      Appeal from the Circuit Court
     ILLINOIS,                                        )      of the 13th Judicial Circuit,
                                                      )      La Salle County, Illinois.
            Plaintiff-Appellee,                       )
                                                      )      Appeal No. 3-15-0213
            v.                                        )      Circuit No. 03-CF-556
                                                      )
     ROBERT DALTON,                                   )      Honorable
                                                      )      Cynthia M. Raccuglia,
            Defendant-Appellant.                      )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE McDADE delivered the judgment of the court, with opinion.
           Justices Lytton and O’Brien concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          Defendant, Robert Dalton, appeals from the denial of his postconviction petition at the

     third stage. Defendant also appeals the sua sponte dismissal of his section 2-1401 petition. We

     reverse and remand for further proceedings.

¶2                                                 FACTS

¶3          On December 30, 2003, defendant was arrested and charged by information with two

     counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2000)), a Class 2 felony.

     Count I alleged that on July 16, 2001, defendant committed an act of sexual conduct with M.C., a

     minor between the ages of 13 and 17, by placing his penis in M.C.’s vagina. Count II alleged that
     defendant committed the same conduct with M.C. on November 7, 2001. The State later filed an

     indictment raising identical charges.

¶4          On May 17, 2004 (more than 120 days after the original charges were filed), the State

     filed an amended information adding four new charges. Counts III, IV, and V were different

     from the original charges in that they alleged that defendant committed the act of criminal sexual

     assault (720 ILCS 12-13(a)(3) (West 2000)) on three different occasions when M.C. and

     defendant resided in the same household continuously for at least one year. Count VI was

     identical to count I in that both counts were based on the same act alleged to have occurred on

     July 16, 2001, but count VI charged the greater Class 1 offense of criminal sexual assault and

     added an allegation that defendant committed the offense at a time when he and M.C. had

     resided in the same household continuously for at least one year.

¶5          Next, the parties met for a final pretrial conference. At the hearing, the parties informed

     the court that they wished to let the previously scheduled trial date remain unchanged. The court

     noted that there was a “time limit period,” and asked if there would be an issue if the parties let

     the trial date stand. Defense counsel responded that he wanted the trial date to remain the same

     and told the court, “[t]here’ll be no speedy trial issue.”

¶6          Following a trial, the jury found defendant guilty of counts III, IV, V, and VI. The trial

     court sentenced defendant to consecutive prison terms of 4, 6, 12, and 15 years, respectively. The

     jury did not receive an instruction on counts I and II, and the jury did not make a finding of guilt

     regarding those charges.

¶7          Defendant’s trial counsel filed a motion for new trial, which the trial court denied.

     Defendant then retained new counsel for the posttrial proceedings. Posttrial counsel filed a

     second motion for new trial and a motion to reconsider sentence. Initially, the court granted


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       defendant’s motion for new trial and ordered a new trial. However, the court later granted the

       State’s motion to reconsider and reinstated defendant’s convictions and sentences. None of the

       posttrial motions alleged that trial counsel provided ineffective assistance in failing to raise a

       speedy trial claim.

¶8            Defendant appealed. On appeal, counsel for defendant filed a motion to withdraw

       pursuant to Anders v. California, 386 U.S. 738 (1967). Counsel’s motion considered the

       following issues (and determined that they lacked merit): (1) whether the evidence was sufficient

       to sustain defendant’s conviction, (2) whether the trial court abused its discretion in allowing the

       admission of certain State exhibits, (3) whether the trial court abused its discretion in allowing

       M.C. to testify regarding sexual assaults that occurred in De Kalb County, (4) whether the

       decisions identified in posttrial counsel’s motion for new trial established claims of ineffective

       assistance of trial counsel, and (5) whether any error occurred at sentencing. This court granted

       appellate counsel’s motion and dismissed the appeal. People v. Dalton, No. 3-06-0041 (2007)

       (unpublished order under Supreme Court Rule 23).

¶ 9	          Subsequently, defendant filed a pro se petition for postconviction relief. The trial court

       docketed the petition and appointed counsel to represent defendant. After several amendments to

       the petition, counsel filed an amended petition, adopting defendant’s pro se claims and adding

       the claim that defendant’s prior attorneys all provided ineffective assistance for failing to raise

       the issue that defendant’s speedy trial rights had been violated regarding counts III, IV, V, and

       VI. The State filed a motion to dismiss, arguing that defendant’s right to a speedy trial was not

       violated because the newly added counts alleged separate acts on different dates than those

       alleged in the original counts. The State acknowledged that there “may be an issue” with respect

       to count VI because it was based on the same act alleged in count I. However, the State argued


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       that the late filing of count VI did not implicate defendant’s speedy trial right because the new

       count merely alleged an “upgraded” version of the charge in count I.

¶ 10             At a hearing on the State’s motion to dismiss defendant’s amended postconviction

       petition, the trial court found that defendant’s speedy trial claim warranted a third-stage

       postconviction hearing. The court continued the cause and allowed the parties to file additional

       briefs on the issue.

¶ 11             Prior to the third-stage hearing on defendant’s amended postconviction petition,

       defendant filed a pro se document captioned “725 ILCS 5/122-1(c)(a)(2)/735 ILCS 5/2-1401

       Supplement-Addition Motion.” Defendant’s pro se motion alleged a new claim of newly

       discovered evidence that established both a “412 Brady violation” and defendant’s actual

       innocence.

¶ 12             On March 26, 2015, the parties appeared in court for the third-stage hearing on

       defendant’s amended postconviction petition. At the hearing, the trial court noted defendant’s

       newly filed pro se document. Appointed counsel told the court that he did not adopt the claims in

       the pro se petition. Defendant then explained that he intended the newly filed pro se document to

       be a separate filing from counsel’s amended postconviction petition. Specifically, defendant

       argued:

                        “By law, Illinois Constitutional law and I says underneath 21401 new evidence

                        and then underneath actual innocence claimed 725 ILSC [sic] and then 735 ILSC

                        [sic] 21401 that I can at any time pro se file a motion underneath the new

                        evidence if it becomes available to me which I can likely prove that it did.”

¶ 13             The trial court allowed defendant to file his pro se petition, referring to the petition as a

       “2nd post-conviction” petition. The court summarily dismissed the petition as it failed to raise


                                                          4

       any newly discovered evidence. The State did not provide any input regarding defendant’s pro se

       petition.

¶ 14           Next, the trial court considered appointed counsel’s amended postconviction petition. The

       court found that the late filing of counts III, IV, and V did not violate defendant’s speedy trial

       rights as the new counts charged different offenses based on distinct acts. The court also found

       that the late filing of count VI did not violate defendant’s speedy trial right, even though count

       VI charged an offense based on the same act as count I, because it was merely an “upgraded”

       version of count I. The court denied defendant’s amended postconviction petition.

¶ 15                                              ANALYSIS

¶ 16           At the outset, we note that during the pendency of this appeal, defendant filed a letter in

       this court asking that he be allowed to supplement appointed counsel’s brief. “If a defendant is

       represented by appellate counsel, whether appointed or privately retained, he has no right to a

       ‘hybrid appeal’ in which he alternates between being represented by counsel and proceeding

       pro se through the filing of a supplemental pro se brief. [Citation.] Defendant, therefore, has no

       right to present his pro se arguments to this court [citations] ***.” People v. Thompson, 331 Ill.

       App. 3d 948, 951-52 (2002). Accordingly, we deny defendant’s request to supplement appointed

       counsel’s brief.

¶ 17           On appeal, defendant contends that the trial court erred when it denied his amended

       postconviction petition at the third stage. In addition, defendant contends the court erred in sua

       sponte dismissing his separate pro se “section 2-1401” petition because it was not ripe for

       adjudication. Upon review, we find defendant is entitled to postconviction relief where appellate

       counsel provided ineffective assistance in failing to raise a meritorious speedy trial claim. As to

       defendant’s claim regarding his section 2-1401 petition, we find the trial court erred in sua


                                                        5

       sponte dismissing the petition prior to the expiration of the 30-day period during which the State

       may move to dismiss or otherwise plead.

¶ 18                                         I. Postconviction Petition

¶ 19           As to defendant’s first argument, we initially note that at the third stage of postconviction

       proceedings, defendant bears the burden of making a substantial showing of a constitutional

       violation. People v. Coleman, 206 Ill. 2d 261, 277 (2002). In instances such as the present, where

       no new evidence is presented and the issues presented are pure questions of law, we apply a

       de novo standard of review. People v. Caballero, 206 Ill. 2d 65, 87-88 (2002).

¶ 20           Defendant contends that his speedy trial rights were violated when the State filed count

       VI more than 120 days after it filed the original charges. 1 Thus, defendant concludes that he

       made a substantial showing that he was deprived of effective assistance of counsel when

       appellate counsel failed to raise the speedy trial issue on appeal. We begin by examining the

       merits of defendant’s underlying speedy trial claim as that issue is the foundation for defendant’s

       ineffective assistance claim.

¶ 21           The speedy trial statute provides that any person who is held in custody on criminal

       charges must be tried within 120 days. 725 ILCS 5/103-5(a) (West 2002). The 120-day limitation

       applies both to charges that have been filed against defendant and charges that have not yet been

       filed but would be subject to mandatory joinder with the originally filed charges. People v.

       Williams, 204 Ill. 2d 191, 198 (2003). Multiple offenses are subject to mandatory joinder when

       they are all based on the same act by defendant. 720 ILCS 5/3-3(b) (West 2002). Consequently, a

       defendant held in custody and charged with a single offense must be tried within 120 days not

       only for that offense but also for any other offenses that could be charged based on the same

               1
               Defendant makes no argument that the trial court erred in concluding that his speedy trial rights
       were not violated as to counts III, IV, and V.
                                                          6

       underlying act. Williams, 204 Ill. 2d at 198. The remedy for a speedy trial violation is dismissal

       of the charges. 725 ILCS 5/103-5(d) (West 2002).

¶ 22          Generally, the 120-day period under the speedy trial statute can be extended by a delay of

       trial that is attributable to the defense. 725 ILCS 5/103-5(a) (West 2002). Delay is attributable to

       a defendant whenever he agrees to a continuance of trial. People v. Ingram, 357 Ill. App. 3d 228,

       232-33 (2005). However, a defendant can only agree to the continuance of trial with respect to

       offenses with which he is actually charged. Williams, 204 Ill. 2d at 207. Put another way, if a

       defendant is in custody and charged with one offense and agrees to continue his trial, that

       agreement tolls the 120-day period with respect to the charged offense but does not toll the 120­

       day period for any uncharged offenses based on the same act. Id. Consequently, when a

       defendant is charged with an offense based on conduct that could support charges of multiple

       offenses, the State must file any additional charges based on that conduct within 120 days. Any

       additional charges filed beyond the 120-day period violate the speedy trial statute. Id. at 207-08.

¶ 23          In the present case, the 120-day speedy trial clock began December 30, 2003, when the

       State charged defendant with two counts of aggravated criminal sexual abuse. Count I of the

       charging instrument alleged that defendant committed the offense of aggravated criminal sexual

       abuse on July 16, 2001, when he placed his penis in M.C.’s vagina. Therefore, any other offenses

       that could have been charged based on the same physical act alleged in count I must have been

       filed prior to the expiration of the 120-day period. However, more than 120 days later (May 17,

       2004), the State charged defendant with the separate offense of criminal sexual assault. Count VI

       was based on the same act as count I, but included the allegation that defendant and M.C. had

       lived together continuously for at least one year. In addition, the newly filed charge alleged a

       greater class of felony (Class 1 as opposed to Class 2). Because both counts were based on the


                                                        7

       same physical act, we find defendant’s right to a speedy trial was violated when the State filed

       the additional charge more than 120 days after filing the original charges.

¶ 24            In reaching this conclusion, we reject the State’s argument that defendant’s right to a

       speedy trial was not violated because count I provided adequate notice to defendant against the

       late-filed count VI. Specifically, the State argues defendant had adequate notice as to count VI

       because it alleged the same act, date, parties, and the witnesses involved as count I. To support

       this proposition, the State relies on the decisions in People v. Staake, 2016 IL App (4th) 140638,

       pet. for leave to appeal granted, No. 121755 (March 29, 2017), and People v. Phipps, 238 Ill. 2d

       54 (2010). We find the cases relied upon by the State distinguishable.

¶ 25            In Staake, the court held that the State can “upgrade” a second degree murder charge to

       first degree murder without implicating the speedy trial statute because second degree murder is

       a lesser mitigated version of first degree murder. Staake, 2016 IL App (4th) 140638, ¶ 71. In

       Phipps, the court considered the amended reckless homicide and driving under the influence

       (DUI) statutes, which essentially eliminated the offense of reckless homicide with the

       aggravating factor of intoxication and replaced it with the offense of aggravated DUI with the

       aggravating factor of causing a death. Phipps, 238 Ill. 2d at 68-69. Phipps ultimately held that

       where the State had originally charged defendant with reckless homicide under the old statute, it

       could replace that charge with a charge of aggravated DUI under the new statute without

       implicating mandatory joinder or the speedy trial statute because the charges were identical. Id.

       at 70.

¶ 26            By contrast, counts I and VI in this case charged distinct offenses with different elements.

       In other words, this is not a case where the late-filed charge is merely an “upgraded” charge or




                                                         8

       identical offense. In addition, neither offense is a lesser-included or lesser-mitigated offense of

       the other. Staake and Phipps are, therefore, distinguishable from the present case.

¶ 27          We now return to defendant’s contention that appellate counsel provided ineffective

       assistance for failing to raise the speedy trial violation on appeal. In order to show

       ineffectiveness of appellate counsel, a defendant must establish both a deficiency in counsel’s

       performance and prejudice resulting from that deficiency. People v. Edwards, 195 Ill. 2d 142,

       163 (2001).

¶ 28          The speedy trial statute is clear and its application is straightforward. 725 ILCS 5/103-5

       (West 2002). The State failed to file the additional charge (count VI) within the 120-day period.

       There is no strategic reason for trial counsel to fail to move to dismiss a charge that violates

       defendant’s right to a speedy trial. See People v. Hawkins, 212 Ill. App. 3d 973, 983 (1991);

       People v. Alcazar, 173 Ill. App. 3d 344, 354 (1988). Appellate counsel’s failure to raise this issue

       on appeal is objectively unreasonable and therefore constitutes deficient performance. See

       People v. Stanley, 266 Ill. App. 3d 307, 311 (1994) (finding that appellate counsel’s failure to

       raise speedy trial violation amounted to deficient performance).

¶ 29          Turning to the question of prejudice, defendant must demonstrate that there is a

       reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings

       would have been different. People v. Evans, 186 Ill. 2d 83, 93 (1999). Had trial counsel moved

       to dismiss count VI, the court would have been required to dismiss the count. More practically,

       defendant would not have been convicted and sentenced for this offense. See 725 ILCS 5/103­

       5(d) (West 2002); People v. Woodrum, 223 Ill. 2d 286, 299 (2006). As a result, appellate

       counsel’s deficient performance in failing to raise the speedy trial violation resulted in prejudice

       to defendant.


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¶ 30           Accordingly, we find that defendant made a substantial showing of his constitutional

       claim that appellate counsel provided ineffective assistance. Therefore, the trial court erred in

       denying defendant postconviction relief on this claim.

¶ 31           In coming to this conclusion, we reject the State’s argument that defendant waived and

       forfeited the above issue. Defendant filed his postconviction petition and alleged ineffective

       assistance of appellate counsel for failing to raise trial counsel’s ineffectiveness regarding the

       speedy trial violation—an issue that had never been raised in the prior proceedings. The doctrine

       of waiver does not bar consideration of issues in postconviction proceedings where the alleged

       waiver stems from the incompetency of appellate counsel. See People v. Flores, 153 Ill. 2d 264,

       282 (1992) (noting that a postconviction claim of ineffective assistance of appellate counsel that

       could not have been raised in the prior proceedings is neither waived nor res judicata).

¶ 32                                           II. Section 2-1401 Petition

¶ 33           Next, defendant argues that the trial court erred when it sua sponte dismissed his pro se

       petition seeking relief pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2­

       1401 (West 2014)) because dismissal occurred at a time the petition was not ripe for

       adjudication. 2 Section 2-1401 provides a statutory procedure to vacate a final judgment that is

       more than 30 days but less than 2 years old. 735 ILCS 5/2-1401 (West 2014). Pursuant to Illinois

       Supreme Court Rule 106 (eff. Aug. 1, 1985), service of a section 2-1401 petition must be made

       by the means set out in Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989). Rule 105(b) provides

       that notice may be served by summons, prepaid certified or registered mail, or publication. Ill. S.
               2
                 We note defendant’s pro se petition referenced the Post-Conviction Hearing Act (725 ILCS
       5/122-1 et seq. (West 2012)) and the trial court referred to defendant’s pro se petition as a postconviction
       petition. However, defendant’s petition was substantively a section 2-1401 petition for relief from
       judgment. We therefore, treat defendant’s petition as a section 2-1401 petition. See Sarkissian v. Chicago
       Board of Education, 201 Ill. 2d 95, 102 (2002) (the character of pleading is determined by its content, not
       its label). Moreover, neither party disputes the substance of defendant’s petition. Both parties instead refer
       to the petition as a section 2-1401 petition on appeal.
                                                            10 

       Ct. R. 105(b) (eff. Jan. 1, 1989). After notice has been served, the responding party has 30 days

       to answer or otherwise plead in response to the petition. People v. Laugharn, 233 Ill. 2d 318, 323

       (2009). When the responding party fails to answer the petition within the 30-day period, it is

       deemed to admit all well-pleaded facts and the petition is ripe for adjudication. People v.

       Vincent, 226 Ill. 2d 1, 9-10 (2007). The court can dismiss a petition despite a lack of responsive

       pleading if the petition is deficient as a matter of law. Id. at 8-9. However, the court cannot sua

       sponte dismiss a petition before the 30-day response period expires. Laugharn, 233 Ill. 2d at 323.

       We review the dismissal of a section 2-1401 petition de novo. People v. Carter, 2015 IL 117709,

       ¶ 13.

¶ 34           In the present case, neither party contests whether defendant adequately served the State

       with notice of his section 2-1401 petition. The trial court allowed defendant to file the petition at

       a hearing on March 26, 2015. Therefore, the State had actual notice of the petition as it was in

       court on the day of the hearing and received a copy of the petition. At the hearing, however, the

       court sua sponte dismissed the petition (less than 30 days after the date of service). Because the

       dismissal occurred prior to the expiration of the 30-day period, we find dismissal was

       premature. 3

¶ 35           In reaching this conclusion, we reject the State’s contention that it waived the 30-day

       period in which to answer or otherwise plead because an assistant State’s Attorney was present

       in court at the time of the filing of the petition. The State contends that the assistant State’s

       Attorney’s presence in court and acknowledgement of the filing of the section 2-1401 petition on

       that date effectively waived the answer requirement. The only exceptions to the 30-day
               3
                  We recognize that the filing date of a section 2-1401 petition is the date it is received by the
       circuit court clerk. See Wilson v. Brant, 374 Ill. App. 3d 306, 310 (2007). In this case it is immaterial
       whether we consider the date of filing to be the date of mailing, the date the State received a copy, or the
       date the petition was received by the clerk because all three dates are less than 30 days from the date of
       the trial court’s dismissal.
                                                           11 

       requirement are a responsive pleading filed by the State (People v. Zimmerman, 2016 IL App

       (2d) 130350, ¶ 16) or an express indication on the record of the State’s intent to waive the time

       allotted for a response and consent to the court’s early decision on the merits—silence will not

       suffice (see, e.g., People v. Gray, 2011 IL App (1st) 091689, ¶ 22). The record shows that the

       State took no affirmative action regarding defendant’s section 2-1401 petition. The State’s

       inaction is insufficient to waive the 30-day response period.

¶ 36                                            CONCLUSION

¶ 37          The judgment of the trial court of La Salle County is reversed, and the matter remanded

       with directions for the trial court to vacate defendant’s conviction and sentence under count VI,

       and for further proceedings on defendant’s section 2-1401 petition.

¶ 38          Reversed and remanded with instructions.




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