2020 IL App (1st) 170756-U 

 THIRD DIVISION

 December 16, 2020 

No. 1-17-0756 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent 

by any party except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

 ) Circuit Court of 

Plaintiff-Appellee, ) Cook County. 

 ) 

v. ) No. 07 CR 21742 

 ) 

STANLEY KIRKMAN ) Honorable

 ) Michael B. McHale, 

Defendant-Appellant. ) Judge Presiding. 

______________________________________________________________________________ 

JUSTICE ELLIS delivered the judgment of the court.

Justices McBride and Burke concurred in the judgment. 

ORDER

¶ 1 Held: First-stage dismissal of post-conviction petition affirmed. Defendant failed to 

state gist of claim that direct-appeal counsel was ineffective for failing to

challenge pre-indictment delay and corresponding denial of due process. 

¶ 2 After a jury convicted defendant Stanley Kirkman of aggravated criminal sexual assault, 

the post-trial proceedings took up the question (among others) whether pre-indictment delay 

impaired his ability to present his defense and thus denied him due process. To this end, posttrial counsel moved to dismiss the indictment and alleged, in a motion for new trial, that trial 

counsel was ineffective for failing to do so in the first instance. Either way, the key questions 

were whether four prospective defense witnesses who did not testify were rendered unavailable 

by the pre-indictment delay, and whether their absence caused actual and substantial prejudice to 
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the defense. The trial court denied both motions, and those rulings were not challenged on direct 

appeal. In his post-conviction petition, defendant alleged (among other claims) that counsel on 

direct appeal was ineffective for that reason. The circuit court dismissed the petition at the first 

stage. We affirm.

¶ 3 BACKGROUND

¶ 4 The full details of the underlying sexual assault and defendant’s trial are set forth in our 

decision on direct appeal. See People v. Kirkman, 2016 IL App (1st) 131475-U, ¶¶ 9-81. Here, 

we recount only those facts, procedural and substantive, that are necessary to understand the 

limited issue of pre-indictment delay now before us.

¶ 5 I. Overview and Timeline

¶ 6 On July 8, 1999, a naked, 15-year-old M.C. ran into the parking lot of a police station and 

reported that she was just sexually assaulted at gunpoint, in a nearby alley, by a stranger who had 

verbally taunted her in the area a few days earlier. Vaginal and rectal swabs were taken from 

M.C. at West Suburban Hospital. Semen was detected in the rectal swab but not in the vaginal 

swab. The Combined DNA Index System (CODIS) did not yield a match for the rectal swab at 

the time. And no suspects emerged on any other grounds. 

¶ 7 More than six years later, on December 20, 2005, defendant’s DNA profile was entered 

into CODIS, pursuant to his March 30, 2005 conviction for vehicular hijacking. The profile was 

a match for M.C.’s rectal swab. On October 3, 2007, M.C. identified defendant in a lineup. He 

was indicted on October 18, 2007, while he was in custody on the vehicular hijacking charge. 

¶ 8 Defendant went to trial in January 2010, more than 10 years after the offense. The State’s 

principal evidence was the testimony of M.C. and the DNA analysis. Some of the police officers

involved in the investigation, and the emergency physician who treated M.C. at West Suburban 
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Hospital, also testified for the State. Defendant took the stand and asserted an affirmative defense 

of consent. In particular, he testified that M.C. was a prostitute; that their encounter was silently 

understood to be a “trick;” and that M.C. got angry with defendant afterward, calling him a 

“cheap bastard,” because he paid her far less than she expected. The jury returned a split verdict, 

finding him guilty of aggravated criminal sexual assault based on anal penetration, but not guilty 

based on vaginal penetration. 

¶ 9 II. The Absent Defense Witnesses

¶ 10 A recurring issue at trial was the absence of four prospective defense witnesses: Officer 

Mendro, Detective Poli, Peggy Mateski, and Antoine Johnson. The defense anticipated calling 

these witnesses to impeach M.C. on certain specific points, and more generally to challenge her 

credibility, which was critically at issue given the crux of defendant’s affirmative defense. But 

for various reasons, the defense was unable to perfect service on any of these witnesses.

¶ 11 Those obstacles were the subject of various defense motions both immediately before and 

during trial. For example, the defense moved for a continuance (so it could redouble its efforts to 

serve Johnson), for a rule to show cause (as to why Poli and Mendro did not appear), and for a 

mistrial (because the defense was both unable to subpoena Mateski, and prejudiced by the denial 

of the previous motions). In many respects, the details of these motions need not concern us here. 

What matters, for the issue of pre-indictment delay, is why the defense was unable to secure the 

appearance of these witnesses. On this question, the motions, in sum, revealed the following. 

¶ 12 A. Antoine Johnson 

¶ 13 Johnson was M.C.’s boyfriend when she was sexually assaulted. M.C. was 15 years old 

at the time; Johnson was in his mid-thirties. The defense argued that Johnson would impeach 

M.C.’s account of her alleged encounter with defendant a few days before the assault and thus 
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cast doubt on defendant’s alleged motive for the attack. 

¶ 14 According to M.C., she was hanging out with Johnson and some other people on a 

neighborhood corner. Defendant drove by and “tried to talk” to her. When she rebuffed his 

advances, defendant made some “disrespectful” comments and drove off. Later, during the 

sexual assault, defendant said to M.C., “I told you I would get you,” referring back to their

earlier encounter. According to the police reports, Johnson’s contemporaneous statements 

contradicted M.C.’s claims.

¶ 15 But Johnson proved an elusive witness at first, and an unwilling witness later on. In 1999, 

he told the police that his name was Lamar Jones. Through its own investigation, the State 

eventually learned Johnson’s real name and address in June 2009, and it disclosed that 

information to the defense in October 2009. Johnson was on parole at the time and living with 

his mother.

¶ 16 In late December 2009 and early January 2010, an investigator from the public defender’s 

office tried to serve Johnson at least four times. Counsel went too, on at least one occasion. But 

Johnson was never home. 

¶ 17 As the trial was starting, the investigator left a subpoena with Johnson’s mother and then 

managed to reach him on the phone. Johnson told the investigator that he would not appear in 

court or testify on defendant’s behalf, and that he would refuse service of any subpoena. 

¶ 18 B. Officer Mendro and Detective Poli

¶ 19 The defense argued that the police reports written by Officer Mendro and Detective Poli 

contradicted M.C. on several points. For example, the officers noted that M.C. did not appear to 

have any scratches, bruises, or other injuries, which tended to contradict her claim that defendant 

forced her to have sex with him on ground covered with rocks and broken glass, and instead 
No. 1-17-0756 

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tended to support defendant’s claim that they had consensual sex in his car. The officers could 

also speak to M.C.’s initial description of the assailant, which did not match defendant in various 

ways; and to omissions in her initial statements to the police about the assailant’s alleged gun.

¶ 20 Eleven days before trial, on December 31, 2009, the defense tried to serve subpoenas for 

Mendro and Poli on the Chicago Police Department, using the department’s normal procedures 

for accepting agency service on behalf of its officers. Unbeknownst to the defense, Mendro and 

Poli were retired. (The record does not reveal when they retired.) Thus, they were not served the 

subpoenas delivered to CPD. 

¶ 21 The defense did not discover any of this until the start of the trial. The State knew that the 

officers had retired, but it had no occasion to share this information earlier because the defense 

had never indicated that it intended to call the officers. The State noted that there are established 

procedures for obtaining the forwarding addresses of retired officers for purposes of service, and 

it offered to help the defense in this task. During the trial, the defense again tried to serve the 

officers, this time at their homes. Nobody answered at Mendro’s house, so a subpoena was left in 

the door. Another was left with Poli’s son, who “refused to sign for it.” In the end, the defense 

never personally served either officer.

¶ 22 C. Peggy Mateski

¶ 23 Peggy Mateski was a nurse who treated M.C. at West Suburban Hospital. The defense 

contended that M.C. made statements to Mateski, namely, about where she was going when she 

was sexually assaulted, that contradicted her later accounts of the incident.

¶ 24 On the morning of jury selection, the defense tried to serve Mateski at the hospital. As it 

turned out, she was on maternity leave, having given birth the week before. The hospital declined 

to give out her home address. Thus, Mateski was never personally served.
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¶ 25 When counsel moved for a mistrial on this ground (and others), defendant asked the 

judge if he could “file right now ineffective assistance of counsel.” The judge explained that the 

allegation would have to await the verdicts, since there was still a possibility that the jury would 

acquit him, in which case there would be no prejudice. 

¶ 26 III. Post-trial Proceedings

¶ 27 The judge returned to defendant’s allegation of ineffective assistance immediately after 

the verdicts were rendered. Citing People v. Lawson, 67 Ill. 2d 449 (1977), our supreme court’s 

controlling authority on the issue of pre-indictment delay, the judge could see “no reason” why a 

motion to dismiss the indictment should not have been filed. Since July 1990, the judge believed, 

Illinois law had required anyone convicted of a felony to submit a DNA sample, and defendant 

had a prior felony conviction within that timeframe; thus, his DNA should have been on CODIS 

when M.C.’s rectal swab was taken. Yet it took the State more than 6 years to match his DNA to 

the swab. 

¶ 28 The long delay between the 1999 offense and the 2007 indictment thus stood in need of 

some justification, and defendant’s attorneys “made a serious error” in failing to demand one, by 

moving to dismiss the indictment before trial. On this basis, and without any further preliminary 

Krankel inquiry into defendant’s allegation of ineffective assistance, the trial court determined 

that new post-trial counsel should be appointed. 

¶ 29 Before new counsel was appointed, defendant’s trial attorneys—taking their cue from the 

judge—filed a “motion in arrest of judgment.” Citing Lawson, the motion alleged, among other 

claims, that the pre-indictment delay deprived defendant of due process, and that the indictment 

should therefore be dismissed. It does not appear from the record that the trial court ruled on this 

motion. 
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¶ 30 New post-trial counsel was eventually appointed and, in due course, filed two motions 

on defendant’s behalf. Both motions raised the issue of pre-indictment delay, albeit in different 

guises. A motion to dismiss the indictment alleged that the delay impaired defendant’s ability to 

conduct his defense and thus violated due process. Although motions to dismiss are more often

filed before trial, the trial court granted leave to file the motion after trial, having stated earlier in 

the proceedings that it would not “limit” post-trial counsel’s options in these circumstances. The 

second, more typical post-trial motion was a motion for new trial. It alleged that trial counsel was

ineffective for failing to move for dismissal in the first instance, based on pre-indictment delay.

¶ 31 In these motions, post-trial counsel clarified that not all of the delay between the offense 

and the indictment could be charged to the State, as the trial court had supposed. Illinois law had 

not required a DNA sample to be collected upon conviction for any felony offense since 1990; 

that provision did not take effect until August 22, 2002. See 730 ILCS 5/5-4-3(a)(3.5). The more 

limited provision in effect before then (which was limited to sex offenders) did not apply to 

defendant. And defendant did not have any felony convictions between the effective date of the 

revised provision and his March 30, 2005 conviction for vehicular hijacking. Thus, defendant 

was not required to submit a DNA sample until March 30, 2005. The delay attributable to the 

State should begin at that point and run until defendant’s eventual indictment on October 18, 

2007—still a significant delay, of slightly more than 2 1⁄2 years. 

¶ 32 The State argued that it could only be charged with an even shorter delay, of roughly 20 

months. Although defendant was convicted on March 30, 2005, his DNA was not entered into 

CODIS until December 20, 2005, and the Illinois State Police (ISP) did not send a written report 

of the match to CPD until February 27, 2006. In the State’s view, the only delay that counted for 

a due process analysis was the delay that began once CPD received the written report from ISP. 
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¶ 33 As for why it took so long to indict defendant—be it a 20- or 30-month delay—the State 

explained that defendant was in prison, they “knew he wasn’t going anywhere,” and they “were 

working on other cases.” 

¶ 34 On the question of prejudice, post-trial counsel argued that the pre-indictment delay 

prevented defendant (1) from testifying in greater detail and (2) from being able to call the four 

missing witnesses—Mendro, Poli, Mateski, and Johnson—to impeach M.C. on the various points 

already noted. 

¶ 35 The trial court found that the relevant delay began when CPD received the DNA report; 

that the delay was not justified; and that trial counsel’s failure to challenge the delay in the first 

instance was objectively unreasonable. But defendant’s claims still failed, principally because he 

was not prejudiced by the pre-indictment delay. The absence of the prospective witnesses, in the 

trial court’s view, was not sufficiently damaging to the defense, because much of their 

anticipated testimony would have been either cumulative or limited to collateral issues.

¶ 36 The trial court also found that Johnson’s absence was not attributable to the delay in the 

first place. Rather, Johnson was simply “ducking” the defense investigator and “avoiding” the 

subpoena. As for the other witnesses, the trial court noted that trial counsel was deficient in 

another regard—namely, in failing to timely serve subpoenas. 

¶ 37 As to the issue of pre-indictment delay, the trial court denied both of the motions filed by 

post-trial counsel. On direct appeal, counsel did not challenge either of those rulings. As a result, 

the issue of pre-indictment delay was not raised, either as a due process claim or under the rubric 

of ineffective assistance of trial counsel. But direct-appeal counsel did raise an overlapping issue: 

that defendant was denied his right to present a complete defense, because he was unable to call 
No. 1-17-0756 

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Johnson or Poli. See Kirkman, 2016 IL App (1st) 131475-U, ¶¶ 84-114. We rejected this 

contention, along with several others, and affirmed defendant’s conviction. 

¶ 38 In his post-conviction petition, defendant alleged that his direct-appeal counsel was 

ineffective for failing to “challenge trial court constitutional violations that denied him a fair 

trial,” including the pre-indictment delay. In other words, defendant alleged that direct-appeal 

counsel failed to challenge the trial court’s denial of the motion to dismiss the indictment on dueprocess grounds. Defendant did not allege that direct-appeal counsel failed to allege ineffective 

assistance of trial counsel on this basis. Defendant did allege that trial counsel was ineffective on 

related but distinct grounds, namely for failing to subpoena and call the absent witnesses. 

¶ 39 The circuit court dismissed the petition at the first stage. The circuit court’s written order 

addresses several of the issues that defendant raised, but it does not even mention, much less 

analyze, the issue of pre-indictment delay.

¶ 40 ANALYSIS

¶ 41 Defendant’s postconviction-appellate counsel raises one issue on defendant’s behalf: His

postconviction petition stated “the arguable basis of a constitutional claim that his [direct-appeal] 

counsel was ineffective for failing to argue that trial counsel was ineffective for not moving to 

dismiss the indictments for oppressive pre-indictment delay.” 

¶ 42 One major problem at the outset: That is not what defendant’s postconviction petition 

alleged. Defendant did allege that direct-appeal counsel was ineffective for failing to argue that 

the pre-indictment delay violated his due-process rights. To repeat, the postconviction petition 

alleged that “[a]ppellate counsel failed to challenge the trial court constitutional violations that 

denied Mr. Kirkman a fair trial.” 
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¶ 43 But defendant’s postconviction petition does not allege that direct-appeal counsel was 

ineffective for failing to argue trial counsel’s ineffectiveness in failing to challenge the preindictment delay. And for good reason: Trial counsel obviously did challenge the pre-indictment 

delay. Trial counsel filed a motion to dismiss the indictment, post-trial, after being granted leave 

to do so by the trial court. The motion was fully briefed and extensively argued. It was 

unsuccessful, of course, but in no way could anyone argue that trial counsel was ineffective for 

failing to raise the issue. Defendant’s postconviction petition certainly did not so allege. 

¶ 44 In other words, the argument on appeal before us—an ineffectiveness claim within an

ineffectiveness claim—is not what defendant alleged in his postconviction petition, nor would it 

have made sense for defendant to have alleged it. We may not consider issues raised by appellate 

counsel that were not raised in the postconviction petition below. People v. Jones, 213 Ill. 2d 

498, 508 (2004). 

¶ 45 But we think it is only fair to consider the claim that defendant did raise in his 

postconviction petition—that direct-appeal counsel should have argued that the pre-indictment 

delay violated defendant’s due-process rights or, said differently, that direct-appeal counsel 

should have argued that the trial court erred in denying defendant’s motion to dismiss based on 

pre-indictment delay. And we find it not only fair but proper to do so, because while there is a 

difference, of course, between the ineffectiveness argument defendant raised in his 

postconviction petition and the one briefed on appeal, they are both ineffectiveness claims at 

their core, and thus they both ultimately rise or fall on the same question—the merits of the 

underlying pre-indictment-delay argument. As both parties have weighed in extensively on that

question, we are fully equipped to proceed to its consideration.
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¶ 46 A post-conviction petition may be dismissed at the first stage only if it lacks an arguable 

basis in fact or law. People v. Brown, 236 Ill. 2d 175, 185 (2010); see 725 ILCS 5/122-2.1(a)(2) 

(West 2019). Thus, defendant must show here that direct-appeal counsel failed to raise an 

arguably meritorious issue of pre-indictment delay. Brown, 236 Ill.2d at 185; Simms, 192 Ill. 2d 

at 362. Because we review a summary dismissal de novo (Brown, 236 Ill. 2d at 184), we may 

affirm on any basis apparent in the record. People v. Jones, 399 Ill. App. 3d 341, 359 (2010). 

¶ 47 A claim of ineffective assistance of direct-appeal counsel is governed by the familiar 

Strickland standard of deficient performance and prejudice. Simms, 192 Ill. 2d at 361; Evitts v. 

Lucy, 469 U.S. 387, 396-97 (1985); see Strickland v. Washington, 466 U.S. 668 (1984). To 

establish prejudice under Strickland, defendant must show “a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different.” Simms, 

192 Ill. 2d at 362. If the defendant cannot establish prejudice, his Strickland claim fails, even if 

he can establish deficient performance, as both deficiency and prejudice must be established. 

People v. Perry, 224 Ill. 2d 312, 342 (2007). 

¶ 48 A pre-indictment delay may violate due process if it hindered the defendant’s ability to 

defend against the charges and thus deprived the defendant of a fair trial—even if the charges 

were filed within the statutory limitations period, as they were here. Lawson, 67 Ill. 2d at 457; 

United States v. Marion, 404 U.S. 307, 324 (1971). To prevail on such a claim, a defendant must 

show that the delay in filing charges caused “actual and substantial prejudice” to his ability to 

defend against them. Lawson, 67 Ill. 2d at 459. 

¶ 49 The “mere possibility” of prejudice—for example, a defendant’s assertion that his 

memory has faded with the passage of time—is not enough to carry this decidedly difficult 

burden. Id. at 459-60. But the unavailability of a witness, on account of the delay, may be 
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enough, if the witness’s testimony would have been sufficiently favorable to the defense. See, 

e.g., United States v. Barket, 530 F.2d 189, 196 (8th Cir. 1976) (en banc) (substantial prejudice 

where six potential witnesses died during 47-month delay in filing charges). 

¶ 50 If the defendant can show actual and substantial prejudice, the burden shifts to the State 

to show “the reasonableness, if not the necessity, of the delay.” Lawson, 67 Ill. 2d at 459. If the 

State offers legitimate reasons for the delay, the court must balance these competing interests. Id.

If the balance tips in the defendant’s favor—or if the delay was not reasonable and justified to 

begin with—the charges should be dismissed. Id. at 456-57; Marion, 404 U.S. at 324. 

¶ 51 Here, the record refutes any contention that the absence of the four prospective witnesses 

from defendant’s trial was even arguably caused by, or attributable to, the delay in charging him, 

as opposed to other extraneous factors. See Lawson, 67 Ill. 2d at 459. Put differently, the record 

unequivocally shows that there was no “nexus between the delay and the unavailability of the 

evidence or witnesses.” People v. Lawson, 38 Ill. App. 3d 239, 241-42 (1976), reversed on other 

grounds by Lawson, 67 Ill. 2d 449. 

¶ 52 For this purpose, we can address three of the prospective witnesses—Officer Mendro, 

Detective Poli, and Nurse Mateski—in one fell swoop. The point, in each instance, is the same: 

The reason these witnesses did not testify had nothing to do with the time delay and everything 

to do with trial counsel’s failure to diligently (and timely) pursue service of process to secure 

their attendance at trial. 

¶ 53 Defendant’s trial began on January 11, 2010. The trial court set that date in September of 

the previous year. The defense waited until December 31, 2009—eleven days before trial, and in 

the midst of the winter holidays—to make its first attempt to subpoena Mendro and Poli. 
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¶ 54 Although more than a decade had passed since these officers were involved in the case 

(they wrote contemporaneous police reports), trial counsel simply assumed that they were still 

employed by CPD. Counsel accordingly had subpoenas delivered to police headquarters, on the 

assumption that such “agency service” would suffice. It was not until the start of the trial that 

counsel discovered the officers had both retired, and so neither officer had been served. With the 

State’s help, trial counsel located their current addresses and tried again to serve them, in the 

midst of the trial, but those efforts did not succeed. In the end, the defense never managed to 

subpoena either officer.

¶ 55 Trial counsel waited even longer to try to serve Mateski, the nurse who treated M.C. at 

West Suburban Hospital. The defense first attempted to serve Mateski on the morning of jury 

selection. Counsel had a subpoena delivered to the hospital, where Mateski was still employed. 

But she had just gone on maternity leave, having given birth the week before, and the hospital 

declined to give out her home address. Thus, the defense did not manage to serve Mateski, either. 

¶ 56 The record thus makes clear that while the defense was unable to procure the testimony 

of these witnesses, they were not, strictly speaking, “unavailable” at all—much less rendered 

unavailable by 20- or 30-month delay (depending on how one counts) in charging defendant. 

Unlike in Barket, 530 F.2d at 196, cited here by defendant, in which six prospective witnesses 

died during a nearly 4-year delay in filing charges, the witnesses here were all alive and well and 

living locally. The fact that they were all either retired from the police force or on maternity 

leave did not mean that the defense could not subpoena them to testify; that merely made the 

process a bit more complicated. The problem, ultimately, was that trial counsel waited until the 

last minute, and when unexpected complications arose—as they so often do—the defense was 

unable to perfect service in time.
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¶ 57 This is not the first time we have reached essentially the same conclusion. On direct 

appeal, defendant argued that the trial court’s refusal to grant a mid-trial continuance, so that he 

could keep trying to subpoena Poli, denied him his right to present a complete defense. We 

rejected that argument, finding, among other things, that the defense’s inability to procure Poli’s 

testimony was the result of its own lack of diligence in serving him. Kirkman, 2016 IL App (1st) 

131475-U, ¶ 93. 

¶ 58 The trial court also reached this conclusion in the post-trial proceedings—and not only 

with respect to Poli, but with respect to all three of these prospective witnesses. The trial court 

expressly found that trial counsel was deficient for failing to timely serve them. Part of the trial 

court’s point, as we understand it, is that the defense’s inability to procure the testimony of these 

witnesses was not the result of any delay in charging defendant. Thus, it did not support a claim 

of prejudice caused by pre-indictment delay and did not provide any basis for dismissing the 

indictment on due-process grounds. On this point, we completely agree with the trial court’s 

assessment.

¶ 59 That leaves Johnson. At the time of the sexual assault, he was in his thirties and dating 

15-year-old M.C. Small wonder that he gave the police a false name, later derailing the State’s 

efforts to find him during its pre-trial investigation. Eventually, the State tracked him down and 

shared his whereabouts with the defense. In late December 2009 and early January 2010, as the 

trial approached, Johnson was on parole and living with his mother. The defense tried to serve 

him at least four times. But he was never home. 

¶ 60 As the trial was getting underway, a defense investigator finally managed to get Johnson 

on the phone, after leaving a subpoena with his mother. Johnson told the investigator, in no 
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uncertain terms, that he wanted nothing to do with this case: He would not appear in court or 

testify on defendant’s behalf, and he would refuse service of any subpoena. 

¶ 61 Johnson chose, of his own accord, to make himself unavailable to the defense. Indeed, as 

we noted in our decision on direct appeal, “[i]t is not surprising” that he “would be uninterested 

in participating in this trial,” given, among other things, that he was a grown man dating a minor 

at the time of the events in question. Id. ¶ 107. 

¶ 62 In the same vein, the trial court expressly found that Johnson’s unavailability was not 

attributable to the State’s delay in charging defendant, but rather to Johnson’s own conduct—

namely, that he was “avoiding service” and “ducking” the defense. And, we would add, flatly 

refusing to testify or otherwise cooperate when the defense eventually tracked him down. 

¶ 63 In short, Johnson’s unavailability was not caused by any pre-indictment delay, and given 

his efforts to steer clear of this case from the very beginning, by giving the police a false name, 

there is simply no reason to think that he would have been of a different mind had the State 

indicted defendant 20 or even 30 months earlier than it did. Thus, Johnson’s unavailability to the 

defense does not even arguably support a claim of prejudicial pre-indictment delay.

¶ 64 Two final points. First, the parties extensively discuss the question of whether the 

purported testimony of these witnesses would have been sufficiently favorable to the defense to 

show that he was prejudiced by the delay. (The trial court did not believe any of these witnesses, 

save possibly the nurse, would have been much help to defendant at all, given the defense of 

consent he was raising.) Because defendant’s claim fails for a more basic, threshold reason, we 

have no need to take up those arguments. 

¶ 65 Second, in the post-trial proceedings, the parties disputed the length of the pre-indictment 

delay attributable to the State. The dispute turned, in particular, on whether the delay should be 
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measured from March 30, 2005, when defendant was first required to submit a DNA sample; or 

from February 27, 2006, when ISP sent a written report of the CODIS match to CPD. (Nobody 

suggested December 20, 2005, when the CODIS match was first found.) On appeal, the parties 

say next to nothing about this dispute, and we need not resolve it to decide this case. Nothing we 

have said should be taken to imply anything, one way or the other, about when the clock starts to 

run on a pre-indictment delay in circumstances like these.

¶ 66 Because the pre-indictment delay had no impact on defendant’s ability to subpoena the 

police officers, nurse, and lay witness at issue here, defendant would not have prevailed on this 

pre-indictment-delay argument on direct appeal. Because there is no probability, much less a 

“reasonable probability,” that “the result of the proceeding would have been different” had this 

argument been raised on direct appeal, defendant cannot establish the prejudice prong of 

Strickland against direct-appeal counsel. Simms, 192 Ill. 2d at 362. The Strickland claim fails on 

that basis alone, and we need not consider the other prong of deficient performance. Perry, 224 

Ill. 2d at 342. 

¶ 67 CONCLUSION

¶ 68 For these reasons, we affirm the judgment of the circuit court. 

¶ 69 Affirmed.