Opinion
1-19-2214
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. HERIBERTO QUEZADA, Petitioner-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 10 CR 21490 Honorable William Gamboney, Judge Presiding.
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Howse and Cobbs concurred in the judgment.
ORDER
FITZGERALD SMITH, PRESIDING JUSTICE
¶ 1 Held: The circuit court erred in summarily dismissing the petitioner's pro se postconviction petition where the petitioner made arguable claims of ineffective assistance of trial and appellate counsels. Trial counsel was ineffective for failing to file a motion to dismiss the petitioner's charges after the statutory 120-day period had expired (725 ILCS 5/103-5(a) (West 2010)), and appellate counsel was ineffective for failing to raise this claim on direct appeal.
¶ 2 The petitioner, Heriberto Quezada, appeals from the circuit court's summary dismissal of his postconviction petition filed pursuant to the Postconviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)). On appeal, the petitioner contends that the circuit court erred in summarily dismissing his petition where he made an arguable claim of ineffective assistance of trial and appellate counsels. Specifically, the petitioner argues that his trial counsel was ineffective for failing to file a motion to dismiss the charges against him where his statutory right to a speedy trial had been violated (725 ILCS 5/103-5(a) (West 2010)). He further argues that appellate counsel was ineffective for failing to raise this issue on direct appeal. For the following reasons, we reverse the circuit court's order, dismiss all the charges against the petitioner and vacate his conviction.
¶ 3 I. BACKGROUND
¶ 4 The record before us reveals the following relevant facts and procedural history. The petitioner was 15 years old when he was arrested on November 18, 2010, and charged, as an adult, with inter alia, two counts of attempted murder and two counts of aggravated battery with a firearm for his involvement in the shooting of two victims. The petitioner was arraigned on December 23, 2010, and he remained in custody throughout the pretrial proceedings. The petitioner retained and was represented by private counsel.
¶ 5 The parties do not dispute that after the petitioner was arraigned, his case was continued by agreement from December 23, 2010, to March 11, 2013, which was the date set for trial. On March 11, 2013, the State informed the court that it was unprepared, and the petitioner filed a written demand for trial. Upon the State's request, the circuit court then continued the case to March 18, 2013.
¶ 6 On March 18, 2013, the petitioner moved for a continuance to respond to two motions filed by the State in the interim: (1) a motion to bar defense counsel from representing the petitioner because counsel had allegedly witnessed a telephone call with a key witness; and (2) a motion to compel defense counsel to tender all notes related to that telephone call. After a brief argument by the parties regarding these motions, the court asked defense counsel if she wanted more time to respond to the State's motions. Defense counsel indicated that she did, and the court continued the case, "motion defendant" to April 17, 2013.
¶ 7 On April 17, 2013, the parties appeared on the State's two motions and defense counsel informed the court that she had filed her responses and was ready to proceed. The court, however, asked defense counsel to "take a date" for the court to read all the filings because it was" [a]bout to start a murder trial in 20 minutes." Defense counsel told the court "We do have a trial demand in the case," and "[i]t's really problematic for us to be kicking this." Counsel reminded the court that a "speedy trial demand was filed," and that there was "a stay" because of the State's two motions. After a brief discussion during which defense counsel attempted to argue the merits of the State's motions, the court interjected asking counsel not to "interrupt," and stating: "We will do this hearing if you're available next Friday, April 26th." Defense counsel replied, "We'll be available." The half sheet and the case summary printout for April 17, 2013, both indicate that the matter was continued "by agreement" to April 30, 2013.
¶ 8 At the next court date, which occurred on April 30, 2013, defense counsel tendered the audio recording of the witness interview to the State and her notes regarding that interview to the court, noting her continued objection to the State reviewing the notes based on work product privilege. Defense counsel then asked that the petitioner's "motion for a speedy trial be reinstated and that a trial date be set." The State asked the court whether it had already ruled on its motions and the court indicated that it had not but was instead holding those motions in abeyance until the witness subject to the State's request to disqualify defense counsel could be located. The court then asked defense counsel whether the petitioner wanted to set the case for a jury trial. After defense counsel responded in the affirmative, the State asked the court whether this would be "motion State" for a continuance, and the court indicated that it would. The State was permitted to pass the case to count the speedy trial term, and then requested a trial date of May 28, 2013. The circuit court then reiterated that the case would be continued "motion State" for trial to May 28, 2013. The State then requested that the notes counsel had just tendered to the court also be tendered to the State. The State asked if the court would give a status date to tender the notes and the court indicated that it would and set status for May 14, 2013. The court then once more stated that the case was being continued to May 28, upon the State's motion.
We note that the common law record reveals a conflict between the case summary printout and the hand-written half sheet for this date. While the hand-written half-sheet notes that the status date (May 14) was being entered upon "MD," presumably a motion by the defendant/petitioner, the case summary printout repeatedly notes that both the status and the trial date are being continued upon "Motion State."
¶ 9 On May 14, 2013, the court tendered defense counsel's notes to the State, and continued the case upon the State's motion to May 28, 2013.
¶ 10 On May 28, 2013, the court acknowledged the petitioner's continued demand for trial and upon the State's motion continued the matter to June 24, 2013. On June 24, 2013, upon the State's request, the court again continued the case, to July 10, 2013.
¶ 11 On July 10, 2013, the State informed the court that it was not prepared for trial because it was missing two crucial witnesses. The State filed a motion seeking a 60-day extension of the speedy-trial term and informed the court that it was on "day 116 out of 120." After defense counsel acknowledged that he had not counted the days, the court continued the case, by "order of the court" to July 12, 2013.
¶ 12 On July 12, 2013, the State reported that it was on day 118 of 120, and the case was continued, by agreement, to July 23, 2012.
¶ 13 On July 23, 2012, the parties argued the State's motion for a 60-day extension. Apparently accepting the State's assertion regarding the day of the statutory speedy-trial term, defense counsel objected to the grant of the extension based on the State's failure to exercise due diligence in prosecuting the case. Over defense counsel's objection, the court granted the State's motion and extended the term. Upon the State's motion, the case was then continued for trial on September 4, 2013.
¶ 14 On September 4, 2013, the petitioner finally proceeded with his jury trial. Because all the evidence presented at that jury trial has already been set forth in detail in our order affirming the petitioner's conviction and sentence on direct appeal (see People v. Quezada, 2018 IL App (1st) 152702-U (Quezada I)) we will merely summarize the relevant facts here.
¶ 15 The petitioner was convicted of two counts of attempted murder and aggravated battery with a firearm based on testimony from four eyewitnesses. All four witnesses observed the petitioner get off the back wheel pegs of a bicycle, which was driven by his co-offender, yell gang slogans, and shoot in the direction of the two victims, who were standing on the street. The jury nonetheless found that the State had failed to establish beyond a reasonable doubt that the petitioner had personally discharged the firearm that caused injury to the victims. Although two of the identification witnesses were familiar with the petitioner from the neighborhood and knew him as a member of a local gang, there were numerous inconsistencies in the four eyewitness identifications, particularly because the petitioner was wearing a bandana/mask at the time of the offense. Moreover, even though an alibi was never raised with the police, at trial, the petitioner presented his parents as alibi witnesses.
¶ 16 After the conclusion of his jury trial, the petitioner was sentenced to two consecutive terms of 12-years' imprisonment on each count of attempted murder. The petitioner appealed, arguing that an amendment to the juvenile transfer provision applied retroactively to him and that he was improperly sentenced as an adult for an unenumerated offense. This court affirmed the petitioner's conviction and sentence on direct appeal. See Quezada I.
¶ 17 On June 4, 2019, the petitioner filed the instant pro se postconviction petition, alleging inter alia, that he was denied his right to effective representation of trial and appellate counsels. The petitioner asserted that trial counsel was ineffective because he failed to file a motion for discharge after the State neglected to take him to trial within the requisite statutory speedy trial term. In addition, the petitioner asserted that appellate counsel was ineffective for failing to raise this issue in his direct appeal. In support, the petitioner cited the direct appeal record and attached an affidavit swearing that he believed his claims had merit.
¶ 18 On August 30, 2019, the circuit court summarily dismissed the pro se petition, finding that the petitioner's claim of ineffective assistance was not arguable in either law or fact. As the circuit court explained its reasoning:
"Although [trial] counsel did not file a motion for discharge, the transcripts from the court appearances on July 10, 12, and 23 of 2013 show counsel pressed [the petitioner's] speedy trial rights. Counsel vigorously opposed the State's motion for an extension arguing that it was not adequately supported by affidavits and relied too heavily on the A[ssistant] S [tate's] A[ttorney] 's representations. By objecting to the extension, counsel in effect made the same assertion of [the petitioner's] right to a speedy trial as he would have had he filed a motion for discharge. Since the court granted the extension and trial began within the 60-day extension, there was no basis for counsel to file a motion for discharge. Such a motion would have amounted to rearguing the same issue in [the] State's motion for extension.
Therefore, there is no reasonable probability a discharge would have been granted and the record clearly demonstrates counsel's justification for not filing a motion requesting it."
¶ 19 The petitioner now appeals, contending that the circuit court erred in summarily dismissing his petition.
¶ 20 III. ANALYSIS
¶ 21 At the outset, we note that the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et. seq. (West 2018)) provides a three-step process by which a convicted defendant may assert a substantial denial of his or her constitutional rights in the proceedings that led to the conviction. People v. Edwards, 2012 IL 111711, ¶ 21; People v. Tate, 2012 IL 112214, ¶ 8; see also People v. Walker, 2015 IL App (1st) 130530, ¶ 11 (citing People v. Harris, 224 Ill.2d 115, 124 (2007)). A proceeding under the Act is a collateral attack on a prior conviction and sentence and is therefore "not a substitute for, or an addendum to, direct appeal." People v. Kokoraleis, 159 Ill.2d 325, 328 (1994); see Edwards, 2012 IL 111711, ¶ 21; People v. Barrow, 195 Ill.2d 506, 519 (2001). Accordingly, any issues that were decided on direct appeal are res judicata, and any issues that could have been presented on direct appeal, but were not, are waived. Edwards, 2012 IL 111711, ¶ 21; see also People v. Ligon, 239 Ill.2d 94, 103 (2010); People v. Reyes, 369 Ill.App.3d 1, 12 (2006).
¶ 22 At the first stage of postconviction proceedings, such as here, the circuit court must independently review the petition, taking the allegations as true, and determine whether" 'the petition is frivolous or patently without merit.'" People v. Hodges, 234 Ill.2d 1, 10 (2009) (quoting 725 ILCS 5/122-2.1 (a)(2) (West 2006)); see also Tate, 2012 IL 112214, ¶ 9. At this stage, the court may not engage in any factual determinations or credibility findings. See People v. Plummer, 344 Ill.App.3d 1016, 1020 (2003) ("The Illinois Supreme Court *** [has] recognized that factual disputes raised by the pleadings cannot be resolved by a motion to dismiss at either the first stage *** or at the second stage *** [of postconviction proceedings], rather, [they] can only be resolved by an evidentiary hearing"); see also People v. Coleman, 183 Ill.2d 366, 380-81 (1998) (Noting that the supreme court has "foreclosed the circuit court from engaging in any fact-finding at a dismissal hearing because all well-pleaded facts are to be taken as true at this point in the proceeding."). Instead, the court may summarily dismiss the petition only if it finds the petition to be frivolous or patently without merit. See People v. Ross, 2015 IL App (1st) 120089, ¶ 30; see also Hodges, 234 Ill.2d at 10. A petition is frivolous or patently without merit if it has no arguable basis either in law or in fact. Tate, 2012 IL 112214, ¶ 9. Our supreme court has explained that a petition lacks an arguable basis where it "is based on an indisputably meritless legal theory or a fanciful factual allegation"-in other words, an allegation that is "fantastic or delusional," or is "completely contradicted by the record." Hodges, 234 Ill.2d at 11-12; People v. Brown, 236 Ill.2d 175, 185 (2010); see also Ross, 2015 IL App (1st) 120089, ¶ 31. Our review of summary dismissal is de novo. Tate, 2012 IL 112214, ¶ 10.
¶ 23 On appeal, the petitioner first claims that the circuit court erred in summarily dismissing his petition because he made an arguable claim that his trial counsel was ineffective for failing to move to dismiss the charges against him after the State failed to bring him to trial within the statutory period required by section 103-5(a) of the Code of Criminal Procedure of 1963 (hereinafter the Speedy Trial Act) (725 ILCS 5/103-5(a) (West 2010)).
¶ 24 It is axiomatic that claims of ineffective assistance of counsel are analyzed under the well-established two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our supreme court in People v. Albanese, 104 Ill.2d 504 (1984). Under Strickland, to establish ineffective assistance, a petitioner must show both that: (1) his counsel's conduct fell below an objective standard of reasonableness; and (2) he was prejudiced as a result of that conduct. See People v. Lacy, 407 Ill.App.3d 442, 456 (2011); see also People v. Ward, 371 Ill.App.3d 382, 434 (2007) (citing Strickland, 466 U.S. at 687-94)).
¶ 25 Under the first prong of Strickland, the petitioner must overcome the strong presumption that the challenged action or inaction might have been the product of sound trial strategy. Lacy, 407 Ill.App.3d at 456-57. Under the second prong, the petitioner must show that "but for" counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Lacy, 407 Ill.App.3d at 457; see also Colon, 225 Ill.2d at 135. "[A] reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome--or put another way, that counsel's deficient performance rendered the result of [the proceedings] unreliable or fundamentally unfair." People v. Evans, 209 Ill.2d 194, 220 (2004); see also Plummer, 344 Ill.App.3d at 1019 (citing Strickland, 466 U.S. at 694)).
¶ 26 In the context of a first stage postconviction proceeding, such as the one here, a petitioner need only show that he can arguably meet these two standards, i.e., (1) it is arguable that counsel's performance was deficient and (2) it is arguable that the outcome of his case would have been different absent the deficient representation. See People v. Wilson, 2013 IL (1st) 112303, ¶ 20; see also Hodges, 234 Ill.2d at 17.
¶ 27 In the present case, the petitioner claims that it is arguable that his counsel's performance was deficient because he failed to raise a speedy-trial objection, which would have resulted in the dismissal of all his charges. We agree.
¶ 28 "An attorney's failure to seek discharge of his client on speedy trial grounds generally will constitute ineffective assistance when there is a reasonable probability that the defendant would have been discharged had a timely motion been made, and no justification existed for the attorney's decision not to file a motion." People v. Stewart, 366 Ill.App.3d 101, 107 (2006). However, where there is no lawful basis for raising a speedy-trial objection, counsel's failure to assert a speedy-trial violation will not establish either prong of an ineffective assistance of counsel claim under Strickland. See People v. Cordell, 223 Ill.2d 380, 385 (2006) ("The failure of counsel to argue a speedy-trial violation cannot satisfy either prong of Strickland where there is no lawful basis for arguing a speedy-trial violation."); see also People v. Staake, 2017 IL 121755, ¶ 47 ("Counsel's failure to assert a speedy-trial violation cannot establish either prong *** if no speedy-trial violation occurred."); People v. Phipps, 238 Ill.2d 54, 65 (2010) (same).
¶ 29 Accordingly, we must first determine whether the petitioner's right to a speedy trial was violated before we can determine whether counsel was arguably ineffective. See Cordell, 223 Ill.2d at 385.
¶ 30 In Illinois, a criminal defendant has both a constitutional and statutory right to a speedy trial. See U.S. Const., amends VI, XIV; Ill. Const. 1970, art I., § 8; 725 ILCS 5/103-5(a) (West 2010). Although section 103-5 (a) implements the constitutional right to a speedy trial, the statutory and the constitutional rights "are not coextensive." Phipps, 238 Ill.2d at 65 (citing People v. Sandoval, 236 Ill.2d 57, 67 (2010)); see also Cordell, 223 Ill.2d at 386. Because the petitioner here only challenges his trial counsel's conduct on the basis of his statutory right to a speedy trial, we will limit our review to that issue.
¶ 31 Section 103-5(a) of the Speedy Trial Act provides in pertinent part:
"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 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." 725 ILCS 5/103-5(a) (West 2010).
¶ 32 The 120-day speedy-trial period begins to run automatically if a defendant remains in custody pending trial. People v. Woodell, 219 Ill.2d 166, 174 (2006). "The speedy trial term is computed by excluding the first day and including the last, unless the last day is a Sunday or a holiday, in which case it is also excluded." People v. LaFaire, 37 Ill.App.3d 461, 463 (2007). Any delay occasioned by the defendant within this term will suspend or toll the term for the time for the delay. 725 ILCS 5/103-5(f) (West 2010).
¶ 33 Section 103-5 (a) explicitly "places the onus on [the] defendant to take affirmative action when he becomes aware that his trial is being delayed." Cordell, 223 Ill.2d at 391. "A simple request for trial, before any 'delay' is proposed, is not equivalent to an objection for purposes of section 103-5(a)." Cordell, 223 Ill.2d at 391. Instead, to prevent the speedy-trial clock from tolling, section 103-5 (a) requires that the defendant object to any attempt to place the trial date outside the 120-day period. Cordell, 223 Ill.2d at 390-91. The defendant can do so by "making a written demand for trial or an oral demand for trial on the record." Id. at 391. While the statute does not mandate the use of any "magic words," it requires some affirmative statement in the record requesting a speedy trial. Id.
¶ 34 If a person is not tried within the statutory speedy trial term, the person shall be discharged from custody and the charges must be dismissed. 725 ILCS 5/103-5(d) (West 2010); People v. Woodrum, 223 Ill.2d 286, 299 (2006); People v. Hunter, 2013 IL 114100, ¶ 10.
¶ 35 In the present case, the parties agree that for purposes of the statutory speedy-trial 120-days, the clock began to run when the petitioner was taken into police custody on November 18, 2010. The parties further agree that the clock was tolled on December 23, 2010, day 35 of the speedy-trial term, when the petitioner was arraigned, and the parties agreed to a continuance. In addition, the parties agree that the clock was restarted on March 13, 2013, when the petitioner demanded a trial. Furthermore, no one disputes that the clock was again tolled on March 18, 2013, day 42 of the speedy-trial term, when the petitioner sought a continuance.
¶ 36 The parties disagree, however, as to what transpired after this hearing. The petitioner contends that because at the next hearing on April 17, 2013, the circuit court continued the case on its own, the clock was restarted. The petitioner further argues that because at every subsequent court date the case was continued upon the State's motion, the clock continued to run and the statutorily mandated 120th day was reached on July 5, 2013. The petitioner therefore contends that trial counsel was ineffective for failing to file a motion to discharge at any point between July 5, and July 23, 2013, when the State formally requested and was granted an extension of the speedy-trial term.
¶ 37 The State, on the other hand, asserts that the petitioner never affirmatively objected to any delay at either the April 17, or April 30, hearings, thereby tolling the statutory period. The State, therefore, argues that by July 10, 2013, when the State filed a motion for a 60-day extension, it had expended only 99 of the 120 days allotted by statute. Accordingly, the State contends that any motion to discharge between July 5, and July 23, 2013, when the court granted the State's 60-day extension would have been futile. For the following reasons, we disagree with the State.
¶ 38 We first address the April 17, 2013, hearing. The record reveals that after defense counsel informed the court that she was ready to proceed on the State's two motions, at this hearing, the court informed counsel that it did not have time to proceed with the petitioner's case because it was "[a]bout to start a murder trial in 20 minutes" and asked her to "take a date" for the court to review the filings. Defense counsel then informed the court that the petitioner had made a "trial demand in the case," a "speedy trial demand was filed," and that it was "really problematic for us to be kicking this." After defense counsel attempted to argue the merits of the State's motions, the court interjected and asked her not to "interrupt." The court then told counsel "We will do this hearing if you're available next Friday, April 26th," to which counsel replied that she would be.
¶ 39 Under this record, we are compelled to conclude that defense counsel affirmatively objected to the postponement of the trial. In doing so, we reiterate that the statute does not mandate the use of any "magic words," but rather requires some affirmative statement in the record requesting a speedy trial. Cordell, 223 Ill.2d at 391. Here, when the court told counsel that it would have to postpone the petitioner's case because it was about to start another jury trial, defense counsel immediately stated, "We have a trial demand in the case," and subsequently added that a "speedy trial demand was filed." These two statements were sufficient to remove the onus of any delay from the petitioner. See Cordell, 223 Ill.2d at 391.
¶ 40 The State nonetheless contends that because the half sheet and the summary printout for April 17, 2013, indicate that the matter was continued "by agreement," the aforementioned statements made by defense counsel referencing the petitioner's prior request for trial were insufficient under section 103-5(a) to avoid the tolling of the 120-day period. In support, the State cites to Cordell, 223 Ill.2d at 390-93, and People v. Jones, 2018 IL App (1st) 151307, ¶¶ 27-32. We disagree and find those cases inapposite.
¶ 41 In Cordell, the court held that a defendant did not demand a speedy trial at the arraignment where defense counsel only demanded a "jury trial" and no trial dates had yet been proposed. Cordell, 223 Ill.2d at 382-83, 391. The court also concluded that defense counsel did not demand a speedy trial at a status hearing where counsel withdrew a pro se motion and requested that the case be "set for a jury" trial. Id. at 383, 390-93.
¶ 42 In contrast, here, it is undisputed that the petitioner's trial had already been scheduled prior to the April 17, 2013, hearing. In fact, trial was set for as early as March 11, 2013. When the State appeared at the March 11, hearing, and indicated that it was not ready to proceed, the petitioner made a demand for a speedy trial. Moreover, at the subsequent April 17, 2013, hearing, when the court informed counsel that it could not proceed with the petitioner's case because it was about to start another murder trial, defense counsel reminded the court that there was "a trial demand in this case," and that a "[s]peedy trial demand was filed." There can be no doubt that these two oral statements made by counsel when trial had already been set, and the petitioner had already demanded a speedy trial, constitute affirmative oral statements demanding trial.
¶ 43 Jones, 2018 IL App (1st) 151307, is similarly distinguishable. In that case, the State was not ready to proceed on a certain date, and the parties discussed rescheduling. Id., ¶¶ 27-32. The court rejected the defendant's argument on appeal that counsel had demanded a speedy trial during this exchange because "not once during this extended discussion did defense counsel assert a demand for trial" and "defense counsel failed to utter any words resembling a trial demand before the court ruled or during the subsequent discussion about rescheduling." Id., ¶¶ 30-32.
¶ 44 In contrast, as already detailed above, here, when the court told defense counsel that it did not have time to proceed with the petitioner's case, defense counsel explicitly stated, "We do have a trial demand in the case," and a "speedy trial demand was filed."
¶ 45 We further disagree with the State's position that the circuit court's notation in the half-sheet that the hearing was postponed by "agreement" imputes the delay to the petitioner. The transcript from the proceeding incontrovertibly establishes that the postponement was solely occasioned by the circuit court's scheduling conflict and that defense counsel was given no choice whatsoever in accepting the delay. Even after defense counsel informed the court that a speedy trial demand was filed and attempted to proceed with the merits of the State's motions, the court asked counsel to stop "interrupting," and told her "We will do this hearing" on April 26, if counsel "was available." Counsel's immediate response that she would be available on this date, occasioned by the court's firm directive does not negate her prior affirmative objections to the delay, where it is clear that because of the court's own scheduling conflict, the court never intended to proceed with the petitioner's case, regardless of any objections from counsel. See People v. Mooney, 2019 IL App (3d) 150607, ¶ 23 ("Delays occasioned by ***the court's schedule cannot be attributed to a defendant.")
¶ 46 To the extent that the State relies on Jones for the proposition that delays occasioned by the court's schedule cannot be attributed to a defendant because most cases referring to this rule were decided prior to the 1999 amendments of the Speedy Trial Act, which placed the onus on the defendant to raise an affirmative objection to any delays, we disagree with the State's analysis. While it is true that Jones generally stated that "any cases decided before 1999, any cases decided based on the 1999 statute, or any cases that relied primarily on pre-1999 cases are simply not relevant to a present determination about whether a delay was agreed to by a defendant," (Id. at ¶ 26) Jones by no means considered the specific issue of a petitioner's affirmative objection on the record to a trial court's scheduling conflict. Nor did Jones anywhere reject the pre-1999 holding of our supreme court in Beyah, that delays in crowded dockets and the court's scheduling are attributable to the State. Beyah, 67 Ill.2d at 428. Where, as here, it is clear that the delay was occasioned solely by the circuit court's schedule, and defense counsel made an explicit affirmative objection to such a delay, "to conclude *** after counsel was ordered to 'pick a date,' that the delay was occasioned by the [petitioner] would be a mockery of justice." Id.
¶ 47 Accordingly, under this record we conclude that the petitioner made an affirmative objection to the trial delay at the April 17, 2013, hearing and that therefore the statutory clock was reset.
¶ 48 Turning next, to the April 30, 2013, court date, we note that the transcript of the proceedings reveals that defense counsel explicitly asked that a "motion for a speedy trial be reinstated and that a trial date be set." The State itself acknowledged four times at this hearing that the petitioner was demanding a trial. Moreover, when the court asked defense counsel whether it wanted a trial date, counsel responded in the affirmative. The State then requested that trial be postponed, and that defense counsel's notes, which had just been tendered to court, also be tendered to the State. The State explicitly asked the court whether it would give a status date for that tender once it had reviewed the notes in camera to check for any work product, and the court indicated that it would. The court then permitted the State to pass the case and determine which date it wanted for trial and then continued the case for trial on May 28, and for status on May 14, 2013.
¶ 49 Under this record, we find that there can be no doubt that the petitioner made an oral request for trial and therefore an affirmative objection to the delay, so that the speedy trial clock continued to run, and the delay was attributable to the State.
¶ 50 The State nonetheless asserts that the delay between April 30, to May 14, was attributable to the petitioner because it was taken to resolve defense counsel's objection to tendering the defense notes to the State. For support, the State points out that in the handwritten half-sheet for the day, the circuit court itself noted that the case would be continued to May 14, upon "MD," or motion by the petitioner. We disagree.
¶ 51 As already noted above, the case summary printout and the hand-written half sheet for the day are inconsistent. While the hand-written half-sheet notes that the status date was entered upon "MD," or upon a motion from the "defendant," the case summary printout repeatedly notes that both the status and the trial date were set upon "Motion State." More importantly, the transcript of the proceedings reveals that the circuit court stated three times on the record that it would be continuing the case on the State's motion. In fact, when the prosecutor asked the court whether it was "going to be motion State" the court responded in the affirmative. Moreover, the court nowhere stated that a continuance for status was either being requested by or occasioned by the petitioner. Under this record, where the half-sheet conflicts with the case summary printout and the report of the proceedings, we find that the report of the proceedings and the case summary printout control. See People v. Jones, 2014 IL App (1st) 120927, ¶ 63 ("Where there is a conflict between the common law record and the report of the proceedings, the report of proceedings, controls.")
¶ 52 Accordingly, we find that both the April 17, and April 30, delays were not attributable to the petitioner.
¶ 53 Since following these hearings, the speedy-trial clock continued to run, and the parties agree that all the subsequent delays (on May 28, and June 24) were attributable to the State, the 120th day of the speedy trial term indubitably fell on July 5, 2013.
In fact, the 120th day fell on July 4, but because this was a holiday and holidays are not included in the speedy trial clock calculations, July 5, is the appropriate date. See LaFaire, 37 Ill.App.3d at 463.
¶ 54 Where the petitioner was not tried on July 5, but rather remained in custody until July 23, when the court granted the State's motion for a 60-day extension of the speedy-trial clock, it is apparent that trial counsel had a meritorious claim for discharging the petitioner and should have moved to dismiss the petitioner's charges. Where counsel failed to do so, it is in the very least arguable that counsel performed deficiently.
¶ 55 Moreover, where it is undisputed that the petitioner was ultimately tried and convicted of two counts of attempted first degree murder and sentenced to 24 years imprisonment, it is further arguable that the petitioner was prejudiced by counsel's failure to file the motion for discharge.
¶ 56 As such, we find that the petitioner has made an arguable claim of ineffective assistance of trial counsel. For these same reasons, we further find that the petitioner has made an arguable claim of ineffective assistance of appellate counsel for counsel's failure to argue the issue on direct appeal.
¶ 57 The proper remedy in this circumstance would be to reverse the circuit court's summary dismissal of the pro se petition and remand for further proceedings under the Act. Nonetheless because all the issues resolved here are legal, and all the facts are found in the record on appeal (i.e., the date when the petitioner was taken into custody, the date when he demanded trial, and the dates when the speedy trial clock was tolled), for reasons of judicial economy, and upon the petitioner's request, instead of remanding the matter for further proceedings, we outright dismiss the petitioner's charges and vacate his conviction. See People v. Isabell, 2020 IL App (3d) 180279, ¶ 13 ("The remedy for ineffective assistance of counsel claims" based on counsel's failure to file a motion to discharge, "is the same as the remedy for any speedy trial violation found on appeal: outright reversal of the conviction or convictions in question."); Woodrum, 223 Ill.2d at 299-300 ("A defendant not tried within the statutory period must be discharged from custody and the charges must be dismissed"); see also Hunter, 2013 IL 114100, ¶ 10 (the remedy for a speedy-trial violation is the dismissal of all charges.)
¶ 58 CONCLUSION
¶ 59 For the foregoing reasons, we reverse the order of the circuit court, dismiss all the charges against the petitioner and vacate the petitioner's conviction. ¶ 60 Reversed; charges dismissed; conviction vacated.