from Circuit Court of Adams County No. 09CF495 Honorable Mark
A. Drummond, Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court, with
opinion. Justices Steigmann and Appleton concurred in the
judgment and opinion
1 Defendant, Corey D. Phillips, appeals from the denial of
his amended postconviction petition after a third-stage
evidentiary hearing. Defendant argues he made a substantial
showing his (1) trial counsel provided ineffective assistance
by failing to perfect the impeachment of the victim regarding
an agreement to testify, (2) due process rights were violated
by the State's failure to correct victim's perjured
testimony regarding the agreement to testify, and (3)
appellate counsel provided ineffective assistance by failing
to raise the violation of his statutory right to a speedy
trial on appeal from his conviction and sentence. We disagree
2 I. BACKGROUND
3 On August 12, 2009, the State charged defendant by
information with aggravated battery with a firearm (720 ILCS
5/12-4.2(a)(1) (West 2008)), a Class X felony. On August 13,
2009, defendant was served with an arrest warrant and taken
into custody. Defendant remained in custody throughout the
4 On August 14, 2009, defendant made his first appearance
before the trial court and requested counsel be appointed.
Based on defendant's affidavit of assets and liabilities,
the court found defendant to be indigent. The court appointed
Assistant Public Defender Todd Nelson to represent defendant
and advised defendant of his possible obligation to repay the
county for the public defender expenses. Following an August
20, 2009, status hearing, the court scheduled a preliminary
hearing and arraignment for September 1, 2009.
5 On September 1, 2009, the trial court commenced the
scheduled preliminary hearing and arraignment. Defendant
appeared with Nelson. Nelson informed the court:
"I'm going to have to withdraw [due to a conflict of
interest], and I think Mr. Downey is going to be taking [the]
case." Ed Downey, who was the chief public defender, was
present. Downey indicated: "I'm going to review [the
case], because I just haven't even looked at the file to
make sure there are no conflicts *** [s]o we'd ask it be
continued." The court stated it would continue the
matter to September 8, 2009, "and determine who is going
to be representing [defendant]." The State requested
Downey to provide notice if he was unable to proceed on
September 8, 2009, due to a conflict of interest. The court
then directed Downey to inform it if nobody from the public
defender's office could take the case so it could appoint
outside counsel. The court questioned defendant whether he
understood, to which defendant indicated he did and then
requested he be surrendered on another charge. The State
questioned Downey whether he was in agreement with the
surrender, to which Downey indicated he was. The court's
written order states: (1) defendant appears with Nelson and
Downey, (2) Nelson indicates he has a conflict, (3) Downey
"will review these matters, " (4) defendant
surrenders himself in an unrelated case, and (5) the cause is
continued to September 8, 2009, "[o]n motion of
6 On September 4, 2009, Downey filed an "Entry of
Appearance, " which indicated he was moving to assign
Assistant Public Defender Holly Henze as attorney for
7 On September 8, 2009, the trial court conducted further
proceedings on the continued preliminary hearing and
arraignment. Defendant appeared before the court. The court
initially noted the matter had been assigned to Henze but she
could not be present. Downey, who was present, confirmed
Henze was unavailable and indicated he spoke with defendant,
who stated he wanted to proceed with a preliminary hearing.
Downey informed the court he was ready to proceed. During the
preliminary hearing, Downey cross-examined the State's
witness. The court also allowed Downey the opportunity to
present argument on behalf of defendant. The court found
probable cause to believe defendant committed the charged
offense. The State inquired as to whether the court preferred
to continue the arraignment to allow Henze to speak with
defendant. Downey indicated he believed such a continuance
"would be appropriate." The court continued the
matter to September 15, 2009, for arraignment. The
court's written order indicates defendant appeared with
Downey for Henze.
8 At the scheduled September 15, 2009, arraignment, defendant
appeared with Henze. Downey was also present. Henze informed
the court she had a conflict of interest, and Downey
recommended the outside counsel be assigned to represent
defendant, as all the attorneys in the public defender's
office had conflicts. The court appointed outside counsel,
Todd Eyler, to represent defendant and continued the matter
on its own motion.
9 On September 22, 2009, defendant was arraigned, and a jury
trial was scheduled. Defendant's jury trial was later
rescheduled for December 14, 2009.
10 At a December 9, 2009, status hearing, Eyler indicated he
would be unavailable from December 14, 2009, through December
16, 2009, and requested the trial setting be continued until
December 17, 2009, which the trial court allowed.
11 On December 17 and 18, 2009, the trial court conducted a
jury trial. After the jury was selected and sworn, defendant
made an oral motion to dismiss based on a violation of his
speedy-trial rights. The court denied defendant's motion.
12 Kenneth Norwood testified that, on the afternoon of August
12, 2009, he was awakened in his apartment around 2 p.m. by
his girlfriend, Archieona French, who told him defendant was
downstairs making threatening comments about him. According
to Norwood, he went outside, with French following behind
him, and confronted defendant, who owed him $90. "[A]
lot of people" were outside. Norwood struck
defendant's head. Defendant pulled out his gun and tried
to strike Norwood with it but dropped the gun. Defendant
picked up the gun and then fired four shots at Norwood, who
was about one foot away from defendant. Two shots struck
Norwood in the leg. The bullets passed through and caused
minor injuries to Norwood. During cross-examination, Norwood
admitted he struck defendant before either of them spoke a
word. Norwood also admitted not seeing defendant drop the gun
or pick it up, but he testified others told him defendant
dropped the gun.
13 During direct examination, Norwood admitted he had a 2005
felony conviction for "aggravated carjacking."
During cross-examination, defense counsel inquired further
into Norwood's felony conviction:
"Q. That's where you took the class to obtain the
GED [general equivalency diploma]?
A. When I was in prison, yes.
Q. And in light of what you just said, that was for the
aggravated carjacking, is that correct?
Q. And that was out of Cook County?
Q. And is that the only felony conviction that you have?
A. I probably have a drug conviction, but that's it.
Q. Well, you said you probably have one. Do you know?
A. I'm not sure. I was fighting in prison, and I never
knew what happened with that.
Q. So you don't know is what you are telling the jury.
And what you are telling us, you don't know if you have a
second felony conviction?
A. I don't know."
14 During cross-examination, defense counsel also questioned
Norwood regarding a possible deal he may have received for
"Q. Did you meet with anybody or discuss your testimony
Q. You didn't meet with the State's Attorney's
A. Yes. Yes.
Q. Did you meet with any law enforcement to discuss your
Q. Have you been promised anything for your testimony here