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                                 Appellate Court                         Date: 2017.08.07
                                                                         12:43:58 -05'00'




                   People v. Dalton, 2017 IL App (3d) 150213



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           ROBERT DALTON, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-15-0213



Filed             June 9, 2017



Decision Under    Appeal from the Circuit Court of La Salle County, No. 03-CF-556; the
Review            Hon. Cynthia M. Raccuglia, Judge, presiding.



Judgment          Reversed and remanded with instructions.


Counsel on        Michael J. Pelletier and Fletcher P. Hamill, of State Appellate
Appeal            Defender’s Office, of Elgin, for appellant.

                  Karen K. Donnelly, State’s Attorney, of Ottawa (Mark A. Austill, of
                  State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.



Panel             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 5/12-13(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
     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


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       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 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
       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.


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¶ 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 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 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
           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.

                                                     -4-
       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 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, appeal allowed, No. 121755 (Ill. Mar. 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
       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.

                                                    -5-
¶ 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.
¶ 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

           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

                                                     -6-
       more than 30 days but less than 2 years old. Id. 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. 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
       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.

       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.
           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.

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